1982CLC314 (PLP)

2. It. is contended that on the basis of the material before the Controller the rate of rent was an ascertained figure i.e. Rs.8.50 p.m. and, the same should have been fixed for the purpose of the order under section 13(6) even for future rents. . It is submitted that in fact the basis given for fixing a higher rate for future rents was not relevant and as such the rent so fixed was purely arbitrary and fanciful. In regard to the maintainability of the writ petition, it is submitted that the petitioner cannot, in view of Ibrahim v. Muhammad Hussain (P L D 1975 S C 457), prefer an appeal immediately against the impugned order and as such he cannot be said to have an adequate alternative remedy against the order.

3. Subsection (6) of section 13 lays down that "If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately. Where the rate of rent is ascertainable from the material placed by the parties before the Controller, the Controller should ascertain the same and in such a situation the question of determining the rate approximately will not arise. The duty of the Controller is to ascertain what the rate of rent is and note what it should be unless he is seized of a proceeding under section 4 for fixation of fair rent. It is only when the rate of rent is not ascertainable that he is to fix the same "approximately". In the present case, when the material placed before the Controller disclosed a rent of Rs.8.50 p. m., the same in the absence of any other satisfactory material, should be the rate of rent. It is therefore, not understood as to how the fixing of one rent for the arrears and another for the future rents could be justified.

4. However, I do not agree that the petitioner has no other adequate remedy. Subsection (6) prescribes that‑ "The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant," Again, subsection (8) lays down that‑‑ "Then rent deposited by the tenant under this section shall, subject to the final determination of rent as payable by the tenant, be paid to the landlord at the conclusion of the proceedings or on such earlier date as may be specified by the Controller." The petitioner could, therefore, move the Controller for finally determining the rate of rent.

5. Even otherwise, I do not agree that merely because an appeal has not been provided for against an order passed under section 13(6) of the Ordi nance, the writ jurisdiction can be invoked as a substitute. This question had arisen in Rashid Ahmad v. Soofi Muhammad Saleem and another (P L D 1976 Lab. 1450) and it had been observed :‑ "No doubt sometimes in some cases a direction under section 13(6) of the Ordinance might look oppressive but that by itself is not enough to ignore the ratio decidendi of and spirit underlying the ruling of their ' 8 Lordships of the Supreme Court in Ibrahim v. Muhammad Hussain. The mischief, their Lordships were at pains to highlight, would be done if instead of appeals the High Court were to entertain writ petitions against directions made by Rent Controllers under first part of sub section (6) of section 13 of the Ordinance. Obviously, if as a result, and in pursuance, of such a direction, the defence of a tenant is struck off, he would have an immediate remedy by filing an appeal. I do not agree with learned counsel that the said remedy would not be efficacious simply because it would be difficult to obtain stay order, when filing an appeal." Again, in Muhammad Saeed v. Mst. Viratul Fatima and another (P L D 1979 Lah. 1459), a similar view had been expressed by a Division Bench of this Court in the following words :‑ "The Legislature manifested its intent unequivocally by prescribing two broad categories of all orders passed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) by making the more deter minative orders constituting the smaller category appealable and all others forming the larger non‑appealable. The scheme of such categorization, the limits and the rationale thereof has been fully considered in Mian Manzar Bashir v. M. A. Asghar P L D 1978 S C

185. It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not icy such a device be held fit enough to attract the more important, and at a higher level, the constitutional jurisdiction. Any contention, of practice to the contrary, would defeat and defeat the legislative intent, which has been disapproved in Mumtaz Hussain Bhutta v. Chief Administrator of Augaf etc. 1976 S C M R 450."

6. In this view of the matter, I am not inclined to interfere. The writ petition is dismissed. There shall be no order as to costs. M. Y. M. Petition dismissed.