1998 PLP 429 (MLD)

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents. Date of hearing: 16th April, 1997. This petition for leave to appeal has been directed against the order of the High Court dated 28-3-1997, whereby the writ petition filed by the petitioner, herein, was dismissed.

2. Muhammad Ilyas, petitioner, has been running a business in the shop in question for the last thirty years. Sajjad Haider Gillani, respondent, claiming himself to be owner of the shop initiated ejectment proceedings before the Rent Controller, Muzaffarabad. During the pendency of the proceedings of ejectment, the respondent prayed for an interim order under subsection (8) of section 14 of the Azad Jammu and Kashmir Rent Restriction Act, 1986 directing the petitioner, herein, to deposit the outstanding arrears of rent at the rate of Rs.5,000 per month. After taking objections from the petitioner, herein, and hearing arguments, the Rent Controller passed an order in terms that the petitioner, herein, shall deposit Rs.1,000 per month towards outstanding arrears of the rent. This order was challenged before the High Court by filing a writ petition which has been dismissed observing that the order of the Rent Controller does not offend against any provision of law and as such cannot be interfered with.

3. Mr. Ashfaq Hussain Kayani, Advocate, the learned counsel for the petitioner, has argued that there is dispute between the parties with regard to the rate of rent which is payable to the respondent by the petitioner. He has contended that the petitioner was tenant on payment of rent. Rs.300 per month and, thus, under subsection (3) of section 4 of the Rent Restriction Act, the Ren; Controller could not order to deposit the rent prior to the date of the application; similarly, under subsection (4) of section 4, the rent fixed under subsection (21 cannot exceed 20% of the rent which was previously paid by the tenant. The learned counsel has maintained that the provisions of subsection (8) of section 14 of the Rent Restriction Act are to be read subject to the provisions of section 4,

4. In reply, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the petitioner. He has argued that section 4 of the Rent Restriction Act deals with the fixation of the rent whereas section 14 deals with the ejectment proceedings and that section has nothing to do with the question of fixation of the rent under section

4. The learned counsel has further argued that the provisions contained in subsection (8) of section 14 are independent of section 4 and cannot be subordinated to the provisions of section 4 of the Act. The learned counsel has further argued that the aforesaid point has neither been awitated in the memorandum of writ petition nor the same was raised before the high Court during arguments. Thus, the learned counsel maintained that the provisions of section 4 have been resorted to merely to wriggle out the difficulty that the order of the Rent Controller does not violate any statutory provisions and, as such, cannot be assailed by invoking writ jurisdiction.

5. I have given due consideration to the matter. The perusal of the record shows that the petitioner did not accept the position that he was a tenant of the respondent. The respondent sought the ejectment of the petitioner from the shop. Therefore, the Rent Controller is legally competent to direct the tenant to deposit a fixed sum towards the payment of the outstanding rent. Therefore, I am of the view that the High Court has rightly held that the discretion exercised by the Rent Controller cannot be regarded as violative of law calling for interference in exercise of writ jurisdiction. The provisions of section 14 of the Act are not governed by section

4. In the light of what has been stated above, finding no force in this petition, it is hereby dismissed. A.A./231/SC(AJ&K) Petition dismissed.