1. ' GULZAR AHMED, J.--- On 6-11-2008, while listed-applications were being heard by the Court, question arose about maintainability of the suit and counsel for the plaintiff and defendant No,4 argued on this point. For citing necessary case-law by the learned counsel for the parties, the matter was adjourned to 12-11-2008, when the counsel for plaintiff and defendant No,4 made further submissions and cited case-law. Counsel for defendants Nos.1 and 2 who made appearance on 12-11-2008 stated that in view of the order passed in Constitutional Petition No,D-117 of 2005 and filling up for underground locker, the defendants Nos.1 and 2 withdraw their notice dated 7-2-2005 filed with the plaint as Annexure "C" aggrieved of which plaintiff has filed this suit and that the defendants Nos.1 and 2 are not going to take any action against the plaintiff.
2. ' Learned counsel for the plaintiff stated that the plaintiff grievance is not merely against Annexure "C" to the plaint, but plaintiff has made additional prayer of declaration for regularization by K.B.C.A.
3. Of underground locker, through an application seeking amendment in the plaint.
4. ' Plaintiff has obtained Shop No,1 in a building on Plot Nos.59-C and 60-C Block-2, P.E.C.H.S. Tariq Road, Karachi, on rent from defendant No,4 through an agreement dated 1-3-1993. It is alleged that the said shop was constructed for carrying on business of Jewelry and had a strong room/underground locker constructed in it. It is alleged that dispute between the plaintiff and defendant No,4 arose when defendant No,4 agreed to sell the said property to the plaintiff, which ultimately led to litigation by way of two suits which were compromised. It is alleged that defendant No,4 started raising construction of upper floor which was objected by the plaintiff, which annoyed defendant No,4, who started harassing the plaintiff to eject him from the said shop.
5. It is alleged that defendant No,4 enjoyed influence with the defendant No,1, pursuant to which a notice was issued to the plaintiff against unauthorized construction of basement in shop, which was required to be removed within 24 hours. It is alleged that underground locker was made before the agreement dated 1-2-1993 and that the locker does not fall within definition of term "basement" and that notice issued by K.B.C.A. Was without authority. The notice was replied by the plaintiff, pursuant to which, officials of K.B.C.A. Visited the shop and found no fresh construction and observed that the locker is not a basement. It is alleged that some other official, of K.B.C.A. Then extended threats of sealing of the plaintiff's shop, pursuant to which, plaintiff filed the suit seeking declaration against notice of K.B.C.A. And injunction. With the plaint, plaintiff filed an application for interim order on which order was passed that no coercive action of demolition of strong room constructed underground the shop be taken.
6. ' With the filing of the suit, plaintiff also filed Constitutional Petition No,D-117 of 2005, in which the plaintiff raised grievance against construction of 2nd and 3rd floor of the building by defendant No,4. In this petition, an order, dated 23-1-2008 was passed, in which it is noted that construction of 2nd and 3rd floor, made by defendant No,4, has been regularized by the K.B.C.A. And additionally the fact of underground locker was brought to the notice of the Court and Court observed that despite pendency of this suit, Authority may take action and implement the law. It appears that K.B.C.A. Filled up and eliminated the underground locker and a report in this respect was submitted in the Court and the petition was disposed of.
7. ' It further appears that the plaintiff had filed Civil Petition No,160-K of 2008 in the Honourable Supreme Court, which petition was not pressed and was dismissed with observation that the civil litigation pending between the parties shall be decided on its own merits without being influenced by the observations given in the impugned order passed in the said constitutional petition.
8. ' So far the question of underground locker is concerned as it stands today, the same has been filled up and apparently is not in existence. Learned counsel for the defendant No,4 has stated that defendant No,4 as landlord has filed ejectment application against the plaintiff being Rent Case No,36 of 2005 in the Court of IXth Rent Controller Karachi-East, alleging illegal construction of underground locker by plaintiff and that such rent case is pending which is being contested by the plaintiff and that this Court will have no jurisdiction to enter upon and determine the dispute pending before the Rent Controller.
9. On the other hand, Mr. Shafi Siddiqui, learned counsel for the plaintiff has made a two-fold arguments one is that the question as to whether there existed an underground locker in the shop rented out to the plaintiff, is a very technical and difficult question, which cannot be adjudicated and determined by Rent Controller, and secondly that the declaration of regularization by K.B.C.A.
10. Of the underground locker, sought by the plaintiff through an amendment application, will not be grantable by the Rent Controller, but only by this Court. To substantiate his first submission, he has referred to some evidence and the judgments reported in PLD 1990 SC 382, 1987 CLC 1241, 1991 CLC 1364 and 1983 SCM R 1064. As against this Mr. Rizwan Ahmed Siddiqui, learned counsel for defendant No,4 has relied upon PLD 2003 Kar. 444, 1996 CLC 356 and 1990 SCMR 54.
11. ' I have considered the submissions made by the learned counsel for the parties.
12. 'It is admitted position that defendant No,4 as landlord has filed an ejectment application by way of Rent Case No,36 of 2005, before Rent Controller against the plaintiff on the ground that plaintiff has illegally constructed underground locker in the shop rented out to him. Such rent case seems to have been filed by defendant No,4 against plaintiff under section 15(2)(iv) of Sindh Rented Premises Ordinance, 1979, (the Ordinance). Section 13 of which provides that no tenant shall be evicted from the premises in his possession except in accordance with provision of this Ordinance.
13. Section 15 provides the grounds on which ejectment could be sought by the landlord. Section 19 provides for procedure to be followed by the Rent Controller in rent proceedings. Section 20 provides that the Rent Controller and Appellate Authority shall have the power of Civil Court under the C.P.C. For matter stated therein. Section 21 provides for an appeal against order of Rent Controller and the procedure that has to be followed by Appellate Authority and section 22 provides for execution of final order by the Rent Controller and separate suit is barred in matters which are subject of determination in execution. The Ordinance as noted above is a self-contained legislation dealing with question, inter alia, of ejectment of tenant from rented premises in which forum of appeal is also provided.
14. ' Learned counsel for the plaintiff has cited cases in which the relationship of landlord and tenant were in dispute and the Court has held that where the very question of ownership and title of landlord is in doubt, the landlord be left to obtain clearance of his ownership and title from Civil Court as it involves complicated questions and requires protracted inquiry which the Rent Controller cannot decide because it is required to decide cases expeditiously on somewhat summary enquiry. In the present case, there is no dispute with regard to ownership or title of rented premises. As to the fact that whether there was an underground locker in the shop at the time it was rented out to the plaintiff by the defendant No,4 or it has been constructed by the plaintiff subsequently is very much in dispute in the rent case before the Rent Controller to which is attached the very fate of the tenancy. In the case of Qamar Din v. Sungreen & Co. Ltd., Karachi PLD 1980 Kar. And Quetta 317 Naimuddin, J. (as his Lordship then was) after considering the various case-law on the point of jurisdiction of Rent Controller came to the conclusion that a suit by landlord against the tenant for ejectment will not lie but ejectment of tenant can only be ordered through proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959 by the Rent Controller. Conversely, it can safely be stated that the tenant cannot justifiably maintain a civil suit for determination of question by Civil Court of which the Rent Controller under the Ordinance is seized. It is not argued before me that Rent Controller has no jurisdiction to adjudicate and determine the dispute which is pending before it between plaintiff and defendant No,4. No question of jurisdiction having been raised, such dispute should be left within the domain of Rent Controller and the suit to determine such dispute will not lie, more so, when by a special statute specific jurisdiction has been conferred on the Rent Controller to determine the dispute and no amount of technicality or difficulty of question will take away from the E jurisdiction of the Rent Controller the dispute which it is otherwise competent to decide.
15. 'In case, the plaintiff ultimately, is unable to succeed in the proceedings under the Ordinance and his ejectment is ordered, the question of granting him relief of declaration of regularization by K.B.C.A. The underground locker will become a non-issue between the plaintiff and defendant No,4 for the reason that if plaintiff is ejected, his ejectment will also be from the alleged underground locker and the plaintiff will have no interest in the premises. In case, the plaintiff ultimately succeeds in the proceeding under the Ordinance that there was an underground locker in the shop which was rented out to him by defendant No,4, his cause of action for seeking regularization from K.B.C.A. Of said underground locker will materialize and at that point of time the plaintiff will be justified in filing of the suit for such relief. As it appears today, the very question of there being an underground locker in the shop or not, is a question which is pending before the Rent Controller and until it is finally decided, the cause of action of plaintiff will remain premature for seeking declaration from K.B.C.A. Of regularization of underground locker and no adjudication in this respect can be made by Civil Court unless the right of plaintiff to hold the shop and the alleged underground locker is finally determined in the rent proceeding. The underground locker, admittedly has been filled up and is not in existence.
16. 'Consequently, it is held that plaintiff has no subsisting cause of action to maintain the present suit and, therefore, the plaint is rejected under Order VII, rule 11, C.P.C. All listed and pending applications are also disposed of.