' This Constitutional petition is instituted by the petitioners who are tenants under respondent No,1 namely Muhammad Ayub in a building commonly known as Al-Qadeer Hotel, Bazar Talwaran, Rawalpindi. The tenancy was secured through a registered rent note for a period of 10 years commencing from 1-7-1987. At the time of agreement, an advance of Rs,2,00,000 was made to the landlord and the rate of monthly rent was fixed at Rs,3,000 out of which Rs,1,500 were to be paid every month, whereas, the remaining Rs,1,500 were to be deducted and adjusted towards the aforesaid advance amount of Rs,2,00,000. The petitioners continued holding the possession even after the expiry of tenancy period whereupon, the ejectment petition was instituted against them by the landlord in which a demand of enhanced rent was made in view of the provisions contained in section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959. That section was added in the Ordinance with effect from 16-3-1991 and was made effective on the first day of July, 1989. It entitled the landlord of non-residential building to an enhanced rent of 25% over the existing rent after the end of every three years. In view of that statutory automatic right of increase, the landlord claimed enhanced rent in view of the provisions contained in the aforesaid section with effect from three years prior to the institution of the ejectment petition. The petition was resisted by the petitioners/tenants on various grounds. The right of the landlord was also disputed to enhance the rent under section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959.
2. The matter came up before the learned Rent Controller for making an interim order under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 for fixing the tentative rent due from the tenants and also the rent payable in future. The impugned order was accordingly made wherein it was held after hearing the learned counsel for the parties and taking into account the pleadings and documents of the parties that the tentative monthly rent at rate of Rs,5,859.37 was liable to be deposited by the tenants who were also directed to deposit the arrears of the preceding three years to the tune of Rs,77,655 after deduction of balance amount out of the advance money of Rs,2,00,000 till 16-10-1997. The future monthly tentative rent was directed to be deposited before 15th of every month till the decision of the ejectment petition. After making the aforesaid order, the learned Controller adjourned the case for framing of issues on 6-10-1997.
3. In this Constitutional petition, it is contended that the respondent/landlord was not entitled to the enhanced rent in view of the provisions contained in section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959 because the parties had entered into an agreement before the aforesaid provision of law came into being and as such, it could not be given retrospective effect.
Secondly, it is contended that the learned Rent Controller could not make the order for tentative rent under section 13(6) of the aforesaid Ordinance and also simultaneously frame the issues in the case. In this regard, it was alleged that the impugned order shows that two points were raised regarding the nature of building in question as would be clear from the following quotation: --
(1) Whether it is residential, non-residential or commercial?
(2) Whether increase under section 5-A is applicable in this petition or not?
' According to the learned counsel for the petitioners, framing of these points amounted to the framing of issues and decision thereon simultaneously was bad in the eye of law as held in Muhammad Hussain v. Khawaja Muhammad Sharif and another PLD 1997 Lahore 543. Lastly, it is contended that no formal enquiry was conducted before determining the tentative rent through the impugned order. It was, therefore. Alleged that the order in dispute passed by the learned Rent Controller was not sustainable being without jurisdiction and hence amenable to the Constitutional jurisdiction of this Court.
4. Learned counsel for the respondents appeared upon pre-admission notice and contested the petition on the ground that the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 could not be invoked against the impugned order of the Rent Controller which was not only an interlocutory order but was also purely tentative and interim in nature. The more effective and appropriate remedy was available to the petitioners in the subsequent proceedings when the matter was to be decided and determined finally in respect of the proper rent and also the alleged default linked therewith. Likewise, it was contended that the principle laid down in Muhammad Hussain v. Khawaja Muhammad Sharif and another PLD 1997 Lahore 543 was not attracted to the facts of the present case as no issue was framed in the case for which the date had already been fixed as 6-10 1997 through the impugned order. On the contrary. It was alleged that the constitutional petition was not competent against the impugned order which was purely of interlocutory nature, as was held in Muhammad Saeed v. Saratul Fatima and another PLD 1978 Lahore 1459. Lastly, it was contended that the Rent Controller has made a limited enquiry as he had taken into account the attending circumstances of the case, pleadings of the parties and the documents placed on record before making impugned order and as such, it cannot be said that the order suffered from non-application of mind by the Rent Controller. In fact, the order was consciously made after taking into account the relevant data placed on record. Learned counsel for the respondent vehemently contended regarding the increased rent under section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959 which was allegedly not less than statutory right entitling the owner/landlord of a nonresidential building to increase the rent after the end of every three years at rate of 25% over the existing rent It was, therefore, alleged that even on merit, the order passed by the learned Rent Controller was quite sound.
5. I have heard the learned counsel for the parties at some length and have also taken into account the documents placed on record by the parties. There is no denial of the fact that there is a registered tenancy note for ten years in which the rate of rent was fixed as Rs,3,000 p.m. The advance of Rs,2,00,000 was paid at the time of execution of the agreement which was adjustable out of the monthly rent at rate of Rs,1,500, whereas, the remaining Rs,1,500 was to be paid as monthly rent to the landlord. It may also be pointed out that the tenancy period had since been over with effect from 1-7-1997 but the premises were not vacated which led to the filing of the ejectment petition. Now the question would arise whether the impugned order was made rightly or wrongly by the learned Controller. The provisions contained in section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 clearly provides that on the first date of hearing, the Controller shall make an order fixing the tentative rent in case of a dispute over the rate of rent. In this case, the respondent/landlord claimed the enhanced rent under section 5-A of the aforesaid Ordinance with effect from three years prior to the institution of the petition of which the petitioners/tenants took an exception. This necessitated for the Controller to make an order fixing a tentative rent during the pendency of the trial of the ejectment petition. As such, the learned Rent Controller was within his jurisdiction to make an order for tentative rate of rent after taking into account the provisions contained in section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959 which not only created a statutory right for the landlord to receive the increased rent after the end of every three years but also made it obligatory upon the tenant to pay increased rent. If any authority is needed on the point, a reference to Mst. Mumtaz Begum v. Mst. Wazir Begum PLD 1997 Lahore 99 may be referred to with advantage.
6. The contention of the learned counsel for the petitioners that the learned Rent Controller had framed the issues whether the building in question was residential or non-residential or whether the increased rent under section 5-A was applicable in this case or not, is negated by the perusal of the impugned order itself which clearly indicates that these points were raised only to determine whether the building in question was non-residential and as such came within the scope of section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959. This was rightly done by the Controller to make an enquiry on these two points before making an order under section 13(6) of the aforesaid Ordinance regarding the fixation of the tentative rent. The fact, however, remains that the issues were not framed simultaneously when the impugned order was made and a separate date i,e, 6- 10-1997 was fixed for framing of the issues, whereas, the impugned order was made on 26-9-1997.
Hence principle laid down in PLD 1997 Lahore 543 does not appear to be attracted to the facts of this case.
7. In view of my above discussion, the impugned order was rightly passed by the learned Rent Controller as it was well within his jurisdiction to make such order in view of the provisions contained in section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. The Legislature has not provided appeal against such order, and therefore, stretching the Constitutional jurisdiction against such an order would run parallel to the intention of the Legislature that the proceedings before the Controller should not be challenged in respect of interlocutory orders. That objective cannot be defeated by invoking the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It was for that reason that Division Bench of this Court had held in Muhammad Seed v. Mst. Saratul Fatima and another PLD 1978 Lahore 1459 that an interlocutory order passed by the Controller was not made appealable by the Legislature and would not successfully attract the Constitutional jurisdiction of this Court, as it would defeat and deflect the Legislature intent and had been disapproved by the Supreme Court in Mian Manzar Bashir and others v. M.A. Asghar & Co. PLD 1978 SC 185 and Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore 1976 SCMR 450. It was, therefore, ultimately held by the Division Bench as follows:-- "Order of Rent Controller directing tenant to deposit arrears of rent and future rent during the pendency of ejectment petition by itself causing no tangible damage to the tenant and in order to pose real threat requiring substitution by another order giving right of appeal and such right being more extensive and beneficial available on both questions of law as well as of facts, the petitioner's case, held, not fit one to be entertained in Constitutional jurisdiction.
8. In the light of above discussion, this petition is not competent on law as well as on facts. It is accordingly dismissed.
9. Learned counsel for the petitioners submitted that the time for the deposit of arrears of rent be enlarged as today was the last date for making such deposit under the impugned order. As such, the petitioners are directed to deposit the arrears of rent as determined by the Rent Controller through the impugned order. Till 21-10-1997 failing which the Rent Controller may proceed in accordance with law against them for such failure.