' RIAZ AHMAD KHAN, J.---This judgment is directed to dispose of Writ Petition No. 2347 of 2008.
2. Brief facts of the case are that respondents Nos. 1 & 2 filed eviction petition against petitioner Zafar Iqbal, now deceased, in respect of shops in dispute, in the year 2003. According to the respondents/landlords, the petitioner failed to pay the rent for twenty months and having no other alternative, the respondents/landlords filed the eviction petition. The said eviction petition was contested by the petitioner/tenant. However, the learned Rent Controller vide order dated 31-7- 2007 accepted the eviction petition and passed the orders for eviction of suit shops, within 30 days.
Feeling aggrieved of the said order, 'petitioner filed appeal, which was dismissed by the learned Addl. District Judge, Islamabad vide judgment dated 16-9-2008. Against the said dismissal order, present writ petition was filed.
3. During pendency of the writ petition, the petitioner died; so notice was issued to his legal heirs.
One of the legal heirs namely Sajjad Ahmed Abbasi, who is in possession of the suit shops, appeared before the Court. He was also presented by his counsel. However, the remaining legal heirs did not appear before the Court.
4. Learned counsel for the petitioner, contended that the petitioner has died therefore all the legal heirs of the petitioner/tenant are required to be served. The learned counsel further contended that Islamabad Rent Restriction Ordinance, 2001 was promulgated on 23-1-2001. Under section 1(2), it was provided that the Ordinance shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may, by Notification in the Official Gazette, specify. The official Notification regarding Urban area was issued on 1-8-2002 'and regarding residential and commercial buildings on 24-6-2004. According to learned counsel for the petitioner, practically the Islamabad Rent Restriction Ordinance, 2001 had become effective on 26-6-2004, whereas the present ejectment petition was filed on 4-2-2003. As such, at the time of filing of rent petition, Islamabad Rent Restriction Ordinance, 2001 was not enforced and the order of learned Rent Controller, Islamabad was coram non judice. Learned counsel in support of his contention referred to an unreported judgment passed in C.P. No.1434/2009. Learned counsel further contended that the question of jurisdiction can be raised at any time and if the basic order is without jurisdiction, then the whole edifice would fall to the ground. Learned counsel also submitted that on record the default was not proved, however, it was admitted that since 2008, no rent was paid by the petitioner to the respondent. In this respect, learned counsel submitted that since the record had come to Hon'ble High Court in writ jurisdiction and the learned Rent Controller was not prepared to accept rent, so petitioner/tenant could not pay the rent. Learned counsel for the petitioner in support of his contention relied on PLD 1974 Quetta 1, PLD 1961 Lahore 60i, 2006 SCMR 1630, 1992 SCMR 1149 and 2010]A SCMR 1443.
5. On the other hand, learned counsel for the respondent/landlord submitted that the petitioner/tenant had not paid rent for the last 9 years and had been trying to prolong the case on one pretext or the other.
6. I have heard learned counsel for the parties and have also perused the record.
7. The Islamabad Rent Restriction Ordinance, 2001 was promulgated through Ordinance IV of 2001.
Section 1 of the Ordinance was as follows:
1. This ordinance may be called the Islamabad Rent Restriction Ordinance, 2001.
2. It shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may, by Notification in the Official Gazette, specify.
3. It shall come into force at once,"
8. Section 2(K) provided the definition of urban area. Which is as follows: "Urban Area" means such area or areas of the Islamabad Capital Territory as the Federal Government may, by Notification in the Official Gazette, specify.'
9. As required in section 1(2) as well as section 2(K) of Islamabad Rent Restriction Ordinance, 2001 S.R.O. No.83(Re)/02, dated 19-7-2002 was issued, by virtue of which the urban area of Islamabad was defined. Thereafter, S.R.O. No.538(1)/2004, dated 24-06-2004 was issued, which provided that the Ordinance shall extend to the urban areas specified in the earlier Notification of 19th July, 2002 and apply to all residential and commercial buildings and rented lands situated in the said urban area.
10. Section 7(3) of the Islamabad Rent Restriction Ordinance, 2001 provided that: "An application under this Ordinance shall be filed before the Controller having jurisdiction over the area where the building or rented land, in respect of which the application is made, is situated: ' Provided that where there are more than one Controllers for an area, the application shall be made before the Senior Rent Controller who may either deal with it himself or make it over for disposal to other Controller."
11. Keeping in view the above mentioned legal provision it becomes clear that Islamabad Rent Restriction Ordinance, 2001 had become effective on 23-01-2001. On 19th July 2002 when the first S.R.O. Was issued, the urban area in Islamabad stood defined and all the buildings situated over the said area were within the territorial jurisdiction of Rent Controller, Islamabad. The subsequent S.R.O. Which provided the application of Ordinance to residential and commercial buildings was only for clarification and if anybody had any doubt that his building did not fall in the ambit of Islamabad Rent Restriction Ordinance, 2001, he could make a reference to the said S.R.O. The contention of learned counsel for the petitioner that the S.R.O. In respect of building was issued in the year 2004 and, from 2001 till 2004 Islamabad Rent Restriction Ordinance, 2001. Was not in the field, is not correct. As the sad interpretation make the said Ordinance redundant, whereas it was clearly provided in the Ordinance that it shall come into force at once. This interpretation too, would be absurd that the urban area had been defined in 2002, but the properties situated over the area were outside the ambit of Islamabad Rent Restriction Ordinance, 2001. As far as the two Civil Petitions Nos. 1666/2009 and 1434/2009 are concerned; in both these petitions, leave was granted on the point of jurisdiction, but afterwards the point of jurisdiction was not decided.
12. Since the-present petition was filed in the year 2003, therefore, the learned Rent Controller had the jurisdiction to entertain the same, as by time, the urban area stood defined and admittedly disputed property fell in the said defined urban area of Islamabad.
13. As far as the contention of learned counsel for the petitioner regarding summoning of all the legal heirs of petitioner is concerned, the same is not correct. According to section 2(j) (ii) of the Isamabad Rent Restriction Ordinance 2001, in case of death of the tenant, the members of his family who continue to be in possession or occupation of the building or rented land would be considered as tenant. In the present case, one of the legal heirs appeared before the Court and was represented by his counsel; he is in possession of the shops in dispute and therefore, he is to be considered as tenant. It is not necessary that all the legal heirs, who are not in possession of the shops in dispute, are to be impleaded.
14. Admitted position in the present case is that the petitioner has not paid rent w,e,f, 2008. The contention of learned counsel for the petitioner is that prior to filing of the ejectment petition rent was paid and there was no default. It was however, admitted that since 2008 the rent has not been paid, as the case had been filed in the High Court and there was no order regarding deposit of rent.
This contention is not correct, because even if there was no order from the Court for deposit of rent; it did not mean that the tenant was absolved of his duty of paying the rent. The tenant/petitioner could send the rent through post or could deposit the same in this Court. Furthermore, there is no evidence regarding payment of rent during the pendency of eviction petition before the learned Rent Controller and appeal before the learned Addl. District Judge. This issue has already been dealt with by the two Courts below and evidence regarding the same cannot be discussed in writ jurisdiction.
15. In the above said circumstances, the two Courts below had properly appreciated the facts and had correctly passed the order for eviction. Finding no force in this writ petition, the same is hereby dismissed.