1. ' Respondents Nos.21 to 25 stand served with the notices as per endorsement of the bailiff of the Court, dated 15-8-2008. They have preferred to remain absent.
2. ' Heard learned counsel for the parties.
3. ' The admitted fact in between the parties is to the effect that deceased Ch. Noor-ul-Hassan was the owner of the property in dispute in suit/appeal and on his death his legal heirs filed Suit bearing No,696 of 2007 on the original side of this Court with prayer of partition of property. During the course of the same, learned Single Judge of this Court was pleased to direct for appointment of Receiver over the property involved in the suit and "in pursuance of such an order the Official Assignee took over the possession of the same". The present appellant claims himself to be the tenant in the disputed property and such relationship is admitted by the legal heirs of the said deceased owner.
4. ' The Official Assignee submitted a reference before the learned Single Judge for ejectment of the appellant/tenant from the said property and the question of fairness of monthly rent or otherwise, being paid by the appellant to the respondents, came under consideration before the learned Single Judge, who was pleased to pass the order, dated 14-5-2008 in the following terms:- "By-order, dated 1-11-2007, with the consent of all the learned counsel present, directions were issued that the Official Assignee to take over the possession from the tenants through the parties who have been inducted them. Now, the learned counsel for the plaintiffs submits that there remains only one tenant who has filed application (C.M.A. No,2209 of 2008) and is being represented by his counsel who states that the applicant may be allowed to file objections to the proceedings as he is occupying the portion No,1 of Bungalow No,29-B, Block-6, P.E.C.H.S., Karachi. He further submits that the applicant is on the monthly rent of Rs,4,500. Other learned counsel submit that although the applicant is a tenant but the figure of the rent has wrongly been mentioned as the market value of the said portion is much higher than that. They further submit that the sharers of the property were fully aware and have consulted the tenant and thereafter order, dated 1-11- 2007 was passed but since the plaintiff is not inclined towards sale and distribution of property, therefore, at this late stage he has manoeuvred the applicant and on his instigation listed application has been filed which is based on mala fide, while he is collecting much more rent from the said tenant.
5. ' The Official Assignee submits that the tenant is in possession of more than a half of the portion which is being confirmed by the learned counsel for the plaintiffs. He further submits that the rent of such a premises in that area would be more than Rs,50,000.
6. ' The other learned counsel also submit that the figure of the alleged rent is much less than the market value while property tax is higher than rent and now to delay the proceedings this issue has been involved by instigating the tenant to file this application.
7. ' Anyhow, keeping in view the past proceedings and stand taken by the applicant/tenant, he is allowed to file his objections subject to deposit of tentative rent of Rs,35,000 with the Official Assignee towards the monthly rent of the premises which will be exclusive of amenities charges. If the tenant failed to pay the said rent before 10th of each English Calendar month or to pay rent of this month i,e, May, 2008 upto 20th instant then Official Assignee will forcefully evict him and get the possession of the premises.
8. ' Mr. Aijaz Khattak, Advocate, undertakes that one tenant who has been inducted through him will also vacate the premises within a period of 15 days. The undertaking of Mr. Aijaz Khattak, Advocate, is taken on record."
9. ' Learned counsel for the appellant has argued that the relationship of appellant being a tenant of the respondents is admitted and that there is no dispute about the same. He has further argued that in case the respondents/landlords felt aggrieved against the fairness of the rate of monthly rent being paid by the appellant/tenant to the respondents then they were under the duty to have filed such an application under section 8 of the Sindh Rented. Premises Ordinance, 1979 and such a question is to be heard and decided only by a Rent Controller of the competent jurisdiction and further that no Civil Court inclusive this Court on its original side or otherwise shall be competent to directly hear such a question.
10. ' Section 8 of the said Ordinance reads as under:- ' Section 8 Fair Rent.--- (1) The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following factors:--
(a) the rent of similar premises situated in the similar circumstances, in the same adjoining locality;
(b) the rise in cost of construction and repair charges;
(c) the imposition of new taxes, if any, after commencement of the tenancy; and
(d) the annual value of the premises, if any, on which property tax is levied.
(2) Where any addition to or, improvement in any premises has been made or any tax, or other public charges has been levied, enhanced, reduced or withdrawn in respect thereof, or any fixtures such as lifts or electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section 9 to be determined or, as the case may be revised after taking such changes into consideration."
11. 'It is a settled principle of law that where a Special Tribunal/Court is constituted to hear and decide dispute which A come under the relevant statutes then all other Courts shall stand debarred from exercising the powers of the same nature. The respondents admittedly having not approached the Rent Controller B of the competent jurisdiction for the purpose of fixation of fair rent for the property involved in the suit/appeal, it was not within the rights/powers either of the Official Assignee to have made a reference to this Court on the original side with a prayer for fixation of the fair rent, nor the learned Single Judge would have exercised such a power.
12. ' Under the circumstances, this appeal is admitted as well as allowed, with the result that the impugned order passed by the learned Single Judge, only with regard to the direction regarding fixation of the rent and further direction to deposit the lumpsum/tentative amount of Rs,35,000 in the Court is set aside/recalled, leaving the respondents/landlords at liberty to approach the competent Rent Controller with a prayer to fix the rent of the disputed premises.
13. ' The appeal stands disposed of accordingly.