Briefly the facts are that the shop in question is situated in the area of Bhara Kahu, Islamabad. The petitioner is in possession of the said shop as a tenant of respondent No.3. An ejectment petition was filed before Rent Controller, Islamabad by respondent No.3 against the petitioner under section 17 of the Islamabad Rent Restriction Ordinance, 2001 on 11-1-2002. The grounds of eviction as disclosed in the ejectment petition were that the tenancy of the petitioner was terminated by the respondent and that the respondent requires the premises for his personal need. Court-fee of Rs.15 was paid on the petition. The petitioner contested the eviction petition through his written statement.
2. From the divergent pleadings of the parties, the learned Rent Controller, Islamabad framed the following issues:-- ISSUES:
(1) Whether the respondent is liable to be ejected from the suit premises on the ground as alleged in the petition'? OPA
(2) Whether the petition is misconceived and without any cause of action? OPR
(3) Relief.
3. In support of his petition, Raja Shahid Mehmood appeared as his own witness as A.W.1 and also produced Muhammad Zakri A.W.2, besides producing rent note Exh.A.1 and copy of notice Exh.A.2, postal receipt Exh.A.3, copy of plaint titled Jamil Ahmed v. Raja Shahid Mehmood Exh.A.4, copy of application Exh.A.5 and copy of an affidavit Exh.A.6. Conversely, the petitioner in defence produced Muhammad Amin, Special Attorney of the petitioner.
4. After appraising the oral and documentary evidence on the record, the learned Rent Controller vide order dated 22-6-2002 proceeded to accept the ejectment petition on the ground of personal need. The petitioner was directed to hand over the vacant possession of the shop in dispute within 30 days.
5. The petitioner preferred an appeal which came to be fixed before a learned Additional District Judge, Islamabad who dismissed the same vide impugned judgment dated 26-11-2002. The learned Appellate Court reappraised the evidence and concurred with the findings of the trial Court upon Issue No. 1.
6. The main ground taken by the learned counsel for the petitioner in the present writ petition is that the proceedings initiated by the respondent before the Rent Controller were coram non judice and that the impugned order of eviction both by the learned Rent Controller and the learned Appellate Court were without lawful authority. In this context, the provisions of section 1 and section 2(k) of the Islamabad Rent Restriction Ordinance, 2001 were relied upon for immediate reference section 1(2) is reproduced as under:--
(1) Short title, extent, application and commencement.---This Ordinance may be called the Islamabad Rent Restriction Ordinance, 2001.
2. It shall extend to such urban area of Islamabad Capital Territory (ICT) and apply to such buildings and rented land as Federal Government may by notification in the official Gazette specify.
Section 2(k) describes Urban Area as under:-- "Urban area" means such area or areas of the Islamabad Capital Territory as the Federal Government may by notification in the official Gazette specify.
7. Further section 3 ibid provides as follows:--
3. Power to exempt.---The Federal Government may by notification in the official Gazette direct all or any of the provisions of this Ordinance shall not apply to such building or buildings as are or may be used as Government offices.
It is also worthy of note that the provisions of Islamabad Rent Restriction Ordinance, 2001 under section 4 ibid shall have effect notwithstanding anything contained in any other law for the time being enforced or in any instrument or document.
8. The precise submission made on behalf of the petitioner is that area of Bahara Kahu where the shop in question is situate has not been notified as an urban area by the Federal Government through a notification in the official Gazette, which could attract the provisions of Islamabad Rent Restriction Ordinance, 2001. It is contended that urban area only means that area of the Islamabad Capital Territory which the Federal Government may by notification in the official Gazette specify.
This being the position, it is submitted that the entire proceedings before both the lower Courts being without lawful authority are liable to be struck down.
9. On the other hand, Mr. Atiq-ur---Rehman's Kiani, Advocate for respondent No.3 submits that the petitioner did not take any such objection either in his written statement or in any other subsequent proceedings other than the present writ petition. According to him, the petitioner had submitted to the jurisdiction of the Rent Controller and would therefore, be estopped from challenging the jurisdiction of the said Tribunal. The learned counsel has referred to the rule laid down in Hafeez- ud-Din v. Mian Khadim Hussain PLD 1965 W.P. Lahore 439 to contend that it is not that the order of the Rent Controller or the learned Appellate Court has been clothed with any legality but owing to the fact that the petitioner, had acquiesced in the proceedings, he cannot be allowed to turn around and challenge the same when the said proceedings went against him. For the same effect reference was made to the case of Muhammad Hussain Jaffari v. Marium Bibi 1985 CLC 451, wherein, it was held that when objection to jurisdiction of conciliation Court was not taken either before the Court of first instance or before revisional authority the party was estopped by his conduct to take up the plea of lack of jurisdiction for the first time in writ jurisdiction. Reliance was also placed upon Ghulam Mohiuddin v. Chief Settlement Commissioner and others PLD 1964 SC 829 for canvassing the proposition that the writ is refused in such cases not because jurisdiction is deemed to be conferred on the Tribunal by the act of a party not raising objection to its jurisdiction but by the act of waiver and acquiescence. It has been held in Muhammad Rafique v. Qamar Ali and 8 others 2003 M LD 52 that a party who submits to jurisdiction of an authority, has no right to sriggle out from such position on the principle of estoppel and waiver.
10. After hearing the parties, the position that emerges is that it was the respondent No.3 who had initiated the proceedings by invoking the jurisdiction of the Rent Controller, Islamabad under section 17 of the Islamabad Rent Restrict Ordinance, 2001. Before the question of estoppel or waiver of the petitioner is examined, it will be necessary to see the inherent legality of the act of respondent No.3 in consciously invoking the jurisdiction of a Tribunal which actually did not inhere in it. There is no dispute between the parties that no notification has been issued by the Federal Government and published in the official Gazette notifying the area of Bahara Kahu as urban area for the purpose or Islamabad Rent Restriction Ordinance, 2001. Having filed the ejectment petition before the Special Tribunal respondent No.3 put into motion the summary procedure of the Rent Controller which is not bound by the provisions of the Civil Procedure Code or the Evidence Act, in order to avail himself of an advantageous position as the landlord. He also affixed a court-fee of Rs.15 only instead of that which is leviable on a suit for possession in the ordinary Civil Court. It. Is obligatory upon respondent No.3 to justify the initiation of the proceedings before a Court/Tribunal which lacked jurisdiction on the fundamental ground that there was no notification covering the disputed property under the said Ordinance. The question of estoppel needs to be considered but only after the landlord/respondent No.3 can lawfully justify his own conduct of approaching a wrong forum.
11. While deciding the equities between the parties, it is necessary to keep the conduct of each party in juxtaposition with the conduct of the other. It is true that the petitioner failed to take the objection regarding jurisdiction before the learned Rent Controller as well as before the learned Appellate Court but that by itself would not discharge the onus of the respondent/landlord of explaining as to how and why he approached a wrong forum in the first place. It needs no gainsaying that if anything filing of the ejectment petition before the Rent Controller when none could be filed in such Tribunal in respect of the property in question would act to the benefit of respondent No.3 and to detriment of the petitioner. The petitioner also did not stand to gain any advantage by not objecting to the jurisdiction of the Rent Controller.
12. In view of the above, I find that the act of the petitioner in not raising objection regarding jurisdiction would not amount to acquiescence or waiver in the circumstances of the case as he would not gain any advantage by not taking such objection before Special Tribunal.
13. In view of the foregoing the writ petition is accepted and the order passed by the Rent Controller dated 11-1-2002 and the order of the Appellate Court dated 25-11-2002 are declared to be without lawful authority and null and void.