' This Constitutional petition is directed against the order dated 3-11-1991 of respondent No,2, viz. Rent Controller, Gujranwala, whereby he struck off the defence of the petitioner for non- compliance of order dated 30-9-1991, under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959) (hereinafter referred to as the Ordinance), and directed the petitioner to vacate the disputed shop within fifteen days and also against the order dated 16-12-1991 of the Additional District Judge, Gujranwala, who dismissed the appeal filed by the petitioner and maintained the aforesaid order of the learned Rent Controller.
2. Brief facts as gleaned from the pleadings of the parties are that respondent No,1 purchased property No,B-IX-9-S (shop) situated in Sabzi Mandi, Gujranwala, vide registered sale-deed dated 30-12-1975. The respondent then issued notice to the petitioner under section 13-A of the Ordinance to pay the rent to him from the date of purchase of the said shop. The petitioner did not make the payment; hence the respondent filed an application for his eviction under section 13 of the Ordinance on 9-12-1978. The petitioner denied the relationship of landlord and tenant and placed reliance on agreement to sell dated 12-8-1977. The respondent then filed a suit for the cancellation of the aforesaid agreement to sell and the petitioner filed a suit for the specific performance of the aforesaid agreement to sell. Both these suits were consolidated and the learned Civil Judge First Class, Gujranwala, vide judgment dated 25-10-1989, decreed the suit filed by the respondent and dismissed the suit filed by the petitioner. The finding of the Civil Judge was maintained by the learned Additional District Judge, Gujranwala in appeal vide his order dated 4-12-1990. Civil revision filed by the petitioner was also dismissed by the Lahore High Court on 18-12-1991 and Petition for Leave to Appeal also failed vide order of the august Supreme Court dated 13-8-1991.
' After the decision of the aforesaid suits, the respondent filed an ejectment petition against the petitioner on 5-6-1991, in the Court of the Rent Controller. The petitioner filed written reply to the ejectment petition on 12-9-1991, categorically denying his liability regarding the payment of rent at the rate of Rs,3,000 per mensem. He took up the plea that he is liable to pay rent only at the rate of Rs,80 p.m., in view of the previous ejectment application filed by the respondent on 30-10-1990, which was withdrawn by him on 12-11-1990.
' Respondent No,2 Rent Controller on the basis of pleadings of the parties fixed the tentative rent vide order dated 30-9-1991 at the rate of Rs,2,300 per mensem and directed the petitioner to deposit the arrears of three years plus four months (period from institution of said petition to date of announcement of this order) within 30 days from the announcement of that order. He further directed the petitioner to deposit the rent of every month before 15th of each month. The arrears were calculated to Rs,92,000. The arrears and rent of every coming month would be deposited in Court and neither of the party would be entitled to draw the amount till final decision.
' The petitioner then filed a review application on 24-10-1991, for reviewing the order dated 30-9- 1991, which was dismissed on 3-11-1991. The petitioner then filed an appeal against the aforesaid order, which too was dismissed by the learned Additional District judge, Gujranwala vide order dated 16-12-1991; hence the present Constitutional petition.
3. Learned counsel for the petition or vehemently contended that according to ejectment application dated 30-10-1990, the respondent demanded rent at the rate of Rs,80 p.m. Whereas in the application for ejectment filed on 5-6-1991, he demanded Rs,3,000 p.m. As rent. The Rent Controller erred in law while directing the petitioner to pay tentative rent at the rate of Rs,2300 p.m.
Without there being any material on the record, hence the order of the Rent Controller is coram non judice and is liable to be set aside.
' Learned counsel further contended that the Rent Controller while placing reliance on Shah Muhammad and another v. Muhammad Rafiq and 3 others (PLD 1990 Lahore 76) directed the petitioner to pay rent of three years and as such has misread the application dated 30-10-1990, whereby the respondent only claimed rent at the rate of Rs,80 p.m. Hence the enhanced claim of rent vide application dated 5-6-1991, at the rate of Rs,3,000 was not legally maintainable. The Rent Controller while passing the order under section 13 (6) of the Ordinance and fixing the tentative rent was under legal obligation to decide the issue judiciously, but unfortunately, he has not kept this legal obligation in view and blindly followed the submission of the respondent and fixed the tentative rent at the rate of Rs,2,300 p.m. Against the weight of the following case-law-- ' PLD 1983 Lahore 574, and PLD 1961 Lahore 410.
' Learned counsel submitted that the Rent Controller has fixed the rent at such an exorbitant and high rate that the tenant is left with no option, but to surrender the possession of the property in dispute to the landlord due to nonpayment of rent, which is against the spirit of law. The law gives powers to the Rent Controller under section 13 (6) of the Ordinance to fix tentative rate in case of dispute of rent on reasonable and judicious grounds. In the present case, the material relied upon by the Rent Controller while fixing the aforesaid tentative rent was not legally available to him. The ejectment application dated 30-10-1990, was withdrawn by the respondent without permission to file a fresh one, therefore, the respondent was debarred from filing a fresh petition on the same cause of action. The Rent Controller dismissed the application of the petitioner under section 14 of the Ordinance vide order dated 29-7-1991, without applying the correct law to the facts of the case.
4. Learned counsel for the respondent on the other hand, contended that the order under section 13(6) of the Ordinance is a matter of discretion and fixation of rent in the present case cannot be said to be without jurisdiction or illegal, as while fixing the rent at the rate of Rs,2,300 p.m. The learned Rent Controller placed reliance on two agreements of rent of two different shops in the same Bazar; according to one agreement of rent, the rate of rent was Rs,2,900 p.m. Whereas according to the other the rate of rent was Rs,3,700 p.m. Of the shop in the same Bazar from 1-2- 1991; hence he fixed the tentative rent of the shop in dispute at Rs,2,300 p.m. He further urged that in the present petition, the petitioner has raised disputed questions of facts and has assailed the orders of the Rent Controller as well as the appellate order of the Additional District Judge; both the orders are discretionary in nature and are of tentative character, and writ cannot be filed against the discretionary orders which are of tentative nature. He has placed reliance on 1974 SCMR 504 and 1981 SCMR 713.
' Learned counsel has also referred to the conduct of the petitioner whereby he dragged the respondent in frivolous and vexatious litigation for twelve years by raising a plea of agreement to sell in which he lost up to the level of the august Supreme Court and has placed reliance on PLD 1982 SC 413 and PLD 1991 SC 691 to show that the superior Courts would not interfere in the orders of the Courts below even if they may be illegal but are in accordance with equity.
' Learned counsel further contended that the withdrawal of the first ejectment application dated 30-10-1990 would have no adverse legal effect on the subsequent ejectment application in view of unreported judgment of the Supreme Court in Naseer Ahmad and another v. Asghar Ali (Civil Appeal No,2 of 1989), decided on 25th August 1992. He submitted that admission in the earlier application or plaint based on incorrect facts is not binding on the respondent in the subsequent proceedings.
' Learned counsel then referred to the order dated 13-5-1991; passed by the Rent Controller, in which it was observed that the respondent could file a fresh petition after the final decision of the civil suits, referred to above, which related to the specific performance of the contract and cancellation of agreement to sell dated 12-8-1977 with respect to the aforesaid property on the basis of coercion and undue advantage. This order was never challenged in appeal or revision which became final; hence the petitioner at this belated stage cannot take up this plea that after the withdrawal of the first ejectment application, the respondent is prevented from filing a fresh petition for ejectment on the same facts. Even the review application of the petitioner under section 14 of the Ordinance was dismissed by the Rent Controller vide order dated 29-7-1991 and that order too became final, because it was not challenged before any Court.
' In the end, learned counsel contended that the petitioner has not come to this Court with clean hands as he has not deposited a single penny from the date when the respondent purchased the property; thus he is not entitled to any relief which is discretionary in nature and the Court would not exercise its discretion in the aid of injustice. The impugned orders were passed after proper examination of the facts by the Courts below who were competent to decide the issues of facts and this Court would not like to disturb findings of fact arrived at by the tribunals of competent jurisdiction while exercising its powers under Article 199 of the Constitution, unless these findings suffer from gross misreading of evidence, but in the present case, learned counsel for the petitioner has failed to point out any gross misreading of the evidence from the record by the Courts below.
5. I have heard the learned counsel for the parties at length and have examined their respective submissions, referred to above.
' This Court while exercising its Constitutional jurisdiction would be loath to interfere in the disputed questions of facts. The tribunal has fixed onl tentative rent and the petitioner was not without any remedy as he could have deposited the tentative rent in the Court, because there was direction that it should not be paid to either party before the final determination of the case. The Rent Controller would have passed the final order in the light of the evidence adduced before him. The findings of facts arrived at by the Courts below in the circumstances can neither be termed as coram non judice nor the can be said to be without jurisdiction.
' The grievance of the petitioner is that the impugned order directing the petitioner to deposit rent at the rate of Rs,2,300 p.m. Is contrary to the decision of this Court in PLD 1961 Lahore 410, wherein a learned Judge of this Court observed:-- "Subsection (6) of section 13, West Pakistan Urban Rent Restriction Ordinance (VI of 1959), gives the Rent Controller wide powers to fix the amount of rent tentatively and to act on that basis. It is, however, clear that the discretion vested in the Rent Controller should be judicially exercised. The Rent Controller cannot, for example, fix the amount of rent at such a high figure that the tenant will have no option left but to make himself liable for ejectment on account of nonpayment of the amount mentioned in the order of the Rent Controller."
' I have gone through this case-law, but this case is distinguishable and is not applicable to the facts of the present case, as the Rent Controller before fixing the tentative rent has relied upon two rent agreements placed before him. Thus tentative fixation of rent cannot be termed as fanciful or based on no evidence, so this Court while exercising its jurisdiction under the Constitution shall not disturb a finding of fact recorded by a Tribunal of special jurisdiction in respect of matters exclusively within its competence. Reliance is placed on Mahmooda Begum v. Taj Din 1992 SCMR 809.
' I find that the orders of the Courts below are unassailable before this Court in its Constitutional jurisdiction, as neither these are without jurisdiction nor suffer from any legal defect. Reliance is placed on PLD 1982 SC 413 and PLD 1991 SC 691.
6. The upshot of the above discussion is that there is no force in this petition, which is dismissed with costs.