BEGUM MUMTAZ RIAZ Versus PAKISTAN

ORDER

1. ABDUL RAHIM KAZI, J. The petitioner has prayed for the declaration that the Rent Controller has no jurisdiction to proceed with the Rent Case No.57/1986 and has challenged the order of remand passed by the learned single Judge of this Court in F.R.A. No.747/1987. He has also sought declaration that he is not liable to be evicted from the premses in dispute on the basis of documents of conveyance entered into by the parties.

2. The brief facts of the case are that the present respondents 2 & 3 had filed the said rent case for ejectment against the present appellant on the grounds of default in payment of rent from January 1986 to September 1986. The default in payment of water charges and conservancy charges are also alleged and the. other grounds pertaining to raising of construction and carrying out the addition or alteration have also been taken. The appellant in his written‑statement denied the relationship of landlord and tenant and therefore, the Additional Rent Controller Clifton Cantonment Karachi, before whom the rent case was pending framed the preliminary issues to the said effect. The parties produced their evidence and consequently the learned Additional Rent Controller held that there was relationship of landlord and tenant between the parties but he further ordered the eviction of the appellant without taking into consideration the other points raised in the case. The present appellant filed the said F.R.A. No.747/1987 which was contested and Allah Dino G. Memon, J. passed an order of 16‑11‑1987 whereby the order of eviction was set aside and the case was remanded with the directions that the evidence on the point of default and other points be recorded and the matter be disposed of in accordance with law.

3. We have heard Mr. U . Naimat Moulvi learned counsel for the petitioner. He has argued that the Appellate Court had no power to remand the case in view of the amendment brought in the Cantonments Rent Restriction Act, 1963, by Ordinance promulgated in 1985 whereby section 24 of the Cantonments Rent Restriction Ordinance 1963 as existed originally has been substituted by the new section. It will be advantageous to reproduce here the same as it originally existed and the amended one:‑

24. Appeal.‑‑(1) The Central Government may, for the purposes of this Ordinance, by a general or special order, notifies! in the official Gazette, confer on a District Judge or an Additional District Judge, hereinafter referred to as appellate Court, the powers of an appellate Court, under the Code of Civil Procedure, 1908 in respect of a cantonment or cantonments as may be specified in the order.

(2) Any party aggrieved by an order passed by the Controller may, within fifteen days following the date of such order, prefer an appeal to the appellate Court.

(3) Subject to the provisions of this Act, an appeal under this section shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908 (Act V of 1908), and the provisions of Art.VII and Order XLI of the First Schedule to the said Code shall apply to such appeals:

4. Provided that the appellate. Court may, where it considers necessary, make further inquiry either personally or otherwise, before determining the appeal.

5. ( 4) The decision of the appellate Court shall be final.

(5) No order of the Controller except by an appeal under this section, and no order of the appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceeding.

6. Substituted section 24: ‑

24. Appeal.‑‑0) Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court.

(2) The High Court may, pending the final disposal of the. appeal, make an order staying further proceedings or action on the order of the Controller:

7. Provided that no such order shall be made if the appeal has been preferred from an order made under subsection (6) of section 17‑A.

(3) The High Court shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by itself or by the Controller as it may deem fit, make an appropriate order which shall be final.

(4) No order of the Controller except by an appeal under this section and no order of the Appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceedings).

8. Mr. U. Naimat Moulvi has argued that subsection (3) of the above section previously had provided that the learned Rent Controller could exercise all the powers as vested in appellate Court under section 96 and Order XLI, of Code of Civil Procedure, therefore, he could pass an order to remand the case also under Order XLI, Rules 23 to 25 whereas the substituted subsection (3) of section 24 shows that the said powers have been taken away and thus the appellate Court cannot remand the case under the Cantonments Rent Restriction Act. The plain reading of the above subsection (3) will show that the appellate Court is empowered to make such further inquiry either by itself or by the Controller as it may deem fit, make an appropriate order which shall be final . This obviously gives the power to the appellate Authority to have further inquiry made through learned Rent Controller and the impugned order in the present case shows that the learned fudge hearing the above-said appeal has remanded the case to the Rent Controller for taking the evidence, if any, on the points urged in the case. We, therefore, are not inclined to agree with the contention raised by the learned counsel for the petitioner.

9. Learned counsel for the petitioner has also relied on the case of Rehmatullah v. Ali Mohammad 1983 S C M R 1064 and the case of Mohammad Rashid v. A.D.J. Gujranwala 1983 C L C 739. These cases have been cited by the learned counsel to show that the learned Rent Controller could not pass any order of ejectment in view of the conveyance deed in favour of the appellant. The facts as stand show that the matter is pending before the Rent Controller who has yet to pass the final order. Not only this but the above plea taken by the learned counsel involved appreciation of facts and determination of genuineness of documents which is to be done before the Rent Controller or in the Civil Suit which the appellant claims is pending on the original side before this Court. We, in the exercise of the constitutional jurisdiction would not enter into the said question at this stage. We, therefore, uphold the order passed on 16‑11‑1987 and further hold that the Additional Controller of Rents, Clifton Cantonment Karachi has jurisdiction to hear and proceed with the said rent case in accordance with law.

10. In view of the above this petition is dismissed in limine.

11. These are the reasons for the order passed by us on 28‑11‑1988.

12. H . B . T . /M‑600/ K Petition dismissed.