CH. MUHAMMAD MASOOD JAHANGIR, J.---The petitioner Laeeq Ahmad Khan etc. Being tenants through this constitutional petition have called in question the validity of order dated 12-9-2012 passed by learned Rent Controller, Wah Cantt, District Rawalpindi, whereby the petitioner's right of cross-examination has been struck off.
2. Briefly stated the facts are that respondent No.1 Mst. Fozia Asif filed a petition for ejectment regarding the disputed property, the description of which is fully desciibed in Para No.1 of the writ petition, on the grounds of default, sublet and for personal bona fide requirement. In response to the summons, the petitioners appeared before the learned Rent Controller and submitted a contesting written reply. The learned Rent Controller framed the issues on 15-6-2011 in the light of the divergent pleadings of the parties. The landlord/respondent No.1 along with the witnesses filed affidavits and appeared before the learned Rent Controller for cross-examination. The petitioners and his counsel were afforded opportunities for cross-examination but they avoided the same and consequently the learned Rent Controller struck off the right of cross-examination of the petitioner vide his order dated 12-9-2012. Feeling aggrieved, the petitioners have questioned the said order through this petition.
3. The learned counsel for the petitioners submits that the petitioners/tenants were not afforded fair opportunities to cross-examine the respondent and her witness. He further submitted that on numerous occasions the witness and the respondent/landlord were not present in the court for subjecting to cross-examination. He further submitted that the impugned order is harsh one, which being against the law and facts of the case is not sustainable in the eyes of law and is liable to be set aside.
4. Arguments heard. Available record perused.
5. The ejectment application was filed by Fozia Asif, respondent No.1 on 14-10-2010 before the learned Rent Controller under the Cantonment Rent Restriction Act, 1963, for ejectment of the petitioners from the disputed property. The learned Rent Controller framed the issues vide order dated 15-6-2011 and fixed the case for evidence of the respondent No.1/landlady. The affidavits of the witnesses of the landlady were submitted before the learned Rent Controller, but the petitioners/ tenants sought numerous adjournments for cross-examination of the witnesses. Finally a last opportunity was granted to the petitioners to cross-examine the witnesses of respondent No.1, but petitioners failed to cross-examine the witnesses of the respondent No.
1. The learned Rent Controller granted another last opportunity subject to costs to the petitioners to crqss-examine the witnesses vide his order dated 4-7-2012, but they again failed to do so and finally their right to cross-examine the witnesses of respondent No.1 was struck off vide impugned order dated 12-9-2012. It is clear from the record that ample reasonable opportunities were allowed to the petitioners and the learned Rent Controller could not wait for unspecified period for the tenants/ petitioners to cross-examine the said witnesses of the landlady. The procedure provided in the Rent Restriction Act for trial of an ejectment petition is of a summary manner, but the petitioners for one reason or the other delayed the proceedings despite warnings and imposition of fine and ultimately the learned Rent Controller passed the impugned order.
6. There is another aspect of the case that whether a constitution petition filed by the petitioners against the interlocutory order is maintainable or not. According to section 24 of the Act ibid, no appeal is B competent against an interim order passed by learned Rent Controller. The relevant provisions of section 24 of the said Act for ready reference is hereby reproduced as under:-- "Appeal.---(1) Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to High Court.
(2) The High Court may, pending the final disposal of the appeal, make an order staying further proceedings or action on the order of the Controller: Provide that no such order shall be made if the appeal has been preferred from an order made under subsection (6) of section 17-A.
(3) The High Court shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by itself or by the Controller as it may deem fit, make an appropriate order which shall be final.
(4) No order of the Controller except by an appeal under this section, and no order of the Appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceedings."
7. The law is well settled now that when a Statute does not provide an appeal against an interlocutory order then the same cannot be challenged by way of constitutional petition because it would create negation of the provisions of the Statute. If a remedy which is not directly available cannot be sought through indirect means. The Hon'ble Supreme Court of Pakistan in the case "1996 SCMR 1165" has held that Statute excluding a right of appeal against interim orders cannot be availed by bringing under attack such interim order in constitutional jurisdiction,but the affected party has to wait till it merges into a final order and then to attack it before the proper exclusive forum created for examining such order. It has also been observed by the superior Courts that if a Statute provides the remedy against the order passed thereunder, then constitutional jurisdiction of High Court cannot be invoked to bypass the provisions of said Statute. In case "Muhammad Saeed v. Saratul Fatima and others" (PLD 1978 Lahore 1459) this Court observed that "the constitutional jurisdiction is invoked and made, available in cases of imminent, grave and tangible threat to valuable personal and proprietary right and that too subject, inter alia, to the condition that the legal remedy, if at all any available in the circumstance, is not efficacious or adequate. In this case, an order which by itself caused no tangible damage to the petitioners, and is incapable causing any loss was challenged. In order to pose a real threat it has to be substituted by another order and the moment it so happens a right of appeal would accrue to the affected party, which right is certainly more extensive and beneficial being available in the same hierarchy and on both questions of law as well as of facts.
8. Finally it is apparent on the file that the impugned order was passed by the learned Rent Controller on 12-9-2012 and the petitioners have challenged the same before this Court on 2-11- 2013 through the instant petition for the first time, meaning thereby after a lapse of almost one year and two months for setting aside the same. It has been settled time and again by the Hon'ble Supreme Court of Pakistan in various judgments that constitutional jurisdiction under. Article 199 can be invoked within a reasonable time and reasonable time is interpreted to 90 days. The present writ petition also suffers from latches. This view is strengthened in case-law "PLD 1975 SC 678" and "PLD 2011 SC 676".
9. In view of the above, the petition in hand has no force and substance and further is also not maintainable accordingly dismissed.