Petitioner through the filing of the present Constitutional petition has assailed order dated 12.2.2004, whereby the learned Rent Controller while reviewing recalling his earlier order dated 29.4.2003 fixed the tentative rent of the property in question and directed the petitioner to deposit the arrears of rent.
2. Respondent No, 1 filed an ejectment petition seeking the eviction of the petitioner from the house in question on the grounds of default in the payment of monthly rent personal need of the ejectment petitioner and damaging the house in question. The said ejectment petition was resisted by the petitioner through filing the written reply, inter alia pleading that no relationship of landlord and tenant exist between the parties. In view of the pleadings of the parties the learned Rent Controller on 29.4.2003 framed the solitary issue viz "Whether there exists relationship of tenancy between the parties"? OPA -and set down the case for filing the affidavits of the witnesses. The Respondent No, 1 filed an application for review of order dated 29.4.2003, which application though was resisted by the petitioner, yet the learned Rent Controller accepting the said application, reviewed recalled order dated. 29.4.2003, fixed the tentative rent of the property in question Rs, 10,000/- and directed the petitioner to deposit the arrears of rent since institution of the ejectment petition i,e, July 2002 uptil now for 43 months" vide order dated 12.2.2001, hence the present petition.
3. Learned counsel for the petitioner has submitted that after framing the issue regarding the existence of the relationship of landlord and tenant the learned Rent Controller had no jurisdiction, under the law to review his order and pass the order for the deposit of rent therefore, the impugned order is without jurisdiction. The learned counsel for the respondent, while relying upon on Dad Muhammad vs. Qazi Muhammad Hayat and 11 others (PLJ 1996 Peshawar 178), Tariq Ali Sheikh vs. Rent Controller (Khalid Nawaz) Lahore and another (1998 CLC 460) and Ghulam Rasool vs. Mian Khurshid Ahmad (2000 SCM R 632), has supported the impugned order.
4. In view of the arguments of the learned counsel. I have examined the available record and find that the learned Rent Controller, after inspecting the pleadings of the parties and finding that the relationship of landlord and tenant is denied, rightly proceeded to frame the issue with respect to the existence of the relationship of landlord and tenant, vide order dated 29.4.2003, however, subsequently the learned Rent Controller reviewed recalled his earlier order in complete oblivion of the fact that the learned Rent Controller, under the provisions of Punjab Urban Rent Restriction Ordinance, 1959 had no jurisdiction to review his order.
5. There is no cavil with the proposition that the right of review is a substantive right and not a matter of procedure and no Court possesses the inherent powers to review its decree or order unless such a power is expressly granted by the statute. If any case, law is needed judgments reported as Riaz Hussain and others vs. Board of Revenue and others (1991 SCM R 2307). S.A Rizvi vs. Pakistan Atomic Energy Commission and another (1986 SCM R 965). Muzaffar Ali vs. Muhammad Shafi (PLD 1981 SC 94) and Hussain Bakhsh vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) can be referred. Admittedly, under the provisions of Punjab Urban Rent Restruction Ordinance, 1959, no power of review is conferred upon the learned Rent Controller and he has not been empowered to exercise the power of review. The provisions of the aforenoted rent law does not expressly provide the power of review, therefore, the learned Rent Controller, after passing order dated 29.4.2003, thereby framing the issue, was not competent to review its earlier order and to pass a fresh order under Section 13(6) of the Ordinance 1959. In view whereof, the learned counsel for the petitioner is right in submitting that the impugned order is without jurisdiction.
6. Now coming to the judgments relied upon by the learned counsel for the respondent. Suffice it to say that none of the judgments lays down that the learned Rent Controller has the power to review his order. In the case of Dad Muhammad (supra), it has been held that the Court making any improper or invalid or interim and interlocutory orders can modify rectify or alter the same to secure ends of justice. The said judgment is of no avail to the respondent as I feel that the earlier order dated 29.4.2003 was neither improper nor invalid and the same was passed completely in accordance with law. Additionally, the learned Rent Controller through passing the impugned order did not modify the said order but has reviewed recalled his earlier order which is not permissible under the law. I have also noticed that in the said case of Dad Muhammad (ibid), it has further been held that the learned Rent Controller before passing an order of deposit of rent has to resolve question of landlord and tenant between the parties and only whereafter he can assume the jurisdiction to proceed in the said matter.
8. In the case of Tariq Ali Sheikh (supra), this Court, while relying upon numerous judgments has held as under: ".... The ratio deducible from the above is that in a case where the relationship of landlord and tenant is denied, the Rent Controller is bound under the law to treat such objection as preliminary one and is to tentatively determine this question in the light of material brought by the parties or such material which parties might produce. This exercise has to be done by the Rent Controller before passing order under Section 13(6) of the Ordinance." Similarly in the case of Ghulam Rasool (ibid) the view taken by the Apex Court of the County is that where the relationship of landlord, and tenant was denied the Rent Controller in the first instance should decide the said issue before directing the tenant to deposit the arrears of rent or future rent.
The principles laid down in the said judgments are not attracted and applicable in the case in hand, as in none of the judgments it has been held that the Rent Controller has the power to review its own order. Rather the original order dated 29.4.2004, passed by the learned Rent Controller, is completely in consonance with the principle laid down in the said judgment.
9. In the above backdrop. I have examined the impugned order and find that the same is not sustainable in law, inasmuch as it was passed 'in excess of jurisdiction by the learned Rent Controller thus, I am inclined to set aside the same.
10. Upshot of the above discussion is that the present petition is allowed and the impugned order dated 12.2.2004 is declared to be illegal, without jurisdiction, without lawful authority and having no legal affect. Result would be that now order dated 29.4.2003 holds the field and the learned Rent Controller shall' decide the issue regarding the existence of relationship of landlord and tenant, after recording the evidence of the parties, hearing them and of course in accordance with law within a period of four months from today.