1984 PLP 579 (MLD)

ABDUL HAYEE KURESHI, C, J.--The petitioner has challenged the orders of the learned Rent Controller, Karachi passed on 17th August, 1980 and 14-3-1981, by filing this petition under Article 9 of the Provisional Constitution Order, 1981. The brief facts are as follows:- (1) The petitioner claims that he is a tenant in respect of premises bearing No. 209, Hyderabad Colony, Karachi at the rent of Rs.40 per month since June, 1960. According to him one Abdul Malik Saeed is the landlord to whom he used to pay the rent and that the respondent No.2, never served him with notice under section 13-A of Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance of 1959). A case for ejectment however, was filed by the respondent No.2 against him on 21-2-1975 in the Court of the Rent Controller at Karachi under section 13 of the Ordinance of 1959. The petitioner flied his written statement wherein, inter alia, he challenged the maintainability of the application, on the ground of want of relation ship of landlord and tenant between the parties.

2. The Rent Controller on the pleadings of the parties framed the following preliminary issue and directed the parties to lead evidence on the said issue and file their documents if any within 7 days. "Whether there is relationship of landlord and tenant between the parties, if not its effect?" The evidence of the respondent No.2 was recorded on 20-11-1975, when he orally requested for time to produce certain documents. The learned Rent Controller however, disallowed the request so made.

3. On the next day i.e. 21-11-1975, the respondent No. 2 moved an application praying permission to produce certain documents which the learned Rent Controller disallowed by order passed on 21-1-1979. Thereafter from time to time the case was adjourned for further evidence. On 22-7-1979, the applicant and his Advocate, were absent accordingly their side on preliminary issue was closed. On 24-7-1979 an application was moved on behalf of the applicant for re-opening of the case but the said application was rejected by order passed on 3-2-1980.

4. In the meantime on 22-11-1979 the Ordinance, of 1959 was repealed and Sind Rented Premises Ordinance, 1979 hereinafter referred to as S.R.P Ordinance 1979 was promulgated.

5. On 20-5-1980 the respondent No.2 moved an application praying therein to fix the entire case for evidence by affidavits of the applicant (landlord). It was submitted in that application before the Controller that in view of the Sind Rented Premises Ordinance, 1979, the preliminary issue had to be decided alongwith the main case. He also prayed that the tenant (petitioner) be directed to deposit rent under section 16(1) of S.R.P. Ordinance, 1979. The learned Rent Controller on the aforesaid application by order passed on 17-8-1980 passed by the following order:

"Heard learned counsel for the parties and perused the affidavit and objection. In the case preliminary issue was framed but the same has not been decided and the evidence was led by the applicant. The law has been changed and whole case will be decided. This application is allowed with no order as to cost. The applicant is directed to file affidavit in evidence. The case is old one and so many dates, five years lapsed, put up to 31-8-1980 for affidavit." No order for deposit of rent was passed against the petitioner. The respondent No. 2 accordingly filed affidavits of his witnesses and produced his documents with his affidavit. The petitioner however, filed an application objecting to the production of documents. The learned Rent Controller rejected this application by order passed on 14-3-1981 which reads as follows:

"This order will dispose of an application under section 151, C . P . C . , dated 3-3-1981 filed on behalf of Opponent. I have heard the learned Advocates for the parties. By order, dated 12-9-1980, the applicant has been permitted to file affidavit on entire case. Naturally all the documents which he will rely will be filed alongwith the affidavit of the applicant. The applicant cannot be prevented from filing the documents which he relies in evidence when he has been permitted to file the affidavit on entire case. Under the circumstances, I dismiss the application under section 151, C . P. C . filed on behalf of the opponent."

6. The petitioner being aggrieved by the aforesaid order has presented this petition and has challenged the orders, dated 17-8-1980 and 14-3-1981 passed by the Rent Controller in the aforesaid ejectment proceedings.

7. The contention of the learned counsel is that since relationship of landlord and tenant between the parties was in dispute and the preliminary issue had already been framed and evidence of respondent No.2 who claimed to be the landlord had been closed the Rent Controller acted without lawful authority in passing the impugned orders, dated 17-8-1980 and 14-3-1981 and thereby indirectly allowing the respondent No. 2 to produce documents and lead evidence on all the issues including the preliminary issue. According to the learned counsel the evidence of the petitioner on preliminary issue had already been closed, and could not be allowed to be re-opened by the learned Rent Controller. We have considered the above arguments of the learned counsel for the petitioner and are of the opinion that the impugned orders, dated 17-8-1980 and 14-3-1981 cannot be challenged or impugned under Article 9 of the Provisional Constitution Order, 1981 by invoking the extraordinary jurisdiction of this Court. It would be seen that the procedure under the Sind Rented Premises Ordinance, 1979 is to be followed by the Rent Controller as provided under section 19 and that by virtue of subsection (5) of section 19 thereof it is provided that:- "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." In view of the procedure thus prescribed the learned Rent Controller, passed the impugned orders in the case, which was still pending before him. The learned counsel for the petitioner however, contended that since the evidence of the petitioner was already closed on preliminary issue, the Rent Controller ought to have decided the preliminary issue in the first instance. We are however, not impressed by this argument. It is laid down in the case of Ayub Khan v. Fazle Haq P L D 1976 S C 422 that it is within the Controller's exclusive jurisdiction to adopt such procedure as to do justice between the parties. As to the discretion of the Rent Controller in the matter of procedure the Honourable Supreme Court in the same case observed as follows:- "And further even if the Rent Controller's order be erroneous it would be an erroneous exercise of the discretion vested in him under the Ordinance, but an erroneous order is not an ultra vires order."

8. The case of Muhammad Hassan Khan v. Muhammad Azam Khan 1979 S C M R 617 may also be referred here wherein the Honourable Supreme Court while dealing with a case arising out of ejectment proceedings under the Rent Restriction Laws, held as follows:

"The High Court also seems to have correctly taken the view that the order, dated 12-7-1978 passed by the executing Court should not be made a subject-matter of challenge in the exercise of writ jurisdiction. It is evident that the executing Court has the jurisdiction to dispose of the objection filed before it by the petitioner and consequently it could pass legal as well illegal order which could not be questioned in the exercise of consti tutional jurisdiction of the High Court." The impugned orders are interim orders in nature. Even if the learned Rent Controller committed any error in deciding to proceed with the whole case instead of deciding preliminary issue in the first instance, as contended by the learned counsel, such interim orders cannot be questioned in the High Court in the exercise of its constitu tional jurisdiction. It would however, be open to the petitioner to challenge these impugned orders in appeal under section 21 of the Sind Rented Premises Ordinance, 1979 in case final order passed, goes against him and the appellate Court alone would have the jurisdiction to decide the propriety or otherwise of the said orders. This conclusion finds support from Kandawala's case reported in 1969 S C M R

720. As a result of the above discussion, we do not find any reason to interfere with the impugned orders in this petition. It would bet open to the petitioner to raise these objections in appeal against final order under the relevant law. The petition is accordingly dismissed in limine. M . Y . H . Petition dismissed