1980CLC412 (PLP)

Art. 201-Writ-Permission to invoke remedy by way of writ on grounds of expense and delay in filing suit-Not to be -Relevant evidence not before High Court -Not possible for anted High Court to decide dispute between parties-Suit, held, not only an alternative remedy but a remedy much more efficacious than a Constitutional petition. S. Ahmed Farooqui for Petitioner. DORAB PATEL, J.-This constitutional petition has been filed to challenge the order of' a Rent Controller (namely the respondent No. 1) dated 28th May 1973. It would appear that the second respondent claims to be a landlord of the premises leased to the petitioner and the second respondent has filed an application against the petitioner for his eviction under section 13 of the Rent Restriction Ordinance. 1959 (hereinafter said to be the petitioner). The petitioner is contesting this application on various grounds. One of the objections pleaded by the petitioner in his written statement is that there was no relationship of landlord and tenant between him and the second respondent, therefore the first respondent heard the issue as a preliminary issue and decided it against the petitioner on 28th May 1973. The petitioner has now filed this constitutional petition to challenge the legality of this order.

2. In rejecting the petitioner's plea that he was not the second respondent's tenant, the first respondent has pointed out in his order that the second respondent claims to have purchased the property in dispute from two brothers Amanullab and Nasiruddin. The first respondent has then observed :- "The opponent (namely the petitioner before us) has not disputed the fact that two brothers Amanullah and Nasiruddin were his co land lords and that the applicant served him in the notice under section 13-A of the Ordinance after acquiring the shares of previous co-landlords." Although learned counsel criticised the finding of the Rent Controller, the evidence on which it is based is not before us, therefore we cannot determine the correctness of this finding. But according to learned counsel, the further result of this erroneous finding was that the Rent Controller had usurped jurisdiction, and that was because the petitioner was not a tenant of the demised premises. As this was the main submission before us, we asked for a copy of the written statement of the Petitioner and it was shown to us by learned counsel. In view of the order we are passing we would not like to make any observation which could prejudge the dispute between the petitioner and the second respondent, therefore with reference to the plea that the petition is maintainable because the Rent Controller had usurped jurisdiction, we would only observe that the written statement is vague, and the petitioner cannot, in a constitutional petition, be permitted to advance a plea on the basis of such vague pleadings.

3. On the other band, even if the petitioner is aggrieved by the impugned order, he has other more adequate remedies. Thus, he would be entitled under section 15 of the said Ordinance to challenge the finding of the Rent Controller in an appeal against the decision in the main case if that decision goes against him, But if it does not, then he has no real grievance. Additionally, he is also entitled to file a declaratory suit. But according to Mr. Farooqi the petitioner was entitled to file this petition because the remedy of a suit would not be expeditious and would be expensive, and in support of this submission he referred us to a judgment of the Supreme Court reported in Amir Khan v. Controller of Estate Duty (P L D 1961 S C 119). Their Lordships have held in the case cited that the remedy of writ petition is not excluded merely because the petitioner may have an alternate remedy. We are in respectable agreement with this view, but the question whether a writ should be entertained when an alternative remedy is available is always one within the discretion of the Court, and there is nothing in the judgment cited to support a contrary view.

4. Thus, the only point for determination is whether the petitioner's grievance is such that he should be permitted to invoke the extraordinary remedy of a constitutional petition merely because of the expense and the delay in filing a suit. We are not impressed by the first grievance, and a to the question of delay, the number of constitutional petitions is increasing so much that learned counsel's expectation of an early disposal of petition is not correct. And on the other band, on the argument advanced, although the relevant evidence was not placed before us, it is clear that the dispute between tire parties cannot be decided without evidence. Therefore, a suit is not only an alternative remedy but a much more efficacious remedy than a constitutional petition. Additionally, as we have pointed out the petitioner's grievance is exaggerated because he can challenge the Rent Controller's finding against him in an appeal if the main case is decided against him. It is also not irrelevant to emphasise here that the petitioner has sought the discretionary remedy of a Cons titutional Petition only after he failed to obtain a decision in his favour from the Rent Controller. In the result, the petition is without merit and is dismissed in limine. M, Y. M. Petition dismissed.