P L D 2023 Peshawar 126 (PLP)

FAZAL SUBHAN, J.

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has invoked the jurisdiction of this Court with the prayers for setting aside the impugned order dated: 10.10.2020 passed by the learned Civil Judge-III/Rent Controller, Havelian, Abbottabad.

2. Facts of the case are that present petitioner filed seven rent petitions, for ejectment of tenants, as mentioned in tabulated form, in the impugned order. After institutions of these petitions, notices were issued to respondents and after appearance, they filed separate reply to the rent petitions and issues thereof were framed, however, on 10.10.2020, learned Civil Judge-III, Rent Controller Havelian, Abbottabad, passed the following order, in para 3, therein:-- Therefore, in the given background, the instant petition bears 2/RC will be taken for further proceedings while all the rest of rent petitions bearing Nos. 3/RC, 4/RC. 5/RC, 6/RC, 7/RC and 8/RC are hereby consigned to record room without further proceedings with direction to implead the parties and all the reliefs of the above rent petitions in rent petition No. 2/RC.

3. Arguments of learned counsel for petitioner and learned counsel for respondent heard and record gone through.

4. Learned counsel for petitioner submitted in his arguments that seven separate petitions were filed by the petitioners, based on separate tenancy agreements, for the ejectment of respondents, hence, the impugned order has virtually decided and rejected the remaining 6 eviction petitions without its fate being determined on merits. He next contended that law i.e. West Pakistan Rent Restriction Ordinance, 1959 (Ordinance) does not recognize such procedure of arraying all the land lords and tenants in one and the same eviction petition, when orders for the ejectment is sought on the basis of different agreements and in respect of different shops. He contended that as the impugned order has not finally decided the applications, therefore, he could not challenge through appeal/s under section 15 of the Ordinance, hence, having no other efficacious remedy available to the petitioner except approaching this court with writ petition hence, instant writ petition was filed.

5. Learned counsel for respondents though did not strongly controvert the petition but contended that the petitioner had the forum of appeal under Section 15 of the Ordinance, hence, the writ petition is not maintainable. He, however, conceded that it would not be possible for the Rent Controller to effectively and efficaciously decide the fate of all these petitions in a single petition.

6. After hearing these arguments and considering the facts and circumstances of the case, it is to be mentioned that though the Ordinance does not lay any restrictions regarding the applicability of principles and procedure laid down by the Code of Civil Procedure Code 1908, and even single ejectment application can conveniently be filed against several tenants, if the ejectment of the tenants is sought on similar ground and based on one and the same agreement but when several land lords have filed ejectment application, based on different agreements, on different grounds and against different tenants then the rights of the parties, differently placed, cannot conveniently and conclusively be decided and a single petition regarding multiple relief against different tenants on different grounds would suffer from multifariousness of causes of actions. Thus, the impugned order is found against the spirit of law and would not only delay but cause serious inconvenience to the parties. In this respect guidance can be derived from the case of Muhammad Ayub v. Additional District Judge, Gujranwala and 2 others reported in 1985 CLC Lahore 1744, wherein, it was held that: - When confronted with the proposition that provisions of the Civil Procedure Code are not directly applicable to the proceedings under the Rent Restriction Ordinance, 1959, reliance on behalf of the respondent has been placed on Ayub Khan and another v. Fazal Haq and others PLD 1976 SC 422 wherein it has been held that the Rent Controller, in exercise of his discretion, is entitled to follow equitable principles of the Civil Procedure Code. Din Muhammad v. Abdul Aziz PLD 1967 Lah. 653 has also been cited. In this case, it was ruled that proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, are in pari materia with a suit. Order IX, Rule 13, C.P.C. is, therefore, applicable to these proceedings as being an enabling provision and the time prescribed by Article 164 of the Limitation Act would be similarly attracted. In Abdul Qayyum and another v. Mst. Khurshid Jehan and others 1984 SCMR 710, ejectment of five tenants through one order was upheld in a case where the landlord proposed to reconstruct the premises by removing some of the walls and raising some new ones and thus to convert five shops into a big hall with a kitchen and pantry. After analysing the above arguments advanced on behalf of the parties, it can be safely concluded that a landlord can competently bring a single ejectment application against different tenants, if the ejectment is based on the same ground and is result of the same cause of action.

7. So far as maintainability of the writ petition is concerned, needless to say that an appeal can be filed under section 15 of the Ordinance by a party aggrieved by an order of the Controller, finally disposing of the application made under the Ordinance, however, as the impugned order has not finally disposed of the applications under the Ordinance, to be challenged through appeal under section 15 of the Ordinance. Thus, keeping in view the matter involved and arising out of the impugned order reproduced in para-2 above, no efficacious remedy seems to be available to the petitioner, and therefore, writ petition, in the circumstances, is held to be maintainable. In this respect reliance is placed on the case law of Ghulam Zakria Qureshi v. Khawaja Ghulam Murtaza Lone and 2 others reported in PLD 2000 Peshawar 47, wherein, it has been held as following:-- It is a settled principle of law that no interlocutory order of a Rent Controller can be challenged in appeal which is specifically barred under section 15 of the Urban Rent Restriction Ordinance, 1959. Similarly the revisional jurisdiction under section 115, C. P.C. can also be not invoked because such provisions of the C.P.C. are not applicable to the proceedings before a Rent Controller.

8. For these reasons and while relying on the above judgments, it is held that the impugned order being legally incorrect is not sustainable, hence, stands set aside. All the six (06) ejectment applications consigned through impugned order, are restored and the learned Rent Controller, Havelian Abbottabad is directed to proceed with these cases simultaneously and decide the same in accordance with law. SA/94/P Petition accepte