This petition under Article 199 of Constitution of Islamic Republic of Pakistan calls in question the order dated 1-4-1991 passed by the learned Rent Controller, Lahore, whereby the application of Major (Retd.) Syed Shaukat Ali, respondent No.2 herein, for withdrawal of Rs.84,000 was accepted.
2. Briefly the facts are that respondents Nos.2 and 3 filed an application for ejectment on 7-1-1990 under section 13 of the Punjab Rent Restriction Ordinance, 1059 (hereinafter called the Ordinance), against the Pakistan National Shipping Corporation in respect of Bungalow No.116, Shadman Colony, Main Road, Lahore on the ground of default in payment of rent for the period commencing 10-9-1989 to 9-9-1990. The ejectment application was resisted by the petitioner. Since the relationship of. Landlord and tenant between the parties was not denied, the learned Rent Controller by order dated 31-5-1990 passed under section 13(6) of the Ordinance directed the petitioner Corporation to deposit the advance annual rent of Rs.84,000 for the period from 10-9- 1989 to 9-9-1990 in the treasury in favour of the landlord on or before 30-6-1990. It was also observed that the petitioner may deduct the rent already deposited in the treasury or rent, paid as property tax after receiving a notice under section 14 of the Urban Immovable Property Tax Act,.... ..; issued by the Excise and Taxation Department. A direction was also issued to deduct any fine paid to. The Lahore Development Authority, if so directed in writing by the respondents/landlords.
3. Respondents Nos.2 and 3 herein, moved a petition under section 13(6)(1) of the Punjab Urban Rent Restriction Ordinance, 1959 for summary eviction of the petitioner on the ground that they had not complied with the order of the learned Rent Controller under the aforesaid provision. The learned Rent Controller struck off defence of the petitioner Corporation and directed its eviction forthwith by order dated 9-9-1990. In consequence, the respondents Nos. 2 and 3 moved an application dated 28-1-1991 for withdrawal of Rs.84,000 towards annual advance rent. The petitioner resisted the application contending therein, that in view of the compromise arrived at between the parties on 19-9-1990 and the letter dated 18-9-1990 of respondent No.2, the respondents were not entitled for withdrawal of the disputed amount. It was also asserted that in pursuance of order of ejectment, the petitioner had handed over the vacant possession of the premises in dispute to the respondents and, therefore, the advance rent is liable to be refunded to the petitioner. It was also asserted that petitioner failed to pay the charges for Sui gas, water etc. Till December, 1990. Learned Rent Controller by order dated 1-4-1991 took the view that in terms of para. 9 of the lease agreement the respondcnts/landlords were entitled to withdraw the rent already deposited in advance irrespective of the completion of period of lease pertaining to rent. It is, however, an admitted fact that the petitioner handed over the vacant possession of the premises in dispute eight months before the expiry of lease for which period also they received the advance rent but never returned it after eviction of the petitioner.
4. Mr. Qaisar Javed, learned counsel for respondents submitted that the writ petition relates to enforceability of contractual obligations and also raises disputed questions of fact and therefore.
The same is not maintainable. In support of his contention, reliance is placed on Mirpur Forest Company v. Azad Kashmir Government (PLD 1979 AJ&K 61); Sufi Muhammad Ramzan, Contractor, Municipal Committee v. Secretary, Local Government and Rural Development Department, Punjab, Lahore (PLD 1987 Lah. 262); M/s Momin Motor Company v. The Regional Transport Authority, Decca (PLD 1962 SC 108); M/s. Shaheen Enterprises v. Karachi Development Authority (1989 CLC 1253) and Muhammad Afzal v. Government of Pakistan (1987 SCMR 2078).
5. There is no cavil with the proposition laid down in the aforementioned cases that contractual obligations cannot be enforced through writ jurisdiction A nor the constitutional jurisdiction can be used as a substitute for a suit of recovery of money pr for resolution of disputes involving factual controversy. In this petition, however, a writ, is not sought for enforcement of a contractual right but a challenge has been made to the order of learned Rent Controller dated 1-4-1991 passed under the Ordinance. Clearly, it is within the competence of this Court in the exercise of constitutional jurisdiction to determine whether or not the impugned order is without lawful authority. In other words, whether the learned Rent Controller has acted illegally in the exercise of discretion vested in him for refunding the amount deposited by the petitioner in compliance with the order passed under section 13(6). The preliminary objection is, therefore, overruled.
6. A challenge has also been made to the competence of this petition on the ground that the impugned order was open to appeal before the learned District Judge, the petitioner having failed to challenge it, is estopped by its conduct to re-open the controversy by means of this petition.
7. Dr. A. Basit, learned counsel for the petitioner argued that the respondents have practised fraud upon the Corporation as well as, the learned Rent Controller, in that, the contesting respondents gave a clear undertaking that proportionate amount would be restituted to the petitioner Corporation from the deposits already made by it in pursuance of order passed by the learned Rent Controller. It was asserted that it was on the basis of this undertaking that the petitioners decided not to file an appeal and to hand over the possession of the leased premises. Major (Retd.) Syed Shaukat Ali, respondent No.2 herein, personally appeared before the Court. He did not deny the execution of the affidavit dated 3-1-1988, which has the effect of amending clause (9) of the original lease agreement dated 6-9-1986. Clause (9) of the lease agreement dated 6-9-1986 reads as follows:-- "The 'LESSEE' shall have no right to claim to refund of advance rental of unexpired period of Lease nor will have right or option to recover the amount by subletting the premises in case the "LESSEE" vacates the Bungalow during the Lease Period of which rent is paid."
Clause (9) of the lease agreement as amended reads as follows:-- "If the lessee vacates the premises or informs the lessor that the lessee is vacating the premises on a particular date of lease agreement the lessor before taking possession of the premises shall refund the amount in lumpsum for the remaining unexpired period of Lease Agreement. It is also agreed that in case the lessor fails to refund the total amount for such unexpired period despite intimation by the lessee, the lessee shall withhold the possession of the premises and the lessor in such an event will not be entitled to claim any rent, charges, compensation etc. Until such time the balance amount of advance rent is received in lumpsum by the lessee through Pay Order.
(Sd.)
Major (Retd.) Syed Shaukat Ali."
8. Mr. Qaisar Javed, learned counsel for contesting respondents however, submitted in rebuttal that the petitioner having accepted the order of eviction and voluntarily delivered possession of the disputed property have no locus standi to claim refund of the disputed amount. He further argued that the petitioner was not correctly interpretting clause (9) of the lease agreement, in that, this clause never stood modified by affidavit of respondent No.2 dated 3-1-1988. It was asserted that the contents of the affidavit were being mis--interpretted, in that what has been stated in the affidavit is that in case the petitioner informs the answering respondents of its intention to vacate the premises, the answering respondents shall be liable to refund the rent for unexpired period and in case' the answering respondents refuse to do so, the petitioner could retain the possession and the answering respondents were precluded from any compensation etc. Lie argued that clause (9) of the lease agreement read with affidavit dated 3-1-1988 of respondent No.2 have no relevance to the facts of the present case or for that matter situation under which the possession was delivered by the petitioner.
11. There is no cavil with the proposition canvassed by learned counsel for the contesting respondents that where a statute creates rights and also provides a machinery for enforcement of that right, the party complaining of the breach of statute must first avail himself of the rcmedv provided by the statute for such breach before he approaches the High Court by means of a constitutional petition. It is also well settled that constitutional jurisdiction cannot be treated as a substitute for an appeal. Ordinarily, the High Court will not enter a writ petition when any other appropriate remedy in available. This question, C however, is to be decided with reference to the facts and circumstances of each case. In The Murree Brewery' Co. Ltd. v. Pakistan through the Secretary, to Government of Pakistan, Works Division PLD 1972 SC 279, it was held that the rule that the High Court will not entertain writ petition when other appropriate remedy is yet available, is not a rule of law barring jurisdiction, but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognisced exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. This principle has been consistently followed by the superior Courts of this country. if a Court or tribunal exceeds or abuses its power so that it is acting ultra vires I then notwithstanding existence of an adequate remedy, the decision impugned before it, can be quashed by invoking constitutional jurisdiction in appropriate and exceptional circumstances. In the instant case, the learned Rent Controller has failed to examine that para.9 of the lease agreement was in the nature of a' penalty clause. A duty was, therefore, cast on him to examine whether in the facts and circumstances of the present case, the petitioner was liable to pay the whole penalty or only a part of it. Failure to do so has resulted into injustice to the petitioner.
Furthermore, the effect of affidavit dated 3-1-1988 was'never taken into consideration and in the absence thereof, the controversy raised before him could not have been effectively resolved. Refer Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore PLD 1964 SC 260, wherein it was held that a superior Court exercising writ jurisdiction has full power to do justice, but not to substitute its own decision for that of the inferior authority. Here the effect of affidavit of respondent No.2 has been left undecided by the learned Rent Controller and the nature of clause
(9) of the lease agreement was misconstrued. This is a question, which is to be decided in the first instance by the learned Rent Controller after taking fresh evidence, if so adduced by the parties. It is, therefore, a fit case of remand.
12. Reference may also be made to Shuja-ud-Din Oureshi v. Mst. Husan Ara Begum etc. PLD 1964 (W.P.) Lah. 292, wherein it was held that yearly tenancies are not excluded from the purview of the Ordinance and the Ordinance does not become unworkable in - respect of provisions ofsections 4(2)(a)(b), 6(l)(a), 13(2)(i)(v)(vi) provisos (6) and (7). In the ,precedent case it was also held that although a tenant is not entitled to suspend entire amount of rent for failure of landlord to deliver possession of part of demised premises where appropriate rent of such premises can be calculated. In. The instant case, the advance rent has been admittedly paid and, therefore, in view of the dictum laid down in Shuja-ud-Din (supra) it was within the discretion of the learned Rent Controller to allow ratable adjustment of rent on-sound judicial principles, having regard to the fact and circumstances of this case, and, particularly, in view of the affidavit subsequently executed by the respondent before submitting an application for refund of the disputed amount.
13. In A.R. Khan v. P.N. Boga PLD 1987 SC 107 a reference was made to the commentary of M. Monir published in Principles and digest of the Law of Evidence, Volume 11, page 1245, inter alia, to the effect that a party accepting a benefit under a compromise, an award, or a partition, is estopped from questioning the transaction. Also refer Hariz Abdul Rahman v. Said Muhammad and others 1982 SCMR 373; Aman Ullah v. Abdul Ghani and another 1980 SCMR 573; Ghulain Hussain v. Zahoor Din PLD 1980 SC 146; Messrs Arokey Ltd. And another v. Munir Ahmad Mughal and three others PLD 1982 SC 204; Haji Punhoon v. Province of Sindh and others 1986 SCMR 349; Muhammad Sadiq v. Mir Ajam Khan etc. 1978 SCMR 214 and Muhammad Sharif v. Chief Administrator, Auqaf etc. 1975 SCMR 104. In A.R. Khan (supra) it was further held that "Where a party persuaded a Tribunal to adopt a particular course for determining the issue in question and accepted benefit of such arrangement, he cannot be allowed to repudiate when it comes to liabilites and obligations thereunder". The same view was taken in Abdul Wahab and others v. Habib Ali and others PLD 1969 Lah. 365, wherein it was held that if a party, by its conduct obliges the Court to adopt a course which is contrary to its practice, that party will be debarred from raising objection as to the procedure on the very salutary principle that after having led the Court to do a certain thing for the benefit of the parties, none of them can be allowed to challenge the same. It was further held:- - "Once a mode (procedure) is adopted by the High Court on the request of the parties, the decision given in pursuance of that mode should be given effect to. A necessary corollary of this rule will by that the same parties are estopped from subsequently challenging that mode of decision in an appeal".
14. The question whether the parties entered into any compromise, as alleged by the learned counsel for the petitioner, is essentially a question which was not examined by the learned Rent Controller. The same cannot be examined in these proceedings. Viewed from this angle as well, the case is to be remitted to see if any compromise as alleged was entered into between the parties and its effect. In view of the above, the impugned order is declared as without lawful authority and of no legal effect. The case is remanded to the learned Rent Controller to dispose of the matter afresh relating to controversy for the refund of the disputed amount, in the light of the observations made in this judgment and in accordance with law after due notice to the contesting parties and providing them with an opportunity to lead evidence in support of their respective claims, if so advised.
15. The parties are directed to appear before the learned District Judge, Lahore, on 30-4-1992, who shall entrust this case to any learned Rent Controller at Lahore, who has not earlier decided this case. With the above observations, the writ petition is accepted to the extent indicated above, but the parties are left to bear their own costs.
M.B.A./P-14/L