1997 PLP 436 (CLC)

It appears from the impugned order that though some objection about the existence of the relationship of landlady and tenant had been raised before the learned Rent Controller but nothing was produced to substantiate the objection, with the result that on this point the Rent Controller observed that: "In the present case admittedly the opponent entered in the premises in question as a tenant and admittedly he has no sale agreement with him. Mere words of mouth, without any proof as to any sale transaction cannot be believed in the instant matter. " The rent order against which this petition is directed is in the nature of interim order and, therefore, not appealable under section 24 of the Cantonments Rent Restriction Act, which section is restrictive in character and specifically bars appeal from interim orders. The obvious purpose of not providing appeal from interim orders is, to avoid piecemeal decision and to ensure expeditious disposal of cases under the Act. This object cannot be allowed to be defeated by the device of challenging such interim orders in Constitutional jurisdiction. This question came up for consideration before the superior Courts on several occasions. In the case of Abdur Rehman v. Haji Mir Ahmad Khan and another (PLD 1983 Supreme Court 21) after reviewing the case‑law on the point their Lordships of the Supreme Court held that: "Keeping the afore‑discussed aspects of the question raised before the High Court and the trend of authority regarding exercise of writ jurisdiction in rent matters, it is held that the petition in the High Court was liable to be dismissed on the short ground of availability of adequate remedy to the petitioner if ever may adverse final order was passea against him. That being so, this petition must fail. " The Court also reaffirmed the views expressed in the case of Ibrahim v. Muhammad Hussain (PLD 1975 Supreme Court 457) that piecemeal decision in such matters was not desireable. In Ibrahim's case it has been observed that: "Reference has been made to these dates to underline the unfortunate fact that it has taken almost 10 years to bring the matter to this Court for its decision on a purely preliminary point, leaving the main controversy about the liability of the respondent for ejectment to be determined in the fresh round of litigation between the parties. Fragmentary decisions of this character have been described by their Lordships of the Privy Council in Nanhelal v. Umrao Singh (AIR 1931 P.C.33) 'as most inconvenient (which) tend to delay administration' of justice'. " Reference may also be made to two cases referred to with approval in the aforesaid Abdur Rehman's case. One is that of Muhammad Saeed v. Mst. Saratul Fatima and another (PLD 1978 Lahore 1459) and the other of Mrs. Feroze Aslam v. Muhammad Akhtar (PLD 1978 Lahore 488). In the first case appellant had challenged in a Constitution petition the order of the Rent Controller requiring him to deposit arrears and future rent, without deciding the preliminary issues on the existence of relationship of tenant and landlord between the appellant and the respondent. The point was dealt with by the learned Judges as follows:‑‑ "

2. The learned counsel for the appellant contends that as the very assumption of jurisdiction by the Rent Controller and the competence of the proceedings before him was under serious challenge, such an onerous order could not be passed without deciding these questions. Besides, the appellant has no statutory alternative remedy. He should not be forced to a situation where he commits a technical default, is visited with an order of eviction and gets a right of appeal in the hierarchy. It is, according to the learned counsel, an eminently fit case for being entertained and dealt with in the Constitutional jurisdiction of this Court.

3. The Legislature manifested its intent unequivocably by prescribing two broad categories of, all orders passed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) by making the more determinative orders constituting the smaller category appealable and 'all other forming the larger category non‑appealable. The scheme of such a categorization the limits and the rationale thereof has been fully considered in Mian Manzar Bashir v. M.A. Asghar (PLD 1978 SC 185). It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level the Constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutto v. Chief Administrator Auquf etc. (1976 SCMR 450).

4. There is yet another aspect of the case. The Constitutional jurisdiction is invoked and made available in cases of imminent, grave and tangible threats to valuable personal and property rights and that too subject, inter alia, to the condition that the legal remedy, if at all any available in the circumstances, is not efficacious or adequate. In this case, an order which by itself caused no tangible damage to the appellant, and is incapable of causing any, was challenged. In order to pose a real threat to him it has to be substituted by another order and the moment it so happens, a right of appeal would accrue to the appellant which right is certainly more extensive and beneficial being available in the same hierarchy and on both questions of law as well as of facts. Thus the case of the petitioner was not a fit one to be entertained in Constitutional jurisdiction. " In the second case the petitioner had filed Constitutional petition to challenge Rent Controller's Order setting aside an earlier ex parte ejectment order passed against the tenant. The relevant portions of the order is as under:‑‑ "

2. It cannot be doubted that a final order of dismissal of the landlord's application for eviction has not yet been passed. The Rent Controller has commenced the proceedings afresh after setting aside the ex parte order. If and when the Rent Controller passes a final order dismissing the petitioner's application, he will have a right of appeal, and it is not denied that in that appeal all interlocutory orders which if they are not independently appealable under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, can be brought under challenge. Looked at in this context it cannot be said that the petitioner would have no remedy against the order which has been brought under challenge in this writ petition. 3

I also took note of a similar situation in case of Rashid Ahmad v. Soofi Muhammad Saleem and another (PLD 1976 Lah. 1450) and relying on the Supreme Court ruling in the case of Ibrahim have held that if the appeals against the similar orders are not competent, on the basis of the principle laid down by the Supreme Court, the writ petitions also, would not be entertained. The party aggrieved in such like situation should wait till a final order is passed against it and then file an appeal under section 15 of the Ordinance." Somewhat similar view was taken by a Division Bench of this Court in the case of Habib Alvi Athar v. Hassan and 76 others (1986 MLD 1656) where two interlocutory orders of the Rent Controller were challenged in a Constitutional petition. While dismissing the petition the learned Judges have observed: "

10. We are of the view that the two impugned orders being of interlocutory nature do not call for any interference in this Constitutional jurisdiction, for, firstly, in our opinion, no question of want of jurisdiction; or exercise of jurisdiction not vested or any patent illegality is involved. Secondly, even if there is one, the petitioner has alternate remedy of appeal, if the final order goes against him and in that appeal he can also attract the interlocutory orders on any grounds available to him. Further, section 21 of the Sindh Rented Premises Ordinance, 1979, does specifically bar appeal from an interlocutory order and the object seems to avoid delay of the decision of the main application and if Constitutional petition ' is entertained against interlocutory orders the very object of the Ordinance, would be defeated. Moreover, any order passed in the proceedings which ultimately has effect on the final order, the same can be attacked on any ground available to the aggrieved party. It would be advantageous if we here refer to the following observation of the Supreme Court in the case of Abdul Rehman v. Haji Mir Ahmad Khan (PLD 1983 SC 21) wherein the Honourable Judges of the Supreme Court have followed their decision in Mian Manzer Bashir and others v. M.A. Asghar & Company (PLD 1978 SC 185). The observation reads as follows:‑‑ 'Keeping in view the afore‑discussed aspects of the question raised before the High Court and the trend of authority regarding exercise of writ jurisdiction in rent matters, it is held that the petition in the High Court, was liable to be dismissed on the short ground of availability of adequate remedy to the petitioner if every any adverse final order was passed against him, that being so, this petition must fail.'

11. Accordingly, the petitioner can raise the grounds taken in this Constitutional petition in appeal, if the final order goes against him, which will be considered on their own merits." In the present case too the petitioner will have opportunity to file appeal in case final order goes against him. For the reasons discussed above I find no merit in this petition which is dismissed in limine.

2. In view of the above order this application has become infructuous and is dismissed. The earlier order suspending the operation of the impugned order is recalled. A.A.‑M‑135/K Petition dismissed.