2008 C L C 1666
Before Syed Qalb-i-Hassan, J
MUHAMMAD YOUNIS KHILJI and another----Respondents
Writ Petition No.677 of 2008, decided on 6th August, 2008.
(a) Islamabad Rent Restriction Ordinance (IV of 2001)---
----S. 17(8)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Determination---RentController, after going through pleadings of parties, passed tentative rent order for deposit of arrears of rent and future rent---Plea raised by tenant was that as he had denied relationship of landlord and tenant between the parties, therefore, RentController should have framed preliminary issue and provided opportunity to adduce evidence---Validity---If any party had denied relationship of landlord and tenant, RentController had to resolve the controversy before passing any tentative order for deposit of rent---Tenant had admitted in written reply, that he had entered premises as tenant and there was no agreement between the parties that tenancy had ceased and obligation of tenant to pay rent to landlord had been put to an end by way of any agreement or any other documentary evidence---Landlord, on the contrary had placed on record return of income tax and survey of business in which tenant himself had admitted to be in possession as tenant of the landlord---Tenant failed to produce any prima facie evidence in support of his assertions that he was not tenant of the landlord---High Court declined to interfere with the order passed by Rent Controller as the same was legal and justified---Constitutional Petition was dismissed in circumstances.
(b) Islamabad Rent Restriction Ordinance (IV of 2001)---
----Ss. 17(8) & 21(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Interlocutory order---Order passed by Rent Controller for deposit of tentative rent was assailed by tenant before High Court in appeal---Validity---Any appeal against interlocutory orders of Rent Controller which had not disposed of the entire case before it, was specifically barred under S.21(2) of Islamabad Rent Restriction Ordinance, 2001---Intention of legislature could be 'gathered from the provisions of S.21(2) of Islamabad Rent Restriction Ordinance, 2001, that same was to avoid delay in disposal of cases by Rent Controller, a specific bar had been imposed to challenge interlocutory orders passed by Rent Controller---Tenant could not be allowed to circumvent the legislative intent by filing Constitutional petition against interim order---Constitutional Petition was dismissed in circumstances.
Muhammad Shafi v. Rent Controller 1995 CLC 639, Messrs Silver Stone (Pvt.) Ltd. v.Rent Controller 1995 MLD 851 and Muhammad Saeed v. Mst. Sirat Fatima PLD 1978 Lahore 1459 rel.
Raja Inaam Amin Minhas for Petitioner.
Mian Abdul Razzaq for Respondent No.1.
SYED QALB-I-HASSAN, J.---Brief facts of the writ petition are that respondent No.1 filed an ejectment petition against the petitioner under Islamabad Rent Restriction Ordinance. The petitioner entered appearance and contested the petition by filing written reply and denied the relationship of landlord and tenant between the parties. The learned Rent Controller after hearing the arguments of the learned counsel for the parties passed order under section 17(8) of I.R.R.O., 2001 and directed the petitioner to deposit arrears of rent in the Court from 1-3-2005 to 30-6-2008 at the rate of Rs.87,000 per month till 17-6-2008 and further directed to keep on depositing the rent at the above said rate in the Court before 15th of each succeeding month till decision of the main petition. However, respondent No.1 was not allowed to draw the rent if deposited by the petitioner in the Court till final disposal of the case. The petitioner has challenged the validity and propriety of the order dated 22-5-2008 through the instant writ petition.
2. Learned counsel for the petitioner contended that the relationship of the landlord and tenant was categorically denied by the petitioner, therefore, the learned Controller while passing the impugned order has fell into a grave error. Learned counsel further contended that the learned Rent Controller was bound to frame issues before passing of orders under section 17(8), 2001. It is further added that the brothers of the petitioner are tenant who have also moved an application before Rent Controller for the deposit of monthly rent but the \learned Rent Controller has not adverted to the legal and factual aspect of the matter and erred in law while passing the impugned order. Learned counsel prayed that the impugned order may be set aside and the ejectment petition may also be dismissed in the interest of justice.
3. Learned counsel for the respondent contended that the relationship of landlord and tenant has been denied by the petitioner in his written reply just to prolong the proceedings otherwise there is sufficient documentary evidence, placed by the respondent on the file, which shows that the petitioner is tenant under the respondent. During the course of arguments learned counsel for the respondent has pointed out form of return of income tax for the years 1997-2006 and survey of business form wherein the petitioner has himself shown him in the possession of the demised premises as tenant. The learned counsel contended that in this view of the matter, the learned Rent Controller has passed the order for deposit of tentative rent in accordance with law. Learned counsel for the respondent has further contended that writ petition against interim order is not maintainable and liable to be dismissed on this ground alone.
4. Arguments heard and record perused.
5. It is not disputed that if any party denies the relationship of landlord and tenant theRent Controller has to resolve the controversy before passing any tentative order for deposit of rent but in the instant case the petitioner(tenant) had admitted .in his written reply that he entered the premises as tenant and there was no agreement between the parties that the tenancy had ceased and obligation of the tenant to pay rent to the landlord had been put to an end by way of any agreement or any other documentary evidence. On the contrary the respondent has placed on record return of income tax for the years 1997 to 2006 and survey business form wherein the petitioner has himself admitted to be in possession as tenant of the respondent, therefore, the petitioner has failed to produce any prima facie evidence in support of his assertions that the petitioner is now not the tenant of the respondent.
6. There is another aspect of the matter that the instant writ petition has been filed against interim order and section 21(2) of Islamabad Rent Restriction Ordinance, 2001 specifically bars any appeal against the interlocutory orders of the Rent Controller which does not dispose of the entire case before it. The intention of legislature can be gathered from the provisions of section 21(2) of the Ordinance that to avoid delay in disposal of the cases by the Rent Controller, a specific bar has been imposed to challenge the interlocutory orders passed by the Rent Controller, therefore, the petitioner cannot be allowed to circumvent the legislative intent by filing against the interim order a constitutional petition. There are numbers of judgments under West Pakistan Urban Rent Restriction Ordinance, 1959 and Cantonments Rent Restriction Act, 1963 wherein it has been held that if legislature has not made an interim order appealable, the writ petition cannot be permitted to be filed to challenge such an order. Reference may be taken from Muhammad Shafi v. Rent Controller 1995 CLC 639, Messrs Silver Stone (Pvt.) Ltd. v. Rent Controller 1995 MLD 851 and Muhammad Saeed v. Mst. Sirat Fatima PLD 1978 Lah. 1459. The relevant finding from Muhammad Saeed's case are as follows:--
"The Legislature manifested its intent unequivocably by prescribing two broad categories of all orders passed under the W.P. Urban Rent Restriction Ordinance VI of 1959 by making the more determinative orders constituting the smaller category appealable and all others forming the larger category non-appealable. The scheme of such a categorization, the limits and the rationale thereof has been fully considered in Mian Manzar Bashir v. M.A Asghar. It is therefore, follows that what the legislature held to be an interlocutory order not by itself to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level, the constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutta v. Chief Administrator Auquf and others."
7. The upshot of the above discussion is that looked at from whatever angle the orderofthe Rent Controller is legal and justified is not challengeable in view of law laid downby the Superior Courts in writ jurisdiction. Resultantly the law petition is dismissed.