1989 PLP 2294 (MLD)

AJMAL MIAN, C.J.--By this common Judgment we intend to dispose of the above petitions. The brief facts leading to the filing of the above petitions are that the petitioners are in occupation of flats belonging to the respondent. The respondent filed ejectment cases against the petitioners inter alia on the ground of default. In the above cases, after the filing of the objections, upon the respondent's application the learned Rent Controller passed a .tentative rent order dated 18-12-1988 in all the above cases. It may be observed that while passing the above tentative order, the learned Rent Controller ordered the deposit of arrears of rent including of the period beyond three years from the date of presentation of the rent applications. The petitioners being aggrieved by the above orders have filed the petitions. In 'support of the above petitions, Mr. Mumtaz Ahmed Shaikh and Mr. Amir Malik learned counsel for the petitioners have submitted that the impugned orders are without lawful authority/illegal inasmuch as that in spite of the clear pronouncement by the Hon'ble Supreme Court and this Court in a number of cases that Rent Controller can order deposit of arrears of rent for a period of three years only and not in respect of time-barred rent, the learned Rent Controller has passed the impugned order. In furtherance of the above submission, Mr. Mumtaz Ahmed Shaikh has referred to the cases of Ashfaq-ur -Rahman v. Chaudhri Muhammad Afzal reported in PLD 1968 Supreme Court 230, Moinual Haque G. Shaikh v. Mst. Zulakhan and 4 others reported in 1979 CLC 650 and the case of Muhammad Ahmed v. Mrs. Qamar Anwar Sheikh reported in 1980 CLC

664. In the above Supreme Court case the Hon'ble Supreme Court has held, that the Rent Controller cannot order the deposit of time-barred rent as the word "due rent" means which is lawfully due and which is enforceable through law. The above Supreme Court case has been followed inter alia in the above other two cited cases and in a number of other cases. However, Mr. M. G. Dastgir, learned counsel for the respondent has vehemently urged that even if it to be assumed that the impugned orders suffer from illegal infirmity, the remedy of constitutional petition is not available to the Petitioners and the proper remedy for them is to wait till the passing of a final order and then raise this ground in an appeal against the final order. In furtherance of his above submission, he has relied upon the case of Rashid Ahmed v. Soofi Muhammad Saleem and another reported in PLD 1976 Lahore 1450, Muhammad Saeed v. Mst. Siratul Fatima and another reported in PLJ 1979 Lahore 239 and the case of Muhammad Ramzan v. Rent Controller (VIII), Karachi reported in 1985 CLC

553. In all the above cases it has been held that a writ is not proper remedy to impugn a tentative rent order and the proper remedy for the parties is to take up the ground in the appeal. However, we may point out that in the above three cases there was dispute as to the rate of the rent and as to the relationship but in none of the cases the point whether Rent Controller can order deposit of time-barred rent as the arrears of rent was in issue. We may further observe that in the present cases also there was a dispute as to the rate of rent etc. but in exercise of constitutional jurisdiction we cannot touch upon the said dispute. The only point on which we are inclined to exercise constitutional jurisdiction is that in view of the clear pronouncement by the Hon'ble Supreme Court and this Court that Rent Controller is not competent to order the deposit of time-barred rent, the Rent Controller could not have passed the impugned order and, therefore, patently they are without jurisdiction or in excess of Jurisdiction. If we were to decline to exercise constitutional jurisdiction in spite of the above clear legal position it will in fact put the parties to inconvenience that they had to go through the ordeal of trial and thereafter to file an appeal after the passing of the ejectment order. We are inclined to hold that constitutional jurisdiction generally cannot be pressed into service where the dispute relates to the question of rate of rent or the period of the arrears of rent if it is within the limitation period, or even the question of relationship as these are the disputed questions of facts but where the question is purely legal and the question is already settled by the Superior courts, in our view writ jurisdiction can be pressed into service. We, therefore, in all the above petitions declare the impugned orders as being without lawful authority and of no legal effect. However, we would direct the Rent Controller to pass a fresh tentative order in accordance with law. The above petitions stand disposed of in the above terms with no order as to costs. M.Y.H/M-807/K. Case remanded.