The petitioner, through this petition under Article 199 of the Constitution, has called in question the order, dated 4-4-2000 passed by the Additional Controller of Rent, Clifton Cantonment, Karachi whereby he has been directed to deposit in the said Court an amount of Rs.3,30,000 being arrears of rent for the period from July, 1997 to March, 2000 (33 months) at the rate of Rs.10,000 per month within 30 days from the date of the said order. The petitioner has also been directed to deposit future monthly rent for the month of April, 2000 before 5th of May, 2000 and the rent for the subsequent months, before 5th of each succeeding calendar month till further orders.
2. Background of the matter is that the respondent No.2 namely Mamun Ali Bimasuk Private Limited, a Company incorporated under the Companies Ordinance, 1984 (hereinbelow to be referred to as the Company or the landlord as the case may be) filed a rent case for eviction of the petitioner before the Additional Controller of Rent, Clifton Cantonment, Karachi claiming that they are the owners/landlords and the petitioner is their tenant in respect of Apartment No.FF/2, Block-1, Sea View Township, Defence Housing Authority, Karachi (the rented premises/apartment) at the rate of Rs.10,000 per month excluding water conservancy, electricity, gas, telephone charges etc. The said respondent stated in the application that the petitioner was previously one of the Directors of the said Company and in such capacity he was allowed to utilize premises in question as his residence and although he resigned from the directorship of the Company on 3-12-1992 he continued to remain in possession of the apartment and did not vacate the same despite repeated requests made in that behalf. During correspondence, the petitioner set up a claim that he is owner of the premises in question which claim the Company did not admit. It is the case of respondents that ultimately, the petitioner admitted himself as tenant and acknowledged the status of the Company as landlord in respect of the rented premises through his undertaking dated 10-5-1997 whereby he undertook to pay the rent at the rate of Rs.10,000 per month w.e.f. May, 1997 and to vacate the premises within one year from execution of said undertaking and also paid Rs.20,000 as rent for the months of May and June, 1997 for which appropriate receipts were issued in his favour. It was alleged that from July, 1997 and onwards the petitioner failed to pay rent and other utility charges etc. Consequently.. on the basis of default in payment of rent and utility charges the respondent No.2 sought eviction of the petitioner through the said application under, section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act).
3. The petitioner resisted the proceedings and filed his written statement taking at the outset the preliminary legal objection that there was no relationship of landlord and tenant between the Company and the petitioner as such the Court had no jurisdiction. He also challenged the status of the Chief Executive of the Company and raised the plea that on that account the rent application was not maintainable. Elaborating the factual aspects of the dispute he took the plea that he was never the tenant of the Company in respect of the rented premises but he was true owner and the Company was ostensible owner since the time the rented premises/the apartment was purchased in the name of the (?) further explained that the company is, in fact, a family concern and the so- called Chief Executive of the Company namely Syed Muhammad Ali is his real brother. He claimed that he has worked as Director and was entitled to remuneration as also the profit, being a shareholder, in the form of dividend. He alleged in his written statement that the said Chief Executive under coercion and threat took his signatures on blank paper for resignation from the directorship. As regards the undertaking, dated 10-5-1997 he totally denied the execution and contents thereof. He also denied the payment of rent subsequent to execution of the aforesaid undertaking.
4. The learned Rent Controller on consideration of the documents filed by the parties for the purpose of passing tentative rent order within the meaning of subsection (8) of section 17 of the Act proceeded on the basis of the contents of the undertaking, dated 10-5-1997 passed the impugned order in terms stated in the opening para. of this order. The petitioner being confronted with the provisions of section 24 of the Act relating to filing of appeal preferred this Constitutional petition.
5. I have heard learned counsel, Mr. Agha Faquir Muhammad for petitioner, Mr. Umer Qureshi for respondent No.1 and Mr. Iftikhar Javed Qazi for respondents Nos.2 and 3.
6. Mr. Agha Faquir Muhammad, learned counsel for the petitioner submitted that the impugned order passed by the Rent Controller was illegal and without jurisdiction and since no efficacious remedy was available to him by way of filing an appeal, the petition under Article 199 of the Constitution was competent. He contended that the petitioner had outright denied the execution of undertaking dated 10-5-1997 and had in unambiguous terms taken the plea in his written statement that he was the real owner of the premises in question and had never been tenant, the learned Rent Controller was, therefore, under a legal obligation, first to adjudicate upon the question of relationship between landlord and tenant after framing an issue and allowing the parties to lead evidence, otherwise the petitioner not being a tenant within the meaning of section 2(j) of the Act the learned Rent Controller possessed no jurisdiction and the impugned order was, therefore, void ab initio. It was, according to him, not an order passed under the provisions of the Act, the only course available to him, as such, was of filing a Constitutional petition. He sought support from the principles laid down in the cases reported as Sh. Muhammad Saddiq v. Khurram Gulraiz and others 1998 M LD 624, Hasan Mohiuddin v. Muhammad Hanif 1985 CLC 1606, Muslim Raza v. Mst. Saghira Bano 1987 M LD 3269, Kamran Industries v. Collector of Customs (Exports) PLD 1996 Kar. 68, Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Rana Motors Ltd. v. Razi-ud-Din 1983 CLC 1987.
7. Mr. Umer Qureshi learned counsel for respondent No.1 submitted that the impugned order was, no doubt interim in nature and no appeal would lie against such order within the meaning of subsection (1) of section 24 of the Act, yet the aggrieved person could challenge the same by way of an appeal against the final order passed by the Rent Controller. He explained that the violation of the impugned order, if committed by the petitioner, would at the most result in an eviction order and in that event the petitioner would certainly have a chance to file an appeal under the aforesaid provision of law in case he did not intend to vacate the premises. According to him, the petitioner would be fairly within his rights to question the impugned order besides taking other pleas, therefore, if the remedy by way of appeal in the aforesaid manner is available to the petitioner the petition under Article 199 of the Constitution shall not lie. He submitted that the object of law-makers while legislating the Act was to secure speedy disposal of the disputes arising out of rent matters which would undoubtedly be defeated, if the proceedings before the Rent Controller are delayed. He further submitted that the Rent Controller had afforded ample opportunity to the partied to place relevant documents on record and had passed the impugned order after satisfying himself that the relationship of landlord and tenant existed between the parties, therefore, it would matter a little, if formal issues are not framed before delivering such finding. He further contended that there is no specific denial on the part of petitioner against the execution of deed of undertaking on the basis of which the Rent Controller founded his finding, but he has only taken the plea that his signature was obtained under coercion and threats. He argued that the existence and proof of such facts would require factual enquiry which could not be undertaken by invoking the jurisdiction of the High Court under Article 199 of the Constitution, as such the petition shall fail. On the whole he sought support from the authorities Noorul Qadir Darabu v. Ejaz Ahmed PLD 1997 Kar. 501, Habib Alvi Athar v. Hassan 1986 M LD 1656 and Abdur Rehrnan v. Mir Ahmad Khan PLD 1983 SC 21.
8. Mr. Iftikhar Javed Qazi, learned counsel for respondents Nos.2 and 3, relying on Arshad Kamal Khan v. Saeeda Khalid Kamal Khan 1993 SCM R 1360, Malik Rehmatullah v. Sh. Muhammad Amjad PLD 1979 Note 86 at p.60 and Pakistan Burmah Shell Ltd. v. Nasreen Irshad 1989 SCM R 1892, submitted that the Rent Controller was justified in examining the material available on record for the purpose of arriving at a conclusion on the point of relationship of landlord and tenant between the parties. However, referring to Muhammad Munir v. Collector Customs 1999 CLC 1232 and Pakistan Burmah Shell's case 1989 SCM R 1892, he submitted that no issue need be framed when abundant material is available before the Rent Controller on the points involved. Arguing on the same lines as contended by learned counsel for respondent No.1, he submitted that the petition under Article 199 of the Constitution was not maintainable in the circumstances of the case. He referred to PLD 1979 Note 86 at p.60 on this point.
9. The impugned order has been mainly assailed on the ground that learned Rent Controller omitted to frame an issue on the point of relationship between landlord and tenant despite the fact that plea of denial of such relationship was expressly raised by the opponent. No doubt determination of jurisdiction by a Tribunal/Forum is always cardinal to the cause and when the jurisdiction is questioned it has to be determined but in the instant case the learned Rent Controller has not altogether ignored this aspect; he has embarked upon this controversy and after taking into consideration the relevant documents has passed a tentative rent order. He has observed that the landlord/respondent No.2 has placed on record ample proof of the said property duly entered in their name in the record of D.H.A., M.E.O. and Cantonment Board, Clifton while the tenant, the petitioner herein, has failed to furnish such documents proving his ownership of the premises in question. He has heard the learned counsel for parties and has perused the record including the undertaking, dated 10-5-1997 whereby the petitioner has acknowledged himself as tenant of the premises at the rate of Rs.10,000. He has also taken into consideration the fact of payment of taxes etc. by respondent No.2. Consequently, on the basis of the documents produced, he has formed the view that the petitioner had failed to pay the rent.
10. True that the Rent Controller has not framed an issue and recorded separate evidence on such issue in order to determine relationship of landlord and tenant and this Court has, time and again, insisted upon framing of such issue and in some cases remanded the matter to Rent Controller where the issue was not framed and evidence was not led on the controversy as to relationship of landlord and tenant, but that exercise has always been undertaken by this Court in regular rent appeals. The precedent cited by learned counsel for petitioner: Hasan Mohiuddin v. Muhammad Hanif 1985 CLC 1606 relates to a judgment passed in first rent appeal where the case was remanded to the Rent Controller with direction to frame preliminary issue on the question of relationship and to provide opportunity to the parties to lead evidence and decide the same whereafter if the question of relationship was decided in affirmative fresh tentative rent order be passed. So also in Muslim Raza's case 1987 M LD 3269 the order of ejectment of tenant on the ground of non-compliance of tentative rent order passed by the Rent Controller without first determining issue of relationship of landlord and tenant between the parties was set aside in first rent appeal and not in a Constitutional petition. What I want to emphasize is that the appropriate course of seeking redressal of grievance available to a tenant against an interim order is the exercise of indefeasible right of appeal against final order leading to ejectment of the tenant. An adequate remedy being available, the procedure of invoking Constitutional jurisdiction is simply uncalled for. Superior Courts have by and large dilated upon this issue and settled the same in plain terms. The Courts have invariably discouraged piecemeal decision of the controversy whenever an interim order is passed in the form of tentative rent order or any other interlocutory order.
11. In Abdul Rehman v. Mir Ahmed Khan PLD 1983 SC 21 the proceedings before the Rent Controller were instituted under West Pakistan Urban Rent Restriction Ordinance, 1959 but the issue involved therein was almost similar to the main point in the instant petition such as decision in piecemeal and challenging the interim order through writ petition. The legal position was exhaustively examined and in their exposition their Lordships referred to a number of precedents and quoted the relevant portions therefrom. The following portions were cited from Muhammad Saeed v. Mst.
Sartul Fatima and another PLD 1978 Lah. 459:-- "The Legislature manifested its intent unequivocably by prescribing two broad categories of all orders passed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) by making the more determinative orders constituting the smaller category appealable and all others forming the larger category non-appealable. The scheme of such a categorization, the limits and the rationale thereof has been fully considered in Mian Manzar Bashir v. M.A. Asghar. It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level, the Constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutto v. Chief Administrator Auqaf etc. There is yet another aspect of the case. The Constitutional jurisdiction is invoked and made available in cases of imminent. grave and tangible threats to valuable personal and property rights and that too subject, inter alia, to the condition that the legal remedy, if at all any available in the circumstances, is not efficacious or adequate. In this case, an order which by itself caused no tangible damage to the appellant, and is incapable of causing any, was challenged. In order to pose a real threat to him it has to be substituted by another order and the moment it so happens, a right of appeal would accrue to the appellant which right is certainly more extensive and beneficial being available in the same hierarchy and on both questions of law as well as of facts.
Thus, the case of the petitioner was not a fit one to be entertained in Constitutional jurisdiction."
12.Again, in the said reported case observations relevant to the subject in issue were also reproduced from Rashid Ahmed v. Soofi Muhammad Saleem PLD 1976 Lah. 1450 which run as under:-- "No doubt sometimes in some cases a direction under section 13(6) of the Ordinance might look oppressive but that by itself is not enough to ignore the ratio decidendi of and spirit underlying, the ruling of their Lordships of the Supreme Court in Ibrahim v. Muhammad Hussain. It was observed that the provisional fixation of current rent and the amount of arrears under the first part of subsection (6) of section 13 'remains provisional' until it is followed by a final determination or striking off of the tenant's defence. It was also held that fragmentary decisions of the type, as involved in this case, on preliminary points, leaving the main controversy about the liability of the tenant for ejectment, are most inconvenient and 'tend to delay administration of justice'.
The mischief, their Lordships were at pains to highlight, would be done if instead of appeal, the High Court were to entertain writ petition against directions made by Rent Controller under first part of subsection (6) of section 13 of the Ordinance. Obviously, if, as a result, and in pursuance of such a direction, the defence of a tenant is struck off, he would have an immediate remedy by filing an appeal. I do not agree with the learned counsel, that the said remedy would not be efficacious simply because it would be difficult to obtain stay order, when filing an appeal. The practice however, it seems, is to the contrary."
13. Their Lordships held that in view of the trend of authorities regarding exercise of writ jurisdiction in rent matters the petition before the High Court was liable to be dismissed on the short ground of availability of adequate remedy to the petitioner if ever any adverse final order was passed against him.
14. The principle laid down in Abdur Rehman's case (supra) was followed by this Court in the case: Noorul Qadir Darabo v. Aijaz Ahmed PLD 1997 Kar. 501 which related to ejectment proceedings under the Cantonments Rent Restriction Act, 1963 wherein the learned Rent Controller had directed the petitioner to deposit the arrears and future rent of the premises in question. The petitioner assailed the aforesaid interim order through Constitutional petition and the foremost plea taken by him was that it was incumbent upon the learned Rent Controller to have determined the question of existence of relationship of landlord and tenant between the parties but without doing so he passed the said order. This Court repelled the above contention and observed that bar on appeal against an interim rent order of the Rent Controller was imposed under section 24 of the Cantonments Rent Restriction Act, 1963 with a view to avoiding the piecemeal decision in cases and to ensure expeditious disposal under the Act, therefore, if the Constitutional jurisdiction was allowed to be invoked in cases where appeal is specifically barred it would negate the very purpose of the statute and render the provision meaningless. Besides Abdur Rehman's case reference in this context in the said authority was also made to Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Muhammad Saeed v. Mst. Sartul Fatima and another PLD 1978 Lah. 459 and Habib Alvi Athar v. Hassan and 7 others 1986 M LD 1656 wherein piecemeal decision in a matter and invocation of Constitutional jurisdiction to challenge interim orders in rent cases was plainly disapproved.
15. In 1986 M LD 1656 some interlocutory orders passed by the Rent Controller were challenged through a Constitutional petition but this Court dismissed the petition keeping in view the principle laid down in Abdur Rehman's case (supra). It was observed by this Court that section 21 of Sindh Rented Premises Ordinance, 1979 specifically bars an appeal from an interlocutory order and the object seems to avoid delay of the decision of the main application and if Constitutional petition is entertained against interlocutory orders the very object of the Ordinance would be defeated. It was further observed that the petitioner could raise the grounds taken in the Constitutional petition in appeal in the event of final order being passed against him.
16.View taken in 1989 SCM R 1892 is also directly relevant to the instant case as it arises out of a matter under the Cantonments Rent Restriction Act, 1963. The Honourable Supreme Court observed that the question of jurisdiction could appropriately be raised by means of a Constitutional petition notwithstanding the availability of an appeal and the alternate remedy, but in the rent control matters not only special law has been enacted and Tribunal has been set up for that purpose, the law itself envisages such interlocutory or jurisdictional determinations; and so also appropriate provision and the stage has been prescribed for challenging them. The objections may be of the absence of relationship of landlord and tenant etc., but, as further held, when the law takes notice of a particular situation and makes provision of it then legislative intent must be given effect to and respected. The interim orders which decide questions which had not concluded the proceedings or have the finality cannot, under the scheme of the 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 from questioning them in appeal. This will amount to defeating the manifest intention of the law as such. The Honourable Supreme Court finally held that question of jurisdiction could more appropriately be dealt with when the matter was brought before the High Court if at all in appeal.
17. Similarly it was held in PLD 1979 Note 86 at p.60 that writ petition under Article 199 of the Constitution was not competent in the circumstances.
18. Learned counsel for petitioner, however, relied on an order passed by the Lahore High Court in a Constitutional petition under Article 199, Shaikh Muhammad Siddique's case reported as 1998 M LD 624 where the petition was allowed and the Rent Controller was directed to determine the matter pending before him by striking an issue as to cessation of tenancy between the parties and dependant issue of jurisdiction of Rent Controller. Although the leading case Abdur Rahman v. Haji Noor Muhammad PLD 1983 SC 21 was cited before the Court in the said case, besides other reported cases, the Court observed that the objection to the very proceedings was not only foundational but also jurisdictional, therefore, the Rent Controller had no jurisdiction to pass order under section 13(6) of the Ordinance. With due respects it is difficult to subscribe to this view unrestrictedly, particularly when the view taken in Abdur Rahman' s case and the other authorities quoted above is clear on the point holding that despite objection as to the relationship of landlord and tenant between the parties it would not be proper to have recourse to Constitutional petition for determining such question. Moreover, the objection as to jurisdiction is at the most a plea taken by a party; by itself it does not take away jurisdiction of a Tribunal or forum, the moment it is taken.
If it is so readily presumed that Rent Controller or for that matter any Tribunal should at once stop the proceedings on such objection being raised, then the adversaries would certainly be hit hard unheard.
19. The precedent cited by learned counsel for petitioner, therefore, does not help the case of petitioner when the rule laid down by the Honourable Supreme Court is manifestly otherwise.
20. The case of Messrs Kamran Industries PLD 1996 Kar. 68 is also not helpful to the petitioner. It was a matter under Customs Act. This Court observed that where the impugned action was completely without jurisdiction and patently illegal it was not essential to avail the alternate remedy. In order to make the aforesaid dictum applicable to this case the learned counsel for petitioner ventured to assert that the document termed as undertaking alleged to have been executed by the petitioner was denied by him and further he had taken the plea that relationship of landlord and tenant did not exist as such the Rent Controller had no jurisdiction and the order passed by Rent Controller was, therefore, void ab initio. As already observed in the foregoing paras. mere taking a plea in the form of denial of relationship between landlord and tenant does not take away the jurisdiction of the Rent Controller nor his orders become illegal. He is at the most required to determine the above question which in the instant case he has already done through the impugned order.
21. Learned counsel for petitioner also referred to the Utility Storres Corporation's case PLD 1987 SC 487 wherein I t has been held that when a Tribunal goes wrong in law it goes outside jurisdiction conferred on it because the Tribunal has jurisdiction to decide rightly and not the jurisdiction to decide wrongly. It was rightly contended by learned counsel for respondents that if, at all, the Rent Controller has exercised jurisdiction wrongly the same can appropriately be assailed and such point can be raised in appeal in view of the law discussed in foregoing paras. This authority, therefore, does not extend any support to the case of petitioner. On the same premises the observations of Lahore High Court in 1983 CLC 1987 would not afford any assistance to petitioner.
22. In consequence of the foregoing discussion, it may be concluded that a Constitutional petition under Article 199 against an interim rent order passed by the Rent Controller despite the fact that the tenant has denied the relationship of landlord and tenant, would not be competent of the reason that the tenant can assail the same in appeal if an adverse order is finally passed against him in pursuance of such interim order. In other words it may be said that a Constitutional petition in aforestated circumstances Is not maintainable, as adequate alternate remedy is available by way of appeal. In the instant case the petitioner has impugned the interlocutory order, dated 4-4- 2000 through this petition which cannot be sustained. Consequently, the petition is dismissed in limine with no order as to costs.