MUHAMMAD JEHANGIR ARSHAD, J.--- Through this Constitutional petition the interim order dated 16.2.2006 passed by learned Rent Controller under section 13(6) of Urban Rent Restriction Ordinance directing the petitioner to deposit the monthly rent of the premises at the rate of Rs.
15,000/- before 15th of every month, has been sought to be quashed on the ground that in view of denial of relationship of landlord and tenant by the petitioner, the learned Rent Controller had no jurisdiction to pass the said order without recording specific findings about existence of relationship of landlord and tenant between the parties.
2. The facts in brief are that respondent No. 2 claiming himself to be the owner of non-residential property (fully described in the petition), filed an ejectment petition against the petitioner on the ground of default as well as personal requirement. The said application was contested by the petitioner through written reply wherein the petitioner not only denied the existence of relationship of landlord and tenant but also challenged the title/ownership of respondent No. 2. The leaned Trial Court in view of pleadings of the parties framed the following issues on 8.11.2005 and put the parties at trial:--- ISSUES:
(1) Whether petitioner has no cause of action and locus standi and petition is not proceed able in its present form? OPR.
(2) Whether there exist relationship of landlord and tenant between the parties? OPD.
(3) Whether petition has been filed in order to harass the respondent, hence is not maintainable in its present form? OPR.
(4) Whether petitioner has issued notice under section 13-A of Rent Restriction Ordinance dated 18.2.2005? OPP.
(5) Relief.
However, on an application moved by respondent No. 2 the learned Trial Court vide order dated 16.2.2006 directed the petitioner to deposit in Court the monthly rent at the rate of Rs. 15,000/- before 15th of every month subject to final determination at the time of final decision. The petitioner assails the said order of the learned Rent Controller through the instant petition.
3. It is argued by learned counsel for the petitioner that in the presence of expressed denial by the petitioner about existence of relationship of landlord and tenant between the parties and after framing an issue to this effect, no justification/jurisdiction was left with the learned Trial Court to have passed the impugned order without recording definite findings about existence of such relationship. Learned counsel in support of this contention has placed reliance on the case "Akhtar Ali Pervaiz vs. Altafur Rehman" (PLD 1963) (W.P Lahore 390-Full Bench). It is further argued that the impugned order 16.2.2006 in fact amounts to review the earlier order dated 15.3.2005 and as the power of review can only be exercised when the same is conferred on the Court/Tribunal and since the Rent Controller has no power to review its own order under the Urban Rent Restriction Ordinance, `hence the impugned order was passed without jurisdiction. Learned counsel in support of his above contention has placed reliance on the case "Ch. Ljaz Sarwar vs. Nadeem Farooq and another"
(2004 C.L.0 1525) and "Muzafar Ali vs. Muhammad Shafi" (P.L.D 1981 Supreme Court 94).
4. On the other hand, learned counsel for the respondent/landlord has contested this writ petition on the ground that in view of expressed provisions contained in section proviso 5(i), proviso of the urban Rent Restriction Ordinance prohibiting appeal against order made by the Rent Controller under sub-section (6) of Section 13 of the said Ordinance, this Court while sitting in Constitutional jurisdiction cannot entertain this writ petition in view of the law declared in the case "Abdul Rehman versus Haji 'Mir Ahmed Khan and another" (P.L.J 1983 S.C. 57) "Muhammad Saeed vs. Mst. Saratul Fatima and another" (P.L.D 1978 Lahore 1459) and "Syed Saghir Ahmed Naqvi vs. Province of Sindh through Chief Secretary, S&GAD, Karachi and another" (1996 S.C.M..R 1165), as the same would amount to defeating and deflecting the legislative intent and the aggrieved party still have a right to challenge- the order interlocutory in nature against the final order/judgment.
5. The above-mentioned arguments of learned counsel for the parties have been duly considered in the light of the facts as well as law cited above.
6. There isno cavil to the proposition that where the tenant has denied the relationship of landlord and tenant the learned Rent Controller before passing the order under Section. 13(6) of Urban Rent Restriction Ordinance should first decide the question of jurisdiction and the above cited Full Bench judgment of this Court in Akhtar's case is also supportive of the said proposition but the fact remains whether such an order if passed rightly (Sic) the Urban Rent Restriction Ordinance can be challenged at an intermediatory stage i.e. By way of Constitutional petition or the tenant should either comply with the said order and challenge the same in case final order is passed by the Rent Controller against him or to take the risk of ejectment order by non-compliance being finally passed by the Rent Controller and then to challenge vires of the same in appeal alongwith the final order, as held by the Hon'ble Supreme Court of Pakistan in the case "Abdul Rehman vs. Haji Mir Ahmed Khan and another (P.L.J 1983 S.0 57), "Syed Saghir Ahmed Naqvi vs. Province of Sindh through Chief Secretary, S&GAD, Karachi and another" (1996 S.C.M.R 1165), as well as by this Court in "Muhammad Saeed vs. Mst. Saratul Fatima and another" (P.L.D 1978 Lahore 1459). The Full Bench judgment of this Court referred to above and relied upon the learned counsel for the petitioner was not passed in Constitutional jurisdiction but passed in SAO against the final judgment of he Rent Controller, therefore, the said judgment to my humble view is not applicable to the facts and circumstances of this case, because at this stage we are only confined about the exercise of Constitutional jurisdiction of this Court against interlocutory orders, especially which were expressly declared non-appealable by the legislature. (Sick) of express decision of the Hon'ble Supreme Court in the above-cited judgment as well as Division Bench judgment of this Court in "Muhammad Saeed vs. Mst. Saratul Fatima and another" (P.L.D 1978 Lahore 1459), in my humble view this writ petition is not maintainable because the impugned order being interlocutory one, especially when the legislature having expressly made the same non-appealable. Therefore, I have no option but to dismiss the writ petition. The petitioner shall however, have a right to challenge the vires of the said order in case a final order is passed by the Rent Controller against him either on merits or due to non compliance of the same.
7. Since this Court on 27.3.2006 had stopped the Rent Controller from striking off the defence of the petitioner, therefore, propriety demands that petitioner be allowed time to comply with the impugned order of the learned Rent Controller because the act of Court should not prejudice any person. The petitioner is therefore, allowed to comply with the Order of the learned Rent Controller till 31.7.2006, failing which he shall face the consequence flowing from Section 13(6) of the Urban Rent Restriction Ordinance.