1. ' TUFAIL H. EBRAHIM , J.--- With consent of both the learned counsel of the parties, the matter was heard and decided at Katcha Peshi stage.
2. ' Brief facts of the case as per the available record are that after the amalgamation/merger of the business of petitioner No,1, with petitioner No,2, the latter became tenant of the respondent in respect of Shop No,2, ground floor, Uzma Arcade, Block-7, Clifton Karachi (Rented Premises), on the terms and conditions as contained in agreement to lease dated 20-1-1999. The record reveals that the respondent had obtained loans/financial facilities from petitioner No,1 and in terms of clauses Nos.8 and 14 of the agreement to lease, the respondent had irrevocably authorized the petitioner No,1 to appropriate the rent of the demised premises payable to the respondent towards the financial facilities allowed and had agreed to create a lien in favour of the petitioner No,1 as stated therein till their full and final adjustment. It is also evident from the record that for the last several years the parties have been entangled with each other in various litigations in respect of financial facilities and agreement to lease. One such litigation was culminated in filing of Constitutional Petition No,S-109/2005 vide order dated 18-11-2005, through which fair rent of the demised premises was fixed at Rs,1,50,000 per month. However, in the same petition vide earlier order dated 26-5-2005 the learned Single Judge of this Court has appointed Nazir of this Court to ascertain the position of the demised premises and directed the tenant to pay the monthly maintenance charges at the rate of Rs,66,000 with 10% increase after every two years from 1-12-2001. The tenant shall pay the future monthly rent at the rate to be fixed by the Court after receiving report from the Commissioner.
3. ' The respondent has filed Rent Case No,692 of 2009 in the Court of VI Senior Civil Judge/Rent Controller, Karachi South under the provisions under section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance 1979 praying for the ejectment of the tenant. It was alleged that the petitioner was required to pay rent and maintenance charges in terms of the order of the High Court of Sindh in C.P. No,S-109 of 2005. Written statement was filed by the petitioner No,2 claiming that in terms of the final order passed in C.P. No,S-109 of 2005 the petitioner was only required to pay rent at the rate of Rs,1,50,000 per month and as such he was not entitled to pay any maintenance charges whatsoever and the said rent was being adjusted in terms of the agreement to lease. In the said case an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 was filed by the respondent and vide impugned order dated 31-7-2010 the said application was allowed, and the petitioners were directed to deposit the fair rent and maintenance charges in terms of the two orders of the High Court passed in C.P. No,S-109 of 2005 w.e.f. September, 1998 up to August, 2001 within a period of 45 days, as well as the future monthly rent and maintenance charges on or before the 10th of each calendar month.
4. ' Learned counsel for the petitioners has argued that the order of the learned Rent Controller is erroneous, illegal and without jurisdiction. The learned Rent Controller has come to the erroneous conclusion without considering the facts of the case, the written statement, the counter-affidavit filed on behalf of the petitioner and material available on record. Per learned counsel the learned Rent Controller has unlawfully directed the petitioner to pay the alleged maintenance charges, although the lease agreement was completely silent about the same and even otherwise it is not in terms of final order dated 18-11-2005 passed in C.P. No,S-109 of 2005, whereby the fair rent was fixed at the rate of Rs,1,50,000, which superseded the earlier order dated 26-5-2005. Per learned counsel the Rent Controller before passing the order of depositing the rent and maintenance charges had not made any inquiry whatsoever. He has vehemently argued that maintenance charges cannot be deemed or considered as part of rent within the meaning of the Sindh Rented Premises Ordinance, 1979. Per learned counsel the order of deposit of maintenance charges is against Article 4 of the Constitution of the Islamic Republic of Pakistan and the petitioner cannot be compelled to do that which the law does not require him to do. In support of his contention the learned counsel relied upon 1996 M LD 1895.
5. ' Learned counsel for respondents has argued that the learned Rent Controller has strictly passed the order in accordance with law and in terms of the order passed by the High Court in Constitutional Petition Nos.S-109 of 2005. Per learned counsel, petitioner No,1 had earlier filed M.R.C.
6. No,136 of 2002 under. Section 10(3) S.R.P.O., 1979 for depositing the rent and maintenance charges in Court in favour of respondent and as such the petitioner No,2 is now estopped from contradicting that maintenance charges is not payable. Per learned counsel no order has been passed by the learned Rent Controller under section 16(2) of S.R.P.O., 1979. The said order of the Rent Controller is interim order and the same is not even appealable under the law, nor said order can be called in question in the constitutional jurisdiction of this Court. The provision of appeal has been provided by the legislature against the final order of the Rent Controller and this constitutional petition has been malafidely filed to frustrate the very purpose of the Sindh Rented Premises Ordinance, 1979.
7. The learned counsel prays that the petition may be dismissed with compensatory costs. He in support of his contentions has relied upon the following case-law:---
(1) 2009 YLR 136, (2) 2008 M LD 1229, (3) 2007 CLC 1961,
(4) 2007 CLC 1956, (5) 1997 CLC 50, (6) 1997 CLC 1822, (7)
8. 1996 M LD 403, (8) 1995 CLC 639, (8) 1993 CLC 2525, (10) 1993 CLC 649.
9. I have heard learned counsel for both the parties and have gone through the record. The instant Constitutional Petition has been filed against an interlocutory/interim order, passed by the learned Rent Controller on an application filed under section 16(1) of the S.R.P.O., 1979, whereby the petitioner has been directed to deposit the arrears of rent as well as future rent and so also payment of maintenance charges. Since no final order has been passed within the meaning of section 16(2) of the Sindh Rented Premises Ordinance, 1979 and no appeal or Constitutional Petition can be filed against any interlocutory/interim order passed by the Rent Controller. Since appeal is not maintainable under the law, therefore writ petition cannot be maintainable against an interim order/interlocutory order passed under section 16(1) of S.R.P.O., 1979, as this would delay of administration of justice. The legislature has provided sufficient efficacious remedy of filing appeal, if defense of the tenant is struck off within the meaning of section 16(2) of S.R.P.O., 1979.
10. ' The order of the Rent Controller is based upon the available record and orders passed in C.P. No,S- 109 of 2005 and as such the order of the Rent Controller under section 16(1) S.R.P.O., 1979, cannot be deemed to be without jurisdiction or as coram non judice. Even otherwise the assertion made by the learned counsel for the petitioner cannot be looked into at this stage for the simple reason that the order passed by the Rent Controller, directing the tenant to deposit the arrears of rent and maintenance charges during pending decision of the application against him being purely interlocutory/interim in nature cannot be subjected to challenge by filing Constitutional Petition before this Court as it would amount to defeating the clear intent of the legislature.
11. ' Without going into any lengthy discussion and touching the merits of the case, I am of the view that this Constitutional Petition is not maintainable and accordingly the same is dismissed in limine. However, the petitioner will be at liberty to challenge the order of deposit of rent as well as future rent and maintenance charges after passing the final order by Rent Controller before appropriate forum in accordance with law.