IRAYAT ULLAH Versus MUHAMMAD RASHID

The facts giving rise to the present petition are that respondent No. 1 had instituted a petition on 2‑7‑1986, seeking ejectment of the petitioner from the premises in question on the grounds of reconstruction, damage to the property, default, personal need and misuse; wherein petitioner filed a reply on 12‑7‑1986, inter alia, raising preliminary objections as to the jurisdiction of the learned Rent Controller on the ground that the property in question is a Soda Water Factory. The learned Rent Controller on 30‑7‑1986 framed the following issues:‑

(1) Whether the suit property is a Soda Water Factory and hence the Rent Tribunal has got no jurisdiction to try this petition?

(2) Whether the respondent is a defaulting tenant since month of July, 1985 to till now?

(3) Whether the petitioner requires the suit property in good faith for his personal use?

(4) Whether the respondent has misused the suit property and caused damage to its wall and roof?

(5) Whether the petitioner has not approached the Tribunal with clean hands?

(6) Whether the petitioner is estopped to bring this petition by his own words and conduct?

(7) Relief.

On the same date, separately, the learned Rent Controller also passed an order under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, requiring the petitioner to deposit monthly rent at the rate of Rs.400 p.m. before the 15th of each month pending decision of the ejectment petition; and the case was fixed for evidence of the parties on 10‑9‑1986; however, he declined to try preliminary issue, viz. issue No. 1, preceding the trial. The petitioner feeling aggrieved, by the same has instituted the present petition. This petition was admitted for regular hearing on 30‑9‑1986, and further proceedings before the learned Rent Controller were stayed vide order, dated 20‑10‑1986.

2. The learned counsel for the petitioner by placing reliance on 1982 C L C 2141 and 1987 S C M R 1788 has contended that the learned Rent Controller had no jurisdiction to try the case on merits without first having decided the question as to jurisdiction in view of the preliminary objection that has been raised in this regard by the petitioner.

3. On the other hand, contention of the learned counsel for the respondent No.l is that the petitioner is blowing hot and cold in the same breath viz. on the one hand, in his reply to the ejectment petition, he has raised preliminary objection that the learned Rent Controller has no jurisdiction while in the other paragraph, he himself conceded that he has been depositing rent of the suit premises in the Court after seeking permission of the learned Rent Controller. Secondly, that the impugned order is an interlocutory order, and not the final order, therefore, does not merit interference in this constitutional jurisdiction. In this regard, he has placed reliance on P L D 1983 SC 21 and 1983 C L C 998. It is further stated that two witnesses of respondent No. 1 have already been examined, to whom petitioner has cross‑examined at length and only two more witnesses, including respondent No. 1 are to be produced.

4. I have considered the contentions raised by the learned counsel for both the parties and have also examined the case‑law cited above. The facts in the case of Muhammad Akram v. Muhammad Zar and others 1987 S C M R 1788 were strikingly different than the present, because there the learned Rent Controller had passed the final order by striking of defence of the tenants for having failed to comply with the order passed under section 13(6) of the Punjab Urban Rent Restriction Ordinance, therefore, that judgment is distinguishable. The other case is by a learned Single Bench of this Court, with which I respectfully beg to differ for reaons to follow.

5. I am of the opinion that in generality of cases, constitutional jurisdiction should be sparingly exercised against interlocutory orders, for the reason that it delays the process of justice, particularly so in rent cases, where the intention of the legislature is that the matter should be concluded at the earliest; that is why the Punjab Urban Rent Restriction Ordinance, by virtue of section 15 contemplates' appeal only against final order, whereas second appeal though previously was competent, has been statutorily abolished; consequently, recourse to constitutional jurisdiction would tentamount to defeating the legislative intent. To fortify my view, reliance is placed on Abdur Rehman v. Haji Mir Ahmad Khan and another P L D 1983 S C 21.

There petitioner was sought to be evicted from a hotel by the landlord who questioned the maintainability of the petition on the ground that relationship of landlord and tenant did not exist between the parties because of an agreement and secondly that he had not defaulted in the payment of rent. The Rent Controller overruled the objection which was upheld upon challenge before the High Court. Ultimately, the matter came up before the Supreme Court in a Petition for Special Leave to Appeal and it was held that '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 on similar jurisditional nature...' This Court has time and again cautioned against piecemeal decision 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 SC 457. The fact that it was an appeal case will not make any difference in so far as the basic principle is concerned. It was further held that '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 ever any adverse final order was passed against him While dismissing the petition, their Lordships have discussed the following cases:

Ibrahim v. Muhammad Hussain P L D 1975 SC 457; Muhammad Saeed v. Mst. Saratul Fatima P L D 1978 Lah. 1459; M.A. Asghar's case PLD 1978 SC 185; Mrs. Feroze Aslam v. Muhammad Akhtar P L D 1978 Lah. 488; Khushi Muhammad v. Khadeja Hakeem P L D 1976 Lah. 99; Rashid Ahmad v. Soofi Muhammad Saleem P L D 1976 Lah. 1450; Amanullah v. Mukhtar ahmad Khokhar 1979 C L C 199; Malik Rehmatullah v. Sh. Muhammad Amjad etc. 1982 CLC 827; Punjab Province v. Akbar Hussain 1982 C L C 198 and Muhammad Sharif v. Muhammad Afzal Sohail P L D 1982 SC 246.

Further, a useful reference may also be made to the case of Syed Intesar Ali v. Ahmad Din Khan and another 1983 C L C 998 wherein it was held that 'if legal remedy by way of appeal is not available against interim order, such order cannot be permitted to be challenged by invoking the extraordinary constitutional jurisdiction of this Court'.

6. The facts of this case have peculiar feature of its own. The petitioner has himself invoked and availed of the jurisdiction of the learned Rent Controller for the deposit of rent. A separate issue as to preliminary objection has been framed being issue No. 1. Two witnesses have already been recorded as stated at the bar and only two more witnesses are required to be adduced including respondent', No.l (applicant). If the parties are to lead separate evidence on issue No.l, and thereafter, if the learned Rent Controller comes to' the conclusion that he has the jurisdiction then the same witnesses may be further required to go through the exercise all over again; that would not only delay the justice to the parties and would prolong', their agony but also would result in enormous wastage of public time.

7. For the reasons stated above, this petition is dismissed However, the parties are left to bear their own respective costs.

A . A . / I‑37 / L Petition dismissed