2008 PLP 110 (CLC)

GHULAM MUSTAFA MUGHAL, J.

Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 an order passed by the learned Rent Controller, Muzaffarabad, on 6-9-2007, whereby an application for impleading the petitioner herein, as non-applicant in an application filed on behalf of respondent No.2, under section 14(1) and (2) of the Azad Jammu and Kashmir Rent Restriction Act, 1986 has been rejected. Facts forming the background of the controversy, as claimed in this petition, are that Plot No.181-D situated in Chatter Housing Scheme Muzaffarabad was purchased by Reaz Ahmed son of Abdul Kareem resident of Mera Bakot, Muzaffarabad, from Raja Muhammad Farid Khan on 9-6-2003. The competent authority transferred said plot in favour of the said purchaser vide order, dated 26-6-2003. It is claimed that petitioner herein and her husband jointly constructed a house on the said plot. It is further claimed that structure of the upper storey was also got completed before 8-10-2005. The ground floor was rented out by her deceased husband to pro forma respondent No.3 who agreed to pay Rs.10,000 as rent per month while Rs.25,000 were paid in advance by the said tenant. It is alleged that tenant hardly shifted in the house when disaster of October 8, 2005, took place in which her husband and a minor son lost their lives. During this period respondent No.2 misleading the Court, obtained an illegal guardian certificate of remaining two daughters of the deceased. He also obtained an illegal succession certificate in his favour. It is stated that the matter came to the notice of the petitioner and on her protest said certificate was got amended by respondent No.2. Respondent No.2 has usurped a lot of amount of the minors by using aforesaid certificate. It is also claimed that respondent No.2 misrepresenting the petitioner started receiving the rent but pro forma respondent got executed a fresh rent agreement in her favour. It is also claimed that the petitioner was forced to leave a portion of house and was shifted to the first storey. The petitioner was receiving rent on the basis of the said agreement. Respondent No.2 posing him as landlord and exclusive owner of the house, filed an application before the Rent Controller for ejectment of the pro forma respondent. The petitioner was not impleaded in that application whereupon she made an application for impleading her in line of the defendants, non-petitioners. Respondent No.2, petitioner herein, filed objections on her application and the learned Rent Controller has rejected the application vide his order, dated 6-9-2007. The respondents have resisted the petition on the ground that an-interim order passed by the Rent Controller or a Special Tribunal cannot be challenged in writ jurisdiction. It was further alleged that this petition cannot be entertained even under section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Respondents further stated that the petitioner herein could not prove her title and her application filed before the Rent Controller was rightly rejected. It is further pleaded by the respondents that matter agitated in the writ petition relates to the contractual obligation which cannot be resolved in extraordinary jurisdiction. It is also contended that an alternate remedy in shape of appeal is also available to the petitioner, therefore, present petition is misconceived. On factual side, it is claimed that the disputed house has been constructed jointly by respondent No.2, his son Reaz Ahmed (deceased) and other family members, therefore, claim of the petitioner herein, in respect of the purchase of plot as well as ownership of the disputed plot as well as house is frivolous and baseless. Raja Akhlaq Hussain Kiani, the learned Advocate for the petitioner, referring to his pleadings, contended that the learned Rent Controller failed to understand that he is a Tribunal of exclusive jurisdiction and dispute of tenancy amongst the contestant could only be resolved by him. The learned Advocate submitted that it was enjoined upon him to accept the application filed by the petitioner herein. He further contended that even it was the boundened duty of the Rent Controller to dismiss the application filed on behalf of respondent No.2 because he has no locus standi to invoke the jurisdiction of the Rent Controller. It was the duty of the learned Rent Controller to dismiss the application for having not been filed in a proper form i.e. without impleading all the legal heirs of the deceased, maintained the learned Advocate. The learned Advocate also submitted that through the impugned order the learned Rent Controller has closed the door of justice for the petitioner in order to defend her right, which is a constitutional right. The order, according to him, is mala fide and without jurisdiction. The learned Advocate further submitted that there is no alternate remedy for the petitioner except to invoke the constitutional jurisdiction of this Court. Mr. Muhammad Idrees Mughal, the learned counsel for respondent No.2, inter alia, argued that an interim order passed by the learned Rent Controller is immune from challenge in exercise of writ jurisdiction because of the policy and wisdom of the Legislature enshrined in the Rent Restriction Act, 1986. The learned counsel submitted that the petitioner was not able to prove her title to the disputed house, thus, her application has rightly been rejected. He further contended that the petitioner can move to the Civil Court for adjudication as the question of title cannot be decided by Rent Controller in the summary proceedings. The learned Advocate also contended that as the learned Rent Controller is not subordinate to this Court, therefore, neither the jurisdiction conferred under section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 197a can be exercised nor any petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 can be entertained. Mr. Ashfaque. Hussain Kiani, the learned Advocate for respondent No.3 submitted that his client will pay the rent to whom the Court will direct. I have heard the learned Advocates for the parties and given my anxious thought to the controversy involved in the case. This petition was admitted for regular hearing vide order, dated 18-10-2007 in order to resolve two questions. Firstly, as to whether an interim order passed by a Special Tribunal like Rent Controller, exercising special jurisdiction under a special law, could be assailed in writ jurisdiction; and secondly, as to whether in the circumstances of the case, this Court can upset the order in exercise of jurisdiction conferred on it under section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. So far as the first question mentioned hereinabove is concerned, by now it is well-settled law that an interim order passed by a Special Tribunal cannot be allowed to be challenged in writ jurisdiction because only a final order passed by the Rent Controller is appealable. It has been observed by the superior Courts that where law itself has not given a right of appeal against certain orders, the same cannot be challenged in any other form to gain similar object which has been barred by the statute itself. A reference can be made to a Division Bench judgment of Peshawar High Court titled Zar Farosh v. Sikandar Aziz and 5 others PLD 1997 Pesh.

64. Same view was approved by the apex Court of Pakistan in Syed Saghir Ahmed Naqvi's case 1996 SCMR 1165. At page 1171 of the report it has been observed as under:-- "The statute excluding a right of appeal from the interim order cannot be bypassed by bringing under attack such 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 of examining such orders." Mr. Muhammad Idrees Mughal, the learned Advocate for respondent No.1, in fact has raised this objection on the strength of the aforesaid precedent but in the circumstances of this case I am of the humble opinion that the above precedents are not applicable to the case in hand. Under the Rent Restriction Act, 1986 right of appeal has been conferred on a party only. As the application of the petitioner herein has been rejected, therefore, she is no more a party to the proceedings for the purpose of ejectment application or appeal, as the case may be. In Mistri Allah Din v. Fazal Muhammad and another PLD 1991 SC 52, the provisions of sections 13 and 15 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) received the attention of the apex Court of Pakistan. It was observed by the apex Court that only parties before the Rent Controller, landlord and the tenant, could bring the matter before the higher appellate authority designated under the Ordinance. The provisions of appeal in the Rent Restriction Act, 1986 are para materia, therefore, this is a direct authority for determination of the fate of this petition. The apex Court at page 57 of the report has observed as under:-- "(10) This restrictive conferment of right of appeal has a basis in the limited,' exclusive and designated jurisdiction of the Rent Controller unlike plenary jurisdiction enjoyed by the Courts. The Rent Controller can only entertain disputes between the landlord and tenant excluding all others in the matter. It is only the parties before the Rent controller, the landlord and the tenant, who can bring the matter before the higher Appellate Authority designated under the Urban Rent Restriction Ordinance. The respondent having appeared as a witness in the proceedings and being aware of all the orders that were passed and having not himself sought to be impleaded at any stage or to have prosecuted against the ejectment order in proper time could not have done so three years after the judgment. Without disclosing the reasons for such an inordinate delay, it cannot be said that the order passed by the Appellate Authority on compromise between the tenant and the landlord was such a nullity as could have justified appeal by the respondent, not a party to those proceedings, before the High Court, under the Rent Restriction Ordinance. That appeal was incompetent in view of the decisions given by this Court in the case referred to." In view of above position, objection of Mr. Muhammad Idrees Mughal, the learned Advocate for respondent No.1, is repelled and it is held that this petition is maintainable. The other question is left open and will be decided at a proper stage. Before proceeding further I would like to reproduce relevant portion of the order of the Rent Controller whereby he has rejected the application. A perusal of the above reveals that the learned Rent Controller has deprived the petitioner from defending her case and title to the property for erroneous reasons. Jurisdiction exercised by the Rent Controller is not against the true spirit of law but is also arbitrary and violative of the principle of natural justice. The conclusion of the Rent Controller and the argument of Mr. Muhammad Idrees Mughal, the learned Advocate for respondent No.1, that the petitioner herein was not able to prove her title is against the record and is based on wrong assumption of facts as well as conjectures and surmises. The learned Rent Controller was to determine only who was prima facie owner of the disputed house because complicated question of title could not be resolved by the learned Rent Controller. That is why the provisions of C.P.C. and Evidence Act, have been specifically excluded. Under the Mohammadan Law; after the death of a Muslim owner, his/her inheritance or devolution of the property takes place immediately without any other intervention. The attestation of mutation in favour of an heir is not a sin-qua-non for ownership. This proposition lends support from a case reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC

1. Relevant observation has been recorded at page 17 of the report which is as under: "It has already been held that the Islamic inheritance takes place immediately without any other intervention; therefore, in this case the respondents-petitioner's sister, became the owner of the suit property immediately on the death of her father. She is said to have relinquished her share in inheritance in petitioner's (brothers) favour and accordingly as asserted by them a mutation of inheritance was sanctioned in their favour. It is interesting to note that she was not only deprived of inheritance but also her name was not mentioned in the pedigree-table showing her as one of the heirs. The claim of relinquishment of her property was asserted so strongly and accepted so readily that even her existence as a daughter, though that not otherwise denied, was not acknowledged in the documentation regarding inheritance; namely, in the mutation register and other connected documents." In view of above, by no stretch of imagination, it can be said that the petitioner being wife of Reaz Ahmed was not entitled to defend her own as well as daughters' share in the property. A deliberate attempt has been made to deprive a lady and her minor daughters from inheritance which is "Zulm" (cruelty). Unfortunately, the Court has become a party to this cruelty. Such-like orders despite all ousters cannot be left without rectification. Mr. Justice Muhammad Munir Khan, (as his Lordship then was), entertained a petition against an interim order in a case titled Dur Muhammad Piracha v. Judge, Special Court Banking and others 1982 CLC 1625 and while entertaining and accepting the petition observed as under:-- "(8) ... I am of the view that if this Court is satisfied that an interlocutory order suffers from infirmities, affects the jurisdiction of Court or Tribunal then it would be failing in its constitutional duties to refuse to interfere with the same and allow a Court or Tribunal to pass illegal orders under the cover of Special Law because once the Court comes to the conclusion that a Court or a Tribunal has exercised jurisdiction by flouting the provisions of relevant law, has violated the principles governing the exercise of judicial discretion, acted arbitrarily, passed an illegal and unfair order without applying its mind, it would then be the duty of this Court while sitting in its constitutional duties to strike down such order regardless of the fact that the interference may defeat the legislative intent, i.e. speedy and efficacious method for the recovery of loan advanced by the Bank. I realize the difficulty but at the same time sitting as a Court of Law, the Court cannot permit a Court or Tribunal to act in a manner in which the learned Special Judge has acted by passing the impugned order." I respectfully follow the above dictum. The learned Rent Controller has also misdirected himself while disposing of the application. Both the parties have claimed before the Rent Controller that the property has been purchased jointly and the house is also constructed by them as such. The case of Mst. Nighat Reaz, as has been disclosed in her application, was that she and her husband after purchasing the plot jointly constructed the house and rented out the same to pro forma respondent whereas respondent No.2 has stated that plot was jointly purchased and the house was constructed with the help of to her brothers of Muhammad Reaz Ahmed (deceased). Each party, therefore, is claiming the title. There were two possible ways for the Rent Controller to handle the controversy. One was that the Rent Controller should have allowed the application of Mst. Nighat Reaz, and decide the rent application on the basis of prima facie title to the property. The other was directing the parties to get their title resolved by Civil Court which is final arbitrator in such-like cases. Same course has been approved in Rehmatullah v. Ali Muhammad 1983 SCMR 1064. At page 1081 of the report it has been observed as under:-- I may however, usefully add that any Tribunal or a statutory Authority exercising quasi judicial functions when required to determine any question, which under the law, it was the authority to determine should decide all the questions arising before it and thereby spare the parties from the ordeal of rushing from one forum to another. The findings recorded by such Tribunals on the questions adjudicated by the, subject to correction or alteration by the Appellate or Constitutional forum are final and on the general principles of res judicata are not open to be re agitated before a Civil Court. Thus, the findings recorded by a Tribunal of limited jurisdiction like the Rent Controller would also be final, if they are given on the merits of the plea raised before it and will operate as res judicate. however, in the event where the rent Controller feels that a complicated question requiring a protracted inquiry would be necessary for deciding a particular question such as for instance whether party claiming to be the owner of a property and is, therefore, the landlord of the person occupying it, cannot in view of the demands of the law to decide questions of the existence of their relationship of the landlord and tenant expeditiously be undertaken by him, he can observe that such question should be decide by a Court of general jurisdiction, namely, the ordinary Civil Court and this finding should be specifically recorded by him in his order. In a case like present when the appellate authority of the Rent Controller was of the view that the respondent herein, who was claiming to be the landlord on the basis of ownership but this claim did suffer from some doubt, the proper course for the appellate authority was to have decided the issue of the existence of the relationship of landlord and tenant against him, but at the same time permitted him to get his title established in a civil. Court adding that he can again move for ejectment of the occupant from the property in question if the same is found by the civil Court to belong to him. An ejectment petition as decided in these terms would entitle the alleged landlord to re-agitate the matter before the Rent Controller again and the decision of the Rent Controller taken earlier by him would not constitute res judicata or preclude him from re-agitating the matter before him once again. The result in practical terms accordingly may be summed up as follows. The Rent Controller who was dealing with a petition for ejectment of an occupant of a property by a party claiming to be his landlord, a claim which was based on the plea of ownership, should have proceeded to decide all the issues relevant to the said question, which incidentally may also have included a decision on the question of title. This was done by the Rent Controller. If this appellate authority considered that a deeper and a more detailed examination of the last mentioned question was necessary for setting this matter and also found that the title of the alleged landlord did suffer from some doubt, he should in these circumstances, have dismissed the. ejectment petition, leaving the appellant before him to move the Civil Court for a declaration of his title." The above proposition was again reiterated and approved in a case reported as Mir Salah-ud-Din v. Qazi Zaheer-ud-Din 1984 PSC

127. The upshot of the above discussion is that the petition is accepted with costs. The application filed by the petitioner before the Rent Controller is hereby allowed. Pro forma respondent shall deposit the rent till final conclusion of the matter with the Rent Controller, Muzaffarabad on the date fixed by the Rent Controller. The petitioner being widow is entitled to realize her share as well as share of minor" daughters from the rent so deposited with the Rent Controller. It is also ordered that the petitioner shall not be forced to leave the house nor pro forma respondent shall deliver the possession exclusively to any person after vacation of the house without permission of the Rent Controller. The remaining amount of the rent deposited with the Rent Controller shall be given to the claimants after proving their title. In case the exclusive title of the house is not proved by either of the parties, the amount shall be distributed by the Rent Controller among the legal heirs according to Sharia. The petitioner shall also furnish an undertaking before the Rent Controller that if finally stand of the non-petitioner is proved then she will deposit the excessive amount received by her with the Rent Controller within a period so fixed by him. S.A.K./15/AJ&K Petition accepted.