MUHAMMAD MUZAMMAL KHAN, J.--- This judgment proposes to decide four constitutional petitions, one in hand and the other Writ Petitions Nos.3273 of 2006 to 3275 of 2006 as all these petitions raise similar questions of law/facts and require interpretation of same provisions of law.
All these petitions assail orders dated 8-3-2005 and 20-12-2005 passed by the learned Rent Controller, Lahore, to be declared illegal, void and of no legal consequence, whereby petitioners/ tenants were directed to deposit future rent in terms of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 and their review petitions were dismissed, respectively.
2. Precisely, relevant facts are that a commercial building constructed on 29-Commercial Zone, Liberty Market, Gulberg-III, Lahore, was owned by Mst. Saeeda Sheikh, who died in the year 1999. The deceased owner had, in her lifetime, let out different shops to different tenants, who are in possession thereof and are writ petitioners before this Court. Respondents Nos.2 and 3 claimed themselves to be landlords of the different rented premises with the writ petitioners, which they sought to be vacated for their bona fide personal need in good faith, as according to them, respondent No.2 having retired from his service of Pakistan Air Force and respondent No.3 being from a traders' family, have decided to establish/run a departmental store in the demised premises, by filing four different applications under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959. Respondents Nos.2 and 3 did not plead default in payment of rent by any of the writ petitioners and the sole ground for their eviction was that of personal need.
3.Writ petitioners being respondents in the ejectment petition, contested the same by filing their written replies. Most of them denied ownership of respondents Nos.2 and 3 but admitted relationship of landlord/tenants besides urging by some of them, oral agreement of sale by deceased Mst. Saeeda Sheikh. Learned Rent Controller, cognizant of the matters, vide his order, dated 8-3-2005 directed the writ petitioners to deposit future rent as there was no outstanding rent/arrears before 15th of each succeeding month and on the same day, framed issues arising out of controversial stance of the parties.
4. Respondents Nos.2 and 3, in the meanwhile, filed applications complaining violation of order under section 13(6) of the Rent Restriction Ordinance and prayed for striking of defence of the writ petitioners. On the other side, tenants moved petitions under section 114 read with Order XLVII, rule 1, C.P.C. For recall of order dated 8-3-2005. Case of the petitioners was that since there was no ground of default in payment of rent in the ejectment petition, order under section 13(6) of the Ordinance (ibid) was unwarranted. Since order under section 13(6) of the Ordinance (ibid) stood complied, application filed by respondents Nos.2 and 3 was dismissed and the learned Rent Controller declined to review/recall its order under section 13(6) of the Ordinance (ibid) on the ground that he was legally obliged to pass the same, vide order, dated 20-12-2005. Petitioners thereafter, filed instant constitutional petitions with the prayer, noted above. Contesting respondents in response to notice by this Court, appeared and were represented through their counsel.
5. 1 have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for Aziz Ahmed Mughal (petitioner) that the Rent Controller had no jurisdiction to pass an order under section 13(6) of the above referred Ordinance while framing issues arising out of controversial cases set up by the parties, have not impressed me for multiple reasons. First reason being that there is no such clog in subsection(6) of section 13 and the other being that relationship of landlord/tenant is not denied by the writ petitioners/tenants. Had the tenants denied the relationship of landlord/ tenant, obviously earlier to framing of any issue in this behalf, order for deposit of rent could not have been passed, but where this relationship is admitted, there was no legal impediment on the powers of the Rent Controller to undertake both of these exercises simultaneously. Judgments relied by Ms. Uzma Latif Butt, Advocate, proceed on altogether different facts as in those cases relationship of landlord/tenant was denied. Even otherwise, no prejudice has been caused to the tenant by assumption of both these jurisdictions at one time. Argument of the learned counsel for the other writ petitioners (Mr. Mushtaq Raj, Advocate) that in absence of any ground for eviction of the tenants on the basis of default in payment of monthly rent, there was no necessity to bound down them to pay monthly rent in Court, appeared to be attractive, but minute scrutiny of the provisions under discussion revealed that during the course of proceedings, initiated under section 13 of the said Ordinance, whether those are based on default in payment of rent; bona fide personal requirement of the landlord; subletting of the rented premises or damage/diminishing of value of the rented premises, the Rent Controller is obliged to direct the tenant to deposit all the rent due from him, if he is in arrears and also to deposit monthly rent regularly till final decision of the case before 15th day of each month. This provision of law does not restrict the Rent Controller to pass order of deposit of rent only when there is a ground of default in payment of rent. None of the parties relied on any precedent case-law in pro or contra of the proposition and in absence of any Stari Decisis, we have to interpret the law, as it stands. For facility of reference section 13(6), which is the bone of contest between the parties, is reproduced as below:-- "13(6). In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the (fifteenth) day of each month the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck of and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine 'the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
(Underlining is mine, to highlight intent of this provisions).
The opening line of the above produced provision of Punjab Urban Rent Restriction Ordinance, left no room to accept submissions of the petitioners that order of deposit was illegal because such order had to be passed by the Rent Controller during the process of all kinds of petitions filed under section 13 of the Ordinance, including bona fide personal) need of the landlord as detailed in its subsection(2)(vi).
6. Nonetheless, the Ordinance in hand was promulgated only to regulate relationship of landlord and tenant, by providing mechanism for ejectment of tenants and it safeguards rights of both of them. Civil Procedure Code, 1908 is not applicable to the proceedings. Before the Rent Controller who in his discretion can adopt procedure of his choice and may apply to the proceedings before him, equitable principles of general civil law. Case if examined with this legal backdrop, in absence of any restriction in section 13(6) of the Ordinance, to pass order of deposit of rent either of arrears or of future, it was the prerogative of the Rent Controller to direct the tenant to deposit future rent with him and in this manner, as well, petitioners could not make out a case for interference by this Court. To my mind, such an order was necessary not only to place effective curb on the tendency of the tenants to prolong ejectment proceedings or to refuse payment of rent to the landlord, during his initiated proceedings but also to ensure regularization of terms of tenancy.
7. Above all, impugned orders were not only interim in nature but were also deliberately not made appealable by the legislature by attaching proviso to section 15 of the said Ordinance. It appears to be anomalous that when law-maker intends to keep the order under section 13(6) of the Ordinance passed by the learned Rent Controller, intact till the final decision of the case, by not providing any appeal thereagainst, the same should be allowed to be attacked in constitutional jurisdiction. Case if looked from another angle i.e. On the touchstone of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, writ petitioners have an adequate/alternate remedy of attacking the impugned order at the time of filing of appeal against final order by the Rent Controller, if case goes against them. In other words, pending ejectment proceedings, a tenant cannot be permitted to suspend those proceedings by initiation of collateral attack, which is prohibited by law governing the subject. While forming this view I have to my credit judgment by the Honourable Supreme Court in the case of Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCM R 1165,, wherein it was graciously held that constitutional jurisdiction should not be invoked in supersession of bar created by the statute governing the subject, whereby right to file appeal against interim order, was not provided.
8. I have yet another reason to abstain from invocation of my constitutional jurisdiction and that being that no prejudice has been caused to the writ petitioners/tenants, who were not in arrears of rent and no penal action against them has so far been taken in form of striking of their defence.
Tenants who had been paying rent directly to their landlords, will not deposit the same with the Rent Controller. During the course of hearing, it revealed that all the writ petitioners are complying with the order of deposit of rent much earlier to the target date fixed thereby. It goes without saying that Ordinance, 1959 is a special law and the Rent Controller is not a court in the strict sense, to whom, restricted powers of summoning of witnesses and compelling production of evidence as a civil Court were conferred by section 16 of the Ordinance. Other provisions of Civil Procedure Code, 1908, including those of its section 114 and Order XLVII were not available for undoing order, dated 8-3-2005, in absence of any provision in the Ordinance itself, thus, the Rent Controller could not review his order under section 13(6).
9. For the reasons noted above, the learned Rent Controller committed no error of law in passing the impugned orders, in absence of which no indulgence can be shown in constitutional jurisdiction of this Court. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs.