1998 PLP 460 (CLC)

2. The facts which form the background of this petition may be at the outset briefly stated. On 15‑11‑1994, Amaad Aslam Cheema/respondent No.2 herein brought application under section 13 of Urban Rent Restriction Ordinance, 1959 (hereinafter described as ordinance for eviction of petitioners from residential house measuring 1 Kanal, 113 sq. ft. constructed on Plot No.84, Block Model Town Extension Scheme, Lahore. It was alleged therein that the house was rented out to petitioner by means of Iqrarnama, dated 15‑11‑1993; that the rent of the premises was 25,000 rupees per month w.e.f. 15‑11‑1993; that since 13‑11‑1994, petitioner had neither paid the rent nor tendered it and so he was wilful defaulter; that the house was needed by the respondent No.2 for his personal requirement. This application was resisted. Petitioner, in his written reply, took up the position that neither respondent No.2 was the owner nor he had executed any rent‑note in his favour, that so there did not exist any relationship of landlord and tenant between the parties. On this objection, the parties were directed to produce the relevant material. Respondent No.2 placed on record a transfer letter of house issued by Lahore Development Authority dated 14‑11‑1993. He also applied for summoning the petitioner for getting his thumb‑impression for comparison with his disputed thumb‑impression on rent‑note dated 15‑11‑1993. This application was allowed on 4‑7‑1995 and the learned Rent Controller obtained undisputed thumb impressions in Court and sent the same to expert for comparison with his questioned thumb‑impressions. These thumb‑impressions were examined by the expert and he gave the opinion that the thumb‑impressions secured in Court tallied with the questioned thumb‑impressions on rent‑note.

3. The application was moved under section 13(6) of Ordinance on 3‑3‑1994 praying that petitioner be directed to deposit the arrears of rent from 30‑11‑1993 to 30‑6‑1993 and be further directed to make the payment of rent of each month within the parameters of section 13(6) of the Ordinance. This application was contested and ultimately was allowed on 12‑6‑1996.

4. At this stage, it is necessary to note that this Constitution petition came up for hearing before this Court on 23‑7‑1996. After hearing the learned counsel for petitioner, the learned Judge was pleased to issue pre‑admission notice to respondent for 18‑8‑1996 and petitioner was directed to pay the arrears of rent under the impugned order up to 18‑8‑1996. The operation of the impugned order, so, was not suspended and time mentioned therein, for deposition arrears of rent, was extended.

5. The arguments put forth by learned counsel for petitioner can be conveniently summarized as below: Firstly: That the learned counsel relied upon section 13(6) of the Ordinance to contend that in case where the relationship of landlord and tenant was denied between the parties, the Rent Controller was bound to frame an issue, record the evidence of the parties and decide the same before passing an order under section 13(6) (ibid). He relied upon Muhammad Ismail v. Israr Ahmad (PLD 1961 Lah. 601), Mst. Karam Bibi v. Mir Muhammad Hassan and others (PLD 1962 Quetta 67), Akhtar Ali Pervez v. Altaf‑ur‑Rehman (PLD 1963 Lah. 390), Mehdi Hassan v. Ghulam Muhammad (PLD 1964 Lah. 648) and Abdul Khaliq Qureshi v. Saeed Hassan Shah (1979 CLC 118). According to learned counsel, the learned Rent Controller simultaneously passed an order under section 13(6) (ibid) and framed an issue with regard to relationship of landlord and tenant, on the strength of the above it was argued that this course was not permissible. Secondly: That although, order passed under section 13(6) of Ordinance was an interim order yet it was not appealable and so was amenable to Constitutional jurisdiction of this Court. Reference was made to Dad Muhammad v. Qazi Muhammad Hayat and other (1996 CLC 1705), M/s Shahzad Ice Factory v. Special Judge Banking‑1; Lahore and others (PLD 1982 Lah. 92) and Syed Abbas Ali Shah v. Syed Farhat Ali Shah and others (1984 CLC 881). Thirdly: that the impugned order was based upon non‑reading and misreading of material on record.

6. Learned counsel appearing on behalf of respondent No.2 in reply, at the outset raised two‑fold preliminary objections: Firstly that the order passed under section 13(6) of Ordinance was not only interlocutory order but it was wholly provisional in character and the Rent Controller was competent to change/modify it finally. On this basis, according to learned counsel, this order was not subject to Constitutional jurisdiction of this Court. Reliance was placed on Ramzan v. Rehabilitation Commissioner, Sargodha (PLD 1963 (W.P.) Lah. 461), Mst. Amera Saeed v. Syed Hassan Hamid etc. (1985 CLC 792) and Mst. Bashir Begum v. Syed Ijaz Hussain PLD 1995 Lah. 392). Secondly, that order passed under section 13(6) (ibid) was fragmentary in nature and so it was not appealable under section 15 of the Ordinance. On the strength of this nature of order, it was represented that this petition was incompetent. Strength was sought from Muhammad Saeed v. Mst. Saratul Fatima etc. (PLD 1978 Lah. 1459) and Syed Saghir Ahmed Naqvi v. Province of Sindh etc. 1996 SCMR 1165; 1996 PLC (C.S.)

803. Learned counsel finally maintained that even otherwise the impugned order was eminently just and correct and did not suffer from any jurisdictional or legal defect. According to learned counsel, respondent No.2/landlord had placed on record that transfer letter of the rented premises issued by Lahore Development Authority; that the expert, has given opinion that the thumb‑impressions of petitioner, secured by Court tallied with his thumb-impressions on the questioned rent note. In the circumstances, there was sufficient material according to learned counsel, for passing the impugned order.

7. I have heard the learned counsel for the parties at preliminary stage at length and have attended to their contentions with minute care. The nature of the jurisdiction of Rent Controller under section 13(6) (ibid) came up for examination before Division Bench of the erstwhile West Pakistan High Court in Muhammad Ismail v. Israr Ahmad (PLD 1961 (W.P.) Lah. 601). In this case Muhammad Ismail appellant had filed an application before Rent Controller of Lahore for eviction of respondent from a wooden cabin on the ground of default. Respondent, in reply, denied the relationship of landlord and tenant between the patties. The Rent Controller, however, directed the respondent to deposit arrears of rent by a certain date. The respondent went in appeal to District Judge who asked the Rent Controller to determine first as to whether the relationship of landlord and tenant existed between the parties before passing order for deposit of arrears of rent. The learned counsel for the appellant relied upon the ratio in Dr. Ilyas Dobash v. Muhammad Iqbal (PLD 1960 Lahore 1112) to contend that the learned Rent Controller was competent to pass an order under section 13(6) of Ordinance without determining the plea of relationship of landlord and tenant. His lordship Mr. Justice Anwar‑ul‑Haque did not agree with the above view and referred the matter to a larger Bench. In result the matter came up before his lordship Mr. Justice Muhammad Yaqub Ali, J. (as he then was). While agreeing with the referring Judge, he said: "For the reasons to be mentioned presently, I find myself in agreement with Anwar‑ul‑Haw, J. In his inter‑relation of section 13(6) of the Ordinance. The Ordinance has been promulgated to provide number of safeguards for the tenants and restricting the rights of ownership of landlord. It accordingly postulates that no tenant will be falsely denying relationship of the landlord and tenant deprived himself of those safeguards and that is why there is no express provision in the Ordinance, or any one of its predecessor enactment, for adjudicating upon such a controversy. But as the terms 'landlord' and 'tenant' are defined in the Ordinance, it, necessarily implied that the Rent Controller has jurisdiction to determine the relationship between the parties. The omission of a provision to that effect in section 13(6) of the Ordinance is thus satisfactorily explained on this hypothesis. This being the starting point, the interpretation of section 13(6) of the Ordinance does not present any real difficulty. The term used in it is 'tenant' acid not 'respondent'. In an action for eviction if the respondent denied that he is a tenant under the petitioner, the Controller must put the controversy in an issue and determine whether the plea raised in defence has merit. If the answer be that the respondent is a tenant under the petitioner, section 13(6) of the Ordinance will immediately come into' operation and the Controller may pass such order as he deems fit in the circumstances of the case. Cases of this nature must necessarily be very few and this will meet the criticism that in putting this interpretation on section 13(6) of the Ordinance, its object, namely, that the landlord may not be deprived of the rent due to him during the pendency of an action for eviction, will be destroyed. The risk of adopting a false plea of this kind by a tenant is manifest. For example, in an action for eviction for non‑payment of rent the tenant will be precluded from pleading and leading evidence to the effect that he was not in default as the pleas that he was not a tenant under the petitioner and that he had been paying rent to him in due dates, will be mutually destructive. " The view taken in Muhammad Ismail's case (supra), was followed by Karachi High Court in Mst. Karam Bibi v. Mir Muhammad Hassan (PLD 1962 Quetta 67) and was approved by Full Bench of West Pakistan High Court in Akhtar Ali v. Altafur Rehman (PLD 1963 Lah. 390). The same view prevailed in Mehdi Hassan v. Ghulam Muhammad (PLD 1964 Lah. 648) and Abdul Khaliq Qureshi v. Saeed Hassan Shah (1979 CLC 118). The ratio deducible from the above is that in a case where the relationship of landlord and tenant is denied, the Rent Controller is bound under the law to treat such objection as preliminary one and is to tentatively determine this question in the light of material brought by the parties or such material which parties might produce. This exercise has to be done by the Rent Controller before passing order under section 13(6) of the Ordinance.

8. Having dealt with the nature of section 13(6) of Ordinance, I now turn to preliminary objection raised by the learned counsel for respondent. The objections are two‑fold: Firstly that the order passed by Rent Controller under section 13(6) is fragmentary in nature, is not appealable under section 15 of the Ordinance and finally merges into final order and so aggrieved party have to wait for final order and challenge it before the Appellate Court: Secondly, no petition is competent against an interim order. These questions came up for consideration before Division Bench of this Court in Muhammad Saeed v. Mst. Saratual Fatima (PLD 1978 Lah. 1459) his lordship Mr. Justice Shafi‑ur- Rehman (as he then was) while rendering the opinion said: "The Legislature manifested its intent unequivocally by prescribing two broad categories of all orders passed under the West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959) by making the more determinative orders constituting the smaller category appealable and all other forming the larger category non‑appealable. The scheme of such categorization, the limits and the rational thereof has been fully considered in Mian Manzar Bashir v. M.A. Asghar PLD 1978 SC

185. It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important and a higher level, the Constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mamtaz Hussain Bhutta v. Chief Administrator Auqaf etc. 1976 SCMR 450. " The view taken in Muhammad Saeed's case (supra) was followed by Mr. Justice Khalid Paul Khawaja, J. in Mst. Bashir Begum v. Syed Ijaz Hussain PLD 1995 Lah.

392. As regards Syed Abbas Ali Shah v. Syed Farhat Ali shah etc. 1984 CLC 881, suffice it to say that in this case the Division Bench judgment was not cited before the learned Single Judge and so the case was not correctly decided. Furthermore, the view taken by D.B. of this Court is binding upon this Court. The view taken by D.B. was also approved by Supreme Court in Syed Saghir Ahmad Naqvi v. Province of Sindh etc. 1996 SCMR 1165 = 1996 PLC (C.S.)

803. Though, the controversy had come to Court in a different legal background yet the principle propounded by D.B. was re‑affirmed. It will be useful to reproduce the relevant portion of this report:‑‑ "The statute excluding a right of appeal from the interim order cannot be by passed 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." On the above, I. have, therefore, no difficulty in concluding that the impugned order was tentative in nature and was to merge in the final order which was appealable under section 15 of the Ordinance and so the petitioner has to wait for final order in order to question it before the Appellate Court. Furthermore, the impugned order is provisional in nature and so not assailable in Constitutional jurisdiction of this Court. In this view, I hold that this petition is incompetent. ,

10. There is yet another aspect of the case. This came up for preliminary hearing on 23‑7‑1996. A pre‑admission notice was issued to respondent for 18‑8‑1996 and the petitioner was directed to deposit arrears of rent till that date. The learned counsel for petitioner candidly accepted that he had not complied with that direction. He, however, made an endeavour to meet the above situation by saying that the direction, regardless of the specification of time, still subsisted. I am, however, not able to accept this contention. It is settled that Constitutional jurisdiction can be exercised in favour of persons who comes to the Court with clean hands and abide by its directions. The petitioner did invoke the jurisdiction of this Court, got extension of time specified in the impugned order dated 18‑8‑1996 and has so far not complied with it. This being the state of affairs, this petition is liable to be dismissed on this ground also.

11. Turning to the merits of the case, I do not find any, factual flaw in the impugned order. Petitioner had filed the ejectment petition and annexed with it the rent‑note, dated 15‑11‑1993. The respondent No.2 also placed on record the letter of transfer of the rented‑premises issued by Lahore Development Authority. The expert had given his opinion that thumb‑impressions of petitioner secured by Court tallied with the thumb‑impressions on the questioned rent‑note, dated 15‑11‑1993. Against this the petitioner did not produce any evidence despite repeated opportunities. On this material, the learned Rent Controller was eminently correct in passing the impugned order.

12. For the aforesaid discussion, this petition is found to be wholly devoid of any merit is accordingly dismissed. in limine. H.B.T./T‑31/L Petition dismissed.