2001MLD12 (PLP)

Pakistan Burma Shell v. Nasreen Irshad 1989 SCMR 1892 and Muhammad Yusuf and another v. Muhammad Sarfraz Cheema and others PLD 1987 SC 120 ref. Muhammad Ayub and others v. Dr. Obaidullah and others 1999 SCMR 394 fol. Kazi Wali Muhammad for Petitioner. By this Constitutional Petition the petitioner has impugned the order passed by the Rent Controller holding that the relationship of landlord and tenant existed. The petitioner, who is the tenant, in his written statement had denied the existence of relationship of landlord and tenant as well as the rate of rent. This necessitated an enquiry by the Rent Controller for determining the existence of relationship of landlord and tenant as unless the relationship of landlord and tenant was established between the aforesaid parties, the Rent Controller could not assume jurisdiction to proceed with the rent case under the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance). The Rent Controller did not enter into any enquiry and without referring to any material on record simply made an observation that relationship of landlord and tenant existed between the parties. The Rent Controller after observing so had unlawfully and without satisfying himself regarding the establishment of relationship of landlord and tenant proceeded to make the tentative .rent order: Such observation of the Rent Controller was absolutely baseless as he did not consider the grounds and objections raised by the petitioner/tenant. In the circumstances the Rent Controller had no jurisdiction to pass tentative rent order. The finding with regard to existence of relationship of landlord and tenant being illegal could be impugned in appeal under section 21 of the Ordinance. In the cases of (i) Pakistan Burma Shell v. Nasreen Irshad, reported in 1989 SCMR 1892 and (ii) Muhammad Yusuf and another v. Muhammad Sarfaraz Cheema and others reported- in PLD 1987 SC 120 it has been held by the Supreme Court that no Constitutional Petition lies in respect of any order passed by the Rent Controller exercising jurisdiction under the Rent Laws. However, we may, refer to the case of Muhammad Ayub and others v. Dr. Obaidullah and others reported in 1999 SCMR page 394 wherein the Hon'ble Supreme Court pronounced that a Revision Petition could be treated as a Constitutional Petition and vice versa. Placing reliance on the above pronouncement and by way of analogy we are of the view that this Constitutional Petition can be treated as an appeal filed under section 21 of the Ordinance as the same had been filed within the period provided in section 21 of the Order. Accordingly, we direct that this Constitutional Petition is to be treated as F.R.A. and shall henceforth be placed before a learned Single Judge in accordance with the provisions relating to the F.R.As. Adjourned to a date in office till the next date of hearing the petitioner shall not be ejected from the premises in dispute. The petitioner and the office is directed to make the necessary amendments and alteration for effectively treating this Constitutional petition as first Rent Appeal including payment extra court-fee, etc. Q. M. H. /M. A. K./W-10/K?????????????????????????????????????????????????????????????? Order accordingly.