' These are four connected constitutional petitions filed by four tenants of respective shops in a building at Rawalpindi seeking annulment of the orders of a learned Rent Controller passed in each case in terms of section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 ordering them to deposit rent due and future monthly rent till the decision of the eviction applications.
2. The petitioners in these writ petitions being W. P. Nos. 468, 469, 470 and 471 of 1981 admit that they are tenants of Allah Dad, respondent No,
1. Since a common question of law arose in these cases on similar pleas raised they were admitted to a regular hearing by a learned Judge of this Court and ordered to be heard together and are accordingly being decided through a consolidated judgment.
3. Brief facts relevant for the purpose of these writ petitions are that the petitioners in each case are the tenants of respective shops of the respondent-landlord located on Jinnah Road. Rawalpindi.
The landlord, respondent No, 1 on 17th January, 1981 filed four separate applications against his tenants in all the four cases on the sole ground of default in payment of rent as a result of a conspiracy hatched by them. The only difference in the respective cases being that the default in each case was alleged from a particular month in the year 1979. The rate of rent admittedly in two cases was Rs, 600 p. m. While in the others Rs, 650 p. m. The petitioners-tenants filed their written statements and pleaded firstly that rent upto December, 1980 stood paid and secondly, that in one case in January and in others in February, 1980 agreements were executed in each case and the rent thereafter was paid to the landlord against alleged receipts after adjusting a part of it against the advance rent already paid. For instance in the case of Muhammad Bashir petitioner, the monthly rent no doubt was Rs, 600 but after payment of advance rent Rs, 550 was allegedly paid monthly with Rs, 50 being adjusted against the advance rent. In the other cases there are slight variations in the mode allegedly adopted. Money order coupons were relied upon before me to show tender of rent from February/March, 1981 to September, 1981 which the landlord allegedly refused to receive.
4. After hearing both sides, it may be summed up that in the cases under disposal the relationship of landlord and tenant had been admitted and so was the rate of rent. The controversy had arisen because the tenants in each case claimed payment of advance rent and its adjustment against monthly rent. The landlord, on the other hand, asserted and claimed to be a victim of fraud and forgery. The Rent Controller in such a situation in each case on 26th September, 1981 ordered deposit in Court of arrears of rent from April/May, 1979 till September, 1981 within one month and fifteen days of his order and future monthly rent to be deposited before 15th of each month at the approximate original rate of tenancy. It was further ordered that the disputed rent would not be drawn by the landlord till the decision of eviction cases. The Controller postponed the decision of the contentions questions requiring recording of evidence till the decision stage; the tenants instead of complying with the direction of learned Rent Controller approached the High Court invoking its constitutional jurisdiction and on 1st of November, 1981 these writ petitions were admitted to a regular hearing by a learned Single Judge and operation of the impugned order in each case suspended.
5. In the above background and set of circumstances, at first it needs to be examined whether the rent tribunal was clothed with lawful authority keeping in view the nature of his jurisdiction and conditions and qualifications for its exercise. If the answer be in the affirmative, a further question would then arise whether in exercising the jurisdiction which undoubtedly belonged to it has the rent tribunal acted in accordance with, law or transgressed the legal .Bounds or violated any mandate of the statute which would render his impugned order as one without jurisdiction and void.
6. In my view, the existence of jurisdictional facts was proved on account of relationship of landlord and tenants being admitted by both sides. It was also not denied that in terms of section 13(6) a Rent Controller could pass an order for deposit of arrears of rent as well as future monthly rent. The Rent Controller therefore was competent to take season of the matter and exercise jurisdiction under the Ordinance. There was no statutory bar against passing of order for deposit of rent in terms it was made. Thus it was not a case of initial or inherent want of jurisdiction. The Controller's order therefore could not be said to be ab initio without lawful authority and of no legal effect on these scores.
7. In so far as the second question is concerned, the order impugned in this case was of the nature and kind as was obligatory for the Rent Controller to pass under the first part of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 "on the first date of hearing or as soon as possible after that date and before issues are framed-----." The Rent Controller in all these cases in the relevant respect appeared to have acted in conformity with the legislative intent and no valid exception could be taken to it.
8. The tenancy and rate of rent as originally contracted between the parties not being in dispute, a variance was pleaded on the basis of advance payment of rent claimed by the tenant and an adjustment out of monthly rent towards the alleged advance amount. The Controller in substance; passed the order that till the decision of this controversial question requiring recording of evidence, the tenant should deposit arrears of rent and future monthly rent at the original contracted rate. In so doing, the Rent Controller would be construed to have treated the originally fixed rent on a tentative; view to be the approximate rent and it cannot be said that the Rent Controller `B acted arbitrarily or exceeded the bounds of jurisdiction or violated any legislative mandate. In disputed cases, the matter of approximate rent has been; left, in the light of facts of each case, to the best judgment of the statutory functionary with a visible degree or discretion. Such an order, when', passed, according to the scheme of the Ordinance, has been kept immune; from scrutiny in appeal. Reference may advantageously be made at this: stage to the enunciation of law made by the learned Supreme Court in re; Ibrahim v. Muhammad Hussain and the case of Abdul Ghafoor v.
Ahmad Kunhi. It was also held in these two precedent cases that an order for deposit of arrears of rent and future rent passed by a Rent Controller under first part of section 13(6) of the Rent Restriction Ordinance was of provisional character subject to final -determination under that clause. Moreover, such an order would amount to an interlocutory order which would merge in the order passed under the second part of subsection (6) of section 13. Section 15 of the Ordinance, on being reconstituted, the second proviso to subsection (1) lays down that no appeal shall lie from an interlocutory order passed by the Controller. The matter has thus been placed beyond dispute through a statutory provision, in recognition of the law enunciated by the learned Supreme Court of Pakistan. The legislative intent therefore appears to be against interference with interlocutory orders at the tentative stages.
' I am of the considered opinion that the impugned interlocutory orders passed in these cases by the Rent Controller do not suffer from a legal infirmity of the kind as would render them void or without jurisdiction. The orders of such a nature are based on a tentative view and hold good till a final decision of the case is recorded unless the tenant's conduct is contumacious resulting in his defence being struck off. In postponing the elaborate inquiry till the stage contemplated by second part of section 13 (6) was reached, in the facts of the present case, he appears to have acted in consonance with the policy and mandate of law. It cannot be reasonably said that he committed excess of jurisdiction or failed to exercise jurisdiction.
9. The cases in hand appear to be fully covered by the decision of the Supreme Court in the case of Mushtaq Hussain v. Muhammad Shafi In the precedent case, a tenant whose defence had been struck off for noncompliance with an order of the Rent Controller passed in terms of first part of section 13 (6) went up to the Supreme Court and raised the plea that he had not deposited the rent as directed, since in his written statement a plea had been taken for the adjustment of certain amounts spent by him and even otherwise no rent was due on his part. Consequently, in such a situation, the order directing the deposit of rent, without first sorting out whether any rent was actually due from him after accounting for the claimed adjustment, was not justified. The Supreme Court found no merit in the contention. The principle of law was thus enunciated in the following terms :- "The order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fide or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."
In the light of above enunciation of law, I entertain no doubt in my mind that in the facts and circumstances of the present case as well, the order E of the Rent Controller is in accord with the above dictum. The petitioners acted hastily and in oblivion of the law declared by the learned Supreme Court to seek interference of the High Court in constitutional jurisdiction without Evert complying with the order. The conditions precedent therefore for requiring the Rent Controller to examine bona fide or correctness of the various defence pleas of the petitioner tenants or to further proceed with their trial and adjudication are not shown to have been fulfilled. There was thus no valid foundation laid for invoking the constitutional jurisdiction of this Court.1 2 3
10. Next in line,I would refer to the decision of the learned Supreme Court In re : Zia Ullah Shah v.
Syed Riaz Ahmad. In the precedent case a tenant had taken a house on rent of Rs, 400 per month which house the landlord sought to get vacated on grounds raised in ejectment application.
During the proceedings before the Rent Controller, an order was passed by him under section 13
(6) of the Rent Restriction Ordinance directing him to deposit the entire rent due at that rate and to continue to deposit the future rent at the same rate. The tenant deposited rent for two months at the rate of Rs, 300 on the plea that this was the correct rent and the landlord had drawn that amount. His defence was thus struck off for non-compliance. The tenant being unsuccessful throughout sought leave to appeal from the Supreme Court by urging that in case of dispute about the rent due or rate of rent, the Rent Controller is to determine the same approximately under section 13 (6) but the determination should not be arbitrary and for the proposition reliance was placed on the last part of the said subsection. The learned Supreme Court repelled the argument. It was laid down in the precedent case that the scheme of the West Pakistan Urban Rent Restriction Ordinance, 1959 appears to be that in the first instance the Rent Controller must fix the tentative rent on the basis of the material produced before him and that the tenant must comply with the said order subject to the adjustment of the amount paid when the rent is finally determined on the decision of the merits of the case as will appear from subsection (6) itself which refers to the determination mentioned in its earlier part as `approxmimate' while "finally determine" is the expression used in the latter part of the subsection. A determination to this effect will only be possible if the tenant defends the ejectment proceedings. If he fails to comply with the order under section 13 (6) he is forbidden to contest the proceedings as his defence is liable to be struck off under the law.
' It may be noted that in the precedent case the approximate rate of rent synchronized with the rate claimed by the landlord in the eviction application whereas the tenant contended that it was a lesser amount. The mere fact that a Rent Controller orders deposit of rent as claimed by the landlord would not invariably mean that it lacked determination of tentative rent on the basis of material produced before him. In the instant case therefore it appears clear to me that the petitioners' attack on the impugned orders on the ground that the Rent Controller by failing to allow adjustment in the amount of the rent at the stage of ordering deposit did not determine rent at approximate rate and thus failed to exercise jurisdiction lacks merit. The order of the Rent Controller shows that he was alive to the contentions of both the sides and by merely deferring the question of consideration of the defence plea which required an elaborate inquiry did not fail to do that which he was required by law to do. The Legislature has ensured sufficient safeguard to the tenant by providing that the amount paid in compliance to the order of the Rent Controller was subject to adjustment when the rent was finally determined on the decision of the merits of the case in keeping with second part of section 13 (6). The further plea of the petitioners regarding order being arbitrary and oppressively harsh and incapable of compliance, in the facts of these cases, also appears to be more imaginary rather than real. The contentions therefore merit to be repelled.
11. It remains to dispose of the argument of the learned counsel for the petitioners based, as it is, on the strength of the enunciation made by the learned Supreme Court in the case of Ashfaq-ur- Rehman v. Ch. Muhammad Afzal: The learned counsel for the petitioners, relying on this decision, argued that the precedent case had laid down the four corners of the powers of the Rent Controller in respect of ordering the past as well as the future monthly rent. The learned counsel specifically relied on the observations of the Supreme Court at page 234 of the report to the effect that in an action for eviction or fixation of fair rent if brought before the Rent Controller a party shall not be deprived of a legal defence which would be available to him in a Court of general jurisdiction. He again relied on the observations made at page 235 of the same report to the effect that it can4 5 safely be concluded that defence to a claim for rent cannot be taken away by the Rent Controller while directing the tenant to deposit "all the rent due" under section 13 (6) of the Ordinance. I. May however observe that in the last analysis, the Supreme Court held that "on our evaluation of section 13 (6) of the Ordinance in the context of the general law we are of the view that a Rent Controller acting under section 13 (6) of the Ordinance cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation."
12. I have respectfully gone through the above-noted precedent and on its careful analysis have reached the conclusion that it does not advance the case of the present petitioners. The facts in the precedent case were that on an eviction application the Rent Controller required a tenant to deposit arrears of rent for the period beyond three years of the date on which eviction application was instituted. In respect of these dues, the remedy to recovery had under the Limitation Act of 1908 become barred by time but the Controller in default struck off the defence of the tenant and directed him to place the landlord in possession of the demised premises. The District Judge on appeal upheld the order of the Rent Controller. There was a further appeal before the High Court under section 15 of the Ordinance and on reference to a Full Bench the learned Judges concluded;
(i) that a time-barred debt is a debt due although the legal remedy in respect of it may be barred ; and (ii) that the Rent Controller is not a. Court to attract the bar of the Limitation Act. Thereafter, the matter was taken up before the learned Supreme Court and leave to appeal was granted on the ground whether the word "all the rent due" in subsection (6) of section 13 should be held to include rent which though unpaid cannot be recovered on account of the bar in the Limitation Act through a civil Court. It is in this context that the enunciation was made that a time-barred debt could not be ordered to be deposited by a Rent Controller in exercise of his powers under section 13 (6) of the Ordinance. The order for the deposit of arrears of rent, the recovery of which was clearly barred by the provisions of the Limitation Act, was a matter which went to the jurisdiction of the Rent Controller and the position was patent on the face of the proceedings and the record. In the present cases, no question of a bar by a statute or want of jurisdiction arises and the contentions being raised are pure questions of fact based on averments which would require proof and adjudication. Ashfaq-ur-Rehman's case therefore is distinguishable and the principle enunciated therein does not stand attracted to the facts and circumstances of the present cases.
13. There are other insurmountable hurdles standing in the way of the petitioners which, inter alia, are that this Court has never favoured interference with interim orders and even in cases of remand the view taken by this Court is that it not being a final order, no interference was to be made in exercise of the constitutional jurisdiction. Reference may be made to the decision of this Court in Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others ; Ramzan v. Rahabilitation Commissioner (Legal), Sargodha and Zainab Bibi etc. v.
Abdullah etc.. The final adjudication in these cases is yet to be made in terms of second part of section 13 (6) of the Ordinance which is subject to appeal under section 15 of the Ordinance. There are no special features of the case to show why the petitioners should not confine to the normal scheme of law and avail of the adequate remedies provided under the statute. Writ is therefore liable to b refused on this ground as well. There is also preponderance of view of the superior Courts that they do not favour fragmentary decisions b way of interference with interlocutory or interim orders. No case o fl gross failure of justice has been made out. It has already been observed in the earlier part of the judgment that there is no inherent or initial want of jurisdiction in the Rent Controller. The difference between the rent payable with or without adjustment is not so vast as to justify the criticism on the factual plane that the impugned orders are arbitrary or oppressive which rendered the defence of the petitioners illusory because of impossibility of compliance. The6 7 8 petitioners have not been able to make out a case for a declaration or issuance of any direction in exercise of this Court's constitutional jurisdiction.
14. Before closing however, I may observe that the petitioners in each case have placed on record alleged originals of some receipts from March, 1980 till December, 1980 showing payment of rent after making adjustment against the advance rent except in one case where the receipt is from February, 1980. There are also some money order coupons filed to show tender of rent on adjusted basis after the institution of eviction application in the year 1981. The landlord on the other hand had alleged default from the months of April and/or May, 1979. The material thus placed before this Court is not sufficient presently to substantiate the petitioners' contention that all the rent due upto December, 1981 stood paid as against the default alleged by the landlord. I am not inclined to draw any inference as suggested by the respondent's learned counsel from the other litigation between the parties under sections 10 and 12-A of the Urban Rent Restriction Ordinance, 1959 and the suits filed by the tenants for a declaration and injunction against the demolition of the shops as these are not matters which properly fall within the scope of present proceedings before this Court.
15. After carefully considering the overall facts and circumstances the case, I have reached the conclusion that these writ petitions argil without merit. These are also not fit cases for exercising discretionary constitutional jurisdiction. I would accordingly dismiss the writ petitions with costs. PLD 1975 SC 457 PLD 1969 SC 424 1979 SCMR 496 1981 SCMR 538 PLD 1968 SC 230 PLD 1973 Lah. 495 PLD 1963 Lah. 461 PLD 1979 Note 33 at page 21