1. ' FAROOQ ALI CHANNA , J.--- Petitioner has filed the instant petition invoking the writ jurisdiction of this court against the tentative order dated 8-7-2009 passed by learned VIth Senior Civil Judge/Rent Controller, Karachi South on an application under section 16(1) of Sindh' Rented Premises Ordinance, 1979 filed in Rent Case No,1043 of 2003 directing the petitioner to deposit the arrears of monthly rent from November, 1995 at the rate of Rs:650/- per month up to date and future monthly rent on or before 10th date of each month. The respondent was not allowed to withdraw the amount deposited against arrears; however, he was entitled to withdraw the future monthly rent.
2. ' Learned counsel for the petitioner has raised sole point that Rent Controller was not competent to pass the order directing the petitioner to deposit the arrears for the period exceeding three years, hence the order being without jurisdiction is liable to be set aside.
3. ' Conversely, Learned counsel for the respondent has contended that jurisdiction of Rent Controller is barred to pass order for depositing the arrears for the period exceeding three years, if there is denial of arrears. In this matter, the petitioner has admitted that she was not paying the rent to the respondent and was depositing the same against utility charges and property tax, hence the Rent Controller was competent to pass the order for depositing the entire admitted arrears. Further contention of learned counsel for the respondent is that since no appeal lies against the tentative order passed under section 16(1) the SRPO, 1979, therefore, no constitutional petition is maintainable against tentative order. In support of his contentions, learned counsel has emphasized the dictum 'D' laid down by Hon'ble Supreme Court of Pakistan in case reported as MST. SEEMA BEGUM v.
4. MUHAMMAD ISHAQ AND OTHERS (PLD 2009 SC 45), which reads as under:--- ' The most important aspect of the case is that respondent. Muhammad Ishaq had challenged the interim order passed by learned Rent Controller in the Constitution Petition. As such the same was not maintainable and impugned 'order is liable to be set aside on this score alone."
5. I have considered the arguments. There is. No cavil to the proposition of law that if the tentative order is within the jurisdiction of Rent Controller, no Constitutional Petition is maintainable against that order, however, with profound respects to the observation of Hon'ble Supreme Court of Pakistan referred to above, the same are not applicable to the facts of instant case as the impugned order has been challenged being passed without jurisdiction.
6. ' At the time of admitting the instant petition, the Hon'ble Judge of this Court considered the legal aspect of the case and directed the petitioner to deposit arrears of rent for the period of three years preceding the date of filing of ejectment application within 15 days and to deposit future monthly rent in advance before the Rent Controller by 10th of each month, with the above condition, operation of impugned judgment was suspended and petition was admitted. The petitioner has complied with the above order and pursuant to that she has deposited the amount of Rs,27300/- on 10-10-2009 and also depositing the future rent regularly.
7. ' In the circumstances, the controversy involved in this petition is with regard to the legal status of the impugned order and maintainability of constitutional petition against the tentative order of Rent Controller passed under section 16(1)SRPO., 1979. A Division Bench of this court in a case bearing identical facts and circumstances reported as NOOR HUSSAIN v. PAKISTAN STEEL (1990 CLC 804) has resolved the above controversies reads as under:- "The only point on which we are inclined to exercise Constitutional jurisdiction is that in view of the clear pronouncement by the Hon'ble Supreme Court and this Court that a Rent Controller is not competent to order the deposit of time-barred rent, the Rent Controller could not have passed the impugned orders and, therefore, patently they are without jurisdiction or in excess of jurisdiction. If we were to decline to exercise Constitutional jurisdiction in spite of the above clear legal position it will in fact put the parties to inconvenience that they had to go through the order of trial and thereafter to file an appeal after the passing of the ejectment, we are inclined to hold that Constitutional jurisdiction generally cannot be pressed into service where the dispute relates to the question of rate of rent or the period of the arrears of rent if it is within the limitation period or even the question of relationship as these are the disputed questions of facts but where the question is purely legal and that question is already settled by the superior Courts, in our view writ jurisdiction can be pressed into service."
8. ' While deciding the above referred case this court set aside the impugned order directing the Rent Controller to pass fresh tentative order in accordance with law. In the instant case while admitting the petition, this court had directed the petitioner to deposit the arrears of rent for the period of three years and further monthly rent regularly which amounts to modification in the impugned order, this being the position matter cannot be remanded to trial court for passing fresh tentative order. However, the learned Rent Controller is directed to decide the Rent Application after recording the evidence of both the parties strictly on merits in accordance with law.
9. ' In the above terms, the instant petition is disposed off.