1990 PLP 1726 (CLC)

Date of hearing: 16th August, 1989. MUKHTAR AHMAD JUNEIO, J.‑‑Under this Constitution Petition, Begum Mumtaz Riaz has challenged, the proceedings pending against her under the Cantonments Rent Restriction Act, in respect of Bungalow No. 12‑B, First Central Lane, Phase‑II Pakistan Defence Ofcers' Housing Authority, Karachi.

2. Admittedly the petitioner occupied said bungalow as tenant of respondent Nos.3 and 4, who were owners of the same. Respondents No.3 and 4 have filed Rent Case No.57 of 1986 in Court of Respondent No.2 for ejectment of the petitioner.

3. In the Rent case, the petitioner took plea that on and from 25‑6‑1986 she has ceased to be tenant of the Respondents Nos.3 and 4, who under a Sale Agreement dated 25‑6‑1986 agreed to sell to her the disputed bungalow for Rs.Ten lacs out of which Rs.1,25,000 were paid as earnest money and the balance was payable before the District Registrar. Petitioner challenged maintainability of the rent case and jurisdiction of the Respondent No.2 to try the case and pleaded bar of section 53‑A of Transfer of Property Act.

4. Respondent No.2 framed a preliminary issue about existence or not existence of the relationship of landlord and tenant between the parties. After recording evidence, the Respondent No.2 under his order dated 5‑7‑1987 found the issue in the affirmative and ordered ejectment of the petitioner from the disputed bungalow.

5. Said order of ejectment was challenged by the petitioner in this Court under F.RA. No. 747 of 1987. Said F.RA. was decided under an order dated 16‑11‑1987 (reported in 1988 C L C 311) by which the ejectment order was set aside and the matter was remanded to the respondent No.2, who was directed to record evidence of the parties on the grounds urged in the Rent Case for ejectment of the petitioner. Finding of the Rent Controller about existence of relationship of landlord and tenant between the parties was not disturbed.

6. Said order dated 16‑11‑1987 was unsuccessfully challenged by the petitioner in this Court under Constitution Petition No.1215 of 1988 which was dismissed in limine under an order dated 28‑11‑1988 (reported 1989 C L C 291).

7. After remand of the Rent Case the Respondent No.2 under an order dated 26‑10‑1988 dismissed Petitioner's application for stay of the Rent Case till decision of her Suit No.153 of 1987 for Specific Performance of the alleged agreement dated 25‑6‑1986. Under the same order, the parties were directed, on an application of Respondent No.3 for Rent Deposit Order, to file statements of rent account and issues. Petitioner's application for recall of the order dated 26‑10‑1988 was dismissed on 28‑3‑1989. In the meantime the Petitioner's Constitution Petition No.154 of 1989 challenging maintainability of the Rent Case was dismissed on 6‑2‑1989 by a D.B. of this Court, which did not accept the contention that the disputed bungalow, being situated in Defence Officer's Housing Society administered by Government of Pakistan, was beyond the ambit of Cantonments Rent Restriction Act..The same D.B. dismissed on 20‑3‑1989 an application for review of the order dated 6‑2‑1989.

8. In pursuance of the Respondent No.2's order dated 26‑10‑1988, the Respondent No.3 filed the rent account showing that an amount of Rs,1,58,060 was due to him from the Petitioner on account of rent, water charges and conservancy charges. This was controverted by the Petitioner, according to whom nothing was due from him. Under his order dated 22‑4‑1989 the Respondent No.2 (Rent Controller) required counsels for the parties to make submissions on the point on 2‑5‑1989. This prompted the Petitioner to move this petition, seeking declaration that respondent No.2 had no jurisdiction to entertain any Rent Application under the mandatory provisions of section 53‑A of the Transfer of Property Act and that direction by the respondent No.2 for riling rent account was barred by section 17 (8) of the Cantonments Rent Restriction Act and that the respondent No.2 lacked jurisdiction to try the Rent Case in view of pendency of her Suit No. 153 of 1987.

9. Mr. U. Niamat Moulvi learned Advocate for the petitioner argued that the respondent No.2 had no competency to take any action in the Rent proceedings beyond the functions exercisable by him in pursuance of the High Court order dated 16‑11‑1987 (1988 C L C 311). No doubt under the said order, the respondent No.2 has been called upon to record evidence of the parties on certain points including that of default, and then dispose of the matter in I accordance with law. This does not mean that the respondent No.2 is debarred from taking any other action permitted by law or from passing any interlocutory; order of the nature provided by clause (8) or clause (9) of section 17 of the A Cantonments Rent Restriction Act. Likewise if any right has accrued to the Respondents No.3 and 4 during pendency of the rent proceedings they cannot be stopped from ventilating such right before the Rent Controller. The remand order directing the Respondent No.2 to record evidence of the parties and to dispose of the matter in accordance with law, has not rendered been disqualified from exercising all the powers and functions of the Rent Controller including the power to deal with matters requiring interlocutory orders. High Court order dated 16‑11‑1987 cannot be construed to have created a barrier in the way of any of the parties to the litigation, to ventilate any of their rights accrued to them during pendency of the rent proceedings. In this view of the matter no exception can be taken to the order dated 26‑10‑1988 or 22-4‑1989 or 2‑5‑1989. As regards the alleged sale agreement dated 26‑6‑1986 the same is subject‑matter of a pending civil litigation. The finding of the Respondent No.2 (Rent Controller) about existence of relationship of landlord and tenant between the parties has not been disturbed under the order dated 16‑11‑1987. Such finding is therefore binding on the parties till such time, the petitioner succeeds in her suit. In the circumstances present case is not covered by the dicta laid down by the Supreme Court of Pakistan in the case of Rehmatullah v. Ali Muhammad and another (1983 S C M R 1004), where the sale‑decd creating title to the property in litigation in favour of the landlord, was successfully challenged before the Rent Controller and the tenant filed a civil suit for cancellation of the sale‑deed as well as of the Rent Deed.

10. In the instant case even the Petitioner claims her right through the Respondent Nos.3 and 4 on the basis of the alleged sale agreement, which is yet to be executed, even if the petitioner succeeds in her suit. For the aforesaid reasons this Petition merited dismissal and it was dismissed in limine under our short order dated 10‑8‑1989 in support of which reasons are given above. M.BA./M‑1.167/K Petition dismissed.