Rent Controller is Bound to Ascertain Relationship at Preliminary Stage

2008 C L C 547

[Lahore]

Before Syed Sajjad Hussain Shah, J

JEHANGIR KHAN JADOON----Petitioner

Versus

GULNIGAR MANZOOR and another----Respondents

Writ Petition No.1793 of 2007, decided on 14th January, 2008.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17(7)---Denial of relationship of landlord and tenant---Tentative rent order---Where the relationship of landlord and tenant was denied, Rent Controller was bound to treat such objection as a preliminary one and to tentatively determine that question in the light of the material brought on record by the parties or such material which the parties might produce.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary; S&GAD, Karachi and another 1996 SCMR 1165 rel.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 17 & 21---Constitution of Pakistan (1973), Art.199---Constitutional. petition---Tentative rent order---Petitioner/tenant had challenged tentative rent order passed by the Rent Controller whereby petitioner was directed to pay monthly rent upto specified date---Counsel for the landlady had raised preliminary objection that impugned order was interlocutory in nature and Rent Controller was competent to change and ;codify it finally; and on that basis said order was not open for decision in constitutional jurisdiction of High Court---Validity---Objection of landlady had force---Impugned order was tentative in nature and had to be merged in the final order, which would be appealable under S.21 of Islamabad Rent Restriction Ordinance, 2001---Petitioner had to wait for it to question same before Appellate Court---Impugned order, being provisional in nature, was not assailable in constitutional jurisdiction of the High Court.

Muhammad Saeed v. Mst. Saratual Fatima PLD 1978 Lah. 1459; Mian Manzar Bashir v. M.A. Asghar PLD 1978 SC 185; Mst. Bashir Begum v. Syed Ijaz Hussain PLD 1995 Lah. 392; Syed Abbas Ali Shah v. Syed Farhat Ali Shah and others 1984 CLC 881 and Syed Saghir Ahmed Naqvi v. Province of Sindh and others 1996 SCMR 1165 ref.

Petitioner Jahangir Khan Jadoon, Advocate in person.

Muhammad Rashid Qamar for Respondents.

ORDER

SYED SAJJAD HUSSAIN SHAH, J.---Jahangir Khan Jadoon petitioner has challenged the order., dated 31-7-2007 passed by the learned Rent Controller, Islamabad, whereby he directed him to pay rent at the rate of Rs.53,000 from 1-4-2007 uptil the next date of hearing with a further direction to deposit future monthly rent at the same rate before 15th of each month.

2. Briefly, the facts of the case are that respondent No.1 filed an ejectment petition against the petitioner on 19-4-2007 in the Court of Rent Controller, Islamabad, to which he filed reply. Thereafter, the learned Rent Controller passed the impugned order for depositing monthly rent at the rate of Rs.53,000 from July, 2007 until the next date of hearing in Court. He was further directed to pay future rent at the same rate before 15th of each month. The petitioner has assailed this order through this petition.

3. It is contended that no relationship of landlady and tenant exists in between the petitioner and the respondent and the Rent Controller was bound to frame the issue, record the evidence of the parties and decide the same before passing an order under section 17(7) of Islamabad Urban Rent Restriction Ordinance, 2001. Further contends that the impugned order is based on misreading and non-reading of available record. Further submits that the respondent obtained the possession of the upper portion and is receiving the rent from the occupant.

4. Conversely, learned counsel for the respondent has raised a preliminary objection that the order passed under section 17(7) of the aforesaid Ordinance was interlocutory in nature and the learned Rent Controller was competent to change/modify it finally. On this basis, the order was not open for decision in constitutional jurisdiction of this Court. He relies on the judgment reported as Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165. Further contends that the impugned order was just and correct and did not suffer from any jurisdictional or legal defect. Lastly submits that the petitioner has himself placed on record a lease agreement, which is admitted by both the parties, therefore, he himself has admitted, the relationship of landlord and tenant and agreed to pay rent at the rate of 53,000 per month, therefore, in the circumstances, there was sufficient material for passing the impugned order.

5. Arguments heard. Record perused. It is settled law that where the relationship of landlady and tenant is denied, the learned Rent Controller is bound to treat such objection as a preliminary one and to tentatively determine this question in the light of the material brought on record by the parties or such material which the parties might produce. In the instant case, the learned Rent Controller has undertaken this exercise by passing an order under section 17(7) of Islamabad Rent Restriction Ordinance, 2001.

6. The petitioner in reply to the ejectment petition has not denied the relationship of landlady and tenant between him and the respondent. The respondent has annexed a copy of the lease agreement, dated 15-4-2006 with her ejectment petition, which was admitted by the petitioner and even the petitioner himself appended the said lease agreement with this petition in which the rent was agreed or settled as Rs.53,000 per month. Today, it has been contended by the learned counsel for the petitioner that the relationship of landlady and tenant does not exist between him and the respondent. When confronted with the said agreement, he has taken the stances that the upper portion is not in his possession whereas according to another agreement (at page 34) appended with this petition, he himself has sublet the upper portion to one Atif Masood Khan son of Masood Ahmad, therefore, in such circumstances he cannot be allowed both, approbate and reprobate, to say one thing at one hand and turn around at the other to say other thing in the same matter by taking different stances. The RentController after considering the material placed on record has rightly passed the impugned order, which does not call for any interference by this Court.

7. The objection of the learned counsel for the respondent that the impugned order passed by the learned Rent Controller is interlocutory in nature, which is not appealable under the provisions of the ibid Ordinance as it finally merges in the final order so the aggrieved party has to wait for final order and challenge it before the Appellate Court and this petition is not competent against an interim order, has some force. The provisions of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, are identical to that of section 17(7) of Islamabad Rent Restriction Ordinance, 2001, and a similar question came up for consideration before the Division Bench of this Court in Muhammad Saeed v. Mst. Saratul Fatima PLD 1978 Lah. 1459, the relevant paragraph reads as under:---

"The Legislature manifested its intent unequivocally by prescribing two broad categories of all orders passed under West Pakistan Urban Rent Restriction Ordinance, 1959 {VI of 1959) by making the more determinative orders constituting the smaller category appealable and all other forming the larger category non-appealable. The scheme of such categorization, the limits and the rationale thereof has been fully considered in Mian Manzar Bashir v. M.A. Asghar PLD 1978 SC 185. It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important and higher level, the Constitutional jurisdiction. Any contention, or practice to the contrary would defeat and defect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutta v. Chief Administrator Auqaf and others 1976 SCMR 450."

8. The view taken in Muhammad Saeed's case (supra) was followed by my learned brother Mr. Justice Khalid Paul Khawaja, J (as he then was) in Mst. Bashir Begum v. Syed Ijaz Hussain PLD 1995 Lah. 392 so far as the case reported as Syed Abbas Ali Shah v. Syed Farhat Ali Shah and others 1984 CLC 881 is concerned, suffice it to say that in this case the judgment of the Division Bench was not cited before the learned Single Judge in Chamber of this Court, therefore, the case was not properly decided. Furthermore, the view taken by the Division Bench of this Court is binding upon this Court. The view taken by the Division Bench was also approved by the Honourable Supreme Court in the case reported as Syed Saghir Ahmad Naqvi v. Province of Sindh and others 1996 SCMR 1165, the principle propounded by the Division Bench was reaffirmed. It will be helpful to reproduce the relevant portion of this report as under:--

"The Statute excluding a right of appeal from the interim order cannot be bypassed by bringing under attack such interim orders in constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created' for the purpose of examining such orders."

9. In view of the above, I am of the definite view that the impugned order was tentative in nature and has to be merged in the final order which would be appealable under section 21 of Islamabad Rent Restriction Ordinance, 2001, therefore, the petitioner has to wait for it to question the same before the Appellate Court. However, the impugned order is provisional in nature and is not assailable in constitutional jurisdiction of this Court. Consequently, for the foregoing reasons, the instant constitutional petition being devoid of any force is dismissed with no order as to costs.

10. However, the trial Court is directed to decide the ejectment' petition within a period of six months, in accordance with law, from the date of receipt of this order.

H.B.T./J-20/LPetition dismissed.