RASAAL HASAN SYED, J.----Order dated 26.10.2017 fixing tentative rent and issuing direction for the depos it of arrears of rent has been assailed in this Constitutional petition.
2. Petitioner claims that his father was in occupation of Shop No.474, Sadar Bazar , Multan Cantt, as a tenant under respondents Nos.2 and 3 since November 1981, in pursuance of agreement dated 30.10.1981; rent initially agreed was Rs.2,000/- per month; father of the petitioner allegedly died in the year 2009 and after 'his death, the petitioner claims to be in occupation as tenant by operation of law; no period was fixed for periodical enhancement of the monthly rent and that the parties with mutual consent allegedly used to enhance the rent as per prevailing market rate. It was asserted that the last enhancement was made from November 2011, whereafter the petitioner started paying the rent @ Rs.11,000/- per month. As per petitioner , ejectment petition was filed by the respondents Nos. 2 and 3 in August 2014, allegedly on fabric ated pleas wherein it was claimed that the petitioner was defaulter from March, 2012 and that the property was required for self-occupation and also that the petitioner had damaged the property . It is claimed that the petitioner started depositing rent with the Rent Controller @ Rs. 11,000/- per month.
Reply to the application was filed wherein the allegations and grounds raised for eviction were controverted.
According to petitioner learned Addl. Rent Controller appointed local commission on whose report the tentative rent @ Rs.20,000/- per month was fixed vide order dated 24.10.2014. The order was challenged in W.P. No. 2477/2015 which was disposed of vide Order dated 10.5.2017 with the consent of the partie s who agreed that the report of local commission dated 22.10.2014 be suspended; the order passed on the basis thereof be set aside and that the learned Addl. Rent Controller should conclude the matter (ejectment petition filed by the respondent/landlord) finally after recording and evaluating the evidence for the parties, within a period of one month. In the post-remand proceedings the learned Addl. Rent Controller passed order under section 17(8) of the Cantonments Rent Restriction Act, 1963 fixing the tentative rent @ Rs. 26,583/- with a direction that the petitioner shall deposit the arrears of the rent as tentatively determined. Against this order , the present Constitutional petition has been filed after more than two years.
3. Learned counsel submitted that the rent tentatively determined is exorbitant; the order is based on mere assumptions and that the learned Rent Controller passed the order without considering the petitioner's viewpoint and further that the arrears of rent as are required to be deposited being huge and sizable cannot be deposited by the tenant. It is added that there being a dispute about the rate of rent and also the amount of arrears of rent due, the Rent Controller was expected to conduct inquiry and thereafter pass an order for the deposit, of rent even if it is tentative.
4. The points raised by the learned counsel are without any legal substance. Undeniably the petitioner , in this Constitutional petition has challenged the interlocutory order as to the deposit of future rent and arrears of rent pending disposal of the ejectment petition. Section 24 of the Cantonments Rent Restriction Act, 1963 provides for an appeal against the order of the Rent Controller within 30 days but it specifically excludes interim orders from the category of orders which are appealable . Being so, the Act ibid does not provide any appeal against an interim order like the one which is under challenge in this petition. The issue of maintainability of the writ petition in the instances where the statute does not provide for a remedy of appeal against interim order has been considered in number of cases wherein and it is consistently ruled that the writ jurisdiction cannot be invoked in aid of injustice or to deflect express provisions of the statutory law and that where the legislature in its wisdom did not permit the filing of appeal against interim orders, the Constitutional jurisdiction cannot be invoked to circumvent intent of legislature. In "Mian Manzar Bashir and others v. M.A. Asqhar & Co." (PLD 1978 SC 185) it was observed by the honourable Supreme Court to the effect that Interlocutory orders either incidental or collateral are not appealable and that the orders embracin g whole gamut of dispute alone are appealable. In "Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore and another" (1976 SCMR 450), it was observed by the august Court to the effect that the writ jurisdiction cannot be invoked in aid of injustice and to deflect express provision of statutory law. In "Mst. Seema Begum v. Muhammad Ishaq and others" (PLD 2009 SC 45) it was observed by the august Court to the effect that being interim order passed by the Rent Controller cannot be challenged in the Constitutional petition which will not be maintainable again st the interlocutory orders . In.
"Muhammad Saeed v. Mst. Saratul Fatima and another" (PLD 1978 Lah. 1459 ) it was observed by a learned Division Bench of this Court to the effect that the legislature did not deem interlocutory order to be appealable, the order of Rent Controller directing tenant to deposit the arrears of rent and future rent during the pendency of ejectment application by itself causes no tangible damage to the tenant and in order to pose any real threat as it is to be substituted by another order when the Statute gives the right of appeal, being more extensive and beneficial and available both on question of law and of fact. The legislature held the interlocutory order not fit to be appealable, the order could not be challenged in constitutional jurisdiction as the practice of entertaining the writ petition to defeat legislature intent has always been disapproved . The order under challenge in the instant writ petition being interlocutory , the Constitutional petition is not legally maintainable.
5. The arguments that the amount of arrears of rent being huge and sizable, which the petitioner could not pay is hardly a ground to entertain the writ petition. It is also noticed that the impugned order was passed on 26.10.2017, while the same is challenged after about two years as the instant writ petition was filed on 14.9.2019 and there' is no explanation for such a long inaction on the petitioner's part.
6. Even otherwise there is no substance in this petition. Section 17(8) of the Cantonments Rent Restriction Act, 1963 provides that on the first hearing of the proceedings, and as soon as thereafter and before the issues are framed, the Controller shall direct the tenant to deposit in his office before the specific date the rent due from him and also to continue deposit regularly till the final decision of the case before the 5th day of each month; and if there being any dispute as to the amount of rent due the Controller shall determine such amount approximately .
Subsection 9 of section 17 of the Act ibid mandates that if the tenant fails to deposit the amount of rent before the specified date, his defence shall be struck off and the landlord shall be put to possession of the rented premises without further proceedings. The perusal of the impugned order makes it plain that the learned Rent Controller examined the controversy between the parties and after considering their respectiv e contentions observed that the petitioner had admitted that their predecessor was a tenant, executed rent note dated 31.10.1981; and on his demise, by operation of law the petitioner became the tenant and is liable to make the payment of rent. While considering the statutory increase after three years the learned Rent Controller tentatively determined the rate of rent and also the arrears of rent and directed the petitioner to deposit the same in accordance with the schedule of deposit given in the order . No jurisdictional error could be pointed out in the course of hearing. The only argument raised is to the effect that the amount is exorbitant but as noted supra, the Rent Controller tentatively assessed the arrears of rent keeping in view the circum stances of the case and the admissions made therein and of course this will be subject to final determination of the case after evidence. The Rent Controller having jurisdiction to tentatively determine the rate of rent and also the arrears of rent, the jurisdiction being exerc ised on fair analysis and lawful consideration, no exception at this stage can be taken to the impugned order . Obviously after the evidence is recorded the Rent Controller will finally determine the actual rate of rent as also the arrears of rent. The petitioner in his own interest is expected to comply with the order to avoid the penal consequen ces as any violation thereof, can result in forthwith eviction.
7. For the reasons above, this writ petition is not maintainable and also being without substance, the same is hereby dismissed .