KHALID SAEED and others vs NADEEM AHMAD KHAN and others

' Brief facts necessary for the disposal of this Constitutional petition are that respondent No,1 had filed an application under section 13 of the Urban Rent Restriction Ordinance, 1959 for the ejectment of petitioners claiming that they were tenants at the rate of Rs,2,000 per month 'vide agreement deed dated 3-5-1999 and had defaulted in payment of rent since April, 2000.

2. The petitioners filed an application for rejecting the rent petition on the ground that they are co- owners of the property in question and a civil suit for declaration and partition in respect of the said property is pending in Civil Court at Burewala.

3. The said application was opposed by respondent No,1 and it was ultimately dismissed by the Rent Controller vide order dated 8-1-2003. On the same day an order under section 13(6) of the Rent Restriction Ordinance was passed by him directing the petitioners to deposit arrears of past rent since April, 2000 at the rate of. Rs,2,000 per month within fifteen days and to deposit future rent due at the same rate before 15th day of each month.

4. The aforesaid order of Rent Controller is called in question in this Constitutional petition on the ground that Rent. Controller had exceeded his jurisdiction inasmuch as the petitioner had not so far submitted reply to the rent petition and that in the application submitted by the petitioners for rejecting the rent petition, they had claimed joint ownership in the disputed property and had never admitted the relationship of landlord and tenant.

5. Writ petition is strongly opposed by the learned counsel for respondent No,1 on the ground that order under section 13(6) of the Rent Restriction Ordinance is an interim order against which writ does not lie.

6. Arguments heard. Petition and its annexures perused.

7. There is no cavil to the proposition that an order passed by Rent Controller under section 13(6) ibid is not amenable to writ jurisdiction but such order can be passed by the Rent Controller only when relationship of landlord and tenant is shown to be existing or is admitted to be existing.

8. In the present case such relationship was not admitted by the petitioners and in a miscellaneous application filed by them for rejecting the rent petition they had claimed as co-owner in the said property. They have admittedly not yet filed reply to the rent petition, hence order to deposit rent prior to determining such relationship was manifestly without jurisdiction and a nullity in the eye of law and an order without jurisdiction can be assailed in writ jurisdiction.

9. The impugned order is, therefore, declared to have been passed without jurisdiction and without lawful authority and is of no legal effect.

10. Rent Controller is directed to obtain reply from the petitioners and if they deny the relationship, to frame a preliminary issue about existence of relationship of landlord and tenant between the parties and to decide the same in accordance with law after affording an opportunity to the parties to produce evidence on the said issue.

' Writ .