1998 PLP 498 (SCMR)

IRSHAD HASAN KHAN, J.

The petitioner seeks leave to appeal against the order of the Peshawar High Court, Circuit Bench Abbottabad dated 13-6-1994 whereby his writ petition was dismissed in limine.

2. The relevant facts in brief are that respondents Nos. l and 2 filed a petition before the Rent Controller, Abbottabad seeking ejectment of the petitioner from the premises known as Usmania High School, situated within the urban area of Abbottabad on the ground of default in payment of rent. The petitioner resisted the ejectment petition denying the relationship of landlord and tenant between the parties. The learned Rent Controller vide order dated 16-10-1993, while partly accepting the petition, ordered eviction of the petitioner. As to the payment of arrears of rent, the respondents were directed to seek redress of their grievance by filing a civil suit. Aggrieved by the aforesaid order, the petitioner filed an appeal before the learned Additional District Judge, Abbottabad. During the pendency of the appeal, the learned Addition9l District Judge vide order dated 2-5-1994 directed the petitioner to deposit the arrears of rent at the rate of Rs.2.000 per month for the period April, 1988 to April, 1994 with further direction to continue depositing future rent before 15th of each month. The petitioner moved a Constitutional petition before the Peshawar High Court against the above order, contending therein that since the prayer for payment of outstanding amount had been refused by the learned Rent Controller, the appellate authority was not competent to direct the petitioner to deposit the arrears and future monthly rent. The contention was repelled by the learned Judges of the High Court on the ground that as the Rent Controller under subsection (6) of section 13 of the N.-W.F.P. Rent Restriction Ordinance, 1959. could pass an order directing the tenant to deposit the arrears of rent and to deposit the monthly rent, which becomes due before 15th of each month, appellate authority was also invested with a similar power under subsection (5) of section 15 of the aforesaid Ordinance;

3. The learned counsel for the petitioner argued that since the petitioner specifically denied the relationship of landlord and tenant between the parties, the learned Additional District Judge, Abbottabad, acting as appellate authority could not have passed the order for deposit of arrears of rent as well as the future monthly rent without first deciding the question of relationship of landlord and tenant between the parties and moreso when the learned Rent Controller had refused to pass such an order, which refusal was not challenged by respondents Nos.1 and

2. The learned counsel further argued that remedy under the writ jurisdiction against the order passed by the learned Additional District Judge under section 15(5) of the N.W.F.P. Rent Restriction Ordinance, 1959 was available and the learned Judges of the High Court erred in holding to the contrary.

4. After hearing the learned counsel for the petitioner, we grant leave to consider the question whether refusal by the High Court to interfere with the order of the Appellate Authority under the Rent Restriction Ordinance, in the facts and circumstances of the present case, is based on sound judicial principles. Status quo order passed earlier shall continue to operate till the final disposal of the appeal. A.A./A-1311/S Leave granted.