2009 PLP 955 (MLD)

ALI AKBER QURESHI, J.

This constitutional petition is directed against the orders, dated 2-6-2008 and 4-7-2008, whereby the application to amend the ejectment petition was dismissed and an order under section 13(6) of the Rent Registration Ordinance was passed by the learned Rent Controller respectively.

2. The respondent in the instant suit, who is also a landlord, filed an ejectment petition for the eviction of the petitioner from the suit property on the ground of default and damage to property. The ejectment petition was contested by the petitioner by filing the written reply. The petitioner while filing the written reply denied the relationship of landlord and tenant between the parties. Along with this the petitioner submitted that without conceding the denial of relationship of landlord and tenant between the parties, the petitioner has not committed any default in making the payment of rent and the petition is not maintainable on the ground that notice under section 13-A of the Ordinance ibid has not been served upon the petitioner. The learned Rent Controller after receiving the written reply from the petitioner, in compliance of section 13(6) of the Ordinance ibid passed the order of tentative rent. Through this order the petitioner was directed to pay arrears of rent as well as future rent at the rate fixed by the learned Rent Controller. The learned Rent Controller while passing the order also taken the cognizance of the objection regarding the relationship of landlord and tenant and thereafter passed the order impugned herein. Earlier to this the petitioner filed an application to amend the reply of the ejectment petition but the said application was dismissed on 2-6-2008. The petitioner was directed vide order, dated 4-7-2008 to deposit the arrears of rent within one month i.e. till 3-8-2008 but the petitioner instead of complying with the order filed, the instant constitutional petition, challenging the vires of the aforesaid order. Learned counsel for the petitioner to substantiate his contentions submitted that the order passed by the learned Rent Controller is erroneous as the learned Rent Controller without first deciding the relationship of landlord and tenant passed the order under section 13(6) of the Ordinance ibid, which in any case is not sustainable. Learned counsel also added that the petitioner at the very outset denied the relationship of landlord and tenant on the ground that the petitioner is the tenant of one Mst. Ammat ul Bari and during her life time purchased the property in question, so the respondent/the alleged landlord has no concern whatsoever with the petitioner as well as the suit property. Learned counsel also attacked the order impugned herein on the ground that the learned Rent Controller has wrongly directed the petitioner to deposit the arrears of rent since 19-11-1985 by invoking the provisions of section 5-A of the Rent Restriction Ordinance, 1959 as the said provision was incorporated in the statute ibid in the year, 1990 and the learned Rent Controller at the most can ask the petitioner to deposit the rent from 1989 as provided in the said provisions, so the order impugned herein passed by the learned Rent Controller is liable to be set aside on this score alone. Next contended that the order passed by the learned Rent Controller is without jurisdiction and coram non judice on the ground that the learned Rent Controller in view of the Article 110 of the Limitation Act cannot direct the petitioner to deposit the rent more than a period of three years. Reliance is placed on Ashfaq ur Rahman v. Chaudhri Muhammad Afzal (PLD 1968 SC 230) and Anwarul Haq v. State Oil Company Ltd. (1993 CLC 1565). On the question of maintainability of the constitutional petition, the learned counsel submitted that the constitutional jurisdiction under Article 199 of the Constitution of Pakistan, 1973 can be exercised if the order passed by the lower forum is patently illegal, unlawful, without jurisdiction an coram non judice. Reliance is place on Babu Din v. Civil Judge/Rent Controller, Multan and 6 others (2006 CLC 926), Siraj Din etc. v. Additional District Judge, Okara, and others (1986 CLC 975) and Ms, Razia Begum and another v. Senior Civil Judge (Rent Controller), Charsadda and 2 others (PLD 1996 Peshawar).

3. Learned counsel while arguing the case, also referred the document (Annex. `D') PT.1, issued by the Excise and Taxation Department and tried to show that the name of the petitioner in the list of the tenants of the respondent is not mentioned, so this is sufficient to prove that the petitioner has no relations whatsoever with the respondent. Learned counsel also questioned the validity of the order, dated 2-6-2008, whereby the learned Rent Controller dismissed the application to amend the written reply of the petitioner. In this regard learned counsel contended that the learned Rent Controller without adverting to the contention raised in the application has dismissed the same, which is not only erroneous but also against the principle laid down by the superior Courts for this purpose.

4. Conversely the learned counsel for the respondent submitted that the petitioner was the tenant of the previous owner and has become the tenant of the present respondent by operation of law. Further contended that the denial made by the petitioner while filing the reply is not only evasive but also contumacious. Further added that the respondent purchased the property in question from the real daughter of Mst. Ammat ul Bari, so the respondent has stepped into the shoes of the previous owner and the petitioner had no option but to comply with the order passed under section 13(6) of the Ordinance ibid by the learned Rent Controller. Also added that the constitutional petition against the interim order, particularly in the rent matter, is not sustainable. Reliance is placed on Tariq Ali Sheikh v. Rent Controller (Khalid Nawaz), Lahore and another (1998 CLC 460) and Muhammad Younis and another v. Muhammad Ayub and another (PLD 1998 Lahore 7). As regards to the denial of relationship of landlord and tenant, the learned counsel has placed reliance on Malik Sadfar Hussain v. Lutuf Ahmad Khan and others (1997 SCMR 567) and Rafiq Ahmad through General Attorney v. Rent Controller, Jacobabad and 3 others (2006 CLC 989). However, learned counsel for the respondent conceded that the direction given by the learned Rent Controller to the petitioner to deposit arrears of rent since 19-11-1985 in unlawful but further submitted that the same may be corrected by this Court. Lastly the learned counsel for the respondent added that although the petitioner has taken a contumacious stand regarding the relationship of landlord and tenant but has not placed any thing in support of his contentions.

5. I have heard the learned counsel for the parties and have perused the record myself.

6. The petitioner, although denied the relationship of landlord and tenant between the parties but while filing the written reply taken a very evasive and contumacious stand. Preliminary objections Nos. 1 and 2 taken by the petitioner is reproduced hereunder:-- (i) "That the petitioner has no locus standi and legal right to file the present petition as the respondent is tenant of one Mst. Ammat ul Bari @ Rs.600 per month vide rent deed, dated 10-1-1990 copy of the Rent deed is attached and has paid advance rent to the said land lady. (ii) That the respondent has got installed three telephones over the shops since it is occupation and running his business in the name and style of Imam Bukhsh Gas Co. and being the old relationship with the said land lady requested the respondent for the purchase of the said property as she could not manage the property being old age therefore, it was agreed between the respondent and the land lady Ammat ul Bari, that the respondent (petitioner herein) should pay Rs.27,000,00 to the land lady as consideration of all property, in this respect the respondent paid to the lady the consideration amount by various cheques and by way of oral payment and it was agreed between the parties that the property should be transferred in the name of the respondent after receiving balance consideration amount in 2008, therefore, this application is not maintainable as when the respondent came to know that the petitioner has purchased the whole property from one Mst. Noreen Naseem has obtained collusive decree from the civil Court and has got registered sale-deed in favour of the petitioner. He challenged the said decree by way of application under section 12(2), C.P.C. and also challenged the fictitious sale-deed in favour of the petitioner by way of civil suit for declaration, therefore, until and unless the title deed of the petitioner is not decided finally the petitioner has no cause of action as Mst. Noreen Naseem is nobody to sell the property to the petitioner hence the application is liable to be rejected."

7. In para. 4 of the written reply on merits, the petitioner stated that the petitioner was tenant of one Mst. Ammat ul Bari, who expired issueless and nobody can forward on her behalf to finalize the transaction. While filing the instant constitutional petition, the petitioner in para. I stated that he is one of the tenants of Mst. Ammat ul Bari at the rate of Rs.600 per month vide rent note, dated 1-1-1990, whereas para. 2 the petitioner stated that he had been paying the rent of the suit property through cheques since December, 2007.

8. The above referred pleadings of the petitioner are sufficient to understand that; the petitioner took evasive stand to deny the relationship of landlord and tenant between the parties, the petitioner admitted that he is tenant of Mst. Ammat ul Bari and the said Mst. Ammatul Bari was the real mother of Mst. Noreen Nasreen, from whom the respondent purchased the property in question, the denial of the petitioner is not only evasive but also contumacious as the petitioner did not place any thing on record to substantiate his claim of purchase the suit property from Mst. Ammat ul Bari, neither any agreement to sell nor payment as referred, so this type of the denial is not sustainable in law, in fact this type of the denial is always taken by the tenant in our country simply to blackmail and harass the landlord. The petitioner has also stated in his pleadings that Mst. Ammat ul Bari was died issueless, whereas one Mst. Noreen Nasreen is the real daughter of the deceased Ammat ul Bari, who subsequently sold the property in question to the respondent. Even otherwise mere denial from the relationship of landlord and tenant is not sufficient, there must be some cogent evidence and reliable prima facie documents related to the sale, whereas in this case nothing was placed on record any thing by the petitioner, thus the learned Rent Controller rightly reached to a conclusion that the stand taken by the petitioner as regards to the relationship of landlord and tenant is evasive and contumacious, so the order passed by the learned Rent Controller under section 13(6) of the Ordinance ibid is just, fair and strictly in accordance with law laid down by the superior Courts of the country in plethora of judgments. The petitioner deliberately avoided to comply with the order passed by the learned Rent Controller under section 13(6) of the Ordinance ibid and filed the instant constitutional petition, which is on the face of it is not maintainable. The judgments referred by the learned counsel for the petitioner have no relevance with the facts of this case. Constitutional jurisdiction to some degree, can be exercised but not in such like cases, where the petitioner/tenant with mala fide intention and ulterior motive but in a causal way denied the relationship of landlord and tenant simply with the intention to blackmail the landlord or frustrate the proceedings passed by a competent legal forum. As regards the competency of the constitutional petition, this proposition has been dealt with in a case reported as Tariq Ali Sheikh v. Rent Controller (Khalid Nawaz), Lahore and another (1998 CLC 460) is reproduced as under:-- Ss. 13(6) & 15

"Constitution of Pakistan (1973), Art. 1999

Tentative rent order

Appealability

Constitutional petition

Order passed by Rent Controller under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, was tentative in nature and was to merge in final order which was appealable under section 15 of West Pakistan Urban Rent Restriction Ordinance, 1959

Petitioner/tenant, thus, had to wait for final order in order to question that order before appellate Court

Tentative rent order being provisional in nature, same was not assailable in Constitutional jurisdiction of High Court, Constitutional petition filed by petitioner/tenant against tentative rent order, thus, was incompetent."

9. In a judgment reported as Rafiq Ahmad through General Attorney v. Rent Controller, Jacobabad and 3 others (2006 CLC 989), his lordship has observed that if the denial of relationship is contumacious, the tenant is liable to be ejected straightaway without recording evidence on other grounds such as denial to the terms or personal need. In this case, from the record it is established that the denial of the petitioner is contumacious, so the learned Rent Controller rightly directed the petitioner to deposit the arrears of rent including the future rent. As regards the direction given by the learned Rent Controller to the petitioner to deposit the rent since 19-11-1985, it is observed that the petitioner shall pay the previous rent as provided in section 5-A of the Ordinance ibid, so to this extent the order passed by the learned Rent Controller is modified/corrected. To further clarify the order, it is observed that the petitioner shall pay the arrears of rent to the extent of only previous three years and future rent in terms of section 5-A of the Ordinance ibid. Learned counsel for the petitioner has not questioned the amount of rent tentatively ordered by the learned Rent Controller, so the petitioner shall pay the rent at the rate of Rs.600 inclusive 25% increase after every three years. The second application, which was filed by the petitioner for the amendment in the written reply, was also rightly dismissed as the petitioner admitted himself the tenant of Mst. Ammat ul Bari the previous owner of the suit property.

10. In the circumstances stated above, this petition has no force and the same is dismissed with no order as to costs. H.B.T./F-32/L Petition dismissed.