1983 PLP 840 (CLC)

AJMAL MIAN, J.‑The petitioner through this petition has impugned the order dated 29‑3‑1981 passed by the learned IX Senior Civil Judge and Rent Controller at Karachi in Rent Case No. 801/77 Exh. No. 133/80. The relevant facts leading to the filing of the above petition are that the present petitioner filed the above rent case for ejectment on the ground of default for the period commencing from 1‑7‑1976 to 31‑1‑1977 at the rate of Rs. 425 per month, amounting to Rs. 2,975 against respondent No. 2, their tenant. The notice of the above application was served on the above respon dent inasmuch as his Advocate filed Vakalatnama. It seems that in spite of the expiry of considerable time, no written statement was put in by respon dent No.

2. Consequently, on 29‑5‑1979 the learned Rent Controller passed an ex parte order against respondent No.

2. After that on 30‑10‑1979 an ex parte order was passed after the filing of an affidavit in ex parte proof by the petitioner. It further seems that petitioner tiled execution application No. 133/80 on 3‑9‑1980, the notice of which was served at the premises. After that respondent No. 3 came forward with objections dated 11‑11‑1980 under section 17 of the late West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the late Ordnance) read with section 22 of the Sind Rented Premises Ordinance, 1979, alleging therein that the petitioner had accepted him as a tenant since April, 1977, inasmuch as he had accepted rent through cheques. To the above objections, the petitioner filed a counter affidavit inter alia raising the plea that the question, whether respondent No. 3 had become the tenant of the petitioner as alleged since April, 1977, could not be determined in an execution application under section 22 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the new Ordi nance). However, the learned Rent Controller by his impugned order held that the above question would be decided after recording of evidence. The petitioner being aggrieved by the above order has filed the present petition.

2. In support of the above petition Mr. A. Aziz Khan, learned counsel for the petitioner, has urged that under the new ordinance, the learned Rent Controller has no power to entertain the objections of the nature in question in which new tenancy rights were claimed. On the other hand, it has been urged by Mr. Hameed M. Siddiqui, learned counsel for the respondent No. 3, that no writ petition is competent as only an interlocutory order has been passed and, secondly, that even on merits the learned Rent Controller has the jurisdiction in the matter.

3. It will be appropriate to take up the question, as to whether this Court can entertain the present petition against the impugned order which has not disposed of respondent No. 2's objections. In our view, the question as to whether the learned Rent Controller has the jurisdiction to entertain objections of the nature was a question of jurisdiction. If the learned Rent Controller has no jurisdiction to entertain the objections of the nature filed by respon dent No. 3, there is 'no question of recording evidence on the objections. Since the learned Rent Controller has decided to proceed with the objections on merits as well, in our view the petitioners are entitled to press into service the Constitutional writ jurisdiction of this Court as it will be futile to lead evidence before the learned Rent Controller in case he does not possess the jurisdiction to adjudicate upon respondent No. 3's above objections. Mr. A. Aziz Khan, has referred to the case of Sind Employees Social Security Institution v. Dr. Vumtaz Ali Taj and another (1), in which the Hon'ble Supreme Court while dealing with the question of writ jurisdiction has made following observa tions :‑ "These defects of jurisdiction are apparent on the face of the record which in my opinion would at once attract certiorari jurisdiction of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent 1, the proceedings will be wholly without jurisdiction and therefore, a nullity. In somewhat similar circumstances in the Muree Brewery Company Ltd. v. Pakistan, this Court interfered in proceedings for acquisition of certain pro perties by the Capital Development Authority although there existed provisions for appeal and review in the statute under which proceedings for the acquisition were initiated. In that case the writ petitioner (Murree Brewery Company) challenged the jurisdiction of Capital Development Authority under Ordinance XXIII of 1960 to make the impugned acquisition. The respondent's plea that the writ petition was not maintainable inasmuch as the writ petitioner had not exhausted its remedy of appeal provided under the Ordinance prevailed in the High Court and writ petition was dismissed. This Court on appeal however, held "The petitioner challenged the very jurisdiction of the Capital Develop ment Authority to make the impugned acquisition under the Ordinance. If it bad succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well‑recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. The appeal under section 36 of the Ordinance is limited to a matter which is within the jurisdiction of the authority concerned and the scope of the Ordinance. A question of jurisdiction is a matter for Review, which is based not on the merits but on the legality of the lower authority's proceedings." In reaching that conclusion this Court followed the dictum in the earlier decision in the case of Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and another (1975SC450).

4. We are, therefore, inclined to hold that the petition is competent even against an interlocutory order if it relates to the jurisdiction of the tribunal. 5: As regards the merits of the above writ petition, it may be pertinent to refer to section 17 of the late Ordinance and sections 19, 22 and 27 of the new Ordinance, which read as follows Late Ordinance "

17. Every order made under section 10 or section 1.3. and every (1) PLD order passed on appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court." New Ordinance "

19. Procedure.‑(I) Where an application other than the application under section 14 has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed by him for reasons to be recorded, issue a notice to th‑. respondent to file written reply, if any, within such period not exceeding fifteen days of the receipt of the notice. (2) Where on the day fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse, the Controller may, proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order. (3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence first of the applicant and his witnesses and then of the respondent and his witnesses. (4) A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party who shall have the right to cross‑examine the witness on such affidavit and if the witness has been cross‑examined the party producing the witness may re‑examine him. (5) The Controller shall, instead of formally framing issues arising between the parties, state them briefly in the judgment and shall record findings on each such issue separately.

22. Execution of Orders.‑Au order made by the Controller or the appellate authority shall be executed in such manner as may be deter mined by the Controller or, as the case may be, the appellate authority.

27. Repeal--(I) The Sind Urban Rent Restriction Ordinance, 1959, is hereby repealed. (2) All appeals, and such cases before a Controller as are fixed for argu ments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance. `3) All other cases instituted under the Ordinance mentioned in sub section (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller, be continued and dis posed in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance. (4) Notwithstanding the provisions of subsection (2) all orders made in pursuance thereof and any order made under the Ordinance mentioned in subsection (1) in any proceedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provision of section 22."

6. It may be noticed that under the late Ordinance an order passed by a Rent Controller under section 10 or section 13 or an appellate order passed 'vii Court having jurisdiction in under section 15 was to be executed by 'a civil the area as if it were a decree of that Court. Since the ejectment order was.9 deemed to be a decree for the purpose of execution, the executing Court could have entertained objections under section 47 or under Order XXI, C. P. C Whereas, under the new . Ordinance subsection (2) of section 19 prohibits a Rent Controller from recalling even an ex parte order in case it is found that the notice of the application was served on the party. Furthermore, under section 22 of the new ordinance no procedure for the execution of an ejectment order has been provided. There is a sharp difference in the language employ ed in section 17 of the. late Ordinance and section 22 of the new Ordinance inasmuch as under the former as pointed out hereinabove an ejectment order was to be executed by a civil Court as a decree of Court, whereas under the latter provision an Order made by the . Rent Controller or the appellate authority is to be executed in such manner as may be determined by the Rent Controller, as the case may be, by the appellate authority. It may also be pointed out that under subsection (4) of section 27 of the new Ordinance, it has been provided that even an order passed under the late Ordinance was to be deemed to be the order passed under the new Ordinance and is to be executed in accordance with the provisions of section 22 of the new Ordinance. In other words, by virtue of subsection (4) of section 27 of the new Ordinance, the ejectment order passed in the rent case in question on 30‑10‑1979 i. ea prior to the enforcement of the new Ordinance is to be executed in accordance with section 22 of the new Ordinance. In this view of the matter, we are inclined to hold that the learned Rent Controller cannot entertain objections, in which the objector claims a tenancy right in his favour as the same will be a question foreign to the rent proceedings, in which the ejectment order was passed. The question whether respondent No. 3 in fact had become tenant in April, 1977, is a question which may be agitated by respondent No. 3 before any other competent forum but in an execution proceeding, the learned Rent Controller is not entitled to adjudicate upon the status of respondent No. 3 as a tenant of the petitioner. We may observe that we are not inclined to bold that in no case the Rent Controller can entertain any objection. For example if a party comes forward and makes an application that an ejectment, order passed in respect if some other tenement is being executed against his tenement, which was not the subject‑matter of the rent proceedings. In our view, such an application will be competent before the learned Rent Controller; because he has to execute the ejectment order in respect of the tenement which was the subject‑matter of the rent proceedings before him and, therefore, he would be entitled to go into that question but the question whether a stranger has become the tenant of the tenement which was the subject‑matter of the rent proceedings filed against the admitted tenant in our view is a question, which cannot be agitated in an execution proceedings. We may also point out that under section 20 of the new Ordinance the Rent Controller has been given limited power of a Civil Court, namely, power to summon and enforce the attendance of any person and to examine him on oath, the power to compel the production or discovery of documents, the power to inspect the site and power to issue commission for examination of witnesses or documents but no other powers of a Civil Court have been conferred on the Rent Controller. The above section 20 clearly indicates that the legislature did not intend to place the Rent Controller at par with the Civil Court and, therefore, section 47 or Order XLI, C. P. C. be cannot pressed into service by a stranger to the rent proceedings.

7. For the aforesaid reasons, we allow the petition and declare the impugned order without. lawful authority but in the circumstances of the case there will be no order as to costs. S. Q. Petition alloyed.