1. ' These are three Constitutional petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan directed against the orders dated 15-2-1995 passed in Ejectment Rent Case Nos.36, 37 and 38 of 1994 filed by the same landlord/petitioner with Additional Controller of Rents, Clifton Cantonment, Karachi in respect of different portions of premises constructed on Plot No,B- 2/31, Madniabad, Delhi Colony, Karachi in possession of different tenants/respondents whereby it has been held that Rent Controller/Additional Rent Controller was competent to hold an inquiry before passing tentative rent order under section 17(8) of the Cantonments Rent Restriction Act, 1963.
2. ' Brief facts of the case are that the petitioner/landlord filed three Ejectment Applications Nos. 36, 37 and 38 of 1994 under section 17 of the Cantonments, Rent Restriction Act, 1963 against the respondents/tenants wherein it has been stated that respondents/tenants were in arrears of rent for more than three years and claim for forty months rent was made when the respondents/tenants filed application for recording the evidence on the question of arrears of rent claimed by the petitioner before passing the tentative rent order under section 17(8) of the Rent Ordinance. The learned Rent Controller as per impugned order held that no order could be passed by the Controller except after holding an enquiry as per section 27 of the Rent Act.
3. ' I have heard Mr. Dilawar Hussain, learned counsel for the petitioner, Mr. Faizanul Haq, learned counsel for respondents Nos.2 and 3 in C.P. No,S-63 of 1995 and respondent No,2 in C.P. No,S-64 of 1995 and none has appeared for the rest of the respondents.
4. ' Mr. Dilawar Hussain has argued that subsection (8) of section 17 of Cantonments Rent Restriction Act, 1963 does not provide holding of an inquiry by recording evidence for the purpose of passing tentative rent order, therefore, impugned order is not legal and proper, therefore, liable to be set aside in these petitions. Mr. Faizunaul Haq has argued that the petitioner has claimed rent for more than three years and for that purpose the respondents/tenants would lead evidence to prove the payment otherwise the respodents/tenants who being poor would not be able to deposit rent for more than three years who otherwise have paid' rent would be evicted from their respective premises, therefore, inquiry to ascertain the arrears of rent was necessary hence the impugned order was legal and proper.
5. ' Subsection (8) of section 17 of Cantonments Rent Restriction Act, 1963 reads:-- "(8) On the first hearing of proceeding under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct tenant to deposit in his office before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately."
6. ' The above provision of the Rent Act states that in case of disagreement as to the amount of rent due, the kern Controller would determine the rent approximately and the said order of deposit of rent would be provisional and tentative in nature. The above provision of Rent Act does not state about holding elaborate inquiry of recording evidence. In Muhammad Tufail v. Mst. Viran Bibi 1993 CLC 655 case my learned brother Judge in Chamber observed at pages 657 and 658 of para.4:-- "Learned counsel for the appellant rightly urges that as against a document in existence, prima face supporting the standpoint of the tenant, oral assertion of the landlady, having nothing in support, was given preference and accorded recognition by the learned Rent Controller, with no legal or equitable justification. Execution of the said agreement of tenancy will, of course, be proved legally by examining the scribe and the marginal witnesses, but that exercise will be undertaken when the matter proceeds further and the parties are called upon to lead evidence in support of their assertions. The learned counsel for the appellant maintains that Allah Ditta, late landlord, was not an unwise person and had got from the tenant an amount of Rs,6,800, as rent from 1-12-1978 to 31-7-2000, preceded by a similar act of having obtained in advance an amount, as rent in lump sum from May, 1973 to November, 1978. At that time, it is pointed out, the small strip of land in question could not even fetch as much sale-price, and it could not be said that Rs,25 was too meagre a rate of rent. It is to be noted that according to Viran Bibi herself, as stated in the eviction petition, this was the monthly rent, to begin with. The site had subsequently been converted into a verandah or a shed for commercial use, warranting enhancement in rent, as huge as 12 times, as she claims. This the landlady had to establish by adducing evidence and there she ought not to have been believed, in the manner it has been done by the learned two Courts below, in an absolutely credulous, manner. It is in situations like this that superior Courts of the country have desired that a landlord must not straightaway be believed, and an order about deposit of pre-trial rent, as per whimsical desire or oral, claim of the landlord, should not be made, and Rent Controller should act with prudence and make a rational and fair order. It has been pronounced in PLD 1983 Lahore 574 and 1986 CLC 1731 (Karachi) that it is obligatory for the Rent Controller to make a tentative determination about rate of rent payable by the tenant, by application of judicial mind, so that such an order does not create hardship for either party. Such determination should be based on same valuable material and have nexus with the rate prevailing in the area, due regard having been give to the type, size and location of the building. Even in the ruling relied upon by the learned counsel for the respondent (landlady), 1990 CLC 1156 (Lahore), it has been observed that where there is a dispute about rate of rent or amount of rent due, Rent Controller is required to determine the same approximately, subject to its final determination in the course of further proceedings, or at the end thereof. If no documentary evidence is instantly available which could be of ' any assistance in the exercise, judicial guess or estimation, to work out of fair rate, could be an answer and a suitable metholodgy in finding a way out of the predicament. Even in PLD 1990 SC 1201, another authority cited in his support by the learned counsel it has .Been pronounced that tenant, having no right of appeal against a tentative pre-trial rent order will have a .Right to challenge correctness of the determination, at the final stage, after his defence as defaulter is struck off and his eviction is ordered and he agitates against it. Rent Controller does enter upon a preliminary inquiry of summary character before making an order under section 13(6); and if he acts in a wholly fanciful and arbitrary manner, such a conduct could not evidently be approved of, for it would not advance ends of justice, and may work immense hardship and cause irretrievable injury to a party. To the litigation, if too fabulous an amount or too meagre a rate of rent,, as the case may be, is fixed as tentative rent, with a requirement for payment of arrears of rent, stretching over a long period. The intention of law is not to embark upon a thorough inquiry of conclusive nature of that preliminary stage of the proceedings."
7. ' In Muhammad Ali v. Shafiq Ahmed 1992 MLD 801 case my learned brother Judge in Chamber at pages 803 and 804 observed:-- " Though the proceedings under the Rent Laws were designed to be summary, yet those ought not to be made more summary by excluding inquiry into the disputed questions of fact and non- application of mind by Tribunal to them for their proper decision. After all, these proceedings also affect right of the parties. When I look at the matter from this angle, I get a strong expression that the dispute about violation of rent direction and its consequential legal effects has been tried to be resolved in a perfunctory manner with unsatisfactory results."
8. ' Section 27 of the Cantonments Rent Restriction Act, 1963 reads:- "27. Procedure and power of Controller.--No order under sections'7, 8, 13, 15, 17 or 19 of this Act shall be made by the Controller except after holding an inquiry.
(2) For the purposes of holding an inquiry under this Act, the Controller and the Appellate Court shall have the same powers as are vested in Court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely:-
(a) Summoning and enforcing attendance of any person and examining him on oath;
(b) compelling the discovery and production of any document and other material evidence, and
(c) issuing a commission for the examination of witnesses."
9. The subsection (1) of section 27 referred to holding an inquiry for the purpose of final orders to be passed under sections 7, 8, 13, 15, 17, 18 and 19 of the said Act by the Controller. The said inquiry would not relate to the tentative or provisional orders to be passed under the Rent Act, however, as held in the case of Muhammad Tufail v. Mst. Viran Bibi 1993 CLC 655 the landlord must not straightaway be believed and an order about deposit of pre-trial rent, as per whimsical desire or oral claim of the landlord, should not be made, and Rent Controller should act with prudence and make a rational and fair order by application of judicial mind so that such an order does not create hardship for either party and the same should be based on some valuable material produced by the parties and the Rent Controller has not to enter upon a preliminary enquiry of summary character by recording the evidence for the purpose of passing tentative rent order. The said tentative order should determine the rate of rent in case disputed so also the arrears of rent approximately on the basis of material available on record considering prevailing rate in the area, and size and location of the building by no means the above provision of law provide recording of evidence as it would cause undue harassment to the landlord in case the tenant is a person who has no principles in the life and thereby delay and defeat the main object of summary disposal of the applications under the Rent Act. In the impugned order the learned Rent Controller has not said that he by holding an inquiry intended recording of evidence. Inquiry could be made by going through the documents produced by the parties on record and the said order under subsection (8) of section 17 would be tentative in nature could be challenged at the time of final disposal of the main application. The impugned orders cannot be termed to be unlawful, consequently the petitions are dismissed in limine as observed above with no order as to costs. .