' ABDUL RASOOL MEMON, J.---This order will dispose of the above titled constitutional petition filed by the petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 wherein he has impugned the order dated 12.12.2014, whereby an application filed by the petitioner under Section 16(1) of the Sindh Rented Premises Ordinance, 1979 ("the Ordinance, 1979") in Rent Case No.274 of 2014 has been dismissed by the learned Vth Rent Controller, Karachi (South).
2. Brief facts of the case as narrated in the memo of petition are that the petitioner is landlord of residential property/Flat bearing No.G-5/KHo No.G-5 measuring 151 Square Feets in Plot of land bearing Survey No.52, Survey Sheet No.SB-3, (Old Survey No.G-3/36) situated in Saddar Bazar Quarters, Karachi which was purchased by him in the month of June, 2012 from one Sheikh Mateen and the Sale Deed was executed in July, 2012. It is the case of the petitioner that he informed the respondent regarding the purchase of the property in question and served him with a notice dated 22nd February, 2014 and repeatedly demanded him to pay arrears of rent from June, 2012 along with regular monthly rent, but he failed to pay the same, thus he has committed default in payment of rent therefore he filed rent application under Section 15 of the Ordinance, 1979 being Rent Case No.274 of 2014 for eviction of the respondents on the ground of default in payment of rent.
3. The defendant filed written statement and denied the relationship of landlord and tenant and claimed that the demised premises w owned by Anie De Costa W/o Joseph D'Costa who died in the year 1993. It is further asserted that in the year 2008 her daughter namely Philomena Cardoza, sold out the said Flat/Kholi to the respondent vide Sale Agreement dated 01.04.2008 for lawful consideration and she also handed over original title documents and vacant physical possession of the premises to the respondent and since then he is residing there. Along with rent application an application under Section 16(1) of the Ordinance, 1979 was also filed on which after hearing the parties learned Rent Controller passed the impugned order, the relevant portion thereof is reproduced as under:-- "After perusal of record it appears that in written statement the opponent denied the relationship of landlord and tenant and admittedly opponent also filed suit for declaration cancellation damages and permanent injunction against the applicant which is also pending before this Court. Beside this annexures annexed with rent application and written statement also requires evidence for ascertaining the truth. In these circumstances and at this stage without recording the evidence of both parties, I do not find any merits in present application hence same is hereby dismissed. The case law produced by learned advocate for the applicant are not attracted to the circumstances of present case."
4. The said order has been impugned in this constitutional petition.
5. Learned counsel for the petitioner submits that the order of the Rent Controller is based on misreading and non-reading of documentary evidence available on record of the learned Rent Controller hence has failed to exercise jurisdiction so vested to it and has acted in exercise of its jurisdiction illegally. He further submits that the ownership can only be determined by the civil Court and mere agreement of sale did not constitute any title in favour of the parties thereto while the petitioner has a registered document hence the Rent Controller has acted illegally therefore the writ petition filed by the petitioner is maintainable and the tentative order of the Rent Controller is without jurisdiction and same can be set-aside in exercise of writ jurisdiction. In support of his contentions he has relied on the following case law: Mrs. Durre Shamim Rafi v. Muhammad Zubair Khan and another (2013 CLC 1021)
Muhammad Aslam v. Pakistan Steel and another (1990 CLC 849)
Hukum Khan v. Pakistan Steel and another (1989 MLD 4436)
6. Learned counsel for the respondent No.1 in rebuttal argued that the impugned order is interim in nature and under section 21 of the Sindh Rented Premises Ordinance, 1979 legislature clearly bars appeals against such orders. The logic behind the said embargo simply is to shorten the litigation.
He further submits that the order of the Rent Controller on the very face of it is under Section 16(1) and no final order has yet been passed therefore the same is interlocutory in nature. He further submits that the respondent altogether challenged the relationship of landlord and tenant on the ground that he is owner not only of the demised premises, but 4e is the owner of the whole plot on which the demised premises is situated. It is further contended that the respondent is living in the said plot since his birth along with his father Wahabuddin. In support of his contentions he has placed reliance on the following case law: Mrs. Syeda Tahira Mubashar v. Mst. Zakia Khan and another (2007 CLC 1961)
Agha Wasif Abbas v. Muzaffar Ali Isani and another (2008 M LD 1229)- Habib Bank AG Zurich and another v. Nazir Ahmed Vaid and another (2011 CLC 648)
Muhammad Nadeem v. Nasimuddin and another (2007 CLC 1956)
7. I have heard learned counsel for the parties and gone through the material available on record.
Perusal of impugned order shows that the rent controller has passed the impugned order after due deliberation and the application under Section 16(1) of the Ordinance, 1979 was disposed of till the evidence of the parties is recorded and relationship of landlord and tenant is established. The order under Section 16(1) as appears from the face of it is undoubtedly an interim order passed on interlocutory application filed by the petitioner. Under Section 21 of the Ordinance, 1979 appeal is provided only against an order which is not an interim order. Obviously it is in view of the bar contained under Section 21 of the Ordinance, 1979, which is reproduced as under:-- "21. 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 the District Judge having jurisdiction in the area where the premises in relation to which the order is passed."
8. A perusal of the above provisions of law clearly indicates that the legislature has specifically prohibited filing of an appeal against interim order. Thus, I am of the view that the legislature did not intend to make the interim order challengeable. Interim order is to merge in the final verdict which shall be appealable and going against that arrangement by exercising writ jurisdiction would not be proper because in that case the object of legislature shall be frustrated. This dictum is laid down in the case of Mrs. Syeda Tahira Mubashar (supra) and Abdul Farooq and another v.
Maqsood Ahmed and another, reported as 2015 CLC 663.
9. The case law relied upon by the learned counsel for the petitioner have no relevancy to the case in hand because in all these three cases the Rent Controllers have passed the orders for payment of rent beyond the period of three years and that orders were held as without jurisdiction; therefore, the writ petitions against such orders were maintained on the ground that the orders were passed without jurisdiction, but in the instant case the application under Section 16(1) was dismissed holding that there are disputed facts as regards relationship of landlord and tenant and the order is interim in nature, therefore it is not question of exercising the jurisdiction in excess in which the Constitutional jurisdiction can be invoked. The petitioner has got adequate remedy to challenge the impugned order in appeal which he may file against the final order / judgment if the same is passed against the petitioner. Thus, the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, being not maintainable, is dismissed accordingly.