' FAROOQ ALI CHANNA , J.---The petitioner through the instant constitution petition has called in question the order dated 12-11-2011, passed by learned IInd Senior Civil Judge/Rent Controller, Karachi (East) (referred to hereinafter as Rent Controller) in Rent Case No,303 of 2011 (Mrs. Begum Narjis Zaidi v. Mr. Syed Mansoor Sadiq Zaidi), ' dismissing the application filed by the petitioner, under the proviso to section 15(2) of Sindh Rented Premises Ordinance 1979 (hereinafter referred to as Ordinance, 1979).
2. Concisely facts of the case are that the respondent filed ejectment application under section 15 of Ordinance, 1979, seeking eviction of petitioner from tenement i.e, 1st and 2nd floor, constructed on Plot No, ST-15/C Block-4, Shah Faisal Colony, Karachi on the (7 ground of default in payment of rent for the period of three months commencing from 1st June, 2011 and municipality civic charges of Rs,10,121.
3. In pursuance to notice the petitioner appeared before the Rent Controller and filed application under the proviso to section 15(2) of Ordinance, 1979 along with a cheque of Rs,27,000 to be drawn from National Bank of Pakistan, admitting the default for the period claimed by the respondent, with the request that the respondent may be directed to accept the rent amount and upon acceptance of rent, ejectment application may be rejected. The Rent Controller after hearing the counsel for both the parties dismissed the application observing that section 15(2)(ii) of Ordinance, 1979 has no concern with the payment of rent to the landlord by tenant and the entire section 15 of Ordinance, 1979 deals with eviction of tenant. Learned Rent Controller has also observed that section 10 of the Ordinance, 1979 provides the modes of payment of rent, as such the application was not maintainable.
4. I have heard learned counsel for both the parties, perused the impugned order and the relevant provisions of law. It would be advantageous to reproduce the proviso to section 15(2) of the Ordinance, 1979, enacted by Sindh Amendment Ordinance XIV of 2001, dated 17-4-2001, reads as under:- "Provided that where the application made by the landlord is on the sole ground mentioned in this clause and the tenant on the first day of hearing admits his liability to pay the rent claimed from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion and the default is not exceeding six months, direct the tenant to pay all the rent claimed from him on or before the date to be fixed for the purpose and upon such payment, he shall reject the application."
5. The respondent in para No,4 of ejectment application has admitted that the petitioner was paying rent regularly so also amenity charges sometimes to the respondent and sometimes to municipality directly. The respondent has further admitted that in the month of November, 2009, a dispute over the enhancement of rent arose between the parties, which was settled amicably and the rent was enhanced at Rs,9000 per month plus utility charges, which the petitioner was paying regularly. The respondent in para No,5 of ejectment application has further admitted that the petitioner had paid the rent upto the month of May, 2011 Rs,9000 per month and thereafter failed to pay the rent from 1st June, 2011 till the respondent filed ejectment application in the month of August, 2011. The above paras of ejectment application clearly manifests that the respondent has filed the ejectment application on the sole ground of default, and the petitioner on the first day of his appearance before the Rent Controller has admitted his liability and deposited a cheque of Rs,27,000. The above referred paras of ejectment application also reflect that the petitioner had made no default on any previous occasion, nor the default was exceeding six months.
6. Learned counsel for the respondent during arguments has also admitted the above facts, however, his contention was that the petitioner has not paid municipality charges amounting to Rs,10,121 such charges are also the part of rent in terms of section 2(i) of Ordinance, 1979, as such the default period exceeds six months, debarring the proviso to section 15(2) of Ordinance, 1979. In support of his contention learned counsel has produced Photostat copy of bill, issued by Karachi Water and Sewerage Board (KW&SB) for the month of July, 2011.
7. Conversely, learned counsel for the petitioner has contended that respondent in para 4 of the ejectment application has admitted that the petitioner was paying amenity charges regularly, meaning thereby the applicant was not defaulter in payment of utility charges till August, 2011, the petitioner has also not received any bill issued by any department for payment of utility charges, however, if any amount against amenity charges is payable, the petitioner on receipt of such bill is ready to pay the same forthwith. Learned counsel has further contended that the bill of KW&SB produced by the counsel for the respondent was against the entire building of the respondent and not exclusively for the premises rented out to the petitioner.
8. As per claim of respondent the applicant was liable to pay Rs,10,121 against amenity charges, whereas the bill issued by KW&SB, reflects arrears of Rs,15,181 till July, 2011, this supports the contention of petitioner that it was the bill against the entire building and not exclusively for the premises rented out to the petitioner.
9. While reverting to the applicationlA of proviso to section 15(2) of Ordinance, 1979, it would be appropriate to mention that the object of legislature for enactment of said proviso was to avoid the multiple litigations between the parties and to resolve the dispute of default in payment of rent at initial stage of the proceedings so as to avoid the: abuse of lengthy procedure. Nowhere it is provided in the law that before invoking the jurisdiction of Rent Controller under the said proviso the tenant is required to follow the provisions of section 10 of Ordinance, 1979. Apparently the learned Rent Controller has passed the impugned order overlooking the proviso to section 15(2) of Ordinance, 1979, as such for the reasons stated above the impugned order is illegal, perverse and suffering from infirmity.
10. I have also examined the legal aspect regarding the maintainability of constitution petition against tentative order of Rent Controller. No doubt learned Rent Controller has passed the impugned order on interlocutory application, which being tentative in nature is to be discouraged by the High Court in its constitutional jurisdiction for the reasons that the very purpose of object of expeditious disposal of rent cases through the Rent Controller would be frustrated. However, in exceptional circumstances the writ jurisdiction under Article 199 of the Constitution of Pakistan, 1973 can be invoked to avoid abuse of process of law and grave injustice to a party and to redress such grave illegality. For the reasons discussed in the preceding paras, the instant matter falls within the parameters of exceptional circumstances, as such while exercising the writ jurisdiction of this Court, I set aside the impugned order dated 12-11-2011 and allow the application, filed under the proviso to section 15(2) of Ordinance, 1979 and direct the petitioner to deposit the rent arrears within to days from today, whereupon the ejectment application filed by respondent will stand rejected.
' The constitution petition is allowed.