Order Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No. S – 908 of 2019
Petitioner : Zahid Khan, through
Mr. Muhammad Arif Sheikh Advocate.
Respondent No.1 : Mst. Razia Khatoon, through
Mr. Muhammad Mushtaq Qadri Advocate.
Respondent No.2 : Xth Rent Controller Karachi Central.
Date of hearing : 05.09.2019.
O R D E R
NADEEM AKHTAR, J. – This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by the petitioner against order dated 02.07.2019 passed by learned Xth Rent Controller Karachi Central in the respondent No.1’s Rent Case No.73/2019. Through the impugned order, the application filed by respondent No.1 / landlady under Section 16(1) of the Sindh Rented Premises Ordinance, 1979, (‘the Ordinance’) was allowed by the learned Rent Controller by directing the petitioner to deposit arrears of monthly rent in respect of the demised premises for the period October 2013 till June 2019 within thirty days, and also to deposit future monthly rent on or before the tenth day of each calendar month.
2. Learned counsel for the petitioner was asked to assist the Court as to how this present petition, which has been filed against an interim order, is maintainable. He submits that the impugned order is illegal and without jurisdiction, and since it is not appealable, the petitioner does not have any other remedy except for invoking the constitutional jurisdiction of this Court. He has based his above contention mainly on two grounds. The first ground is that the learned Rent Controller had no power to give direction to the petitioner to deposit arrears of rent for a period exceeding three years, and as such the impugned order is without jurisdiction. The other ground urged by him is that as the petitioner had disputed the relationship of landlord and tenant between the parties, the learned Rent Controller ought to have decided the said issue first ; however, instead of doing so, impugned tentative rent order was passed by the learned Rent Controller, which is illegal and not sustainable on this ground. In support of his above contentions, learned counsel has placed reliance upon Noor Hussain V/S Pakistan Steel, 1990 CLC 804, and Abdul Hameed and others V/S Haji Muhammad Javed, 1999 MLD 3031.
3. It is well-settled that time barred rent / debt can neither be claimed nor can it be granted. In Noor Hussain (supra) cited and relied upon by learned counsel for the petitioner, it was held by a learned Division Bench of this Court as under :
“The only point on which we are inclined to exercise Constitutional jurisdiction is that in view of the clear pronouncement by the Hon’ble Supreme Court and this Court that a Rent Controller is not competent to order the deposit of time-barred rent, the Rent Controller could not have passed the impugned orders and, therefore, patently they are without jurisdiction or in excess of jurisdiction. If we were to decline to exercise Constitutional jurisdiction in spite of the above clear legal position it will in fact put the parties to inconvenience that they had to go through the order of trial and thereafter to file an appeal after the passing of the ejectment. We are inclined to hold that Constitutional jurisdiction generally cannot be pressed into service where the dispute relates to the question of rate of rent or the period of the arrears of rent if it is within the limitation period or even the question of relationship as these are disputed questions of facts, but where the question is purely legal and that question is already settled by the superior Courts, in our view writ jurisdiction can be pressed into service.”
4. In the instant case, the eviction application was filed by respondent No.1 in February 2019, but the petitioner has been directed by the learned Rent Controller to deposit arrears of monthly rent for the period October 2013 till June 2019 within thirty days, and also to deposit future monthly rent on or before the tenth day of each calendar month. In view of the well-settled legal position, learned counsel for the petitioner is correct in saying that the Rent Controller had no power to direct the petitioner to deposit arrears of monthly rent for a period exceeding three years. As the impugned order is without jurisdiction to this extent, the same is liable to be declared as such and this petition is maintainable only to such extent.
5. Regarding the other ground urged on behalf of the petitioner that the relationship of landlord and tenant between the parties, which was disputed by the petitioner, ought to have been decided by the learned Rent Controller before passing the impugned rent order, perusal of the impugned order shows that this objection / dispute raised by the petitioner has been properly dealt with therein by the learned Rent Controller. It was observed by the learned Rent Controller that execution of the rent agreements filed and relied upon by respondent No.1 / applicant / landlady had not been denied by the petitioner ; the said agreements were executed by the respondent No.1’s attorney and the petitioner ; in paragraph 2 of his written statement, the petitioner had admitted that demised premises were acquired by him from the late father of respondent No.1 ; and, nothing was brought on record by the petitioner to show that respondent No.1 was not the landlady of the demised premises. In view of the above admitted position, it was held by the learned Rent Controller by relying upon Ahsan Asad V/S Mrs. Rubina Naeem, 2016 MLD 86, that it is settled law that while passing tentative rent order he was required only to make a summary inquiry. In view of the above finding and also by observing that the documents available on record were sufficient to support the respondent No.1’s claim and the petitioner had not placed anything on record to show payment of rent for the disputed period, the application filed by respondent No.1 under Section 16(1) of the Ordinance was allowed by the learned Rent Controller through the impugned order.
6. In addition to the above admitted position noticed by the learned Rent Controller, it may be noted that the case set up by the petitioner in his written statement was that he was the tenant of the late father of respondent No.1, and the amount incurred by him in constructing additional two floors on the demised premises was liable to be adjusted by the deceased landlord towards future rent. Thus, it was also an admitted position that respondent No.1 is the legal heir of the deceased landlord from whom the demised premises were acquired by the petitioner on rent. It was not the case of the petitioner that respondent No.1 is not the legal heir of the deceased landlord, or that he had paid rent for the disputed period. In the above circumstances, I am of the considered view that learned Rent Controller was fully justified in passing the impugned tentative rent order in view of Mst. Zarina Khan V/S Mst. Farzana Shoaib, 2017 SCMR 330, wherein it was held by the Hon’ble Supreme Court that it is not a rule of thumb that wherever a person inducted in the rented premises subsequently denies his status as tenant, the Rent Controller is bound to first frame point for determination / issue to this effect and decide it before passing a rent order, as such order will be tentative in nature and subject to final adjudication.
7. Section 21 of the Ordinance specifically bars appeals against interim orders and this restriction has been imposed by the law makers clearly with a view to avoid piecemeal decision in cases and to ensure expeditious disposal of rent proceedings under the Ordinance. If parties to a rent case are allowed to invoke constitutional jurisdiction of this Court where appeal is specifically barred, such practice would negate the very purpose of the statute and render the provisions thereof meaningless. It is well-settled that an interim order passed in rent proceedings under the Ordinance cannot be called in question under the constitutional jurisdiction of this Court unless such order is without jurisdiction or in excess of jurisdiction. As the impugned interim order is without jurisdiction to the extent of the direction given to the petitioner to deposit arrears of rent beyond the period of three years, the same is liable to be declared as such and this petition is maintainable only to such extent. The petition is not maintainable against remaining part of the impugned interim order for the reasons stated above.
8. In view of the above discussion, the impugned order is modified only to the extent that the petitioner shall deposit arrears of monthly rent with effect from February 2016 within thirty (30) days from the date hereof at the rate mentioned in the impugned order. It is clarified that rest of the directions contained in the impugned order shall remain unchanged and in case of non-compliance thereof and/or this order, the learned Rent Controller shall be at liberty to proceed in accordance with law. The petition and listed application stand disposed of in the above terms with no order as to costs.
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J U D G E