2012 PLP 1729 (CLC)

SHAHID WAHEED, J.

Petitioner, Mian Aurangzeb Noor, being tenant through this constitutional petition has called in question validity of order dated 11-5-2009 passed by the learned Rent Controller, Lahore, whereby the petitioner's right of defence has been struck off due to non-production of evidence. 2 Briefly stated the facts of the case are that respondent No.2, Mst. Nazir Begum, being owner and landlady filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 for eviction of the petitioner from the demised premises on the grounds of wilful default in payment of rent; illegal partition/division of the demised premises; and, personal bona fide need. In response to summons the petitioner appeared before the learned Rent Controller and submitted a contesting written statement. On 4-12-2006 the learned Rent Controller out of the divergent pleadings of the parties framed issues and called upon the parties to produce evidence. After closure of evidence of respondent No.2 the petitioner despite warning could not produce evidence and resultantly vide order dated 11-5-2009 the learned Rent Controller stuck off the defence of the petitioner. Hence, this petition.

3. Learned counsel for the petitioner submits that the petitioner/ tenant was not allowed adequate opportunity to lead his evidence in defence whereas respondent No.2 was given several opportunities.

4. Conversely, learned counsel for the respondent No.2 submits that ample opportunities were granted to the petitioner/tenant but despite warning he did not produce evidence and, therefore, learned Rent Controller rightly struck off defence of the petitioner for non-production of evidence; that the constitutional petition suffers from laches as the same was filed after lapse of more than one year; and, that constitutional petition against the interlocutory order is not maintainable.

5. I have heard the learned counsel for the parties and perused the record appended with this petition.

6. In the instant case respondent No.2 being owner/landlady filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 for eviction of the petitioner from the demised premises. Learned Rent Controller on 4-12-2006 framed issues and directed the parties to adduce evidence in support of their respective claims. Respondent No.2/landlady produced affidavit before the learned Rent Controller but the petitioner/tenant, firstly, sought repeated adjournments for cross-examination of witnesses; and, secondly, adopted dilatory tactics such as change of counsel and filing of miscellaneous applications. Finally, vide order dated 22-11-2008 a final opportunity was granted to the petitioner to cross-examine the witnesses of respondent No.2 and as a result thereof cross-examination was completed on 20-12-2008. After completion of evidence of respondent No.2, learned Rent Controller vide order dated 20-12-2008 directed the petitioner to produce evidence. Thereafter, the case was fixed on 17-1-2009, 11-2-2009, 2-3-2009, 21-3-2009 and 9-4-2009 for production of petitioner's evidence. Except on 2-3-2009 and 21-3-2009, when tribunal was on leave, the petitioner did not produce evidence. On 9-4-2009 the learned Rent Controller granted last opportunity to the petitioner for production of evidence. On the next date of hearing i.e. 24-4-2009 despite last warning, the petitioner did not produce evidence and sought adjournment. Learned Rent Controller after imposing cost of Rs.100/- granted another last opportunity for production of evidence. The petitioner still did not produce evidence and in these circumstances learned Rent Controller vide order dated 11-5-2009 struck off the defence of the petitioner for non-production of evidence. In view of principle laid down in the cases of Muhammad Aslam and others v. Muhammad Yousaf (1980 CLC 467), Messrs Nazir Muhammad and Brothers and others v. Islamic Republic of Pakistan (1990 CLC 729) and Munawar Hussain v Additional District Judge Jehlum and 3 others (1998 SCMR 1067) it is clear that "reasonable opportunities" were allowed to the petitioner in terms of provision of subsection (2) of section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 as the learned Rent Controller could not wait for indefinite period for the tenant to produce evidence more specifically when dispute between landlord and tenant requiring to be settled not only quickly and in summary manner but also in accordance with guidelines provided by the Hon'ble Supreme Court of Pakistan in the case of Barkat Ali v. Muhammad Ehsan and others (2000 SCMR 556) for curtailing the delay in the disposal of rent cases. It may also be noted here that although learned Rent Controller was not bound to follow the Code of Civil Procedure yet he substantially complied with the provisions of Order XVII, Rule 3 of the Code as the petitioner despite warning and fine did not produce evidence.

7. There is yet another aspect of the case. A constitutional petition has been filed against the interlocutory/interim order dated 11-5-2009. According to section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 no appeal is competent against the interim order of the learned Rent Controller; only final order is amenable to appeal. It is well-settled principle of law that when a statute does not provide an appeal against an interlocutory order then the same cannot be challenged by way of constitutional petition as allowing such an order to be impugned by way of a constitutional petition would amount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order. According to principles of interpretation of statute court would not act in a manner by which the object of the statute is defeated and same is rendered nugatory. In this regard reference is made to Syed Saghir Ali Naqvi v. Province of Sindh and others (1986 SCMR 1165), Muhammad Iftikhar Muhammad v. Javed Muhammad and 3 others (1998 SCMR 328). In other words remedy which is not directly available cannot be sought indirectly through indirect means. The Hon'ble Supreme Court of Pakistan in the case of Syed Saghir Ahmad Naqvi v. Province Sindh through Chief Secretary S&GAD Karachi and another (1996 SCMR 1165) has held that statute excluding a right of appeal from interim orders cannot be passed by brining 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. Similarly in the case of Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCMR 65) the Hon'ble Supreme Court has observed that where a statute, under which the impugned order is made, itself provides a remedy, High Court should be loathed to bypass special statute and embark upon judicial review. The arguments that the petitioner has no other adequate efficacious remedy to assail the validity of interlocutory order has also no force for the following cogent reason given by a Division Bench of this Court in the case of Muhammad Saeed v. Mst. Saratual Fatima and another (PLD 1978 Lahore 1459):

"The constitutional jurisdiction is invoked and made available in cases of imminent, grave and tangible threats to valuable personal and property rights and that too subject, inter alia, to the condition that the legal remedy, if at all any available in the circumstances, is not efficacious or adequate. In this case, an order which by itself caused no tangible damage to the appellant, and is incapable of causing any, was challenged. In order to pose a real threat to him it has to be substituted by another order and the moment it so happens, a right of appeal would accrue to the appellant which right is certainly more extensive and beneficial being available in the same hierarchy and on both questions of law as well as of facts."

8. Lastly it may be stated that the learned Rent Controller on 11-5-2009 passed order for striking off the defence and the petitioner after a lapse of more than one year approached this Court through instant petition for setting aside the impugned order. The Hon'ble Supreme Court in the cases of Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 975 SC 678) and Pakistan International Airlines Corporation and others v. Tanveer-ur-Rehman and others (PLD 2011 SC 676) has held that aggrieved person may invoke the jurisdiction of the High Court under Article 199 of the Constitution within a "reasonable time" and interpreted "reasonable time" to be 90 days. The present petition, therefore, suffers from laches.

11. In view of above, this petition sans merit and is accordingly dismissed with cost. KMZ/A-96/L Petition dismissed.