1999 PLP 3360 (MLD)

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

Ss. 13 & 15

Civil Procedure Code (V of 1908), O. VII, R.11 & S. 151-- Constitution of Pakistan (1973), Art. 199

Constitutional petition/appeal -- Maintainability

Tenant filed application under O.VII, R.11 & S. 151, 4C.P.C. for rejection of ejectment petition on ground of non-existence of relationship of landlord and tenant between the parties

Validity

No appeal or Constitutional petition was competent against any interlocutory order under West Pakistan Urban Rent Restriction Ordinance, 1959

Issue of relationship of landlord and tenant between the parties had already been framed

Petitioner could prove non -existence of such relationship before Rent Controller

Filing of such miscellaneous application tended to unnecessarily delay the proceedings

Rent Controller was to decide the issue of relationship of landlord and tenant at first instance. Ijaz Ahmad Awan for Petitioner. In this Constitutional petition, the petitioner challenges the orders, dated 18-11-1997 and 7-3-1998 of the learned Rent Controller, by which he dismissed the two applications, one under Order 7 Rule 11 of C.P.C. and other under section 151 of C.P.C. A petition for ejectment under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 had been filed by Safia Bano respondent No.2 herein, against the petitioner (Anwar Sultana Malik) on the ground of default in payment of rent and personal use. The petition is still pending. Issues have already been framed.

2. During pendency of, ejectment proceedings, the petitioner (respondent in the ejectment petition) filed an application under Order 7, Rule 11 of C.P.C. for rejection of the ejectment petition on the ground that during pendency of ejectment petition Safia Bano had gifted away the property in issue to her daughter Samia Bano Zain. The application was rejected by the learned Rent Controller on 18-11-1997 with the observation that the petitioner was admittedly a tenant that provisions of Order 7, Rule 11 of C.P.C. were neither attracted nor applicable. Later, application under section 151 of C.P.C. was filed with the similar allegation that respondent No.2 had no locus standi to pursue the ejectment petition as she had allegedly gifted out the property to Samia Bano Zain vide registered gift deed, dated 29-5-1997. The learned Rent Controller dismissed this application with the observation that issue had already been framed as to relationship of landlady and tenant and that petitioner would have an opportunity to evidence for showing that relationship has ceased to exist and also that without evidence, the controversy could not be resolved. He accordingly rejected the petition on 7-3-1998. These two orders are under challenge in this writ petition. .

3. From the provisions of section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, it is evident that no appeal is competent against any interlocutory order. The Constitutional petition is ordinarily not entertained against interlocutory orders as this recourse cannot be allowed to circumvent provisions of law. Issues having already been framed parties are yet to, lead evidence, therefore, there was hardly any justification for moving application for rejection of the ejectment petition or dismissal thereof on a plea which could be resolved by, evidence. Even otherwise, if during pendency of ejectment proceedings the property had been transferred, it would not affect the maintainability of the ejectment petition, as the assignee has the option either to pursue the ejectment petition, through the assignor or may get herself impleaded as a party. If the assignee feels secured by the prosecution of the case through assignor, then, there may not be any necessity for substitution of the assignee. Nevertheless, issue of relationship has already been framed, the petitioner will be at liberty to prove the non-existence of relationship of landlady and tenant between the parties. Filing of miscellaneous applications one after the other on the same subject, was hardly justified and tends to unnecessarily delay the proceedings.

4. Faced wit this situation, learned counsel for the petitioner submitted that a part from issue of relationship the learned Rent Controller has also framed other issues, though in law, he has to decide the issue of relationship, as a preliminary issue. He submitted that petitioner will be satisfied if learned Rent Controller is directed to decide the preliminary issue at the first instance.

5. The learned Rent Controller may consider this aspect of the matter and if finds necessary, may decide the issue of relationship of landlord and tenant at the first instance. With these observations, the writ petition being without merits is dismissed. Q.M.H./M.A.K./A-263/L Petition dismissed.