ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI  

Const. Petition No.S – 1250 of 2016

 

DATE       ORDER WITH SIGNATURE OF JUDGE

 

1.              For hearingof main case.

2.              For hearing of CMA No.5460/2016.

 

Petitioner:                    Dawood Baloch through Mr.      Muhammad Saleem Advocate.

 

Respondent No.1       None present for respondent No.1

 

Respondent No.2       Moosa Habib through Mr. Samsam Ali                                    Khan Raza Advocate

 

Date of hearing:                                                                       23.11.2016.

 

Date of decision           23.12.2016.

 

 

O R D E R

 

           

MUHAMMAD SALEEM JESSAR, J: - Through instant petition the petitioner (tenant) has assailed the order dated 28.12.2015 and 20.06.2016 passed by learned Controller of Rents Clifton Cantonment Karachi (hereinafter to be referred as the Contoller of Rents) in Rent Case No.32/2013 re “Moosa Habib (respondent No.2) Vs. Dawood Baloch (the petitioner) whereby learned Controller of Rents has declined his respective application(s), moved u/s 151 CPC and review application U/o 47 rule 1 CPC.

 

2.         Per case of petitioner, the petitioner entered into rent agreement dated 20.01.2012 with respondent No.1(son of the respondent No.2) for the property/premises bearing Flat No.-B 1st Floor, Building No.1-C, Zamzama Commercial Lane No.3, D.H.A. Karachi (hereinafter to be referred as rented primises). Photostat copy of tenancy agreement dated 20.01.2012 executed by the petitioner and the respondent No.1 through respondent No.2 as Annexure “A” available at page 19 of the petition. The said agreement was executed for 11 months commenced from 25.01.2012 to 30.11.2012 at the rate of Rs.35000/- per month and shall be increased at 10% on prevailing rent and the rent agreement will be renewed with mutual consent of either party. As per terms and conditions of the agreement, the tenant shall pay Rs.3,15,000/- (Three Lac, fifteen thousands) to the owner/landlord at the time of siginig Tenancy Agreement out of which Rs.2 ,10,000/- would be the advance rent for six months and Rs.1,05,000/ shall be the three months advance rent as security deposit which was refundable at the time of vacating the premises after deducting of all outstanding dues.

 

3.         The petitioner after occupying the rented premises paid rent to the landlord/ respondent No.2 upto June, 2012 and thereafter the cheques, issued by the petitioner /tenant, were bounced. The five cheques dated 20.07.2012, 20.08.2012, 20.09.2012, 20.10.2012, 20.11.2012, issued by the petitioner stood bounced and therefore, respondent No.2 issued legal notices to the petitioner on 22.11.2012 and 20.03.2013 asking the petitioner to vacate the rented premises but the petitioner flately refused.  The rent agreement executed by the petitioner and respondent No.2 had also expired on 19.12.2012 but the same had not been renewed nor the petitioner has vacated the premises.

4.         Facing the above situation, the respondent No.2 had filed Rent Case No.32/2013 before Controller of Rents, U/s 17 of the Cantonment Rent Restriction Act, 1963 seeking vacation of the rented premises on two grounds i.e. default in payment of rent and personal bonafide use with following prayers;

a) It is respectfully prayed on behalf on behalf of the above named applicant that this Honourable Court (Controller) may kindly be pleased to pass the ejectment order against the opponent (petitioner), his agent or any other person claiming or in occupation on his behalf to vacate and deliver the vacant and peaceful possession of Flat No.B 1st Floor, Building No.16-C Zamzama Commercial Lane  No.3 , D.H.A. Karachi to the applicant with costs.

 

 

5.         The record further reflects that after admission of the application, notices were issued to the opponent/petitioner who however instead of filing objectons filed F.C. Suit No.915/2013 before the court of 1st Senior Civil Judge, Karachi (South) for specific performance of contract against respondent No.1 (who is son of the respondent No.2 and is not owner of the retned premises) with reference to some sale agreement but in such civil suit the petitioner / opponent has not arrayed the respondent No.2 as one of the parties who (respondent no.2) otherwise is landlord and owner of the rented premises. The petitioner / opponent in such civil suit inter alia prayed as under:-

a)     To declare that the plaintiff having bona-fide purchaser of the suit property viz. Flat No.B,1st Floor, Building 16-C, Zam Zama Commerical Line No.5, DHA, Karachi, admeasuring 1200 Sq. Yds from the defendant under the sale agreement dated 28.02.2013;

b)     To direct the defendant to execute sale deed in favour of the plaintiff after receiving the balance sale consideration failure which the nazir of this Hon’ble Court direct to execute the sale deed in favour of the plaintiff;

c)     Pass the restraining order whereby direct the defendant to not dispossess the plaintiff from the suit property without due course of law;

d)     Cost of the suit;

e)     Any other relief and relieves, which this Hon’ble Court may deemed fit and proper in the circumstances of the case.

 

 

6.         Since prima facie the respondent No.2 is not made as one of the parties in the civil Suit No.915/2013 but only respondent No.1 was made party who was/is out of country. The Court of Senior Civil Judge, on non-appearance of respondent no.1 despite issuance of process, treated him ( respondent No.1) as exparte and passed permanent statusquo order vide order dated 07.05.2014.  The learned Civil Court without applying its judicious mind directed the respondent No.1 (in his absence) not to create third party interest.

 

7.         The petitioner, having obtained statusquo order, filed an application U/s 151 CPC before the Controller of Rents praying therein that rent proceedings be stopped as the petitioner had filed civil suit No.915/2013 before learned 1st Senior Civil Judge Karachi South against the rented premises; as after execution of alleged sale agreement by respondent No.1, the relationship between petitioner and respondent No.1 as that of ‘tenant’ had seized. The said application was however declained by Controller of Rents in terms of impugned order dated 28.12.2015. Later instead of challenging the said order, the petitioner moved review application U/o 47 rule 1 CPC before the Rent Controller which too was dismissed by second impugned order dated 20.06.2016. Hence this petition.

 

8.         Since no notice was issued to respondents yet the respondent No.2 put himself in appearance through his counsel on 24.10.2016 and sought time to file parawise comments/ objections in rebuttal of the petition. Consequently the matter was fixed before the court on 23.11.2016 as to the maintainability of the petition.

9.         The counsel for the petitioner has mainly argued that after execution of tenancy agreemen, the respondent No.1 had sold out the rented premises to the petitioner in the sum of Rs.80,00,000/- (Eighty Lacs only) by executing Sale Agreement dated on 28.02.2013 his (petitioner’s) status stood changed from ‘tenant’ to ‘bonafide purchaser’ particularly with reference to second condition /para of the sale agreement hence rent proceedings were illegal nor he (petitioner) can be ejected through such proceedings.

10.       On the other hand, counsel for respondent No.2 argued that the petitioner has not come with clean hands as he, being defaulter, has no right to retain the demised premises. Per his contention, the rent proeedings cannot be stopped  and the statusquo obtained by the petitioner is also an exparte order as the petitioner willfully and intentionally has not made the respondent No.2 as a party, who in fact is real owner and landlord of the property in dispute but has made the respondent No.1 as defendant in the suit, who is neither owner nor was competent to sell out the rented premises as property mutated in the name of respondent No.2. He further submitted that the learned Controller of Rents has directed the petitioner /tenant/ opponent in rented proceedings in terms of his order dated 23.10.2016 that petitioner should deposit Rs.15,40,000/- being rent amount at the rate of Rs.35,000/- per month from March 2013 to October, 2016 upto 21.11.2016. He further contended that Cantonment Rent Restriction Act, 1963 is an special law therefore, application u/s 151 CPC, being not maintainable, was rightly rejected by the Controller of Rents. He finally submitted that petition being frivolous may be dismissed with throughout costs.

11.       I have heard the arguments of either party.

12.       Before examining the respective contentions of the learned counsel and the impugned order(s) in this constitutional petition, I would like to examine the question of its maintainability against the findings of the Controller of Rents whereby the application u/s 151 CPC r/w order 47 rule 1 CPC, filed by the petitoioner, have been dismissed on the ground that the relationship as tenant and landlord has been admitted by the petitioner in para 5 of his written statement, therefore, I have framed following proposition (s):-

        i.            Whether petition in hand is maintainable against the interlocutory/interim order passed by Controller of Rent?

     ii.            Whether provision of Section 151 CPC is applicable in Rent Laws?

   iii.            Whether judicial proceedings, pending before Rent Controller, can be stayed on the basis of interluctory order passed u/o 39 rule 1& 2 CPC by a Civil Court?

To respond the first provision, it will be essential to refer relevant provisons of Cantonment Rent Restriction Act, 1963. Section 5 thereof reads as under:-

“5. Act to override other laws:- The provisions of this Act and any rule or order made thereunder shall have effet notwithstanding any thing iconsistent therewith contained in any other law for the time being in force, or any instrument or document.

 

The above provision is clear in its language whereby the Act has been given over-riding effect upon any thing inconsistent ‘in any other law for the time being in force’ , therefore, it should need no much debate that proceedings under this Act shall require to be given due meaning and weight without much making any scholar attempt upon ‘words’. A reference to case of Mumtaz Hussain v. Nasir Khan (2010 SCMR 1254) can well be made wherein it is held that:

“9. Legislature intents can always be gathered either from the express language of the statute or by necessary implications. If the words of the Statute are themselves clear and unambiguous , no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature.

 

10. It is cardinal rule of interpretation that objects made Reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of the Statute by its ordinary language is obscure or ambiguous. But if the words used in a statue are clear and unambiguous then the Statute itself declares the intention of the Legislature and in such a case it would not be permissible for a Court to interpret the statute by examining the object and reasons for the Statute question.

 

Thus, it can safely concluded that whenever a question with regard to the Act comes or is raised first thing shall be to refer the Act itself to see whether the Act itself provides an answer to such question or otherwise.

Since, first proposition revolves with regard to competency of Constitutional Jurisdiction of this Court against an interlocutory order therefore, it would be appropriate to first go through the Act itself as to what it (Act) provides for ‘interlocutory order’ . A touch to the Act in search of above, took me to Section 24 of the Act which reads as:

“24. Appeal.- (1) 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:

Provided that no such order shall be made if the appal has been preferred from an order made under sub-section (6) of section 17A.

(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.

 

From above, it is quite evident that the Act has provided remedy of an appeal against an order of Controller but it does not include ‘an interim order’ which (interim) is normally passed on interlocutory application (s). The subsection-4 of Section-24 of the Act further makes it clear that ‘no order of Controller or appellate Court shall be called in question in any Court by suit,  appeal other legal proceedings.  I have no hesitation in saying that a constitutional petition will stand included in term ‘legal proceedings’ hence I shall answer the proposition-1 as ‘negative’ while placing reliance on the case of Iqbal Ahmed Vs. Muhammad Nasir & another (2016 MLD 624 (Sindh)) too, whereby the Bench of this court had dismissed the petition treating it as not maintainable. The relevant para 8 from the case of Iqbal Ahmed (supra) reads as under:-

“A perusal of the above provisons of law clearly indicates that the legislature has specifically prohibited filing of an appeal against interim order. Thus, I am of the view that the legislature did not intend to make the interim order challengeable. Interim order is to merge in the final verdict which shall be appealable and going against that arrangement by exercising writ jurisdiction would not be proper because in that case the object of legislature shall be frustrated. This dictum is laid down in the case of Mrs. Syeda Tahira Mubashar (supra) and Abdul Farooq and another v. Maqsood Ahmed and another, reported as 2015 CLC 663.

    

13.       Now, I would take up the second proposition. Before saying any thing further I without having any hesitation will say that departure from normal procedure shall always be permitted only if it is required to ‘meet ends of justice’ or to ‘prevent abuse of the process of the Court’ even if it is not provided in procedural law because the procedural law is always meant to ‘meet ends of justice’ . However, since proposition is with specific reference to Section 151 CPC therefore, I, without any prejudice to above, would say that since the Act does provide procedure to control proceedings hence the Section 151 CPC shall have no applicability in proceedings, being conducted under this Act particularly when per settled law ‘special law excludes application of general law in the contest in which the former provision has been enacted. Reliance is placed on the case law, reported as 2012 SCMR 669.

14.       While attending the proposition-3 , it woule be relevant and proper to have a direct reference to section 56 of Specific Relief Act, 1877, having direct nexus with the proposition under discussion. Same reads as under;-

“56. Injunction when refused.__ An injunction cannot be granted:

a)     to stay a judicial proceeding pending at the institution of the suit which the injunction is sought, unless such restraint is necessary to prevent a multiplitity of proceedings;

b)     to stay proceedings in a Court not subordinate to that from which the injunction is sought;

c)     to restraint persons from applying to any legislative body;

d)     ..

e)      ..

f)       …

g)      …

h)     ….

i)        …

j)        …

k)      …

From reading of the above, it is quite obvious that proviso is not permitting one but has been worded thereby restricting the courts from staying a judicial proceeding. However, since Administration of justice shall fail if one is allowed to abuse process of law therefore, an injunction can well be granted by Court thereby ‘staying a judicial proceeding, pending at the institution of the suit, but only if two condition (s) co-exists i.e :

i)such restrain is necessary to ‘prevent a multiplicity of proceedings’;

ii) and the proceeding, pending at institution of such suit, must before a subordinate forum;

 

In short, such stay should not be to prejudice lawful proceedings pending before a lawful forum but must be with an object to ‘prevent multiplicity of proceedings’ . Further, the forum where proceedings are pending must be ‘subordinate’ to the Court granting such stay.

14.       Now, on said touch-stone I would proceed to answer the proposition. Since, there can be no denial to the legal position (s) that ‘rent proceedings before a Controller’ is  an independent proceedings which are controlled by the Special Law while the proceedings before a Civil Court is altogether different from that (rent proceedings)  hence filing of the ‘Civil Suit’ before or after rent proceedings shall not prejudice competence of such independent legal ‘forums’. Further, the ‘Rent Controller’ , in law, is not subordinate to a Civil Court hence the Civil Court legally cannot pass an order of staying the judicial proceedings pending before the Rent Controller. The proposition is answred in negation. 

Having answered the proposition, I would say that the present petitioner in civil suit had sought an injunction thereby seeking a restraining order to the effect that  :

‘.. direct the defendant (respondent no.1) to not dispossess the plaintiff from the suit property without due course of law’

 

which even was referred in the impugned order which for ease and clarity is reproduced hereunder:-

“By this order I will dispose of application under Order 39 Rules 1 & 2 read with Section 151 CPC alongwith affidavit filed by the advocate for the plaintiff on 3-10-2013 it was noticed by the link juge on the same date. The plaintiff requsted for interim relief against the defendant from disturbing the peaceful possession of the plaintiff over the suit proerpty and not to create third party interest except in due process of law till final disposal of the main suit.

 

To this the defendant failed to file the counter affidavit and he was debarred from filing the same on 19.3.2014 since then the plaintiff has argued his application several time but the defendant has failed to appear to argue the same. Since the suit is for specific performance of contract. Therefore the applicaton of the plaintiff is hereby allowed. The defendant is directed to not to create third party interest in the suit property till pending disposal of the suit.

 

Order accordingly.

                                                            Sd/ Dr. Shahbana Waheed

                                                1st Senior Civil Judge Karachi South

                                                                        07.05.2014.

15.       Thus, it is evident that even the petitioner himself never sought an injunction to prejudice his lawful eviction. Since, the rent proceedings  before the Controller for eviction of the petitioner cannot be said to be  ‘without due course of law or illegal’ hence even such stay was never of any help for the petitioner to seek stay of proceedings. Not only, this but it is also a matter of record that the petitioner never bothered to bring the true fact (s) before the Civil Court that he is seeking injunction for a purpose to defeat or delay a ‘specific lawful proceedings’ pending before a ‘lawful forum’ hence on this count too the petitioner cannot use or exploit the injunction order for the purpose which was never brought to light while seeking injunction. Further, the property in question is in name of the respondent no.2 while the civil suit was filed against the respondent no.1 (son of respondent no.2) hence in law an injunction obtained against a person cannot be used or exploited against an independent person particularly he (independent person) is not directly or indirectly claims under such person against whom injunction is obtained. On this count too the request of the petitioner, made before Controller, was not competent. Since, I am quite conscious that any comments on status of sale agreement may prejudice the pending proceedings, therefore, I deliberately avoid to make any comments onto competence of subsequent sale agreement from an incompetent person i.e respondent No.1 as the property in dispute is mutated in the name of his father viz. the respondent No.2.

Even otherwise, if the petitioner has a case, as alleged by him in the petition, even then he is required to pay entire default amount on account of rent to the landlord or may deposit the same before the Controller of Rents and question of title in terms of alleged sale agreement for specific performance of contract, he has to resort the same separately without exerting any pressure upon the Controller of Rents. This issue has been defined by the Honourable Supreme Court of Pakistan in case of Muhammad Nisar Vs. Izhar Ahmed Shaikh & others reported as PLD 2014 SC 347. The relevant concluding para 6 of said Judgment is as under:-

6. It would be seen that in the affidavit in evidence filed by the appellant before the learned Rent Controller, the father of the appellant viz. Nabi Bux was stated to be the tenant of the father of respondent No.1. In para 8 therefore it has been particularly averred that after the demise of Nabi bux the premises were in the possession of his family members other than the appellant when it was purchased by him. In our opinion such averment cannot displace the law itself since per section 2(j) of the Sindh Rented Premises Ordinance, 1979 each legal heir of the tenant after his demise becomes a tenant and consequently the learned lower forums below have correctly held that there was a relationship of landlord and tenant between the parties. Per settled law in such circumstances when the tenant puts up a plea in an ejectment application that he had purchased the property then he has to file a suit for his remedies (which has already been done) and vacate the premises and thereafter if he succeeds he would be entitled to take possession of the premises again. In this regard reference can be made to the cases cited at the bar by the learned Advocate Supreme Court appearing for the respondents.(Shamim Akhter Vs. Muhammad Rashid PLD 1989 SC 575, Mst. Azeeman Nisar Begum Vs. Mst. Rabia Bibi PLD 1991 SC 242, Muhammad Rafique Vs. Messers Habib Bank Ltd 1994 SCMR 1012 and Mst. Bore Bibi Vs. Abdul Qadir 1996 SCMR 877)

 

 

In view of above legal position as well as citations (supra), instant petition is not maintainable which accordingly is dismissed in limine. The learned Controller of Rents is directed to decide the rent case in terms of section 17 of the Act, 1963 within a period of two months. Perusal of impugned order shows that the petitioner/ opponent / tenant has filed his written statement therefore, if the trial court has not passed any appropriate order in terms of section 17(8) of the Act, 1963 then shall pass such an order within a week but as strictly as per law.

 

JUDGE                     

 

A.K