IRFAN SAADAT KHAN, J.--- This First Rent Appeal (FRA) has been filed against the order passed by the Additional Collector of Rents, Clifton Cantonment, Karachi in Rent Case No,25 of 2016, dated 20.10.2016.
2. Briefly stated, the facts of the case are that the respondent let out shop bearing No,18, Al-Khalifa Centre, situated at plot No,C-8, K.D.A. Scheme No,5, Block-8, Clifton, Karachi, vide agreement dated 21.12.2005 at a month rent of Rs,8000/- per month. At the expiry of the term of the agreement the appellant continued to enjoy the possession of the shop as a tenant however increased the rent from time to time and lastly the rent of the shop was Rs,19000/- per month. The present respondent filed a rent case bearing No,25 of 2006 before the concerned Rent Controller and thereafter on 01.09.2016 the present appellant filed an application under Section 27 of the Cantonments Rent Restriction Act, 1963 (the Act) with the prayer to reject the affidavit-in-evidence of the opponent (appellant) and direct him to be orally examined under oath and to produce the originals of all the documents filed by him. This application was heard by the Rent Controller who vide order dated 20.10.2016 rejected the same as not maintainable by giving the appellant last and final chance to cross-examine the applicant (respondent) of the rent case. It is against this order that the present FRA has been filed.
3. Mr. Khalid Latif Advocate has appeared on behalf of the appellant and stated that the order passed on the application is not an interlocutory order rather the same is a final order hence under the relevant provisions of Cantonment Laws the same is challengeable before this Court. He further stated that the Rent Controller was not justified in rejecting the application filed by the present appellant under Section 27 of the Act, since it is always the prerogative of a party to be orally examined under oath and there is no need of filing of any affidavit-in-evidence in this behalf. In support of this contention, the counsel has placed reliance on Order XVIII, Rule 4 of the Civil Procedure Code (C.P.C.) and Article 70 of the Qanun-e-Shahadat Order, 1984 (the Order) and stated that since the Rent Controller has not done the needful in view of the provisions of the law as enumerated above, the order passed by him is liable to be set aside.
4. Mr. Iftikhar Javaid Qazi Advocate has appeared on behalf of the respondent and at the very outset submitted that the application was rightly rejected by the Rent Controller being wholly misconceived, as it has categorically been provided under Section 24 of the Act that interlocutory orders are not appealable. He stated that the matter is pending before the Rent Controller and the present action of the appellant is nothing but an attempt to waste the precious time of the Court and to linger on the matter since, in his view, the appellant, who is opponent in the rent case has no defence to offer and now is taking lame excuses by filing frivolous applications just to gain time and to drag the matter unnecessarily. The learned counsel then read out Section 24 of the Act to support his viewpoint. He stated that it is a general practice prevailing all over Pakistan that firstly parties lead their evidence and thereafter on the basis of their examination in chief and the evidence appropriate orders are passed by the Rent Controllers but in the instant matter an uncalled for prayer was made by the learned counsel for the appellant to skip the process of examination-in-chief by way of examination of the parties orally which is not warranted under the law which is a prevailing practice and procedure being adopted, followed and practiced in whole of the country. He also stated that neither Order XVIII, Rule 4 of the C.P.C. nor Article 70 of the Order have any bearing whatsoever to the instant case. He further stated that the provisions of C.P.C. are applicable to Section 27 of the Act in a resistive manner only. He, therefore, submitted that this FRA being wholly misconceived is liable to be dismissed with heavy cost. In support of above contentions, the learned counsel has placed reliance on the following decisions:
1. Syed Nasir Ali Shah and another v. Mst. Bashiran Bibi and 2 others (1998 CLC 298)
2. Ahmad Khan v. Khalid Mehmood and 2 others (1990 MLD 3.1224) Habib Alvi Athar v. Hassan and 7 others (1986 MW 1656) 3.Niaz Khalil v. Sh. Muhammad Shafiq (1995 SCMR 791)
5. Kh. Noorul Qadir Darabu v. Ejaz Ahmed and others (PLD 1997 Karachi 501)
6. Zar-Faroosh v. Sikandar Aziz and 5 others (PLD 1997 Peshawar 64)
7. Mrs. Anita Subhan Khan v. Jamaluddin Ansarie Additional Controller of Rents and another (1990 CLC 1224)
5. I have heard both the learned counsel at considerable length and have also perused the record and the decisions relit upon.
6. Before proceeding any further it would be convenient if provisions of law as relied upon by the learned counsel are firstly reproduced:-- Section 24 of the Act
24. 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 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.
Provided 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 the 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. (underline mine)
Section 27 of the Act
27. Procedure and Power of Controller. No order under section 7, 8, 13, 15, 17, or 19 of this Act shall be made by the Controller except after holding an inquiry.
(2) For the purposes of holding an enquiry under this Act, the Controller and the appellate Court shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely:- (a)summoning and enforcing attendance of any person and examining him on oath; (b)compelling the discovery and production of any document and other material evidence; and (c)issuing a commission for the examination of witnesses.
(3) The proceedings of every inquiry shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860)
Order XVIII Rule 4, C.P.C.
4. Witnesses to be examined in open Court.-- The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge."
Article 70 of the Order
70. Proof of facts by oral evidence. All facts except the contents of documents, may be proved by oral evidence".
7. The contention of the learned counsel for the appellant is based on two primary objections i,e, (1) the Rent Controller was not justified in dismissing his application filed under Section 27 of the Act and (2) the provisions of C.P.C. and the Order are applicable to the Act, hence, the appellant was justified in making the prayer by filing an application that he may be allowed to be orally examined on oath and to produce the originals of all the documents filed by him along with his affidavit-in- evidence. It is a settled proposition of law, as clearly mentioned under Section 24 of the Act, that interim orders are not appealable. Here a question would arise that whether the order passed by the Rent Controller dated 20.10,2016 is to be construed to be a final order or as an interim order.
Though the learned counsel for the appellant states that it is a final order, but this aspect has to be examined vis-a-vis in the light of the wordings of the order, the law and the decisions of the parties put forth in this behalf.
8.It is an undeniable position that the matter in Rent Case No,25 of 2016 is still pending before the Rent Controller, since the only order passed by him on 20.10.2016 was on an application filed under Section 27 of the Act by the present appellant clearly directing the appellant to cross-examine the respondent. I, therefore, find myself to be in disagreement with the submissions made by the learned counsel for the appellant that this order is a final order. Here again a question would arise that whether the order of the Rent Controller was something to do with the merits of the case and that whether said order could by any stretch of imagination be construed to be a final order thereby fixing the responsibility upon the appellant or the respondent with, regard to the rent case filed under Section 17 of the Act by the present respondent on the grounds of non-payment of rent, water/conservancy charges and utility bills, causing nuisance, personal bona fide need etc. The answer to this question, in my view, would be in emphatic 'No'. These facts are yet to be determined, since it is an admitted position that in the instant matter issues have already been framed by the Rent Controller vide order dated 25.07.2016 when the present appellant was present before the Rent Controller and has raised no objection with regard to the issues framed on the said date and has adopted the same as filed by the respondent (applicant). This attitude of the appellant clearly demonstrates that a final decision /adjudication in the instant matter is yet to be made after completing the other legal formalities which are necessary after framing of the issues.
In my view the appellant has approached this Court with unclean hands with the sole intention to unnecessary drag and linger on the matter on extraneous grounds, hence it is only the final orders passed by the Rent Controller which are appealable and not the interim orders.
9. It is a well-settled principle of law that when a statute does not provide an appeal against an interlocutory order the same could not be provided, as it would mean negation of the very statute.
The statute excluding a right of appeal cannot be provided as that would frustrate the very purpose of enacting the said statute. In my view the order passed by the Rent Controller on 20.10.2016 is in the nature of the interim order through which the application under Section 27 of the Act filed by the appellant was dismissed by directing the appellant to cross-examine the respondent. Thus, in my view, for all practical purposes the order dated 20.10.2016 has to be construed as an interim order, which is not appealable under Section 24 of the Act which Section is restrictive in character and specifically bars appeal from an interim order and the apparent purpose behind the said legislation is to curb the process of filing appeals on an interim order by directing the aggrieved party, if any, to wait for the final decision and thereafter, if deems necessary, to file an appeal to avoid multiplication of the proceedings and to avoid piecemeal decisions for the purpose of the disposal of the matter.
10.It is also a settled proposition of law that something not provided directly cannot be sought indirectly. Though the case-laws relied upon by the learned counsel for the respondent are mainly on the issue of filing Constitutional Petition against the interlocutory orders but the rational in all these judgments remains the same i,e, the Act specifically bars filing of appeal against the interlocutory order. Hence, so far as this issue is concerned I do not find any merit in the arguments advanced by the learned counsel for the appellant and reject the same.
11. So far as the contention raised by the learned counsel for the appellant with regard to the applicability of C.P.C. and other Laws is concerned, here again I tend to disagree with the submissions made by the learned counsel. The preamble of the Act clearly provides "An Act to make provision for the control of rents of certain class of buildings within the limits of the cantonment areas and for the eviction of tenants therefrom" meaning thereby it is a special statute enacted with the purpose to control and regulate the dealings. between the tenant and the landlord in the Cantonment areas. Hence for all practical purposes this law has to be construed to be a special law. In the decision given by the Hon'ble Supreme Court of Pakistan reported as Capt.
(Retd.) Nayyar Islam v. Judge, Accountability Court No, III and others (2012 SCMR 669) it was held by the Apex Court that "the provisions of special law exclude the application of general law in the context in which the former provision has been enacted" .
12.I was able to lay my hands on the decision given in the case of Messrs Delite House Ltd. v.
Fayyaz Akbar (1988 CLC 1363) wherein it was held by the learned Single Judge of the Lahore High Court that provisions of C.P.C. do not apply to the Rent Controller except to the extent indicated in section 27(2) of Cantonments Rent Restriction Act, 1963. It is seen that it is only with regard to Section 27(2) of the Act which provides holding of enquiry etc. C.P.C. has been made applicable, whereas for all other aspects of the Act it is the Act which would prevail over the C.P.C. and other laws since, as stated above, the Act is a special legislation. It was also able to lay my hands on a decision given by a Single Judge of this Court in the case of Mehmood Zaman Khan through Special Attorney v. Muhammad Anwar Farooq and another (2016 CLC Note 86) wherein also it has been provided that provisions of C.P.C. were not strictly applicable to the proceedings under the Act. Hence, on this aspect also I do not find any merit in the submissions made by the learned counsel for the appellant that the Rent Controller has ignored the provisions of C.P.C. and the Order and hence his order is liable to be set aside.
13.In view of the facts recorded above, I do not find any substance in the above FRA and dismiss the same accordingly along with the pending application(s). Office is directed to return the R&Ps of Rent Case No,25 of 2016 immediately with the directions to the Rent Controller to proceed with the case in accordance with law.
14.Above are the reasons of my short order dated 13.11.2017 whereby the instant FRA was dismissed.