JAWAD HASSAN, J. By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has called in question the judgment and decree dated 16.07.2022 drawn by the Additional District Judge, Rawalpindi whereby appeal filed by him against order dated 15.05.2022 passed by the Special Judge (Rent), Rawalpindi, was dismissed. These concurrent findings of fact have been assailed through this constitutional petition.
2. Precisely the facts necessary for adjudication of instant petition are that the Respondent No.1 moved an ejectment petition before the Special Judge Rent, Rawalpindi seeking eviction of the Petitioner on willful default in payment of rent and breach of other terms and conditions of the rent agreement. The ejectment petition was resisted by the Petitioner, who filed an application for leave to contest which was dismissed and the Petitioner was directed to deliver vacant possession of the demised premises within forty-five days from the date of order. The Petitioner, feeling dissatisfied from the said order preferred an appeal before the Additional District Judge, Rawalpindi but same was dismissed through judgment and decree dated 06.09.2022.
3. Learned counsel for the Petitioner argued that the impugned order and judgment passed by both the Courts below are without jurisdiction mainly for the reason that admittedly, suit property is situated within the limits of Cantonment Board, Rawalpindi, hence, the ejection petition could have been filed only in the Court of Rent Controller Cantonment Board, appointed by the Federal Government under Section 6(1) of the Cantonments Rent Restriction Act, 1963 "the Cantonment Act". Hence, on this score alone, both the order and judgment are liable to be set aside.
4. Conversely, learned counsel for Respondent No.1 controverted the stance of the Petitioner by supporting the impugned judgment and order passed by the lower Appellate Court and the Special Judge (Rent), Rawalpindi pursuant to proper appreciation of the facts and having jurisdiction to decide the lis.
5. I have heard learned counsel for the parties and gone through the available record.
6. The ejectment of the Petitioner was sought on multiple grounds including willful default in payment of rent of demised premises. It evinces from the record that the Respondent No.1 in para No.1 of ejectment petition mentioned the demised premises as "House No. 144, Street No.3, Lane No.3, Gulistan Colony, Rawalpindi" while in application for leave to contest filed by the Petitioner, it was objected that said property fell within the administration of Chaklala Cantt Rawalpindi. The heart of controversy involved in this petition is the forum of filing the ejectment petition as according to the Petitioner, the ejectment petition could be filed before the Rent Controller Cantonment Board, Rawalpindi while the counsel for the Respondent No.1 states that the Special Judge (Rent), Rawalpindi has rightly assumed jurisdiction while deciding the lis in hand. It is evident from the record that the demised premises belongs to the ownership of one Tariq Javed (real brother of the Respondent No.1) under sale deed No.387 dated 25.01.1994. The Respondent No.1 filed ejectment petition on behalf of his real brother and executed tenancy agreement with the Petitioner. Pertinently, while deciding the issue of jurisdiction, the Special Judge (Rent), Rawalpindi observed as under: "The respondent has taken the stance that property falls within the jurisdiction of Chaklala Cantonment Administration orally and no document is produced to support the contention. On the other hand, the ejectment petitioner provided the sale deed of demised premises which is registered by Sub-Registrar. Rawalpindi, thus, at this stage this objection is turned down, however, the respondent can agitate this matter after getting proof of his contention at subsequent stage".
7. Perusal of above referred sale deed reveals that demised premises is located within the limits of Cantonment Board, Rawalpindi and Section 17 of the "Cantonments Act" provides for eviction of tenant from the premises within the limits of cantonment area by applying to the Rent Controller for an order of eviction of a tenant but the Special Judge (Rent), Rawalpindi has illegally assumed jurisdiction in the matter, though, he had no power to adjudicate upon the ejectment petition, hence the findings of Special Judge (Rent) are absolutely misconceived and based upon wrong assumption of law. Moreover, the preamble of the "Cantonments Act" provides that it is expedient to make provision for the control of rents of certain class of buildings within the limits of the cantonment areas, for the eviction of tenants therefrom and for matters connected therewith. The preamble to a statute is though not an operational part of the enactment but it is a gateway, which opens before us the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the legislator aismed to secure through the introduction of such law. The preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law as held by the Supreme Court of Pakistan in "Director General, FIA and others v. Kamran Iqbal and others"
8. The Respondent No.1 sought eviction of the Petitioner from the demised premises for which he could have filed a petition in the court of the Rent Controller Cantonment Board under Section 17 of the "Cantonment Act" only who could have exercised jurisdiction under the law. Reliance in this regard may be placed on judgment in case "Nasir Mehmood v. Khawar Hussain and 5 others"
(2014 CLC 832), wherein it has been held that "no room is left to doubt that the shop in question is situated within the area of Cantonment Board and this fact has not been disputed by the respondents/landlord. This being so, the Punjab Rented Premises Act, 2009 had no application to the facts of the case, nor the learned Special Judge (Rent) appointed under the said Act had any jurisdiction to adjudicate upon, the matter. ... It is also pointed out that Cantonments Rent Restriction Act, 1963 has been promulgated for the control of rent of certain classes of buildings within the limits of cantonment area and for the eviction of tenant there from and section 17 thereof provides for eviction of a tenant from such premises by applying to the Controller for an order in that behalf The "Controller" its defined by section 2(d) of the said Act means a Controller of rent, appointed by the Central Government under subsection (1) of section 6 and includes the Additional Controller. This being so, the ejectment petition could be filed in the court of leaned Rent Controller, appointed under the provisions of Cantonments Rent Restriction Act, 1963 and not in the court of Special Judge (Rent), appointed under the Punjab Rented Premises Act, 2009. ... The respondents are claiming themselves to be the landlords in respect of the demised shop and seek eviction of the petitioner therefrom, for which they could file a petition in the court of the learned Rent Controller Cantonment Board under section 17 of the said Act." Moreover, it has held in case "Habib Masih and another v. Additional District Judge, Lahore and another" (2003 YLR 1245) that "It may also be observed that the very title of the ejectment petition filed by respondent No.1, is indicative of the fact that the property was situated within the cantonment limits of Lahore to which Cantonments Rent Restriction Act, 1963, is applicable and the learned Additional Controller, Cantonment Board, Lahore, could only exercise jurisdiction under the law." The adjudication, of the ejectment petition filed by Respondent No.1, by the Special Judge (Rent), Rawalpindi and Additional District judge, Rawalpindi as lower Appellate Court, thus do not stand on better footing as having been passed without jurisdiction which have no legal effect whatsoever.
9. In the light of above discussion, the impugned order and judgment, passed by both the learned courts below are absolutely without jurisdiction and have been passed without any lawful authority. The same are hereby set aside by accepting this writ petition.