1985 PLP 553 (CLC)

SALEEM AKHTAR, J.-- This petition is directed against order of the Rent Controller passed in eviction proceedings filed by the respondent. The respondent No.2 filed an ejectment application against the petitioner on 23rd December, 1978 under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 inter alia on the ground of default in payment of rent @ Rs.320 per month. The petitioner filed written statement and denying the allegations contended that the rent is chargeable at the rate of Rs.150 per month. The parties submitted their statement of accounts and the Rent Controller, the respondent No.1, by his order, dated 6th May, 1979 tentatively determined the rate .and arrears and directed the petitioner to deposit rent at Rs.150 month onth from January 1979 onwards. On 6-5-1979 when the order was passed the respondent No.2 was absent and it seems that the documents and contentions .of the respondent No.2 were not taken into consideration. On 23rd May, 1979 the respondent No.2 filed an application under Order XLVII, C.P.C. read with section 151, C. P. C. for review of the order dated 6-5-1979. After hearing both the parties the Controller passed the impugned order on 25th March, 1981, whereby the tentative rent was fixed at the rate of Rs.520 per month and the petitioner was directed to deposit the difference of rent with effect from January, 1979 to February, 1981 amouting to Rs.9,620 within three months and was further directed to deposit the current rent with effect from March, 1981 at the rate of Rs.520 per month before 15th of each succeeding month. It was further ordered that the respondent No.2 shall be entitled to withdraw the rent at the rate of Rs.150 per month.

2. Mr. Moinuddin Ahmed the leaned counsel for the petitioner has contended that the Controller had no jurisdiction to pass the impugned order as he was not vested with the power to review his order. Relying upon the case reported in. P L D 1970 S C 3 the learned counsel argued that the review is a substantive right and unless this power is vested by statute, the Controller cannot exercise it. Reliance was also placed in P L D 1973 Lah. 95, where it was held that the Controller had no power to review his order.

3. There is no cavil with the proposition that the Controller has no jurisdiction to review his order. In the present case the Controller' had first passed the order for deposit of tentative rent which was ex parte and without taking into consideration the facts on record. It seems that the respondent No.2 made an application pointing out to certain documentary evidence urging upon the Controller to modify the order passed by the Controller. The first order was tentative and the impugned order being of the same nature has been passed after giving due consideration to the averments, arguments and documents produced by the parties. The order was passed after making proper enquiries. The fact that after tentatively determining the rate of rent at Rs.520, the Controller has allowed the respondent No.2 to draw only at the rate of Rs.150 per month demonstrates that the order is just and equitable and at this stage of the proceeding the interest of both the, parties has been protected. The order being tentative in nature no finality is attached to it and at the final hearing after the evidence has been produced the Controller may while deciding the case alter it. If the Controller maintains it or as apprehended by the petitioner, a default is committed in deposit of rent, it will be open to the petitioner to file an appeal challenging the impugned order as well as the ejectment order which may be passed on the basis of the impugned order. The petitioner will also be entitled to challenge the validity and legality o the impugned order, particularly if the final order is based on the impugned order, it is not every order termed as without jurisdiction which can be challenged in a Constitution petition. If the impugned order is without jurisdiction but substantial justice to the, parties has been done particularly when it is interlocutory in nature and if fina order is passed on its basis both the orders can be challenged in appeal, the High Court will be slow in interfering under its Constitutiona jurisdiction unless manifest injustice has been caused to the petitioner. In the present case though Controller has no power of review, after the repeal of the Sind Urban Rent Restriction Ordinance, 1959, the Controller, if proper application is made, may perhaps, pass an order under section 18 of the Sind Rented Premises Ordinance, 1979. In the facts and circumstances of the case we are not inclined to interfere' with the impugned order.

4. We have refrained from making any observation on the merits of the case and made it clear that in case ejectment order is passed against the petitioner, it will be open for him to challenge the legality and validity of the order of the Controller dated 25-3-1981 in appeal.

5. In view of the above discussion the petition is dismissed in limine. M.Y.H. Petition dismissed.