P L D 1997 Peshawar 64 (PLP)

MIAN MUHAMMAD AJMAL, J.‑‑‑By this order we propose to dispose of Writ Petitions Nos.968, 780, 781, 782, 783, 935, 964, 965, 966, 967, 972, 1069 and 1070 of 1995, as they all are directed against similar interim orders of the Controller of Rents, Peshawar Cantt. dated 28‑6‑1995, whereby petitioners' applications under section 3(b) of the Cantonments Rent Restriction Act, 1963 to the effect that the property belonged to the Cantonment Board, who had allotted the same to respondent No. l on temporary ground rent basis for a period of one year, which has already expired and thus the Act (ibid) is not applicable to the property in dispute and the Controller of Rents has no jurisdiction to proceed and adjudicate the eviction petitions, were rejected.

2. At the very outset learned counsel for the petitioners was posed a question as to how these writ petitions are competent and maintainable against the interim orders, when the right of appeal has been specifically barred under section 24 of the Cantonments Rent Restriction Act, 1963 against such orders, Learned counsel instead of answering the aforesaid query attempted to sidetrack the issue by arguing the cases with reference to section 3 (b) of the Act (ibid) and urged that Controller of Rents had no jurisdiction to proceed in the matters.

3. On the other had learned counsel for the respondents argued that the writ petitions are not maintainable against the interim orders of the Controller of Rents as the same are not appealable under section 24 of the Act (ibid) and where the right of appeal has not been granted by the Statute itself the Constitutional petition cannot be filed as it would amount to bypassing and defeating the provisions of the Act.

4. We have considered the submissions of the learned counsel for the parties and have gone through the available record.

5. Section 24 of the Cantonments Rent Restriction Act provides right of appeal to the aggrieved party against the final orders, such an appeal can be preferred to the High Court within thirty days from the final order. For convenience sake section 24 is reproduced hereunder:‑‑

24. Anneal.‑‑(1) Any party aggrieved by an order, to being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court. (2) The High Court may, pending the final disposal of the appeal, make an order staying further proceedings or action on the order of the Controller: Provided that no such order shall be made if the appeal has been preferred from an order made under subsection (6) of section 17‑A. (3) The High Court shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by itself or by the Controller as it may deem fit, make an appropriate order which shall be final. (4) No order of the Controller except by an appeal under this section, and no order of the Appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceedings." The bare reading of the aforesaid section would make it manifest that there is an outer clause specifically barring the appeal against the interim order of the Controller of Rents, and only final order is amenable to appeal. The impugned orders being interim orders are not appealable under the relevant law, in such circumstances question would arise whether such orders could be assailed in Constitutional jurisdiction? Where the law Itself has not given the right of appeal against certain orders, then same cannot be challenged in any other form to gain similar object which has been barred by the statute itself. It is well‑settled principle that the remedy which is not directly available cannot be sought indirectly through indirect means. In almost similar circumstances learned Supreme Court of Pakistan refused to grant leave to appeal in case of 'Abdur Rehman v. Haji Mir Ahmad Khan and another' reported in PLD 1953 Supreme Court 21, wherein it was observed as under: "Instead of raising the second jurisdictional question based on the status of the property, before the lower forum (where no other similar question was in fact raised, regarding the status of the parties), and then pursuing the matter in first appeal which was as a matter of right and of wider scope, petitioner sought to divert the normal remedial process provided by law, and invoked Constitutional jurisdiction of the High Court. It could be exercised only on proof of non‑availability of adequate remedy. This proof is not forthcoming in this case. The petitioner had a right of appeal if any final decision would have gone against him. Much can be said on the question that this mode was adopted by the petitioner because he wanted to avoid enquiry on facts (if it was needed) and also wanted to delay the proceedings by raising piecemeal pleas of similar jurisdictional nature‑‑one before the proper lower forum and the other in the High Court, in its writ jurisdiction. The matter in fact got delayed because if left to be processed as provided by the special law of summary procedures governing it, the same might have ended within months before the Rent Controller and some more months in appeal. Now it has taken nearly three years and one limb thereof is still being deleted in the superior Courts. Apart from delay the petitioner, whether intentionally or otherwise, has successfully avoided enquiry on the question of fraud and forgery‑‑both Yon the rent side as also on the criminal side. Such could not be the results visualised either by Article 199 which conferred writ jurisdiction on the High Court, nor by the Rent Laws which created special forums for speedy and summary disposal of these cases. This Court has time and again cautioned against piecemeal decisions of these and similar matter." The question of jurisdiction of the Tribunal and the above proposition came under examination in another case before the august Supreme Court of Pakistan reported in 1989 S C M R 1892, wherein it was held as follows:‑ "Where the law takes notice of a particular situation and makes a provision for it then the legislative intent must be given effect to and respected. The interim orders which decide question which do not conclude the proceedings or have the finality cannot under the scheme of the Cantonments Rent Restriction Act be appealed against. If all these questions touching jurisdiction are allowed to be raised by Constitutional petitions, then the same authority which has jurisdiction in appeal would be deciding those questions in Constitutional Petitions when it has been precluded for questioning them in appeal. This will amount to defeating the manifest intention of the law as such. " The aforesaid view was affirmed by the Supreme Court of Pakistan in a recent judgment given in case of "Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCMR1165), wherein while dealing with a similar question in a service matter, ruled in the following words:‑‑ "The statute excluding a right of appeal from the interim order cannot be 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 for examining such orders." When the Legislature in its wisdom has kept out the interlocutory/interim orders from the scope of appeal, then the same cannot be brought into any other device in a disguised manner and recourse before this Court. In view of the specific ouster and bar of appeal with regard to the interim orders under the Act itself, the same cannot be allowed to be assailed in Constitutional jurisdiction in violation of the express provisions of the special law.

6. It may be noted that the petitioners have admitted the respondents to be their landlord in their written statements and in the applications filed by them in the civil suit for impleading them as party therein, hence they are now estopped to question the relationship of landlord and tenant between the parties vis‑a‑vis the jurisdiction of the Rent Controller. Learned counsel for the respondents stated at the Bar that in cases relating to Writ Petitions Nos.780/95, 781/95, 782/95, 783/95, 764/95 and 1070/95, final orders have been passed where against F.A.Os. Nos. 29/96, 26/96, 28/96, 30/96, 24/96 and 22/96 have been filed and as such the said writ petitions have become infructuous, this statement was not controverted by the learned counsel for the petitioners, as such on this account too, the Writ Petitions Nos. 780/95, 781/95, 782/95, 783/95, 964/95 and 1070/95 are liable to be dismissed. The petitioners' conduct would show that they have been using all delaying tactics to prolong the cases as long as possible by moving series of miscellaneous applications, and keeping the Tribunal/Court involved in the disposal of those applications. They had earlier filed similar writ petitions against the interim orders which were dismissed in limine as withdrawn on 1‑3‑1995. The eviction applications were filed in September 1991, and after filing the written statements by the petitioners, they did not allow the cases to go even a step ahead by creating hurdles in the disposal of the cases. In view of the above, these writ petitions being incompetent, unmaintainable and motivated with ulterior designs to prolong the cases, are dismissed with costs. The Controller of Rents is directed to decide the cases as early as possible. A.A./2079/P??????????????????????????????????????????????????????????????????????????? Petition dismissed.