Tuesday, 14 October 2014

Order passed by Rent Controller under section 44 is not appealable

PLJ 2014 AJ&K 299
Present: Azhar Saleem Babar, J.
versus
Malik ABDUL REHMAN & 7 others--Respondents/Non-Petitioners
W.P. No. 107 of 2005, decided on 27.1.2014.
----S. 44--Order passed by Rent Controller was an administrative order which was not appealable--High Court does not sit as Court of appeal against order passed by Special Tribunal--Validity--In order to get order set-aside passed by tribunal in a writ petition, petitioner has to show that the tribunal or authority has travelled beyond its jurisdiction while passing impugned order.          [P. 301] A
----S. 44--Litigation claimed to be owners in equal shares--Rent Controller had handed over keys of one part of building to claimant--Validity--Rent Controller has rightly noted that closure of building for uncertain period would render loss to property, so he decided to hand over keys of one part of building to non-petitioners, by recording reasons that it was previously rented out to State Life Insurance Company by same claimant--Infirmity was found in order passed by Rent Controller.         [P. 303] B
----S. 18--Order of tribunal--Keys of building was handed over to claimant--Interlocutory order--Under Section 18 of Rent Restriction Act, a final order of Rent Controller can be challenged in appeal before Appellate Authority and order of handing over keys to claimant is obviously an interlocutory order, which does not resolve whole dispute--Order passed by Rent Controller was not appealable and finding of Appellate Authority was in accordance with law to that extent.  [P. 304] C
----S. 44--Necessary party--Petitioners had not been impleaded Rent Controller and appellate authority an non-petitioners--Validity--It is a settled principle of law that authority whose order was challenged in a writ petition, is a necessary party and without impleading same, writ petition was not maintainable.     [P. 304] D
Mr. Riaz Tabassum, Advocate for Petitioners.
Raja Muhammad Farooq Minhas, Advocate for Non-Petitioners.
Date of hearing: 27.1.2014.
Order
The above titled writ petition has been filed to call in question the validity of orders passed by Rent Controller, Mirpur and Appellate Authority/District Judge dated 30.11.2004 and 20.05.2005, respectively.
2.  Facts of the case are that an application for handing over the keys of a building named "Chouhan Plaza" was filed before learned Rent Controller on 30.11.2004. Learned Rent Controller recorded in his order that tenants of the buildings have evacuated the building of Chouhan Plaza and deposited keys with the Rent Controller. It was further stated in the order that keys of Northern part of the building have already been handed over to Ghazala Ajaib, whereas Southern part of the building is claimed by MalikAbdul Rehman to be in his ownership. It has also been stated in the order dated 30.11.2004 that a case regarding ownership of the building is subjudice before the Court of Additional District Judge, Mirpur. Learned Rent Controller opined that Southern part of the building is in possession of Malik Abdul Rehman, the applicant and if the building remains locked, it would suffer from damage. It was in these circumstances, when Rent Controller decided to hand over the keys of Southern part of the building to MalikAbdul Rehman, the non-petitioner, herein. Order dated 30.11.2004 further laid down a condition that Malik Abdul Rehman would be responsible for supervision of the building and the parties would be bound by the judgment in the case pending before the Court of Additional District Judge.
3.  Ghazala Ajaib and others, filed an appeal before the Court of District Judge/Appellate Authority against the order of Rent Controller, which was dismissed on 20.05.2005. The Appellate Authority while recording his order stated that the appellants could not point out that under what section of Rent Restriction Act, the appeal has been filed. It was further concluded that final order of the Rent Controller is appealable before the Appellate Authority but the order impugned, handing over the keys to the non-petitioner, herein does not fall within category of final order. The Appellate Authority further opined that order passed by Rent Controller is an administrative order, which is not appealable. The Appellate Authority further concluded that if at all the order passed by Rent Controller is appealable even then the appeal is barred by limitation.
4.  On the other hand, learned counsel for the private non-petitioner has contended that the writ petition is not competent for the reason that Naseem Begum, Qaiser Shehzadand Majid Ali, Petitioners No. 2,6 and 7 have filed the instant writ petition through their attorney. Attorney for these petitioners has hired the services of Mr. Riaz Tabassum, Advocate for this case but the Petitioners No. 2, 6 and 7 have withdrawn their authority by getting registered a Revocation deed/Abtalnama on 08.04.2005. A certified copy of Abtalnama has also been annexed with the written statement. He has further averred that appeal before the Appellate Authority/ District Judge against the order passed by Rent Controller was filed on 41st day of pronouncement of the impugned order, which was obviously hit by law of limitation as the limitation provided in the Rent Restriction Act for an appeal is 30 days. Learned counsel has further argued that the order passed by Rent Controller was an administrative order, which was not appealable before the Appellate Authority, so the order passed by Appellate Authority/ District Judge is quite in accordance with law.
5.  I have heard learned counsel for the parties. It may be stated at the outset that the High Court in its constitutional jurisdiction under Section 44 of the Interim Constitution Act does not sit as a Court of appeal against the orders passed by a special tribunal. In order to get the order set-aside passed by tribunal in a writ petition, the petitioner has to show that the same tribunal or authority has travelled beyond its jurisdiction while passing the impugned order. Further that the tribunal or   authority   has   passed  an unlawful  order  or  has  grossly  misread the evidence before it. Learned counsel for the petitioner besides
his arguments raised in the writ petition has relied on the following case:--
(i)         PLD 1981 Karachi 498
            It has been held that an interlocutory order passed by Rent Controller, whereby the whole dispute is resolved, is appealable. Order passed by the Rent Controller in this case has found to be arbitrary and unlawful, which was set-aside.
6.  It is worth mentioning that it was an appeal before the High Court under the provisions of Rent Restriction Ordinance, whereas the instant case is a writ petition. It is also worth mentioning that the Rent Controller has handed over the keys of one part of the building to the non-petitioners who claimed to be owners of that particular portion. So, the facts of the case are quite distinguishable.
(ii)        PLD 1963 SC 147
            It was held in the case titled Tahir Ali and others vs. Chief Judge Karachi small causes Court and anther that time spent in obtaining copies of order impugned is to be excluded. Obviously, the case is not so in the matter at hand.
(iii)       PLJ 1981 Karachi 372
            It has been concluded in this case that time taken between date of application and date when the copies are ready can further be excluded because such delay is due to carelessness of the copying agency.
(iv)       NLR 1979 Civil Lahore 538
            Condonation in filing of appeal has been dismissed in this case for the reason that provisions of Section 3 of Limitation Act do not apply to a case where the Court below being conscious of question of limitation condones the delay.
7.  During the course of arguments, learned counsel for the non-petitioners filed a copy of order of the Civil Court, which shows that case of the petitioner relating to ownership of the building in question has been dismissed for want of prosecution about a year ago. Learned counsel for the petitioners did not question the validity of order of dismissal, however, he maintained that a civil suit dismissed for want or appearance can be restored at any time and even if the limitation has passed, a suit for restoration can be filed. The arguments advanced by learned counsel for the petitioners may be good in principle but practical effect of the dismissal order by the Civil Court is that currently the petitioners have no dispute of ownership of the building in any Court of law. It may be mentioned here that order passed by the Rent Controller was subject to the judgment of Additional District Judge in civil suit/appeal, which has been sent to sleep a year ago. It may also be noticed that the order passed by Rent Controller does not relate to resolution of ownership of the building in question rather, the Rent Controller has just handed over the keys of one part of the building to a claimant. It is worth mentioning that parties to the litigation claimed to be owners of Chauhan Plaza in equal shares. Rent Controller has rightly noted that closure of building for uncertain period would render loss to the property, so he decided to hand over the keys of one part of the building to the non-petitioners, by recording reasons that it was previously rented out to State Life Insurance Company by the same claimant. I do not find any infirmity in the order passed by the Rent Controller.
8.  The current aspect of the matter is that the Petitioners No.2, 6 and 7 have withdrawn their authority given to their attorney, so attorney for these petitioners was not anymore competent to authorise an Advocate for filing the instant writ petition on their behalf. It is also noticed that the writ petition has been filed on 13.08.2005, whereas Revocation deed by the aforementioned petitioners has been registered on 08.04.2005. Argument advanced on behalf of the petitioners that the petitioners ought to have given notice to the attorney before withdrawing their authority is not tenable for the simple reason that a registered document cannot be questioned on such an excuse. Writ petition to the extent of Petitioners No.2, 6 and 7 is, therefore, not maintainable.
9.  Under Section 18 of Rent Restriction Act, a final order of the Rent Controller can be challenged in appeal before the Appellate Authority and the order of handing over the keys to the claimant is obviously an interlocutory order, which does not resolve the whole dispute. So, in my view, order passed by Rent Controller is not appealable and finding of the Appellate Authority/ District Judge is in accordance with law to that extent. It is also worth mentioning that the Appellate Authority did not condone delay infavour of the appellants before him and such a conclusion cannot be questioned through a writ petition. It may further be mentioned here that the petitioners in their appeal before the District Judge/ Appellate Authority have contended in Para 7 of the memorandum of writ petition that they got knowledge of the order passed by Rent Controller on 16.12.2004, so the appeal is within limitation from the date of knowledge. This argument is also weightless for the reason that when the limitation has been prescribed by a special statute, it cannot be condoned under Section 5 of the Limitation Act.
Another important aspect of the case is that the petitioners have not been impleaded Rent Controller and the Appellate Authority as non-petitioners. It is a settled principle of law that the authority whose order has been challenged in a writ petition, is a necessary party and without impleading the same, the writ petition is not maintainable. Supreme Court of Azad Jammu & Kashmir in a case titled Ch. Barkat Ali v. Muhammad Bashir and 2 others decided on 20.02.2013 has concluded that:
"The Rent Controller who passed the original order was a necessary party and was not impleaded as party, therefore, in their estimation, the learned High Court was lawfully justified to dismiss the writ petition on this sole ground."
The petitioners in the instant case have challenged the order passed by Rent Controller as well as Appellate Authority/ District Judge but both of them have not beenimpleaded as parties. The writ petition is, therefore, not maintainable on this ground as well.
Nutshell of the above discussion is that, the writ petition is dismissed with no order as to costs.

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