P L D 1998 Azad J&K 5 (PLP)

Muhammad Idrees Mughal for Respondents. This petition under section 44 of the Interim Constitution Act is filed for quashment of the orders passed by the Rent Controller, Muzaffarabad on 25‑7‑1995 and 7‑4‑1996.

2. Through the order dated 25‑7‑1995 the Rent Controller directed the tenant to deposit the monthly rent in the Court on 5th of every month, while through the order dated 7‑4‑1996, the Rent Controller, on the application for review against the order dated 25‑7‑1995, upheld his earlier order and directed petitioner to be arrayed as a party in the case.

3. The dispute between the parties has arisen in the following circumstances; Khasra No.61 min measuring 1 Kanal situated in Central Plate, Muzaffarabad stands allotted in the name of respondent No.2 on which house and shops are constructed. The same was rented out to respondent No.3. The petitioner alleges that the shop as well as the house referred above belong to him on account of the oral gift made by respondent No.2 in his favour, while the respondent No.2 controverts the assertion.

4. An application for fixing the fair rent was filed by respondent No.2 before the Rent Controller. Alongwith the application for fixing the fair rent, an application for deposit of the monthly rent in the Court was also filed on the same date and Court ordered as stated above. This order was upheld through the order dated 7‑4‑1996.

5. The learned counsel for the petitioner arguing the case contended that the Rent Controller was not competent to pass the order for deposit of the monthly rent in the Court under section 4 of the Rent Restriction Ordinance hence the orders impugned before the Court are without lawful authority. The learned counsel further contended that the title of the plot in dispute is sub judice before the Sub‑Judge at Muzaffarabad and as the ownership of the plot is in dispute, the Rent Controller is not vested with the power to pass any order unless the title of the plot is settled. The learned counsel placed reliance upon PLD 1993 Lahore 205.

6. The learned counsel appearing for the respondent contended that Maraj Bagum respondent No‑2 is the owner of the building and the land beneath the building. The learned counsel referred to the proprietary rights transfer orders issued by the Custodian, Evacuee Property in favour of the Maraj Bagum on 25‑1‑1995, and contended that Maraj Bagum is the owner of the land on which the building is constructed. The learned counsel further stated that Maraj Bagum had appointed the petitioner, who is her son, as the Attorney for obtaining loan from House Building Finance Corporation through the power of Attorney dated 30‑8‑1984. The learned counsel referred to notice issued by the Assistant Collector against the respondent for payment of the arrears of the loan obtained for construction of the plot issued on 25‑6‑1993 and 10‑12‑1996. The learned counsel also referred to a deposit slip depicting the deposit of amount of the loan in favour of House Building Finance Corporation by the respondent The learned counsel referring to Annexure E, which is a document cancelling the power of Attorney in favour of the petitioner, contended that the petitioner having misused his authority given to him under the General Power of Attorney, the Power of Attorney was cancelled through the cancellation deal oil 25th of July, 1993. The learned counsel referring to the above‑referred documents contended that respondent is admittedly the owner and has the established title over the building with respect to which the Rent Controller has rightly passed the impugned order. The documents referred by the respondent in para. 9 of her written statement are not denied or controverted by the petitioner through the replication filed in the Court on 10‑3‑1997, rather no reply is given regarding para.9 of the written statement.

7. After hearing the learned counsel for the parties, I have gone through the pleadings of the parties as well as the law referred above. Before proceeding further it may be stated that respondent No.3 was a tenant in the building who is now replaced by Tanweer‑ul‑Islam, who has filed an application through Advocate in the Court on 30‑10‑1997 requesting for his being impleaded as a respondent in the case for his being tenant of the building. As respondent No.3 Hassan‑ul‑Bana is now substituted by Tanweer‑ul‑Islam, who claims himself to be a tenant of the building, he is allowed to be arrayed as a respondent to loot: after his interest. He, however, has no objection for payment of rent in the Court or to any body else under the Court orders.

8. The Rent Controller under section 4 of the Rent Restriction Ordinance has power to fix the fair rent of any building which is rented out. The application for fixing the fair rent is pending before the Rent Controller in which the impugned orders have been passed. The objection of the learned counsel for the petitioner against impugned orders is that the Rent Controller is not vested with any power to order the tenant to deposit the rent pending application for fixing of fair rent as, according to the learned counsel, there is no such provision in the Rent Restriction Ordinance. While the learned counsel for the respondent relied upon subsection (8) of section 14 of the Rent Restriction Act for up holding the impugned orders.

9. The perusal of section 4, which deals with the fixing of the fair rent, reveals that a provision identical to subsection (8) of section 14 is not expressly available while holding inquiry under section

4. Subsection (8) of section 14 finds place in the section which deals with the eviction of the tenant by the land lord. As the proceedings before the Rent Controller were not under section 14, thus, subsection (8) of section 14 stricto senso is not applicable to the case in hand.

10. However, the Court cannot ignore the fact that when a Court or Tribunal, as Rent Controller in the listed case is vested with the power to pass a final order, it, at the same time, is vested with the power to pass an order of the interim nature for giving effect to his final order, unless the passing of the interim order is strictly or expressly prohibited by any provision of the law. The Rent Controller undoubtedly is vested with the powers fixing the fair rent. The parties before him are disputing for receipt of the rent from the tenant. The tenant as such has no objection to the payment of the rent.

11. In view of differences between the mother and the son, which, in fact, is unfortunate but inevitable on account of erroding moral values overwhelmed I by materialistic lust, due to lack of contentment, the tenant will be the direct loser who will be in a fix as to whom the rent be paid and at the same time, the land‑lord in whose favour the ultimate order is to be passed will be indirect loser in case the rent is received by one who is not found entitled to receive. Thus, the order passed by the learned Rent Controller is just and fair in the circumstances of the case, as none of the disputing parties would be loser when the rent stands deposited in the Court of Rent Controller which will be paid under the orders of the Rent Controller to the person found entitled to it. As far the contention of the learned counsel for the petitioner that a civil case is pending between the parties regarding the title of the building, hence the proceeding before the Rent Controller should remain pending/suspended, the same cannot be accepted in view of the documents placed on the file of the Court showing the prima facie title of respondent No.2.

12. Mere pendency of civil suit in the Court cannot defeat the prima facie established title for the purpose of rent cases under Rent Restriction Ordinance, moreso, when the documents produced in support of the title by the respondent are neither disputed nor denied by the petitioner through the replication. I may refer here the following para. from the judgment of the Supreme Court in Civil Petition No.49 of 1993 in the case of Muhammad Aslam Khan v. Tanweer‑ul Hassan Gilani and 4 others: "It may be pointed out that title of the house, prime facie, vests in respondents Nos. 1 and 2 because they have a registered sale‑deed in their favour. Needless to say that irrespective of the findings which may be given by the Civil Court about the ownership of the house, it cannot be said at this stage that the title in the house was that of the petitioner as a result of alleged oral transaction. In view of the stand taken by the petitioner before the Rent Controller and subsequently in appeal before the District Judge, it cannot be said either that, prima facie, there existed no relation of 'landlord' and 'tenant' between the petitioner and respondents Nos .1 and 2."

13. In view of above finding, no force in the petition, it is hereby dismissed without any order as to costs. A.A./134/AJK Petition dismissed