2025 PLP 1116 (CLC)

SHAMSUDDIN ABBASI, J.

By means of this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for following relief(s):- (a) Set-aside the impugned order dated 01.03.2023 (Annex A & A-1) as being unlawful, without jurisdiction and void; (b) Modify the impugned orders dated 01.03.2023 (Annex A & A-1) to exclude deposit of arrears of rent from March 2022 to March 2023 and allow petitioner to deposit rent from April 2023 without permission to the Respondent No.2 to withdraw the same; (c) Suspend the operation of impugned orders dated 01.03.2023 (Annex A & A-1) during the pendency of the present petition; Or in Alternative (d) Cancel the Cheques issued by the petitioner in favour of the Respondent No.2 for the period of March 2022 to March 2023; (e) Grant any other relief that this Hon'ble Court may deem fit; (f) Grant costs of the petition.

2. Rent Case No. 983 of 2022 was filed by Respondent No. 2 (Messrs Marina Construction (Pvt.) Limited under Section 15 of the Sindh Rented Premises Ordinance, 1970 ("Ordinance") seeking eviction of the petitioner (tenant) on the grounds of willful default in the payment of rent and infringement of the terms and conditions of the tenancy agreement on which the demised premises was let out to the petitioner. Along with eviction application, an application under Section 16(1) of the Ordinance was also filed seeking direction to the petitioner (tenant) to deposit arrears of rent due for the period commencing from 15.03.2022 till date @ Rs.1,540,000/- per month and to pay future rent in the rent case.

3. The learned Senior Civil Judge /Rent Controller-II, Karachi (South) after hearing the parties' respective counsel allowed the application under Section 16(1) of the Ordinance vide order dated 01.03.2023 in the terms as follows:- "For the foregoing reasons and discussions, instant application merits consideration. Therefore, opponent/tenant is directed to deposit the arrears of rent since 15.03.2022 at Rs.1,540,000/- (Rupees one Million five Hundred Forty Thousand only) per month along with 10% increase, which comes to Rs. 1,694,000/- (Rupees One Million Six Hundred Ninety Four Thousand) per month from 15.01.2023 onwards (as per the clause 04 of the tenancy agreement of December 2020) within 30 days i.e. till 30.03.2023 before this Court and opponent shall also deposit future monthly rent i.e. from March 2023 and onwards at Rs. 1,694,000/- (Rupees One Million Six Hundred Ninety Four Thousand) per month till the decision of present rent case on or before 10th of each month to start from April 2023. However, applicant would be entitled to withdraw rent w.e.f. April 2023 to be deposited by opponent/tenant before this Court. It shall be noted that in case of default in compliance of the above order by opponent, his defence would be struck off according to law".

4. Aggrieved by the tentative rent order, referred herein above, the petitioner has filed this petition and prayed the relief(s) as stated in para-1 (supra).

5. The learned counsel for the petitioner has mainly argued that the impugned order is bad in law and facts more particularly when civil litigations arising out of Suit Nos. 420 of 2022 and 862 of 2023, pending between the same parties on similar issues; that the learned Rent Controller was not competent to pass an order on application under Section 16(1) of the Ordinance directing the petitioner to deposit arrears of rent as well as future rent in Court; that a portion of the demised premises was collapsed and in such incident some of the students sustained injuries and these facts calm be entertained in rent proceedings but require proper adjudication in pending suits. The learned counsel while sunning up his submissions submitted that mere fact that the impugned order is an interlocutory order it cannot prevent this Court to correct the wrong committed by the subordinate Courts in exercising of its Constitutional Jurisdiction. The learned Rent Controller while passing the impugned order has extended undue favour to the Respondent No. 2 ignoring the facts and circumstances of the case, hence such an order is illegal and not sustainable in the eyes of law, therefore, the same may be set-aside. In support of his submissions, he has relied upon the cases of Mst. Zahida Parveen v. Iftikhar Hussain and others (2019 YLR 474, Messrs United Bank Limited v. Banking Court No. II and others (2012 CLD 1556), Zahid Khan v. Mst. Razia Khatoon and another (2020 YLR 192), Noor Hussain v. Pakistan Steel (1990 CLC 804), Ashfaq ur Rahman v. Chaudhri Muhammad Afzal (PLD 1968 Supreme Court 230), Mrs. Durre Shamim Rafi v. Muhammad Zubair Khan and another (2013 CLC 1021), Messrs Pak Mubarak Iron and Industrial Syndicate Ltd v. Messrs Sadiq Traders Ltd (1968 SCMR 1364), Naveed Amjad v. Abdullah Naveed and others (2011 SCMR 1296) and V. N. Vesudeva v. Kirorimal Luhariwala (Civil Appeal No. 1041 of 1963).

6. The learned counsel for the Respondent No. 2 while controverting the submissions of learned counsel for the petitioner has submitted that the two suits, referred herein above, were dismissed by this Court and in support he has placed a copy of the order dated 28.08.2024. He has also pointed out that petition against an interlocutory order is not maintainable. The learned Rent Controller has acted in accordance with law and passed the tentative rent order keeping in view the facts and circumstances of the case as well as applicable law, hence calls for no interference. In support of his submissions, he has place reliance on the cases of President All Pakistan Women Association Peshawar Cantt v. Muhammad Akbar Awan and others (2020 SCMR 260), Mst. Seema Begum v. Muhammad Ishaq and others (PLD 2009 Supreme Court 45), Zahid Khan v. Mst. Razia Khatoon (2020 YLR 192), Mian Manzar Bashir and others v. M.A. Asghar and Co. (PLD 1978 SC 185), Messrs DW Pakistan (Private) Limited v. Begum Anisa Fazi and others (2023 SCMR 555), Syed Asghar Hussain v. Muhammad Owais and others (2018 SCMR 1720), Muhammad lqbal Haider v. Ist ADJ Karachi Central and others (PLD 2018 Supreme Court 35), Bashir Ahmed v. Messrs Roots School Network and others (2011 SCMR 290) and Messrs Meridian Corporation (Pvt.) Ltd. v. Mrs. Yasmeen Riaz (1999 SCMR 832).

7. The learned Additional Advocate General has supported the submissions of learned counsel for the Respondent No. 2 and submitted that the impugned order is based on fair evaluation of record and applicable law and no case for interference is made out.

8. In rebuttal, the learned counsel for the petitioner points out that the petitioner has preferred appeal against dismissal orders and matter is subjudice before this Court.

9. Heard learned counsel for the petitioner, learned counsel for the Respondent No. 2 and learned AAG as well as perused the entire record available before me with their able assistance.

10. The controversy in these proceedings revolves around passing of order on application under Section 16(1) of the Ordinance directing the petitioner to deposit arrears of rent as well as future monthly rent in Court. A Rent Controller can pass such an under Section 16(1) of the Ordinance by making a tentative assessment of the proceedings before him /her. Per settled law, while passing a tentative rent order, the Rent Controller was not required to hold a full-fledged enquiry and can always pass such an order after taking into consideration the versions of the parties. For the sake of convenience Section 16(1) of the Ordinance is reproduced below:-

16. Arrears of rent. (1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix, in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case. Provided that the Controller may direct that the arrears of rent and approximate rent may be paid to the landlord through pay order, or by any other mode agreed to by the parties, or as directed by the Controller".

11. There is no denial of the fact that the parties entered into an agreement of tenancy, whereby the arrangement was made and petitioner (tenant) deposited cheques in favour of the Respondent No. 2 (landlord), but payment of such cheques were stopped for the reason that portion of the demised premises was collapsed and the petitioner alleged to have suffered monetary losses on account of closure of school and suspension of classes, therefore, the petitioner filed Suit No.420 of 2022 and Suit No.862 of 2023 before this Court, based on the tenancy agreement, seeking compensation, cancellation of cheques paid towards rent and declaration to the effect that the demised premises was unfit. The learned counsel for the petitioner has mainly argued that the Rent Controller was not competent to make tentative assessment of rent and pass order on application under Section 16(1) of the Ordinance and such questions require proper adjudication and could only be resolved in pending suits. This contention, on the face of it, seems to be legally incorrect. Mere institution of a suit, per se, would not be sufficient to refuse compliance of the order of the Rent Controller passed on application under Section 16(1) of the Ordinance pending final determination. The compliance of order passed under Section 16(1) is obligatory and failure thereof the right of defence can be struck of under Section 16(2) of the Ordinance. Even otherwise, it is a matter of record that plaints of both suits, referred herein above, were rejected under Order VII Rule 11, C.P.C. vide order dated 28.08.2024. The learned counsel for the Respondent No. 2 has placed on record a copy of the said order. Here it will not be out of place to quote relevant excerpt of the said order as under:- "7 Prima facie perusal of the letter of the law demonstrates that the plaintiff remained endowed with the option to ask the landlord to undertake the requisite repair and upon failure of such an endeavor apply to the Controller for directions. The cost of repair undertaken by the tenant is also recoverable, subject to verification, from rent payable to the landlord. Perusal of the memorandum of plaint demonstrates the controversy to fell squarely within the domain of the SRPO, hence, and prayer clauses 1 till 3 seek relief that ought to have been sought from the controller.

8. The last three prayer clauses are incumbent upon favourable consideration of the first 3, therefore, fall within the categoty of consequential relief. The question, whether any prayer for wnsequential relief could result in saving the plaint from rejection, has been answered in Zain Khan wherein, post sieving the law, it was maintained that where consequential relief was dependent upon the main claim, the entire suit would fall foul of the law, if the primary /main claim was barred. The same was also maintained by this Court in Amsons Textiles. Hence, no case is made out to sustain the suit for consequently relief in the presence of a finding that the primary relief ought to have been sought per the SRPO before the Controller."

12. No doubt, the impugned order only requires deposit of the arrears of rent as well as future monthly rent in Court until final adjudication of the matter and Respondent No. 2 was not permitted to withdraw such amount. In such a situation, the petitioner was thus, required to have complied with the tentative rent order which could be adjusted and substituted by a final order on the determination of issues, whereas, any avoidance and breach of such order entails penalty of striking off his defence. It is well settled that Constitutional Jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision. The Hon'ble Apex Court in its various pronouncements has held that jurisdiction of this Court under Article 199 of the Constitution cannot be invoked against an interlocutory order until and unless such an orders suffers from any illegality or jurisdictional error, thus, the prayer of the petitioner to entertain the petition against an interlocutory order and intervene in the matter would be against the principle laid down by the I Hon'ble Apex Court in its various pronouncements. Reliance in this behalf may well be made to the case of Mst. Seema Begum v. Muhammad Ishaq and others (PLD 2009 Supreme Court 45). Reliance in this behalf may well be made to the case of Mst. Seema Begum v. Muhammad Ishaq and others (PLD 2009 Supreme Court 45). In this case, the Hon'ble Supreme Court of Pakistan has set-aside the order of this Court passed in writ jurisdiction and restored the order of the learned Rent Controller under Section 16(1) of the Ordinance and concluded as under:- "

7. The most important aspect of the case is that respondent Muhammad Ishaq had challenged the interim order passed by learned Rent Controller in the Constitution Petition. As such the same was not maintainable and impugned order is liable to be set aside on this score alone.

8. For what has been discussed above we are of the considered opinion that order passed by Rent Controller is just and proper. The impugned order, is not sustainable in the eyes of law. So these appeals are accepted and the impugned order passed by the High Court is accordingly set aside and that of the Rent Controller restored. No order as to costs". Likewise, in the case of Muhammad Iqbal Haider v. Ist ADJ, Karachi Central and others (PLD 2018 Supreme Court 35), the Hon'ble Supreme Court has held as under:- "It is settled law that an order passed by a Court (whether or not a party considers it just, valid and fair) has to be complied with subject to his right to challenge the same before the for a provided in law. In case of non-compliance, the consequences provided in law are bound to follow. In the instant case, the order for deposit of rent passed by the Rent Controller was challenged and upheld upto this Court and it was unequivocally held that, "we find that the institution of two civil suits by the petitioner, one for specific performance of agreement and the other for cancellation of sale deed of the respondent No. 2 per se would not be sufficient to refuse compliance of an order of the Rent Controller under Section 16(1) of the Ordinance pending final determination". In another case of Syed Asghar Hussain v. Muhammad Owais and others (2018 SCMR 1720), the Hon'ble Supreme Court observed as follows:- "Best course for the petitioner could have been to comply with tentative rent order under section 16(1) SRPO, 1979 and to have contested the matter in his logical conclusion."

13. For what has been discussed above, I am of the view that the learned Rent Controller has passed the order under Section 16(1) of the Ordinance, impugned herein, after due application of mind keeping in view the facts and circumstance of the case as well as applicable law. Hence, the same does not suffer from any illegality, infirmity or irregularity that may require interference by this Court in exercise of its Constitutional Jurisdiction. This petition is bereft of merit stands dismissed. The learned Rent Controller shall proceed with the matter in accordance with law. SA/C-1/Sindh Petition dismissed.