ABDUL RAHMAN AURANGZEB, J. --- Through this single order, I intend to decide the instant writ petition as well as connected Writ Petitions No, 11334 of 2015 and No, 11335 of 2015 as same nature of orders have been assailed in all these three writ petitions.
2. These writ petitions are directed against the orders passed by the learned Additional Rent Controller, Multan, dated 15.02.2013 and 10.06.2013 whereby two miscellaneous applications, one filed by respondent No, 2 for impleading him as party in the ejectment petition, was allowed, whereas the other application filed by the petitioner for the deposit of monthly rent in the Court by respondent No, 3/tenant, was dismissed.
3. Learned counsel for the petitioner has contended that the order passed on the application for impleading of respondent No, 2 as party is against law and facts and the same is liable to be set aside. Respondent No, 2 is neither necessary nor proper party who would not on the basis of agreement to sell entitled to be arrayed as respondent in the main ejectment petition. Similarly the petitioner also agitated that in presence of registered sale-deed in favour of the petitioner/landlord, the tenant/respondent No, 3 is under obligation to deposit the monthly rent before the learned Rent Controller.
4. No one appeared on behalf of respondent No, 3/tenant to defend the matter on the application for deposit of monthly rent before the learned Rent Controller; therefore respondent No, 3 is preceded against ex parte. The contention raised in the said application is convincing. The claim of the petitioner/landlord is based upon registered sale-deed which remained un-rebutted and the status of the respondent No, 3 as tenant is also riot denied, hence, the tenant/respondent No, 3 is under obligation to deposit the monthly rent before the learned Rent Controller till the final decision of ejectment petition. Therefore, the order dated 10.06.2013 is set-aside and respondent No, 3/tenant is directed to deposit the monthly rent with the learned Additional Rent Controller, Multan, till the final decision of ejectment petition.
5. So far as the application for impleading of respondent No, 2 in the ejectment petition is concerned, this plea was hotly contested by respondent No, 2 that on the basis of an agreement to sell dated 10.05.2011 in respect of suit property which is allegedly in his favour from the previous owner. He stated that he being necessary party was rightly allowed to implead in the ejectment petition and as such the order passed by learned Additional Rent Controller is sustainable.
6. Conversely, learned counsel for the petitioner vehemently opposed the order passed by the learned Additional Rent Controller for impleading respondent No, 2 in the ejectment petition.
Indicating the legal infirmity in the impugned order, the petitioner assert that the agreement to sell is not a title deed, hence, the respondent No, 2 is neither necessary nor proper party, therefore, the order of the learned Additional Rent Controller, is liable to be set aside.
7. Refuting the contention, learned counsel for the respondent No, 2 submits that the order passed by respondent No, 1 on 15.02.2013 was assailed before this Court on 03.08.2015, hence, the "principle of laches" is applicable on this writ petition. He adds that the learned Rent Controller passed an interlocutory order which cannot be assailed in the writ jurisdiction; therefore, this writ petition is not maintainable.
8. Heard. Record perused.
9. There is no denial with this fact that respondent No, 2 filed his claim on the basis of an agreement to sell dated 11.05.2011 and on the strength of this agreement to sell the applicant challenging the validity of ownership of the petitioner. Admittedly, the applicant filed a suit for declaration regarding said subject-matter before the learned Courts of law which was concurrently dismissed on 17.12.2015, 25.03.2017 & 12.04.2017. I have examined the contention of respondent No, 2 and also scrutinized the validity of order dated 15.02.2013 whereby the respondent No, 2 was allowed to be impleaded in the ejectment petition. The learned Additional Rent Controller has wrongly allowed the respondent No, 2 to implead him in the ejectment petition on the basis of an agreement to sell which was already dispelled. It was held in the plethora of judgments that agreement to sell is not a title deed. For ready reference "Mst. Seema Begum v. Muhammad lshaq and others" (PLD 2009 Supreme Court 45) can easily be relied where the claim of the tenant was that he was an occupant on the basis of an agreement to sell but this claim was not accepted and the tenant liable to be vacated from the rented premise. As I have already opined that the respondent No, 2 has failed to prove his claim before any Court of law, hence, he is not liable to be impleaded in the ejectment petition.
10.Reverting the other contention of the respondent No, 2 by relying upon "Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others" (1989 SCMR 328) that the High Court has no authority to express upon the validity of the interim order when there is a remedy available for an aggrieve person, against the interim older, then the only recourse is of filing of appeal after final order as the interim order merged into the final order. I am not convinced with this contention of the respondent No,
2. Order of the learned Additional Rent Controller although being interlocutory order which can i challenged through final appeal, but when the order having left with no remedy, and the order affecting the right of petitioner directly then the invocation against the interlocutory order is not precluded. The nature of the order passed in the circumstances is vividly clear that the status of an alien person has been determined as owner by the learned Additional Rent Controller who has no locus standi with the rented premises, even then he was impleaded in the /is. It is held in Division Bench decision of Peshawar High Court in "Ashiq Hussain v. Sikandar Shah and 14 others"
(2011 CLC 373) [Peshawar] that if the impugned interlocutory order is against law and suffering from legal infirmities then it could be interfered by the High Court through its Constitutional jurisdiction and High Court has power to set-aside the impugned order although the same having the status of interlocutory in nature. It is further held in "Robina Yasmeen and others v. Rana Javed lqbal and others" (2011 CLC 1779) that the Constitutional petition against an interim order passed by Special Court was not maintainable, yet it was not an absolute rule, and fact of each case had to be considered before proceeding to determine question of maintainability of Constitutional petition. If the Rent Tribunal had proceeded against mandatory provision of law, as such there is no provisions exists in "the Cantonments Rent Restriction Act, 1963 to implead a person in the ejectment proceedings, then the same should have been checked instead of waiting for passing of a final order. It is also observed that impeachment of interim order if necessary at proper stage was not allowed, then it would lead to the wastage of public time and would also multiply the litigation between the parties. The ejectment petition was filed on 25.09.2012 and after the span of more than four & half years the same is still subyudice before the Rent Tribunal. These state of affairs are not appreciable and the learned Rent Tribunal is under obligation to decide the matter on a fast track.
11.The other contention of the respondent No, 2 that the petition is also not maintainable on the ground of laches. For this reason the bar of laches can be examined. It is held in case law reported as "Umer Baz Khan through L.Hrs. v. Syed Jehanzeb and others" (PLD 2013 Supreme Court 268) that no Court could dismiss a /is on the ground of laches if it defeated the cause of justice and thereby perpetuated on injustice. It is also observed with utmost dismay that the conduct of the learned Additional Rent Controller is approbate and reprobate who vide his order dated 06.06.2013 regarding the same alleged matter dismissed the application of one Asim Mahmood for impleading him in the ejectment petition whereby the same learned Additional Rent Controller opined as under:-- it is an established law that agreement to sell does not create any title and ownership cannot be claimed on such basis unless the suit is decreed and through execution of such decree the title deed is executed in favour of the claimant." This opinion of the learned Additional Rent Controller reflects that he is fully aware about the status of agreement to sell which could not confer any right, but when the order dated 15.02.2016 was passed by the same learned Rent Controller, he kept his eyes closed with this aspect of the case and it seems that the impugned order was passed without adverting even to the legal ethics, therefore, an order which is patently illegal is not sustainable.
12.From every angle when I examined this case that the respondent No, 2 was allowed to implead in the ejectment petition, the myth of the general laws as well as the special law have been violated by impleading an alien person who has no locus standi with regard to the rented premises. In this way a grave injustice has been caused. On the strength of above mentioned references there is no bar to set at naught the wrong order by invoking the provisions of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 even in the presence of bar of laches.
13.Last but not least the dictum laid down in the judgment of Hon'ble Supreme Court of Pakistan for such-like violative acts cited as "Muhammad Anwar and others v. Mst. Ilyas Begum and others"
(PLD 2013 Supreme Court 255), is also relevant wherein it is held that:--- "It is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and thus where an order has been passed by any forum or Court, including the Revisional Court, which is patently illegal and violative of law, especially the express provisions and the spirit of law, which (order) if allowed to stay intact tantamount to, and shall cause serious breach to the legal rights of the litigants and shall cause prejudice to them, the learned High Court in appropriate cases while exercising its Constitutional jurisdiction can rectify the illegality and violation of law and undo the harm caused by the order of such (revisional) Court."
Further held that:--- "It is a well-known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be treated as a technicality." 14.For the foregoing reasons I am of the considered view that this writ petition is allowed and in consequence the impugned order dated 15.02.2013 as well as the order dated 10.06.2013 passed by the learned Additional Rent Controller, Multan are hereby, set aside. Before parting with this order the learned Additional Rent Controller, Multan is further directed to conclude the pending ejectment petitions within one month after receipt of copy of this order, under intimation to this Court.