Muhammad Nazir S/o Jalal Din respondent No.2 herein filed an application for ejectment of the present petitioner Abdul Majid Khan from house bearing Property No.B-XXIX-DS-45-A/27 situated in Qasim Town Popular Nursery, Gujranwala on the grounds that (i) the tenant had defaulted in the payment of rent since April 1996; (ii) the landlord required the property for his bona fide personal need; and (iii) the tenant had damaged the property and thus diminished its value.
2. The tenant contested this ejectment application and maintained in his written reply inter alia that he had incurred huge amount on the repair and alteration of the house with the permission of the petitioner and he would be entitled to deduct these expenses from the rent.
3On 21-1-1997, the learned Rent Controller framed the issues arising out of the pleadings of the parties and also passed an interim order directing the tenant to deposit the arrears of rent w.e.f. April 1996 till January 1997 Rs.4,500 per month within 15 days. He further directed that he would keep on depositing the rent at the same rate each month till 14th of each succeeding month. He had passed this order after observing that there was nothing on record to convince him that the tenant had paid the rent for the said period.
4. The propriety and validity of this interim order has been assailed by Abdul Majid Khan in this petition under Article 199 of the Constitution of Islamic Republic of Pakistan. It was contended by the learned counsel for the petitioner at the limine stage (i) that the learned counsel for the tenant-petitioner never put in appearance before the learned Rent Controller on 11-1-1997 and again on 21-1-1997 and he was wrongly marked present by learned Rent Controller; (ii) that no arguments were addressed by the learned counsel for the petitioner before the learned Rent Controller; (iii) that the receipts with regard to the payment of a sum of Rs.9,000 as the arrears of rent for a period of two months i.e. April, 1996 and May, 1996 and the payment of a sum of Rs.40,000 as advance rent of the property, both dated 26-5-1996; were placed on record but the learned Rent Controller did not take them into consideration while passing the impugned order and (iv) that the tenant-petitioner is not at all in P, position to deposit rent from April 1996 till January 1997 @ Rs.4,500- per month being a very poor person.
5. The record of the learned Rent Controller was directed to be summoned and the petitioner was also asked to place on record an affidavit of the learned counsel who represented him before the Rent Controller with regard to his not having put in appearance before the Rent Controller on 11-1- 1997 and again on 21-1-1997. Since the petitioner failed to comply with this direction, I felt the necessity of hearing the opposite party at preliminary stage. A pre-admission notice was, therefore, directed to be issued in the name of Muhammad . Nazir respondent for 4-4-1997. He put in appearance through his Mukhtar-e-Aam named A.I Hussain with his counsel Malik Shaukat A.I Awan, Advocate.
6. The learned counsel for the respondent made a request that the petitioner be directed to place on record for perusal all receipts regarding the payment. Of rent in his possession, if any. It is pertinent to note that the petitioner has placed on record two writings, one purporting to be a receipt with regard to the advance rent of the house amounting to Rs.40,000 and the other in respect of a sum of Rs.9,000 being the rent for a period of two nionths i.e. April, 1996 to 31st of May, 1996. The learned counsel for the respondent has controverted the correctness of these receipts mainly contending that the Mukhtar-e-Aam of the landlord has always been issuing receipts for the rent so paid through Pacca receipts out of a receipt book. The learned counsel for the petitioner could produce for perusal only two receipts which appeared to have been issued out of a regular receipt book. The correctness of the receipts regarding advance payment of rent and two months' rent placed on the file can only be determined after the parties are able to adduce evidence ,and the production of these receipts in this Court cannot, therefore, be of any avail to the petitioner to claim that he is not in arrears.
7. The learned counsel for the petitioner has also tried to contend that Mr. Muhammad Imran Bhatti, Advocate, Gujranwala had requested the learned Rent Controller not to take up the matter in his absence because he was a candidate for the provincial elections from Constituency No.88 but in spite of his request the learned Rent Controller took up the matter on 11-1-1997, 18-1-1997 and finally on 21-1-1997.
8. I have carefully gone through the affidavit of Mr. Muhammad Imran Bhatti, Advocate placed before the Court and it appears that he did put in appearance before the learned Rent Controller on 21-1-1997 and produced the receipts. It, therefore, cannot be said that the learned Rent Controller was not justified in marking his presence on 11-1-1997, 18-1-1997 and 21-1-1997. There was no occasion for the learned Rent Controller to do so had the learned counsel for the tenant not put in appearance.
9.Be that as it may, in fact the assertions made in this behalf by the learned counsel for the petitioner at limine stage cannot be looked into for the simple reason that order passed by the learned Rent Controller directing the tenant to deposit arrears of rent as well as future rent pending decision of the ejectment application against him being purely interim in nature could not be A' subjected to challenge by filing constitutional petition before this Court as it would amount to defeating the legislative intent. It has been so held by my learned brother Malik. Muhammad Qayyum, J. In Abdul Majeed v. -Mian Ala--ud-Din alias Lal Mian and another (1993 CLC 2525)
(Lahore) which was again followed in Muhammad Shafi v. Rent Controller (1995 CLC 639) (Lahore).
This writ petition is, therefore, liable to be dismissed on this short ground alone.
10. The learned counsel for the landlord-respondent has also tried to urge that the receipts relied on by the writ petitioner with regard to the payment of advance rent and rent for two months cannot be looked into nor can they be used as evidence because they are violative of the provisions of Article 17 and 79 of the Qanun-e-Shahadat. I am afraid I cannot look into this aspect of the case and the parties have to take up all such pleas before the Rent Controller.
11. Without entering into any lengthy discussion and touching upon the merits of the case, I am of the convinced opinion that this writ petition is not B maintainable and the impugned order cannot be challenged in the Constitutional jurisdiction of this Court being interim in nature. This writ petition is, therefore, dismissed in limine.