' MUHAMMAD HALEEM, J.-In this Constitutional Petition the petitioner, which is a partnership firm, has assailed the jurisdiction of the Rent Controller to entertain the application of the second respondent for his eviction under section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
2. The facts, which have led to the filing of the petition,' are that the second respondent is the owner of a building on plots Nos. 8 and 3 M. R. 5 situate on Old Dispensary Road, Mithadar Chowk, Karachi.
The petitioner is a tenant of a shop and a room in this building. For one reason or the other, there were disputes between the parties concerning the room and the shop which had led to litigation.
Finding that it was no longer fruitful to engage themselves in litigation, they entered into a compromise, which is evidenced by the agreement, dated 10th October, 1963 by which they compromised the proceedings pending either in Court or before the Rent Controller. The earlier agreement dated 1st July, 1964 was also rescinded. The matter did not rest here finally. As was agreed between the parties that in accordance with the approved plan of K. D. A., the petitioner would demolish and raise the proposed construction at its convenience. It did not do so in spite of a lapse of 31 months upon which the second respondent vide notice dated 11th May, 1971 intimated to the petitioner that there was a deliberate delay on its part to putting off the construction and that though no time was prescribed in the agreement, yet it would come to an end on 10th October, 1971. The petitioner did not reply to this notice and on 9th October, 1971 it was only intimated by the second respondent that the agreement had come to an end on 9th October, 1971.Thereafter, the second respondent got the sanction revalidated on 7th August 1973 and filed an application on 15th August, 1973 before the Rent Controller for the eviction of the petitioner. The petitioner invoked clause 10 of the agreement and filed an application under section 34 of the Arbitration Act for the stay of proceedings and for referring the matter to the sole arbitration of Mr. Ruknuddin. The Rent Controller, vide order dated 10th November, 1973, dismissed the application holding that the Ordinance being a special Act, the proceeding cannot be stayed. No further proceedings have taken place in the matter as the petitioner filed this petition to impugn the jurisdiction of the Rent Controller and obtained a stay order.
3. At the outset, we asked the learned counsel for the petitioner to give any reason as to why the petitioner had not raised the proposed construction as agreed to by it. The learned counsel gave the reply that he was not in a position to assign any reason for the failure of the petitioner to perform its part of the promise. He, however, invited our attention to the preamble and para. 1 of the agreement laying emphasis that the proposed construction had to be raised at the convenience of the petitioner and that on its failure to do so, the eviction application could not be entertained as in terms of para. 9 of the agreement it can only be filed in the event of default in payment of rent.
Elucidating further, the learned counsel contended that it would amount to construing the contents of an agreement, which is not the function of the Rent Controller, and, therefore, the entertainment of such application would be an exercise of jurisdiction not vested in him by law.
4. While assessing this contention, we examined the application. The case of the second respondent is that there was an agreement as it automatically stood cancelled on 9th October, 1971 and that on the basis of revalidated sanction, he required the disputed premises for the purpose of demolition and reconstruction and it terms thereof he sought for its eviction. There can be no manner of doubt that such an application was maintainable as under section 13 (2) (vi) of the Ordinance, the second respondent could have asked for its eviction on this ground. But what the learned counsel for the petitioner contended was that eviction could have been sought only if there was violation of para. 9 of the agreement and not on the basis, on which the application was filed, as that dispute was left to the decision of the sole Arbitrator and was not a matter for the Rent Controller to go into as it involved the construction of the document, which is not his function but that of the Court. The stand of the second respondent was that there was no subsisting agreement while the petitioner insisted that it was still in vogue without pointing out any authority that such an agreement would exclude the jurisdiction of the Rent Controller. Therefore, in adjudicating the dispute the Rent Controller will have to go into the question and for that purpose there is nothing in law to deny to the Tribunal the right to construe the agreement which, in our view, is an ancillary question. It is now well-settled-law that the jurisdictional facts have to be determined initially by the tribunal itself and in this view of the matter, an objection can be taken if the Tribunal has to construe the document in order to determine whether it has jurisdiction to deal with, the matter.
There is, therefore, no substance in this contention.
5. The learned counsel for the petitioner emphasised that the agreement was in vogue and that it left to the petitioner to carry out the proposed construction according to the convenience. If this is so, then it would be indefinite and might be observed that in that event it may well be void for uncertainty vide section 29 of the Contract Act. Again, the learned counsel conceded that since the advance rent was paid for three years the tenancy must be understood to operate for that period in which case the document would require registration under section 17 of the Registration Act and in its absence, it would not operate to create any interest vide section 49 of the Act. What we have observed is tentative, for the learned counsel for the petitioner, in spite of our asking him, was unable to convince us at this stage.
6. In the result for the reasons given above, we do not see any substance in this petition, which is dismissed with costs.