This writ petition has been filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, through which the following prayer was solicited.
"For the reasons and grounds supra-listed, the petitioners humbly beseech the gracious indulgence of this Hon'ble Court to call off and wipe out the impugned order of Respondent No, 1 dated 18.02.2013 and petitioners may kindly allow to produce their evidence before the trial Court.
Any other relief ponders appropriate by this Hon'ble Court may also be granted."
2. It was stated in the petition that the petitioners are tenants of a shop owned by the real Respondent No, 2 situated in Sub-Sector B-1 Nangi Mirpur. Respondent No, 2 filed an application for ejectment of the petitioners from Shop No, 234-A on the ground of construction of plaza. The petitioners filed objections and issues were framed. The case was at the stage of evidence that on 18.02.2013, the Rent Controller closed the evidence of the petitioners without any legal justification and fixed the case for arguments. The said order has been passed on flimsy grounds, in hasty manner and against the celebrated norms of justice. The petitioners prayed in the manner mentioned above.
3. Respondents were ordered to submit parawise comments. Respondent No, 2 submitted the same and stated that no writ petition lies against the order of a special tribunal/Rent Controller.
The subordinate Court has exclusive jurisdiction to issue. orders regarding production of evidence.
The proceedings before the' controller were summary in nature. The petitioners were provided many opportunities to produce the evidence, but they failed to do so. The petitioners have filed the instant writ petition only to prolong the matter. This Hon'ble Court has already issued directions to the Rent Controller to dispose of the matter within a period of two months. It was prayed to dismiss the instant writ petition in limine.
4. Arguments were advanced by the learned counsel for the parties. Mr. Khalid Rasheed Chaudhary Avocation the learned counsel for the petitioners argued that no proper opportunity was provided to the petitioners to produce evidence. One of the petitioners was present in the Court, even his statement was not recorded. The learned counsel requested to accept the writ petition and to set- aside the order of the Rent Controller dated 18.02.2013.
5. While controverting the learned counsel for the petitioners, Mr. Muhammad Riaz Alam Advocate the learned counsel for the respondents contended that thirty five opportunities were provided to the petitioners to produce evidence after the direction made by this Court, but they failed to do so and have filed the instant writ petition only to prolong the matter. No writ petition lies before this Court against any order passed by the Rent Controller. The learned counsel requested to dismiss the writ petition in limine and referred the following precedents in support of his arguments.
1. PLD 1983 SC(AJ&K) 204
2. An unreported judgment of the apex Court titled Nazir Ahmed & others Vs. Riaz Ahmed & others decided on 15.03.2013 (Civil Appeal No, 29 of 2012).
6. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and the precedents minutely. The record reveals that a direction by this Court was issued on 14.05.2012 to dispose of the matter within two months. After the said direction, more than thirty opportunities were provided to the petitioners to produce evidence, but they failed to do so. Ultimately, two or three last opportunities were afforded and the evidence on the part of the petitioners was closed on 18.02.2013.
7. The Rent Controller has been given powers of summoning and enforcing the attendance of witnesses under Section 18(6) of Rent Restriction Ordinance, but he is not bound in every case to follow the procedure stipulated in the Code of Civil Procedure. He has been given powers to make orders after holding such inquiry as he thinks fit. The question to decide the nature and extent of inquiry is purely his discretion and the parties have no right to insist upon for production of such evidence as they desire to adduce in support of their case. This principle has been laid down in the precedent PLD 1983 SC (AJ&K) 204. It has also been held in the said precedent that any order of the Rent Controller cannot be assailed either in second appeal in the High Court or by any other manner including petition under Section 115, CPC.
8. It has been held by the apex Court of Azad Jammu & Kashmir in Civil Appeal No, 29 of 2012 titled Nazir Ahmed & others Vs. Riaz Ahmed & others vide judgment dated 15.03.2013 as under: "If the High Court while exercising constitutional powers vested in it under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, reaches to the conclusion that the trial Court or District Judge while exercising revisional jurisdiction has failed to exercise powers vested in it under relevant provision of law and order is against the legal provision, then a writ of mandamus can be issued to such Court but while exercising constitutional jurisdiction the High Court cannot exercise those powers which are vested in it as an appellate Court. There is a marked distinction between the powers vested in the High Court under Section 44 of the writ jurisdiction as a - constitutional Court and powers vested in it as a Court of appeal. The High Court cannot sit as an appellate Court on the decision of lower Court in constitutional jurisdiction. What is necessary for issuance of writ is that an order impugned before the High Court by way of writ petition is against the legal provision."
10. The same principle has been laid down in the precedent 1996 SCR 08 as under:-- "7. At the very outset it may be pointed out that there is a marked distinction between the jurisdiction vested in a civil Court, while exercising its powers as a Court of appeal and the jurisdiction exercised by the High Court in writ jurisdiction. The High Court while exercising the writ jurisdiction cannot sit upon the judgments of subordinate Courts or Local authorities or Tribunals as a Court of appeal. Even the illegal orders or judgments passed by the subordinate Courts or Local authorities or Tribunals cannot be set aside by the High Court while exercising its powers in writ jurisdiction"
11. The above-mentioned principle was also laid down in the precedent 2011 SCR 59 as under:- "Writ jurisdiction of the High Court is regulated by Article 44 of the AJ&K Interim Constitution Act, 1974, which according to its phraseology, at the very outset provides that a writ petition can only be filed if there is no alternate remedy available to an applicant as has been handed down in umpteen cases so far by the superior Courts and leaves no room for the High Court to entertain a writ petition where it appears from the record that the controversy brought before the Courts is one of civil nature, competently to be decided by the civil Court or all within the jurisdiction of a special Court or tribunal with specific backing of some codal provisions."
12. While going through the above-mentioned principles laid down by the apex Court of AJ&K, it is clear that the High Court while exorcising the writ jurisdiction cannot sit upon the judgments of subordinate Courts or local authorities or Tribunals as a Court of appeal. Even the orders passed by such Courts cannot be set-aside by the High Court while exercising writ jurisdiction.
Having in view the above discussed circumstances, it is clear that the instant writ petition is not maintainable, which is hereby dismissed in limine. It is pertinent to mention here that the instant matter is an example of mala-fide on part of the petitioners to prolong the case. To avoid this situation and to meet the ends of justice, it is hereby directed that the learned Rent Controller shall decide the matter within one month from receipt of this order. No order as to the costs.