'MUHAMMAD ASHRAF BHATTL J.---The disputed property comprises of Khasra Nos.595/1 and 596/1 consisting of a Theatre Hall, Cinema Hall, Shops, Rooms, etc., which were rented out to the petitioner vide rent deed dated 22-7-2006 at monthly rent of Rs,32,000 with effect from 22-7-2006 to 21-7-2011. Claiming violation of the terms and conditions settled in the said agreement of tenancy on the part of the petitioner, Muhammad Azeem, respondent No,1 filed an ejectment petition in the Court of learned Rent Controller at Gujranwala. The learned trial Court directed the petitioner to deposit Rs,6,08,000 as arrears of rent for the last 19 months (i.e. From January, 2007 to 3rd November, 2008) at the rate of Rs,32,000 p.m. This petition was resisted by the present petitioner with the plea that despite having paid. Rs,1,00,000 as security in cash to respondent No,1 possession of the rented premises had not been delivered to him and so, there was no justification of the order passed by the learned Rent Controller, which is now the subject matter of this writ petition alleging it illegal and not sustainable in the eyes of law, mainly on the ground that the tenancy deed had not come into existence in view of the absence of delivery of possession thereof in favour of the petitioner.
2. This petition has been resisted by the learned counsel for the respondent No,l.
3. Arguments heard and available record perused.
4. Admittedly, during the pendency of the aforesaid ejectment petition one Muhammad Anwar also filed an application to get himself impleaded as party, which was dismissed by the learned Rent/Controller on 11-10-2008. Against this man the respondent No,1 alleged that the petitioner had sub-letted the said premises in his, favour.
5. A cursory look at the averments made in the ejectment petition would reveal that Muhammad Azeem claims to be the exclusive owner of the disputed property who rented out the same to the petitioner along with delivery of possession thereof. The petitioner does not deny the execution of this rent deed. Even in his reply to the ejectment petition he did not categorically deny the factum of payment of rent on his part from September, 2006 to December, 2006 as alleged by respondent No,1 in para-5 of his ejectment petition which may be taken as an admission on his part as to creation/continuation of tenancy in pursuance of the said document. In this regard there is a lot of weight in the arguments of the learned counsel for respondent No,1 that had the petitioner not been given possession of the rented premises as per aforesaid rent deed he would not have paid the monthly rent thereof from September, 2006 to December, 2006. According to him the dispute arose when the petitioner later neither paid the rent nor observed the terms and conditions of the rent deed i.e. Subletting the same in violation of the rent deed.
6. Similarly, there is no clear rebuttal of another allegation levelled by respondent No,1 in the same para to the effect that the petitioner had sub-let the disputed property in favour of Muhammad Anwar, the previous tenant. The receipt of Rs,1,00,000 was, however, not denied by respondent No,1 who alleged that it was to be repaid to the petitioner on vacation of the rented premises.
7. The above discussion, therefore, leads us to the conclusion that the factum of delivery or otherwise of possession of the rented premises or sub-letting thereof requires recording of evidence to resolve the controversy which exercise can't be undertaken by this Court in writ jurisdiction. Additionally relying upon Bashir Ahmad Khan v. Malik Mehdi Khan and another (1987 CLC 1620) this petition is not competent when specially the impugned order can be challenged in appeal on final disposal of the ejectment petition. The dictum laid down by this Court in the said case runs as under: "8...The impugned order is admittedly interlocutory in nature against which no appeal has been provided. If the Legislature in its wisdom has not thought it fit to provide the remedy of appeal against an interlocutory order, it cannot be permitted to be agitated in writ jurisdiction as that would amount to defeating the legislative intent. Reference in this behalf may usefully be made to the following observations in Muhammad Saeed v. Mst. Saratul Fatima and another (PLD 1987 Lah.
1459).
'What the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at higher level, the constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutta v. Chief Administrator Auqaf, etc.,"
8. Consequently the order passed by the learned Rent Controller is well reasoned warranting no interference by this Court in exercise of its Constitutional powers. The D petition in hand, being devoid of any merit, is accordingly dismissed in limine.