1990 PLP 1224 (MLD)

‑‑‑‑S.15‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Interlocutory orders, either incidental or collateral being not appealable, any contention or practice to the contrary, would defeat and deflect the legislative intent‑‑‑Constitutional petition against Rent Controller's interlocutory order was thus not competent. Mian Manzar Bashir v. M.A. Ashgar PLD 1978 SC 185; Mumtaz Hussain Bhutta v. Chief Administrator Auqaf etc. 1976 SCMR 450 and Syed Intesar Ali v. Ahmad Din Khan and others 1983 C L C 998 rel. Ch. Muhammad Suleman for Petitioner. The petitioner was cited as a respondent in an ejectment petition filed by the respondent No.

1. The petitioner resisted the ejectment petition. The learned Rent Controller accordingly framed issues and allowed the parties to lead evidence. The petitioner after the parties had concluded their evidence moved an application under section 16 for summoning Sardar Muhammad father of the respondent No. 1 as a Court witness. This application was resisted by the landlord. The learned Rent Controller after hearing the parties dismissed the same vide order dated 17‑2‑1990. The petitioner filed an appeal against this order. The same was dismissed by the appellate Authority in limine being incompetent. The order is dated 19‑2-1990. The petitioner has now impugned these orders of the Courts below through this Constitutional petition.

2. The learned counsel for the petitioner has argued that the impugned order passed by the learned Rent Controller on the application of the petitioner is a final order for all intents and purposes and submitted that the learned appellate Authority wrongly and illegally held that appeal was not competent. In this behalf, the learned counsel has placed reliance on the case of Haji Muhammad Ishaq v. Amir Muhammad Khan P L D 1981 Kar. 498.

3. I have given my anxious considerations to the arguments of the learned counsel for the petitioner and gone through the provisions of sections 15 and 16 of the Punjab Urban Rent Restriction Ordinance as well as precedent case. Section 15 has undergone a tremendous amendment with the promulgation of Punjab Ordinance 9 of 1979. Now the order finally disposing of application made under this Ordinance can be assailed in an appeal. The decision of the application not covered by the Ordinance is not appealable.

4. The petitioner submitted an application under section 16 of Rent Restriction Ordinance, the justification rendered was that the statement of said Sardar Muhammad has become necessary and that it is very important to summon the witness for administration of justice. He has neither pin‑pointed the issue on which his statement is necessary nor he has given any reason for not summoning the said witness earlier. The petitioner has first to justify the reopening of the case and summoning Sardar Muhammad as Court witness without which he could not have pressed for the same. The learned Rent Controller has held that there is sufficient material/evidence available on record to do justice between the parties. Therefore, he proceeded to reject the application. The discretion has been fairly and even handedly exercised. The petitioner has no case on merits even.

5. Now coming to the competency of the appeal and the writ petition. The learned counsel, in this behalf, has referred to the case of Haji Muhammad Ishaq. In this case the tenant moved an application under section 10 of the West Pakistan Urban Rent Restriction Ordinance, 1959 with the prayer that the landlord be directed to restore his electricity and water connections. This application was filed on 17‑5‑1979 and was allowed on the very date without complying with the provisions of section 10(3) of the Ordinance. It was in these circumstances that the rent appeal was held competent and accepted. The case is clearly distinguishable for the reason that an application namely application under section 10 was Final decision. Secondly, the order was passed before the amendment of Punjab Ordinance 9 of 1979 was introduced. On the other hand, this matter has been considered at length by the Hon'ble Supreme Court in the case of Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and by this Court in' the cases of Inayat Ullah v. Malik Muhammad Rashid and another 1988 C L C 44, Rashid Ahmad v. Soofi Muhammad and another P L D 1976 Lah. 1450 and Muhammad Saeed v. Mst. Saratul Fatima and another P L D 1978 Lah. 1459 and the relevant portion of this judgment reads as under:‑‑ " ....The scheme of such a categorization, the limits and the rationale thereof leas been fully considered in Mian Manzar Bashir v. M.A. Asghar P L D 1978 SC

185. It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level, the constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutta v. Chief Administrator Auqaf etc. 1976 S C M R 450."

6. This is not all. Even this view was followed by the Karachi High Court in the case of Syed Intesar Ali v. Ahmad Din Khan and others 1983 C L C 998.

7. The upshot of this discussion is that neither there is any merit in this petition nor it is competent. Therefore, the same is dismissed in limine. AA./A‑946/L Petition dismissed.