TALAT QAYUM QURESHI, J.---Petitioner ,claimed to have purchased shop No,281/C (old) and 910
(new) situated at Main Bazar, Haripur from Abdul Qayyum on the basis of sale-deed in the year 1968. Thereafter he filed suit for specific performance (No,60/1 of 1989) and a decree was passed in his favour on 31-1-1990. Respondent No,1, Mst. Surriya Iqbal filed eviction petition No,3/RC on 12-9- 1989 against the petitioner claiming to be owner of the suit shop on the basis of gift deed No,1262 dated 3-9-1988 registered vide deed No,353 dated 13-7-1985 in the Office of Sub-Registrar, Haripur.
The petitioner contested the said eviction petition. The learned .Rent Controller framed 12 issues on 15-2-1990 out of the pleadings of the parties. The learned Rent Controller on 22-2-1990 again framed the following preliminary issues:--
(1) Whether this Court has got jurisdiction to entertain the present application?
(2) Whether the relationship of landlord and tenant exists between the parties?
(3) Relief.
2. Thereafter, the petitioner produced a copy of the plaint in the Court of learned Rent Controller (in Suit No,110/1 of 1991) and requested that the proceeding in the eviction petition be stayed till the decision of the said suit. The learned counsel representing the landlady also agreed for the postponement of the eviction petition, hence the learned Rent Controller vide his order dated 4-4- 1991 stayed the proceedings of the eviction petition till the decision of the Civil Suit (No,110/1).
However, parties were directed to file an application for restoration and that the said suit was contested. The Suit (No,110/1) was dismissed on 25-7-1995, therefore, the proceedings in the eviction petition were restored vide order dated 1-11-1995 on the application of respondent No,1/landlady. The appeal filed by the petitioner was also dismissed vide order dated 17-6-1996.
The petitioner had filed an application on 22-11-1995 in the Court of learned Controller and prayed:- "Under the circumstances, it is respectfully prayed that preliminary issue as to whether relationship of landlord and tenant exists between the parties and Rent Controller has the jurisdiction to entertain the case be graciously framed and decided before any further proceedings." This application was contested by the landlady. However, the learned Rent Controller vide his order dated 6-3-1999 ordered:-- .
"Thus, it shall be in the interest of justice to dispose of the present petition after recording the evidence. It is, therefore, ordered that evidence be led on the case after which this application in hand shall be disposed of alongwith the main petition. File to come up for evidence on 3-4-1999." The petitioner, thereafter, repeated his objection for disposal of the ejectment petition in the light of pending litigation about title between the parties before Civil Courts. It is not known as to whether the objections were repeated through application or not as no such application has been placed on file/annexed with the writ petition. However, the learned Rent Controller vide order dated 21-7-1999 directed the petitioner to cross-examine A.W.1 and provided last opportunity for said cross-examination as the case was being repeatedly adjourned on one pretext or another. The case was, however, posted for further proceedings, arguments and orders about deposit of rent and cross-examination of A.W.1 as last opportunity. The learned counsel for the petitioner has now impugned order dated 6-3-1999 and 21-7-1999 through writ petition in hand.
3. Mr. Mushtaq Ali Tahir Kheli, Advocate the learned counsel for the petitioner argued that the learned Rent Controller had no jurisdiction in the matter as question of title is pending adjudication before this Court as civil revision petition filed by the petitioner is pending decision. He further argued that respondent No,1 landlady claims to be owner of the suit shop on the basis of gift deed whereas the petitioner claims to be owner of the suit shop on the basis of Court decree. The title of the parties is sub judice in civil revision, therefore, it was incumbent upon Rent Controller to have dismissed the eviction petition filed by respondent No,1 and directed her to get her title cleared from the Civil Court. He placed reliance on Rehmatulallh v. Ali Muhammad 1983 SCMR 1064. He further argued that the question of jurisdiction be decided first by the Rent Controller and he should not proceed further without deciding the question of jurisdiction. He placed reliance on PLD 1995 Pesh. 66 and PLD 1998 Karachi 42. Another argument of the learned counsel is that the Rent Controller cannot pass any order under section 13(6) of the Urban Rent Restriction Ordinance, 1959 when the relationship of landlord and tenant was in dispute but the learned Rent Controller wanted to exercise his jurisdiction which does not vest in it, his order, therefore, based on mala fide.
Reliance was placed on PLD 1971 Karachi 514 and PLD 1973 SC 49.
4. On the other hand, Mr. Malik Fazal Hussain, Advocate, the learned counsel representing the respondent No, 1/landlady argued that respondent No,1 had filed eviction petition on 8-3-1989 and till date 10 years 9 months and 15 days have passed and the respondent No,1 did not allow the Rent Controller to record the statement of a single witness. After expiry of 10 years only examination-in- chief of A.W.1 was recorded and he has not been cross-examined by the petitioner and the case is being prolonged on one pretext or another. Various applications were submitted for transfer of eviction petition from one Court to another and charges were levelled against various judicial officials and the petitioner has been successful in delaying the decision of eviction petition. The writ petition in hand is also one of the series of such applications and has been filed for further delaying the matter. It was argued that it was on the insistence of the petitioner/respondent No,1 that additional issues were framed on 22-2-1990. Thereafter, the petitioner/respondent No,1 insisted that the proceedings in the eviction petition be adjourned sine die till the decision of civil suit filed by him and as such the learned Rent Controller vide order dated 4-4-1991 adjourned the eviction petition till the decision of the civil suit. It was after the dismissal of the civil suit that the respondent No,1 filed an application on which the eviction petition was restored vide order dated 1-11-1995. On restoration of the eviction petition the petitioner/respondent No,1 filed application again praying therein that preliminary issues regarding relationship of landlord and tenant be framed and decided first. It is worthmentioning that the issue regarding the existence of relationship between landlord and tenant had already been framed by the learned Rent Controller vide order dated 22- 21990 but since the petitioner did not want to loose any opportunity to delay the eviction proceedings, hence the said application was filed. It was also argued that ejectment petition cannot be stayed only for the reason that a civil suit was pending in the Court. Reliance was placed on PLD 1991 SC 242, 1994 MLD page 601 and 1995 MLD page 960. It was also argued that suit of the petitioner was dismissed on 25-7-1995 and his appeal too was dismissed vide judgment/decree dated 17-6-1996 and the civil revision pending in this Court is not continuation of the suit, therefore, the writ. Petition be dismissed with costs.
5. We have heard the learned counsel for the parties and perused the record.
6. The eviction petition was filed by respondent No,1/landlady on 12-9-1989 it is pathetic to note that a period of more than 10 years has elapsed but the same is still at very initial stage. The learned Rent Controller on the request of the petitioner had framed preliminary issues on 22-2-1990.
Thereafter, on 4-4-1991 the petitioner filed copy of the plaint (Suit No,110/1 of 1991) and requested that the proceedings in the eviction petition be adjourned sine die. The learned counsel for the landlady also agreed to the proposition, hence the learned Rent Controller vide his order dated 4- 4-1991 stayed the proceeding of the eviction petition till the decision of the suit filed by the petitioner. However, the parties were directed to get the same restored on the decision of the civil suit. The Civil Suit No,110/1 filed by the petitioner was dismissed on 25-7-1995, therefore, on the application of the landlady the eviction petition was restored vide order dated 1-11-1995. The appeal filed by the petitioner against the dismissal of suit has also been dismissed vide judgment/decree dated 17-6-1996. He has filed revision petition in this Court which is pending decision. After the restoration of the suit on 1-11-1995, the petitioner submitted an application on 22- 11-1995, and prayed:-- "Under the circumstances, it is respectfully prayed that preliminary issue as to whether relationship of landlord and tenant exists between the parties and Rent Controller has the jurisdiction to entertain the case be graciously framed and decided before any further proceedings."
' Since the Rent Controller had already framed issue about the existence of relationship between landlord and tenant on 22-2-1990, therefore, the learned Rent Controller vide order dated 6-3-1999 directed that the matter shall be decided after recording the evidence and the said application shall be disposed of alongwith the main eviction petition. The petitioner was not satisfied with the said order. He had not challenged the order dated 6-3-1999 before higher forums. It appears that he repeated his objections at bar as no application has been annexed with the writ petition and insisted that the Court should stay the proceedings as the civil revision was pending before High Court but the learned Rent Controller did not find favour with the submissions made at Bar and the petitioner was directed to cross-examine A.W.1 and last opportunity was provided vide order dated 21-7-1999.
7. The argument of the learned counsel for the petitioner that the learned Rent Controller should have straightaway dismissed the eviction petition as the gift deed on the basis of which the landlady claims to be the owner and the decree of the Court on the basis of which the petitioner claims to be the owner of the suit shop was before the Rent Controller and without recording any evidence the Rent Controller should have directed the landlady to get her title cleared. This argument of the learned counsel is not tenable because; firstly, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 if the Controller, after affording reasonable opportunity to the tenant, is satisfied that one or the other conditions has been fulfilled he is liable to be evicted. This clearly shows that the finding of fact is to be reached after complete satisfaction and that too as a result of opportunity having been afforded to the parties concerned to lead evidence, place all the documents which they wish to produce before the Court and to satisfy the Controller one way or the other; secondly, the question of title would have no relevance in the proceedings in rent case before the Rent Controller as there the point of existence of relationship of landlord and tenant would be the determining factor and the Rent Controller can hold whether the relationship of landlord and tenant exists between the parties after recording pro and contra evidence; thirdly, any tribunal or statutory authority is required to determine any question which under the law it has the authority to determine should decide all the questions arising before it. The C findings recorded by such tribunal on the question adjudicated by it subject .To correction or alteration by the appellate or Constitutional forum are final; fourthly, it was the petitioner on whose insistence preliminary issue regarding the existence of relationship of landlord and tenant was framed on 22-2-1990 and thereafter, it was on request of the petitioner that the learned Rent Controller vide order dated 4-4-1991 had stayed the proceedings of the eviction petition till the decision of suit (110/1) by him. Since the suit filed by him has been dismissed and his appeal has also met the same fate, therefore, the eviction petition was restored vide order dated 1-11-1995. It was the duty of the petitioner to have assisted the learned Rent Controller to record evidence on the issue of relationship of landlord and tenant as the same was framed according to the written reply submitted by him and he had himself vide application dated 22-1-1995 requested that the said issue be decided first. So far as the title of petitioner is concerned, as mentioned earlier, his suit has been dismissed and appeal filed by him has also been dismissed. Now the pendency of the civil revision in this Court would not take away the jurisdiction of the Rent Controller to proceed further in the matter because civil revision is not continuation of the suit. The case cited by the learned counsel for the petitioner Rehmatullah v. Ali Muhammad 1983 SCMR 1064 is of no help to the petitioner because in the said case, the Rent Controller recorded the evidence of the parties and came to the conclusion that the sale-deed as well as the rent note could not be proved so as to determine the ownership of the respondent in respect of the disputed property and the relationship of landlord and tenant between the parties was not established. He, therefore, dismissed the application. The landlord-respondent went in appeal and the learned Additional District Judge vide order dated 19-10-1982 allowed the appeal and directed the petitioner to deliver the vacant possession of the shop within 2 months from the date of order. He also made an observation to the effect that the appellant if so advised might file civil suit for the cancellation of the documents, namely, sale-deed and rent note. Then the petitioner-tenant moved the High Court in its writ jurisdiction but without success. In the case in hand, the evidence of the parties is yet to be recorded. The gift deed on the basis of which the landlady claims to be the owner of the suit shop is to be placed before the Court as per requirements of law and the Rent Controller while deciding the issue of existence of relationship of landlord and tenant would also consider the effect of the dismissal of the suit as well as appeal filed by the petitioner/tenant.
8. Even otherwise mere pendency of civil suit regarding ownership of premises in question would not automatically stay the proceedings of eviction petition under West Pakistan Urban Rent Restriction Ordinance, 1959. In case Muhammad Ashraf v. Faqir Muhammad 1994 MLD 601 (Peshawar) tenant had denied the relationship of landlord and tenant and his application for staying proceedings in ejectment application till decision of suit filed by him for declaration of his ownership" was accepted and proceedings in ejectment application were stayed. A Division Bench of this Court while accepting the writ petition declared the order whereby the eviction proceedings were stayed as illegal and ineffective. It was held:-- "We heard the learned Advocates appearing for both the sides and studied the material available on the record. It is indeed pathetic that the Rent Application instituted in 1984 could not be disposed of by the Rent Controller for about 7 years. It is also deplorable that the Rent Controller failed to take notice of the fact that the similar application for staying the proceedings had already been dismissed on 25-2-1990. It has repeatedly been held that the question of title would have no relevance in the proceedings in rent cases before the Rent Controller as there the point of existence of relationship of landlord and tenant would be the determining factor. Keeping in view this principle the Rent Controller acted without lawful authority in staying the proceedings through the impugned order and, accordingly, while accepting the writ petition this order is declared as illegal and ineffective. The Rent Controller is directed to positively dispose of the case on merits within two months of the receipt of the file and in case of non-compliance of this order the aggrieved party can approach this Court for appropriate order in the matter." Likewise in Muhammad Ishaq v. Syed Muhammad Zubair 1996 MLD 797 it was held:-- "Mere pendency of a civil suit regarding ownership of the premises will not automatically stay the proceedings of rent case or rent appeal." Similarly, in Sub-Divisional Education Officer v. Vidya Parcharik Mandal 1997 MLD 933 the tenant had filed a civil suit for declaration. He also filed application under Order 39, rules 1 and 2, P.P.C.
Which was dismissed by both the Courts below and the matter came up before the august Sindh High Court. It was held:-- "The applicant chose to file a civil suit for declaration. While discussing the application under Order 39, Rules 1 and 2, C.P.C. The learned III Additional District Judge, Mirpur Khas was of the view that the present suit has been filed just to defeat the ejectment order passed by the Rent Controller as such the applicants were not entitled to the grant of injunction alone on this point. In this litigation as well as in the previous litigation which was in the shape of rent application all these points raised by Mr. Ansari the learned Assistant Advocate-General have been fully discussed. I do not find any illegality committed in the impugned order, dated 14-10-1985 by which an application under Order 39, Rules 1 and 2, C.P.C. Was dismissed hence this revision application has got no merits which is accordingly dismissed."
9. The august Supreme Court of Pakistan in Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 held:-- "Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time--even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the. Cost of himself and he must vacate---though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord."
The petitioner has challenged the interim orders dated 6-3-1999 and 21-7-1999 through the Constitutional petition in hand. His Constitutional petition is not maintainable because the appeals against interim order are barred under section 15 of the Urban Rent Restriction Ordinance, 1959 which clearly indicated that there was ouster clause specifically barring appeal against interim order of the Rent Controller as only final order was amenable to appeal. The impugned orders being interim orders are not appealable under the relevant law, in such circumstances, question would arise whether such orders could be assailed in Constitutional jurisdiction? Where the law itself has not given the right of appeal against certain orders then same cannot be challenged in any other forum to gain similar object which has been barred by statute itself. It was well-settled principle that the remedy which is not directly available cannot be sought indirectly through indirect means. In this respect reliance is placed on "Syed Sagheer Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another" 1996 SCMR 1165 wherein it was ruled in the following words:-- "The statute excluding a right of appeal from the interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose for examining such orders." Similarly, in case "Pakistan Burma Shell Ltd. v. Mrs. Nasreen Irshad and others" 1989 SCMR 1892 it was held:-- "Whether the law takes notice of a particular situation and makes a provision for it then the legislative intent must be given effect to and respected. The interim orders which decide question which do not conclude the proceedings or have the finality cannot under the scheme of the Cantonments Rent Restriction Act be appealed against. If all these questions touching jurisdiction are allowed to be raised by Constitutional petition, then the same authority which has jurisdiction in appeal would be deciding those questions in Constitutional petitions when it has been precluded for questioning them in appeal. This will amount to defeating the manifest intention of the law as such." Likewise in "Abdur Rehman v Haji Mir Ahmad Khan and another" PLD 1983 SC 21 it was held:-- "Instead of raising the second jurisdictional question based on the status of the property, before the lower forum (where no other similar question was in fact raised, regarding the status of the parties), and then pursuing the matter in first appeal which was as a matter of right and of wider scope, petitioner sought to divert the normal remedial process provided by law, and invoked Constitutional jurisdiction of the High Court. It could be exercised only on proof of non-availability of adequate remedy. This proof is not forthcoming in this case. The petitioner had a right of appeal if any final decision would have gone against him. Much can be said on the question that this mode was adopted by the petitioner because he wanted to avoid enquiry on facts (if it was needed) and also wanted to delay the proceedings by raising piecemeal pleas of similar jurisdictional nature--one before the proper lower forum and the other in the High Court, in its writ jurisdiction. The matter in fact got delayed because if left to be processed as provided by the Special Law of Summary Procedures governing it, the same might have ended within months before the Rent Controller and some more months in appeal. Now it has taken nearly three years and one limb thereof is still being deleted in the superior Courts. Apart from delay the petitioner, whether intentionally or otherwise, has successfully avoided enquiry on the question of fraud and forgery--both on the rent side as also on the criminal side. Such could not be the results visualized either by Article 199 which conferred writ jurisdiction on the High Court, nor by the Rent Laws which created special forums for speedy and summary disposal of these cases." Drawing wisdom from the abovementioned judgments of august Supreme Court of Pakistan, a Division Bench of this Court in "Zar Faroosh v. Sikandar Aziz and 5 others" PLD 1997 Pesh.64 held:-- "Where law itself had not given right of appeal against certain orders, then the same could not be challenged in any other forum to gain similar object which had been barred by statute itself."
10. The argument of the learned counsel that the Rent Controller wants to pass an order for deposit of rent and as such order would amount to mala fide exercise of its jurisdiction equally has no force at all. The learned Rent Controller has not passed order for deposit of rent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and this apprehension of the learned counsel is premature.
11. It is very pathetic and deplorable that more than a decade has elapsed and the eviction petition is still at very initial stage, i,e,, recording the evidence of the first witness of the petitioner. We have noted with concern the conduct of the petitioner who is mainly responsible for delaying the proceedings before the Rent Controller. He has submitted various applications in this case to prolong the proceedings and has also adopted delaying tactics through which he succeeded in prolonging the agonies of the landlady for more than a decade. The writ petition in hand has also been filed with the mala fide intention to delay the eviction proceedings. The petitioner has not come to the Court with clean hands and is not entitled to any equitable relief. The writ petition is, therefore, dismissed having no merits with no orders as to costs. The Rent Controller is directed to positively dispose of this case within a period of two months. Since the eviction petition is pending adjudication for the last more than 10 years we, therefore, direct the learned Rent Controller to preferably hold day-to-day proceedings in order to decide the same within the abovementioned period.