' SADIQ HUSSAIN BHATTI, J.---Since the facts and the questions of law involved in these two petitions are' common, therefore, I propose to dispose of these two petitions by this common judgment.
2. Facts of the case, as narrated in C.P. No. S-223 of 2013, are that the petitioner is the landlord of Shop No.3-A, situated on ground floor of the building constructed on Plot No.298-C, PECHS, Karachi measuring 238 sq.Ft. The petitioner filed a rent case under section 8 of the bearing Rent Case No.248/2006, for fixation of fair rent under section 8 of the Sindh Rented Premises Ordinance, 1979 (hereafter "the Ordinance") in respect of the shop premises which is rented out to the respondent No.1 for the purpose of Jewelry Shop in the name and style "Mashaallah Jewellers". In the first round of litigation, the learned Rent Controller, by order dated 23-12-200$, fixed the rent at the rate of Rs.50,000 per month. This was enhanced by the Appellate Court to Rs.100,000 and reduced by the Honourable High Court to Rs.47,600 per moth (at the rate of Rs.200 per sq. Ft.). However, the Hon'ble Supreme Court set aside the judgment of the High Court and remanded the case to the to the Rent Controller with the direction to decide the matter afresh after providing opportunity to the parties to produce fresh evidence. Thereafter, the petitioner filed his Affidavit-in-Evidence as well as that of his two witnesses. The petitioner subsequently moved an application under section 20(a) of Ordinance for summoning two witnesses. This application was dismissed by the learned Rent Controller vide order dated 8-5-2012. Consequently, the petitioner challenged the said order of Rent Controller before the Hon'ble High Court of Sindh through C.P. No.S-629 of 2012, which was allowed by order dated 30-5-2012 and the respondent No.1 was allowed to produce his witnesses.
The evidence 'of the petitioner and his witnesses was recorded by the learned Rent Controller whereafter the learned counsel for the petitioner closed his side. After recording evidence of the petitioner, fresh Affidavit-in evidence of the respondent No.1 and his two witnesses viz. Faisal Mehmood and Sohail Iftikhar were filed. The evidence of the respondent No.1 's attorney and his one witness (Faisal Mehmood) was recorded while the second witness (Sohail Iftikhar) did not come forward for cross-examination despite the fact that he had filed his Affidavit-inEvidence. At this juncture, respondent No.1 filed an application under section 20(a) of the Ordinance for summoning and enforcing the attendance of his second witness (Sohail Iftikhar) and examining him on oath.
Though the application was opposed by the petitioner who filed his counter-affidavit to it, yet the same was allowed by order dated 8-1-2013 and summons were issued to the said witness but he failed to turn up. As a result, the respondent No.1's side was closed by the learned Rent Controller on 13-1-2013 and both the parties were directed to file written arguments and the matter was fixed for arguments on 6-2-2013. Respondent No.1 filed another application under section 20(c) of the Ordinance praying for inspection of the site and of the adjacent shops and for finding out their rent for the purpose of fixation of fair rent. Once again the petitioner opposed the application and filed his counter-affidavit thereto. The learned Rent Controller, by order dated 20-2-2013, granted the, application and appointed Nazir of District Court East as Commissioner to inspect the adjacent shops and their rate of rent as well as the condition and submit his report within five days. Pursuant to such order the Nazir inspected the adjacent shops and submitted his report on 1-3-2013. This order has been impugned in' this petition as well as the connected Petition No. 224 of 2013 as the landlord and the building are the same while the tenant is different.
3. Ms. Sana Minhas, learned counsel for the petitioner, vehemently argued that the learned Rent Controller was not justified in granting the said application as the power to inspect the site under section 20(c) is to be exercised by the learned Rent Controller in person and the same cannot be delegated to any other person/officer. She submitted that the appointment of the Nazir of District Court East as a Commissioner for the purpose of inspection vide the impugned order is completely illegal and void ab initio as provisions of section 20(c) of the Ordinance firstly speaks of inspection of the site only, and not of adjacent shops/premises, and the same is to be carried out by the Rent Controller himself and not by the commissioner. She also contended that even otherwise at this belated stage, when evidence of the parties was already recorded and sides of the parties were closed and the case was fixed for arguments, there was no need for inspection. She, after referring to section 8 of the Ordinance, stated that it is the duty of the respective parties to adduce evidence on the factors to be taken into consideration for fixation of fair rent and further vehemently argued that inspection report cannot be a substitute for the evidence brought on record. She also argued that the filing of the application under section 20(c) of the Ordinance by the respondent No.1 was both belated and mala 'fide as the same was filed after the respondent No.1 's second witness (Sohail Iftikhar) did not step into the witness box and after respondent No.l's side was closed.
According to the learned counsel the only motive for filing this application was to circumvent and/or fill lacunae/weaknesses in the respondent No. l's evidence. The learned counsel also submitted that it is well-settled that a local inspection carried out by court/Rent Controller is neither a substitute of evidence nor it could supersede the evidence on record which otherwise is required to be produced by a party.
4. In support of her above contentions, the learned counsel for the petitioner relied on the following cases:-
(a) Haji Ahmed Haji Essa v. Rent Controller, and others 1983 CLC 840,
(b) Pervez Impex v. Mst. Nazir Begum and another (1989 CLC 374),
(c) Muslim Commercial Bank v. Deputy Commissioner Income Tax (2004 PTD 1901),
(d) Abdul Rashid v. Mahmood Ali Khan (1994 SCM R 2163),
(e) Javedan Cement Ltd. v. Deputy Commissioner (2002 CLC 1804),
(f) Jalal Khan v. Khando Malik (2003 SCM R 1351),
(g) A.R. Builders v. Faisal Cantonment Board (PLD 2004 Kar. 492),
(h) Tahir Mehmood v. Tariq Mehmood (2006 M LD 1457),
(i) Popalzai v. District and Sessions Judge (1984 CLC 630), and
(j) Aamir Khursheed Mirza v. The State (2006 CLD 568).
5. On the other hand. Mr. Iftikhar Javed Qazi, learned counsel for respondents No.1 in both these petitions, mainly contended that the present constitutional petitions, having been filed against an order passed on an Interlocutory application by the learned Rent Controller, are not maintainable as it is settled law that petitions cannot be filed against interlocutory orders. He further submitted that an alternate remedy was available by way of challenging the order passed on the interlocutory application in the appeal to be preferred against the final order and thus the petition was not maintainable. So far as the application under section 20(c) of the Ordinance is concerned, the learned counsel submitted that the Rent Controller can adopt any procedure in deciding an application under section 20 of the Ordinance. The learned counsel, however, admitted that he had filed an application under section 20(c) of the Ordinance wherein it was prayed that the inspection may be carried out by the Rent Controller himself but the learned Rent Controller thought it prudent to appoint the Nazir of the Court to carry out the inspection and submit his report. The learned counsel also submitted that the reason that no appeal is provided against an interlocutory order in a rent case is to avoid delay in determination of the main controversy and piecemeal decisions.
The learned counsel also submitted that the law laid down by the Hon'ble Supreme Court on the point of non-maintainability of a petition against interlocutory order is very clear and the same is binding on all the Courts under Article 189 of the Constitution of Pakistan, 1973.
6. In support of his submissions/contentions , the learned counsel for the respondent No.1 relied on the following cases:--
(a) Mst. Seema Begum v. Muhammad Ishaq and others (PLD 2009 SC 45),
(b) Pakistan Burmah Shell Ltd. v. Mrs. Nasreen Irshad and others (1989 SCM R 1892).
(c) Muhammad Saeed Shah v. Mst. Philpana and others 2012 M LD 783
(d) Ahmad Khan v. Khalid Mehmood and others (1990 M LD 1224),
(e) Sultan Ahmad v. Sr. Civil Judge/Rent Controller, and another (1984 CLC 101),
(f) Habib Alvi Athar v. Hassan and others (1986 M LD 1656),
(g) Abdur Rehman v. Haji Mir Ahmad Khan and another (PLD 1983 SC 21);
(h) Rashid Ahmed v. Soofi Muhammad Saleem and another (PLD 1976 Lahore 1450),
(i) Malik Rehmatullah v. Sh. Mohamamd Amjad and others (PLD 1979 (sic) 86),
(j) Kh. Nooru Qadir Darabu v. Ejaz Ahmed and others (PLD 1997 Kar. 501),
(k) Haji Wali Muhammad through L.Rs. And another v. Aslam Pervez and others (2011 CLC 19),
(1) Abdul Rehman and another v. Ziaul Hague Makhdoom (2012 SCM R 954), and
(m) Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879)
7. In rebuttal, learned counsel for the petitioner submitted that none of the cases relied upon by the learned counsel relates to section 20 of the Ordinance. She vehemently argued that in pari materia only those cases can be cited which are on similar footings and not on cases under entirely different laws. She also submitted that in exceptional circumstances, even in the case of an interlocutory order, a petition under Article 199 of the Constitution would be maintainable in order to avoid abuse of the process of the Court and to redress grave injustice. She relied on the case of Sved Mansoor Sadiq Zaidi v. Mst. Begum Nargis Zaidi (2013 YLR 2122).
8. Before proceeding further in the matter, it would be advantageous if section 20 of the Ordinance is reproduced for the sake of convenience. It reads as under:-- "20. Power of civil Court.---(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance, have powers of a Civil Court under the Code of Civil Procedure, 1908. (Act V of 1908), in respect of only the matters: namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath,
(b) compelling production or discovery of documents;
(c) inspecting the site; and
(d) issuing commission for examination of witnesses, or documents."
9. A perusal of the above quoted section 20 of the Ordinance shows that the under clause (c) thereof, only the Rent Controller and the Appellate Authority has been authorized to inspect the site and not anybody else. It is also worth-mentioning that even the application filed under section 20(c) of the Ordinance by the respondent No.1 reveals that the prayer was to the effect that the "Hon'ble Court may be pleased to inspect the Shop premises (subject-matter of this case)... " and, thus, there was no prayer on the part of the applicant/respondent to appoint a commissioner to inspect the shops etc. It was argued by the learned counsel for the respondent No.1 that the Rent Controller can adopt any procedure which is not specifically prohibited by law and in this regard reliance was placed on the case of Haji Wali Muhammad (supra). There is no cavil with the proposition advanced by the learned counsel but it may be mentioned that the Rent Controller can adopt any procedure which is legal and not a procedure which is in contravention of the law. It is crystal clear that under section 20(c), quoted above, only the Rent Controller and the Appellate Authority have the power to inspect the site. Thus, the Rent Controller committed two jurisdictional mistakes, first, he delegated the powers of inspection to the Nazir of the District Court, Karachi East which was not permissible under the law and, second, he directed the Nazir to inspect the adjoining shops/premises as well. This was also not permissible as clause (c) of section 20 of the Ordinance only speaks of the "site" and not of the adjoining buildings/shops. Therefore, on both these occasions, he exceeded his limits. When section 20 of the Ordinance did not give any powers to the Rent Controller or the Appellate authority to delegate their powers of inspection to any other person, the same was prohibited and could not be resorted to.
10. In the case of Pervez Impex (supra), the facts were that a rent case for ejectment of the tenant was filed on the ground of default and material alterations in the premises. During cross- examination, the petitioner/tenant's witness stated that he has no objection to the inspection of the premises. Such application was filed which was allowed but the Rent Controller asked the counsel for the parties to suggest name of any counsel of their choice to be appointed commissioner to inspect the premises. This was challenged before this Court and a Division Bench of this Court held as under:-- "However, we find from the language used in section 20 of the Ordinance that the Rent Controller and the appellate authority have been conferred powers of a Civil Court only in respect of the matters mentioned in clauses (a) to (d) of section 20 of the Ordinance and not in respect of any other matter. The power to issue a commission is confined to the issuance of commission for examination of the witness under clause (d) of section 20 of the Ordinance, which powers will not include the power to issue a commission for the inspection of the site, which is to be done by the Rent Controller or by the appellate authority itself. The use of word 'only" in section 20 of the Ordinance is indicative of the fact that the law-makers did not wish to vest in or confer the powers of the Civil Court to the Rent Controller and the appellate authority in respect of all the matters, which are provided for in the Code of Civil Procedure, 1908 but the powers were given only for limited purposes specified therein.
6. We are therefore, of the view that the first order passed by the Rent Controller for the inspection of the site was in consonance with the provisions of the Ordinance but the second order directing the party to name an Advocate for inspection of the site was not inconsonance with the provision of the Ordinance and, therefore, we allow the above petition to the extent of declaring the impugned order dated 13-9-1987 as being without lawful authority and of no legal effect."
11. In the case of Haji Ahmed Haji Essa (supra), a learned Division Bench of this Court held as under:- If the learned Rent Controller has no jurisdiction to entertain the objections of the nature filed by respondent No. 3, there is no question of recording evidence on the objections. Since the learned Rent Controller has decided to proceed with the objections on merits as well, in our view the petitioners are entitled to press into service the constitutional writ jurisdiction of this Court as it will be futile to lead evidence before the learned Rent Controller in case he does not possess the jurisdiction to adjudicate upon respondent No.3 's above objections."
12. From the above judgment of a Division Bench of this Court it is clear that the constitutional jurisdiction of this Court can be invoked in order to prevent an exercise in futility. In the present case, as discussed above, the Rent Controller had no jurisdiction to delegate his powers of inspection to the Nazir to inspect the premises and he has also no jurisdiction to direct the Nazir to inspect the adjoining premises/shops. However, under the orders of the Rent Controller, the Nazir carried out the inspection of the adjoining shops and submitted his report. It would be, an exercise in futility if the report of the Nazir is considered by the Rent Controller as the same is without jurisdiction and therefore void and of no legal effect.
13. Before proceeding further, it would be pertinent to note the principle of law relating to discharge of duties under statutory provisions or regulations having backing of the statute namely that functionaries discharging their functions under a statute, providing a procedure for doing of a thing in a particular manner are required to do such function in that manner or' not to do at all as it has been held in the case of Atta Muhammad Qureshi v. Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61) and Capt. (Real.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary,. Housing and Physical Planning and .2 others (2000 SCM R 1720).
14. Mr. Qazi, learned counsel for the respondent No.1, also argued that, it is premature to assume that the report would be considered or not. He stated that once the report was considered by the Rent Controller and an order was passed thereon, only then the petitioner would have been justified to approach this Court. I do not agree with this submission of the learned counsel for the petitioner for the reason that the order of the Rent Controller, being without jurisdiction, was void and illegal and any recourse to a D report prepared in pursuance of such an order would be an exercise in futility. In the case of Muslim Commercial Bank Limited, (supra), it was held that where the order or action complained against was so patently illegal, void and wanting in jurisdiction that any further recourse to alternate remedy might only be counterproductive and by invoking Article 199 of the Constitution such mischief could forthwith be nipped in the bud, then in such matters existence of alternate remedy would not bar exercise of Constitutional jurisdiction by the High Court. It is an admitted fact that' this is the second round of litigation between the parties and if the Rent Controller is allowed to rely on such an illegal and void report then there would be another round of unnecessary litigation between the parties which would again culminate in filing of a C.P.L.A./Appeal before the Hon'ble Supreme Court. This would be sheer waste of time, labour and, money and will also cause unnecessary delay in determining the main dispute between the parties.
15. Learned counsel for the respondent No.1' vehemently argued that the present constitutional petition, having been filed against an order passed on an Interlocutory application by the learned Rent Controller, is not maintainable, hence liable to be dismissed straightaway. In this regard he relied on a number of reported judgments.
16. So far as maintainability of the petitions are concerned, it may be noted that an application under section ,8 of the Ordinance was filed by the petitioner for fixation of fair rent. Section 8 of the Ordinance reads as under:--
8. Fair rent.-(1) The Controller shall, on application by the tenant or landlord, determine fair rent of the premises after taking into consideration the following factors:
(a) the rent of similar premises situated in the similar circumstances, in the same or adjoining locality.
(b) the rise in cost of construction and repair charges.
(c) the imposition of new taxes, if any, after commencement of the tenancy; and
(d) the annual value of the premises, if any, on which property tax is levied.
(2) Where any addition to or, improvement in, any premises has been made or any tax, or other public charge has been levied, enhanced, reduced or withdraw in respect thereof, or any fixtures such as lifts or electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section 9 be determined or, as the case may be, revised after taking such changes into consideration."
17. Thus, the learned Rent Controller, while deciding an application for fixation of fair rent, has to take into consideration the above four factors into consideration. The case has to be decided on the basis of evidence to be produced by the parties. A report by the Nazir cannot be a substitute for the evidence brought by the parties on record as the Nazir or the persons who produce evidence before him could not be subjected to cross examination by the other side and the report or the evidence produced before the Nazir/Commissioner is also not on oath. Thus, the question of fixation of fair rent cannot be decided on the basis of a report of a commissioner and it has to be decided on the basis of the evidence produced by the respective parties. In this regard reference may be made to the case of Abdul Rashid (supra) wherein it was observed that "inspection of location by a Court may be necessary and helpful in deciding a case, but surely it should not be substituted as an evidence, which otherwise is required to be produced by a party."
18. In case Mst. Seema Begum (supra), relied upon by the learned counsel for respondent No.1, the Hon'ble Supreme Court of Pakistan has held that "The most important aspect of the case is that the respondent had challenged the interim order passed by the 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". A perusal of this judgment shows that the learned Rent Controller, while allowing an application under section 16(1) E of the Ordinance, directed the tenant to deposit arrears of rent and future rent at the rate of Rs.1000. This order was challenged by the tenant by filing a petition under Article 199 of the Constitution which was allowed. However, the Supreme Court held that respondent Muhammad Ishaq has challenged an interim order passed by learned Rent Controller by filing a Constitution Petition which is not maintainable and the impugned order was set aside on this ground. It may be noted that the order of the Rent Controller in the above case was not without jurisdiction as under section 16 of the Ordinance he can order for deposit of arrears as well as payment of future rent. Thus, this case is distinguishable on facts. Similar is the position in the other cases relied upon by the learned counsel for the respondent No.1 that in those cases none of the impugned orders was passed without jurisdiction and, thus, the constitutional petitions challenging the same were held to be not maintainable as the same being orders passed on interlocutory applications.
19. Thus, the cases relied upon by the learned counsel for the respondent No.1 are distinguishable on facts and, therefore, are not helpful to him.
20. On the contrary, learned counsel for the petitioner relied on the case of Pervez Impex '(discussed supra) which is on all fours as the same is in respect of an order passed by the Rent Controller on an application under section 20(c) of the Ordinance wherein it was held that the first order passed by the learned Rent Controller for the inspection of the site was held, to correct but the second order directing the parties to name an advocate for inspection of the site was held to be not in consonance with the provisions of the Ordinance and, therefore, was set aside.
21. The learned counsel for the petitioner has also relied on the case of Syed Mansoor Sadiq Zaidi (supra) wherein a learned single Judge of this Court has held that in exceptional circumstances jurisdiction under Article 199 of the Constitution could be invoked to avoid abuse of the process of law and grave injustice to a party and to redress grave illegalities.
22. In the case of Pakistan Burmah Shell Ltd. (Supra), the matter pertained to Cantonments Rent Restrict Act, 1963, wherein it was held that a question of jurisdiction can be appropriately raised by means of a Constitutional petition notwithstanding the availability of an appeal or alternate remedy; Since the wording of the relevant sections of the Act and the Ordinance are different, therefore, the same cannot be relied upon in part materia as argued by the learned counsel for the petitioner as the language of the two relevant sections are different. Even otherwise, Article 199 of the Constitution begins with the words "Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law ..." and it is an admitted position that the Ordinance itself bars filing of an appeal against an interlocutory order and, therefore, there is no other adequate remedy available to the petitioner to challenge such an order.
23. There is no doubt that the law laid down by the Hon'ble Supreme Court is binding on all Courts in Pakistan and for this there is no need to cite any case.Law as Article 189 itself is very clear but only when the law laid down by the Hon'ble Supreme Court is attracted. Thus, the observation of the Hon'ble Supreme Court in a case where the impugned order was not without jurisdiction would not be applicable to a case where the impugned order is without jurisdiction.
24. A perusal of the judgment in the case of Pervez Impex and the judgment in the case of Habib Alvi Athar, both quoted supra, would reveal that there is a conflict between these two judgments.
However, since both these judgments are Division Bench judgments, therefore, none can override the other. However, since the judgment in the case of Pervez Impex is later in time, therefore, the same is to be followed as per the settled principle of law.
25. Thus, if the two sets of judgments relied upon by the learned counsel for the parties are seen in juxtaposition, it would transpire that while an order by the Rent Controller on an interlocutory application having jurisdiction to pass the same cannot be challenged by filing a Constitutional petition but where an order is passed by the Rent Controller without any jurisdiction and the same suffers from patent illegality, then it can be challenged by filing a Constitutional petition under Article 199 of the Constitution for nipping the evil in the bud. In such event even availability of adequate alternate remedy would not come in the way of the High Court to set the wrong at naught.
26. The upshot of the above discussion is that the impugned order being void, illegal and of no legal effect, can be challenged by filing a petition under Article 199 of the Constitution and, therefore, these petitions are maintainable, the same are allowed and the impugned orders are set aside. The report submitted by the Nazir of District Court Karachi East, being without jurisdiction, is patently illegal and void, and, therefore, is not to be considered by the Rent Controller and the application under section 8 of the Ordinance is to be decided on the basis of the evidence of the parties.