P L D 1983 Supreme Court 21 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 28-1-1982 of the Sind High Court; whereby a constitutional petition arising out of a rent matter, was dismissed. Petitioner who has been held to be tenant, was sought to be evicted from a hotel by the respondent landlord, on ground of default in payment of rent. He questioned the maintainability of the eviction application before the Rent Controller on the ground that the agreement between the parties was not of tenancy but it was a contract ; therefore there was no relationship of landlord and tenant anti the Rent Controller had no jurisdiction. On merits it was claimed by the petitioner that the agreement dated 20-12-1975 paragraph 9 whereof provided Rs. 5,000 as monthly payment, was superseded by second agreement dated 7-4-1979 and that there was no default. The respondents' plea in this behalf, however, was that-the second agreement and its connected documents were the result of fraud and forgery and that he reserved the right to prosecute the petitioner for criminal offences. The attempt of the petitioner to avoid further proceedings before the learned Controller failed and, the latter by his orders dated 19-5-1980 overruled the objections regarding relationship of landlord and tenant. He wanted to proceed further, as stated, to direct the deposit of arrears of rent, but the petitioner challenged the said order in the High Court, in a constitutional petition, raising almost same objection as was overruled by the learned Controller. A Division Bench of the High Court dismissed the petition on 28-1-1982.. The order dated 19-5-1980 of the Controller was affirmed. An additional argument that `hotel' having been excluded from the purview of the Sind Rented Premises Ordinance, 1979, the Controller had no jurisdiction on account of the nature of the premises, to proceed .any further . with the case, was also repelled. The petitioner (tenant) has now sought leave to appeal. His learned counsel has reiterated the arguments advanced before the High Court. The language of agreement dated 20-12-1975 particularly its paragraph a supports the concurrent finding on its nature, that it was a tenancy agreement. The other agreement purported to have been executed on 7-4-1979, being under attack of fraud and forgery was kept out of consideration by the A petitioner's counsel, when arguing the case in the High Court. Thus the decision on the question of relationship of landlord and tenant and maintainability of the eviction application in this behalf, does not suffer from any serious infirmity, so as to justify interference by this Court. Same is the position with regard to the second point on maintainability of the eviction application which was urged in the arguments before the High Court and not before the learned Rent Controller. The .learned Judges of the High Court when interpreting section 27 of the Sind Rented Premises Ordinance, 1979 held that the new law is prospective in so far as the right to l file eviction application regarding a hotel is concerned. And that it having been filed under the old Ordinance of 1959, proceedings thereon will be continued to its logical ends; notwithstanding the new law having kept the hotels out of its purview. It has also been held that the procedure for the disposal of such application will, however, be that, provided in the new law. In other words, the new ordinance has been treated as retrospective regarding the procedure only and not rights. Subsection (3) of section 27 can be interpreted in the manner adopted by the High Court. No violence seems to have been done to the language of the statute and the intention to the contrary is not easily discoverable therefrom. On the contrary the language used in subsections (2) and (4) of the section 27, when read in juxta position to the language of subsection (3) thereof, it would seem that the interpretation is not violative of any clear. intention of the legislature, either. A more detailed examination of these questions by this Court in this case is not necessary; because the petition can be disposed of. on a much shorter ground of a second policy of law. Instead of raising the second jurisdictional question based on the state of the property, before the lower forum (where no other similar question was in fact raised, regarding the status of the parties), and then pursuing the matter in first appeal which was as a matter of right and of wider scope, petitioner sought to divert the normal remedial process provided by law, and invoked constitutional jurisdiction of the High Court. It could exercised only on proof of non-availability of adequate remedy. This proof is not forthcoming in this case. The petitioner had a right of appeal if any final decision would have gone against him. Much can be said on the question that this mode was adopted by the petitioner because he wanted to avoid enquiry on facts (if it was needed) and also wanted to delay the proceedings by raising piecemeal pleas of similar jurisdictional nature -one before the proper Her forum and the other in the High Court, in its writ jurisdiction. The matter in fact got delayed because if left to be processed as provided by the special law of summary procedures governing it, the same might have ended within months before the Rent Controller and some more months in appeal. Now it has taken nearly three years and one limb thereof is still being delated in the superior Courts. Apart from delay the petitioner, whether intentionally or otherwise, has successfully avoided enquiry on the question of fraud and forgery-both on the rent side as also on the criminal side. Such could not be the results visualised either by Article 199 which conferred writ jurisdiction on the High Court, nor by the Rent laws which created special forums for speedy and summary disposal of these cases. This Court has time and again cautioned against piecemeal decisions of these and similar matters. An exposition of principle that it is negation of justice, can be found in Ibrahim v Muhammad Hussain (P L D 1975 S C 457). The fact that it was an appeal case will not make any difference in so far as the basic D principle is concerned. The argument in this behalf of different treatment in writ and appeal jurisdiction, was rightly considered in a later Division Bench, High Court in the case of Muhammad Saeed v. Mst. Saratul Fatima (P L D 1978 Lah. 1459), as follows " . . . . . 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. Beside, 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. The Legislature manifested its intent unequivocably by prescribing two broad categories of all orders passed under the W. P. Urban Rent Restriction Ordinance (VI of 1959) by making the more determinative orders constituting the smaller category appealable and all others 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 Bashi: v. M. A. Asghar. 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 Bhutta v. Chief Administrator, Auqaf etc. There is yet another aspect of the case. The constitutional jurisdiction is invoked ,end 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 boat 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." The decision of this Court in the case of M. A. Asghar (P L D 1978 S C 185) relied upon in the aforequoted judgment of the Lahore High Court, had also arisen out of an eviction cast though in a different context. The High Court judgment under appeal in that case had, as observed therein; mainly relied upon the case of Mrs. Feroze Aslam v. Muhammad Akhtar (P L D 1978 Lah. 488), wherein also, like the case of Muhammad Saeed, it had refused to exercise writ jurisdiction in a rent matter. It was observed in that case as follows : "Learned counsel has also contended that the petitioner would suffer unnecessary harm through the conduct of proceedings by a forum which according to him, has no jurisdiction to proceed with the matter any further. Similar situation was visualised and arguments addressed in the case of Ibrahim v. Muhammad Hussain. Their Lordships were pleased to observe as follows : "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 sound of litigation between the parties. Fragmentary decisions of this character have been described by their Lordships of the Privy Council in Nannelal v. Umrao Singh as most n ', inconvenient (which) tend to delay administration of justice. I also took note of a similar situation in case of Rashid Ahmad v. Soofi Muhammad Saleem and another and relying on the Supreme Court ruling in the case of Ibrahim have held that if the appeals against the similar order are not competent, on the basis of the principle laid down by the Supreme Court, the writ petition 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." The aforementioned case of Mrs. Feroze Aslam was noticed by this Court in the case of M. A. Asghar, as the main basis of the judgment under appeal and the latter was also upheld. The view taken in the case of Mrs. Feroze Aslam was also the view taken in the cases of Khushi Muhammad v.. Khadeja Hakeem (P L D 1976 Lah. 99) and Rashid Ahmed v. Soofi Muhammad Saleem (P L D 1976 Lah 1450). In the last- mentioned case which was in fact followed in the case of Mrs. Foroze Aslam earlier noticed, the observation on the question in issue now before us, was as follows :- "Learned counsel has contended that the impugned order is against law and facts because an appeal against such an order. is not competent, therefore, this writ petition has been instituted. No doubt sometimes in some cases a direction under section 13(6) of the Ordinance might look oppressive but that by itself is not enough to ignore the, ratio decidendi of and spirit underlying, the ruling of their Lordships of the Supreme Court in Ibrahim v. Muhammad Hussain. It was observed that the provisional fixation of current rent and the amount of arrears under the first part of subsection i 6) of section 13 "remains provisional" until it is followed by a final determination or striking off of the tenant's defence. It was also held that fragmentary decisions of the type, as involved in this case, on preliminary points, leaving the main controversy about the liability of the tenant for ejectment, are most inconvenient and "tend to delay administration of justice. The mischief their Lordships were at pains to highlight, would be done if instead of appeal, the High Court were to entertain writ petitions against directions made by Rent Controller under first part. of subsection (6) of section 13 of the Ordinance. Obviously, if, as a result, and in pursuance of such a direction, the defence of a tenant . . is struck off, he would have an immediate remedy by filing an appeal. I do not agree with the learned counsel, that the said remedy would not be efficacious simply because it would be difficult to obtain ad, stay order, when filing an appeal. The practice however it seems, is to the contrary." The earlier case law was also reviewed in another Division Bench judgment in Amanullah v. Mukhtar Ahmad Khokhar,( 1979 C L C 199), wherein Malik Rehmatullah v. Sh. Muhammad Amjad etc. (1982 C L C 827) was also referred. In these two cases the earlier view that writ jurisdiction would not be exercised in cases like the present one, was re-affirmed. The contrary view expressed by a learned Single Judge of the Lahore High Court in 1982 C L C 198 without even noticing the Division Bench judgments of the same Court and: the principle propounded in the case of Ibrahim, by this Court, is with respect, I) incorrect. Although the judgment of this Court in Muhammad Sharif .v. Muhammad Afzal Sohail (P L D 1982 S C 246), dealt with another aspect of the exercise of writ jurisdiction in rent matter; it no doubt highlighted two important questions ; namely, the misuse of this jurisdiction and the nature of the rent restriction laws requiring speedy disposal of cases. 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 any adverse final order was passed against him. That being so, this petition-must fail. Before closing this judgment it needs to be mentioned that the apprehension on the petitioner's side that the objection raised before the High Court if now raised before the Controller would not succeed because of the impugned judgment and that the same would be the result in the appeal, is not worth any serious consideration. However, firstly, it is the petitioner's own doing. He should be prepared to accept the results of his own act. There was no compulsion for him to file a constitutional petition. And secondly, he having agitated the matter in the higher forum and having obtained decision thereon, a lower forum cannot be expected either to overrule the higher forum or to decide the same question in a better way than the High Court. In any case, as held in a number of recent judgments by this Court including judgment dated 31-8-1982 in Civil Petition No. K-231 of 1982 the principle of res judicata would be applicable. With these observations, the petition is dismissed. s. A. H. Petition dismissed.