1983 PLP 998 (CLC)

MUNAWAR AU KHAN, J.‑By this Constitutional petition three Orders dated 1st September, 1982, 12th October, 1982 and 28th November, 1982 passed in the rent case pending between the petitioner and the respon dent No. 1 have been called in question. It would appear that by the impugned order dated 28th November, 1982 the learned Rent Controller orders dated 1st September, 1982 and 12th October, 1982 (sic). The first order was passed following the petitioner's failure to cross‑examine the respondent and his witnesses despite several adjourn ments having been granted to him for the purpose. The learned Rent Controller made another order dated 12th October, 1982 on account of the petitioner having failed to avail the opportunity provided to him by adjourning the case to file his own affidavit and affidavits of his witnesses, if any, as his evidence. Thus by both these orders his side stood closed. As provided in section 21 of the Sind Rented Premises Ordinance, 1979 appeal is competent only from the final order. Since the impugned orders are in the nature of interim orders, appeal does not lie against such orders That is why the petitioner has challenged these orders in writ petition. The question arises if interlocutory orders of the nature of impugned orders can be questioned in writ petition. In this connection reference may be made to the recent decision of the Supreme Court Abdur Rashid v. Haft Mir Ahmed Khan and another (P L D 1983 S C 21). In this case the point relating to filing of writ petition against the interim orders has been elaborately dealt with. In the reported case the petitioner who was said to be tenant had question ed the maintainability of the eviction application before the Rent Con troller on the ground that there was no relationship of landlord and tenant between the parties and therefore the Rent Controller had no jurisdiction. As his objection in this connection was overruled by the Rent Controller who wanted further to direct the deposit of arrears of rent, the petitioner challenged the order passed by the Rent Controller in a Constitutional petition. A Division Bench of the High Court dismissed the petition, affirming the order of the Controller. The petitioner sought leave to appeal against the order of the High Court to the Supreme Court. While declin ing to grant leave, it was held by the Supreme Court :‑ "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 juris diction of the High Court. It could be exercised only on proof of non‑availability of adequate remedy: This proof is not forth coming in this case. The petitioner had a right of appeal if any final decision would have gone against him." This Court has time and again cautioned against piecemeal decisions of these and similar matters." In the above‑reported case reference was also made to the case of Muhammad Saeed v. Mst. Saratul Fatima (P L D 1978 Lah. 1459) wherein it was held :‑ "It, therefore, follows that what the Legislature held to be an inter locutory 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. There is yet another aspect‑ of the case. The constitutional jurisdiction is invoked and made available in case of imminent, grave and tangi able 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." Similar view was taken in the case of Mrs. Feroze Aslam v. Muhammad Akhtar (P L D 1978 Lab. 488) which too was taken note of by the Supreme Court in the above reported case. In view of the Supreme Court authority referred to above, if legal remedy byway of appeal is not available against interim order, such order B cannot be permitted to be challenged by invoking extraordinary cons titutional jurisdiction of this Court. In the instant case, the rent dispute out of which the impugned orders have arisen is still pending in the Court of the Rent Controller and after it is finally disposed of the petitioner will have right of appeal against such decision. He will then be free to agitate all the points raised by him in this petition in the appeal. Accordingly we see no merit in the petition which was, therefore, dismissed by us in limine by a short order dated 1st February, 1983 for the reasons to be recorded separately. The above are the reasons for dismissal of the petition. M. M. H. Petition dismissed.