2013 PLP 2247 (YLR)

ROOH-UL-AMIN KHAN, J.

By way of instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek issuance of an appropriate writ in the following manner:- (i) To declare the order dated 20-3-2013, of the Rent Controller illegal being in violation of orders of this Hon'ble court passed in Writ Petition No.3788 of 2010. (ii) To declare the in action of respondent No.4 qua the application of petitioners seeking details of rents released w.e.f. 2005, being illegal, without jurisdiction and against the principle of natural justice. (iii) To adjourn sine die the eviction petitions, till decision of civil disputes inter se respondents Nos.1 and 2 qua determination of real/ actual APWA. (iv) To quash the eviction petition filed against petitioners. (v) Any other relief appropriate, not specifically asked for, may also be granted with cost.

2. Facts in brief forming the background of instant writ petition are that the petitioners are alleging to be in possession of Shops Nos.1 to 20, situated in APWA Market Arbab Road, Peshawar under a valid tenancy with APWA, since 1970, during which period, they never remained defaulter of rent, which may call for their eviction. It is averred in the petition that since respondents Nos.1 and 2, both purportedly being registered Institutions, both are claiming title of the shops in question, and in this respect suits between them are pending, as a consequence whereof, the petitioners, as an abundant caution, started depositing the rent, before the Rent Controller Cantt. Board, since July, 2005, and are depositing the same till date, regularly. Different suits, detail of which is mentioned in the petition, between the two respondents, each one claiming to be the actual APWA, are pending adjudication in different courts; that this court in its revisional jurisdiction has also restrained respondent No.1, from raising any construction over the disputed property vide order dated 20-10-2012, passed in Civil Revision No.850 of 2012; that there is also a dispute over the property in question between the Provincial Government and respondents Nos.1 and 2 and the Provincial Government is also claiming ownership thereof and to this effect application filed by the Provincial Government under section 12(2), C.P.C. was also accepted by this court, which order has been questioned by respondent No.1, before the Apex court; that despite above situation, respondent filed an eviction petition claiming itself to be the only APWA/landlord and sought eviction of the petitioners from the shops in question; that during pendency of the eviction petition, respondent No.2 through respondent No.3, filed an application for his impleadment as necessary party in the petition. He also moved two applications, one for rejection of the eviction petition and the other for stay of proceedings, but the Rent Controller on 23-6-2010, instead of deciding the applications, adjourned the proceeding sine die. Respondent No.1 filed writ petitions against the order of the Rent Controller alleging the same to be illegal as no order was passed on the applications. Resultantly, this court vide consolidated judgment dated 13-10-2011, allowed Writ Petition No.3788 of 2010 and directed the Rent Controller to decide the applications afresh after providing opportunity of hearing to both the parties. In the order it was observed that the above-mentioned order would not debar the parties from moving application for stay of proceedings. On remand of the case, respondent No.2, did not appear, as such the applications were dismissed for non-prosecution. Hence, this petition.

3. We have heard the arguments of the learned counsel for the petitioners and have perused the record. 4 The grievance of the petitioners as manifest from the record is that respondents Nos.2, 3 and 7, are all claiming to be APWA/landlord of the property in question, as such, petitioners are not certain that who is the actual APWA, thus, their stance is that, first the title of the shops in question be determined, whereafter, the position would be quite clear that which of the three respondents, is the actual APWA/landlord and which one has the right to eject the petitioners/tenants from the premises in question, that's why the petitioners want sine die adjournment of the eviction petitions, till determination of title of the shops in question between the contesting parties. The other grievance of the petitioners/tenants is that they want to know about the rent, which they are regularly depositing with the Rent Controller that who is withdrawing the same.

5. Perusal of the record reveals that the case has a chequered history and numerous litigations are under way about the property in question. There is no denial of the fact on the part of the petitioners that they are not the tenants of the disputed premises. The eviction petitions have been filed since long, but till date, even reply has not been filed on the part of the petitioners/tenants. The petitioners can agitate all the points, as urged before this court, in their reply to the eviction petition, whereafter issues would be framed and the controversy can only be resolved after recording pro and contra evidence. The points agitated in the instant writ petition cannot be resolved in a summary manner in writ jurisdiction as the matter involves factual controversy which requires evidence. We have noticed with great concern the deplorable conduct of the petitioners. They have amply exploited the litigation between the two groups of APWA. The respondent/landlord has also exhibited lackadaisical attitude towards the case which remained persistent cause of delay in disposal of the eviction petition, since, 2010. About three years have lapsed, but till date, the petitioners have failed to file reply before the Rent Controller. The entire time since 2010, was consumed on account of mere technicalities and rules of procedure. There is no denial to the proposition that the rent cases are of urgent nature, which require speedy disposal. The Apex court with a view to shorten the litigation, has been held in number of cases, most particularly in the leading one, titled "Khadim Mohy ud Din v. Ch. Rehmat Ali (PLD 1965 SC 459) that the proceeding before the Rent Controller are, in the strict sense judicial, that the evidence should be recorded in the same manner as in a civil suit, whereas the Rent Controller being persona designata is required to satisfy himself about the ground in the ejectment petition. It was held that the evidence in such cases should be ordered in the shape of affidavit, without summoning the witnesses by the Rent Controller. It would be the duty of the party to produce the witnesses for cross-examination, only.

6. The above mentioned observation was reiterated by the august Supreme Court in case titled, "Barkat Ali v. Muhammad Ehsan (2000 SCMR 556) wherein a guideline is provided for quick decision of the rent cases, which has now attained the status of law and procedure in the rent cases. In Para No.10 of the judgment ibid, it was observed as under:-- "It is deplorable that even the rent cases take years for finalization which tantamounts to frustrating the ends of justice. It also gives rise to other situation disrupting the harmony amongst people. The Rent Controllers conduct the proceeding in ejectment matters as they are used to doing in the regular suits. As stated in the case of Khadim Mohy ud Din PLD 1965 SC 459 these are not proceedings in the strict judicial sense. It is the satisfaction of the Rent Controller alone on the basis of material available on record to decide, whether or not an order of eviction is to be passed in a given case.

7. The instant case began from 23-1-2010, and till date neither any reply nor affidavit has been filed by the petitioners. Admittedly, the petition has been filed against an interlocutory order dated 20-3-2013, passed by the Rent Controller.

8. By now it is settled law that when a statute does not provide an appeal against an interlocutory order, then the same can also not be challenged by way of constitutional petition, as the same would amount to negate the provision of the statute. The proper course for the party, in the circumstances, would be to wait for final decision and then file appeal against the same, wherein he can also impugned the interlocutory order. In this regard reliance may be placed on case, titled, "Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD Karachi and another" (1996 SCMR 1165) and case titled, "Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others" (1998 SCMR 328).

9. In light of what has been discussed above, this writ petition stands dismissed in limine. The petitioners/tenants are directed to file reply to eviction petitions within 7 days, whereafter the case would be decided on merits, in accordance with law in light of evidence of the parties, within a period of two months, positively, without any unnecessary adjournment. JJK/309/P Petition dismissed.