2006 PLP 841 (YLR)

MIAN HAMID FAROOQ, J.-The petitioner, through the filing of the present constitutional petition, has called in question order dated 21-7-2004, whereby the learned Rent Controller closed petitioner's right to produce witnesses.

2. Respondent No.1 filed the ejectment petition, seeking the eviction of the petitioner from the room in dispute on the grounds of personal need, default and impairing the value of the property, which was contested by the petitioner through filing the written reply. The learned Rent Controller framed the necessary issues, recorded respondent No.1's evidence and set down the case for recording the evidence of the petitioner. As the petitioner did not produce his witnesses, therefore, the learned Rent Controller passed the impugned order, thereby closing petitioner's right to produce witnesses, hence the present constitutional petition.

3. The petitioner has contended that respondent No.1 was provided 11 opportunities and on various occasions, only her three witnesses were recorded, while the petitioner was only given two opportunities. He has submitted that the impugned order is violative of law laid down by the Honourable Supreme Court of Pakistan in the cases reported as Jindwadda and others v. Abdul Hamid and another (PLD 1990 SC 1192) and Qutab-ud-Din v. Gulzar and 2 others (PLD 1991 SC 1109).

4. Notwithstanding the contention raised by the petitioner, to my mind, the instant constitutional petition is not maintainable and is incompetent. Admittedly the ejectment petition is still pending before the learned Rent Controller and during its pendency, the learned Rent Controller has passed the impugned interim order. Undoubtedly, the order, passed by, the learned Rent Controller, for all intents and purposes is an interlocutory order, as the lis is pending before the learned Rent Controller and it has still to render its final verdict. The legislature has made such an order, passed by the learned Rent Controller, as non-appealable by speci?fically making a provision in that respect, by virtue of second proviso to section 15 of the Ordinance, 1959 which for facility of reference is reproduced below:

"Section

15. Appeal Provided?.. Provided further that no appeal shall lie from an interlocutory order passed by the Controller." In these circumstances, when the legislature has specifically prohibited the filing of an appeal against an interim order and it the constitutional petition is allowed to be filed against such order, it would tantamount to defeating and diverting the intent of the legislature. If any judgment is needed, reference may be made to Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S & GAD, Karachi and others (1996 SCMR 1165), in which the Honourble Supreme Court was pleased to hold as under:-- "Constitutional jurisdiction, exer?cise of statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction. Party affected has to wait till it matured into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders."

5. There is another aspect of the case. "There is no cavil with the proposition that if the ejectment petition would ultimately be decided against the petitioner, he would have a right to file the appeal under section 15 of the Ordinance, 1959, wherein all questions/grounds raised by the petitioner in the present constitutional petition would of course be available to him before the Court of appeal. The impugned order of the learned Rent Controller would obviously merge into the final order, which could be assailed under the afore-noted provision of law before the Courts of appeal, if the final order/judgment would ultimately be passed against the petitioner. In view whereof, the petitioner has got an alternative remedy and thus, the present petition cannot be entertained on the said ground.

6. In the above perspective, the present petition is incompetent and not maintainable, hence dismissed in limine. H B.T./S-18/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.