MUHAMMAD ALAM KHAN, J.---Dr. Abdul Waheed son of Sirajuddin has filed this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment and order dated 17.10.2006 of the learned Additional District Judge-III, D.I. Khan as Appellate Court under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, vide which the learned Appellate Court, on appeal filed by the respondent No, 1, held that the question of final determination of the rent between the, parties will be resolved by the learned Rent Controller under the provisions of Section 13(8) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
2. Briefly narrated the facts of the case are that Dr. Abdul Wahid petitioner had filed an eviction petition under the provisions of Section 13 of the Ordinance ibid for eviction of respondent No, 1 from the suit house on the grounds mentioned in the eviction petition. Similarly, Jaffar Ali, tenant, had also filed an application under section 10 of the Ordinance ibid before the Rent Controller praying therein that he is a tenant under the petitioner of the suit house on payment of Rs, 6000/- per month and from September, 2005 to September, 2007, he is residing in the suit house but the petitioner-landlord Dr. Abdul Wahid is not accepting the rent and thus, he prayed to be permitted to deposit the same before the Rent Controller.
3. As the learned Rent Controller was, by then, seized of an eviction petition, thus, under the provisions of Section 13(6) of the Ordinance ibid the learned Rent Controller passed an order tentatively assessing the rent of the suit house to be Rs, 9000/- and the tenant-respondent No, 1 was directed to deposit the same regularly and also arrears in the Court and in this way the application filed by the respondent for deposit of the rent was dismissed as having become infructuous.
4. It so happened that respondent No, 1-tenant failed to comply with the order of the Court to deposit the rent tentatively assessed and thus, the learned Rent Controller struck off the defence of the tenant-respondent No, 1 and passed an eviction order in Rent Petition No, 11 of 2006,decided on 24.6.2006.
5. The respondent No, 1 filed two appeals before the learned District Judge, D.I. Khan which were entrusted to Additional District Judge-III, D.I. Khan/Appellate Court under the Ordinance ibid for disposal and the learned Court, by judgment in Rent Appeal No, 2/2006, decided on 17.10.2006, dismissed the appeals of the tenant and directed him to hand over the vacant possession of the suit house to the petitioner-landlord. However, on the question of determination of the final rent between the parties, the matter was remitted to the learned Rent Controller for doing the needful.
The petitioner-landlord has now assailed the last mentioned order of the learned Appellate Court.
6. Mr. Minhajuddin Alvi, learned counsel for the petitioner contended that once the defence of the respondent was struck off then irrespective of the order under section 13(6) of the Ordinance ibid, the learned Rent Controller was bound to have decreed all the arrears of rent as claimed in the petition for eviction and thus, the assessment of final rent between the parties could not be resorted to by the learned Rent Controller. Reliance was placed on the cases of Waheedullah v. Mst.
Rehana Nasim and others (2004 SCM R 1568) and Hajvery College through Chief Executive, Lahore v. Mst. Masooda Begum (2004 M LD 1661 Lahore).
7. Syed Mastan Ali Zaidi, learned counsel for the respondent, who appeared on pre-admission notice, submitted that all the proceedings under section 13(6) of the Ordinance ibid were tentative in nature and non-compliance thereof resulted in the eviction of the tenant-respondent No, 1 pursuant to which; under the orders of the Rent Controller, the possession of the suit house has been handed over to the petitioner-landlord. It was also argued that on one hand, the petitioner claimed Rs, 15,000/- per month as tent of the suit premises while on the other hand the respondent No, 1 tenant, by submitting an application for deposit of rent, is admitting his liability to the tune of Rs, 6000/- per month as rent of the suit house and in this situation, the only course available was to determine the final rent of the suit premises by Controller and the learned Appellate Court has rightly sent the case back to the learned Rent Controller with the direction to determine the final rent between the parties under the provisions of Section 13(8) of the Ordinance ibid.
8. We have given our anxious consideration to the facts and circumstances of the case and have gone through the available record annexed with the petition.
9. Perusal of Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 would show that on filing of the eviction petition, the learned Rent Controller will pass a tentative order regarding the deposit of rent which the learned Rent Controller has done in the instant case and noncompliance of which resulted in striking off the defence and passing of an eviction order against respondent No, 1-tenant which order has become final and now there is no controversy left between the parties as the petitioner-landlord has been put in actual physical possession of the suit house.
10. Regarding the fixation of the final rent, the provisions of Section 13(6) of the Ordinance ibid would reveal that it is the Rent Controller who is to determine the final rent between the parties. For the sake of ready reference, the provisions of Section 13(6) of the Ordinance ibid are reproduced herein below:--
(6) In proceeding 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 approximately and direct that 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 off 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 may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant.
(7) Where the Controller is satisfied that any application made by a landlord for the eviction of a tenant is frivolous or vexatious, the Controller may direct' that compensation not exceeding ten times the monthly rent be paid by such landlord to the tenant.
(8) The rent deposited by the tenant under this section shall, subject to the final determination of rent as payable by the tenant, be paid to the landlord at the conclusion of the proceedings or on such earlier date as may be specified by the Controller."
11. The above reproduction of the relevant section of law would show that under section 13(8) of the Ordinance ibid if there is dispute between the parties with respect to the quantum of rent, the Rent Controller will finally determine the rent between the parties and will pay the same to the landlord after the conclusion of the proceedings. The hierarchy of Tribunals created under the Ordinance ibid had the jurisdiction to determine the final rent between the parties as the rent was in dispute and the only course available was to determine the same conclusively between the parties under the provisions of sub-section (8) of Section 13 of the Ordinance. The case-law referred by the learned counsel for the petitioner has got no relevancy with the facts of the present case.
12. The order of the learned Appellate Court impugned in this Constitutional petition is based on facts, law and is strictly in accordance with the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 which is not liable to be interfered with in the extraordinary Constitutional jurisdiction of this Court.
13. In view of the facts and circumstances of the case narrated above, there is no merit in this writ petition which is dismissed in limine with order as to costs.