Imran Khalid S/o Muhammad Khalid (Petitioner) VS Mst. Munazza Rizvi and Another (Respondent)

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C. P. NO. S-341 / 2023

Date Order with signature of Judge

HEARING / PRIORITY

1)For orders on CMA No. 2740/2023.

2)For hearing of main case.

M/s Muhammad Daud Narejo & Muhammad Sharif Dars, Advocates for Petitioner.

Ms. Naushaba Haque Solangi, Assistant Advocate General. Mr. Haider Bakhsh, Advocate for Respondent.

Through this Petition, the Petitioner has impugned order dated 09.03.2023 passed by the Rent Controller, Malir Karachi, whereby, the application filed by Respondent No. 1 under Section 16(1) of the Sindh Rented Premises Ordinance, 1979 (“Ordinance”) has been allowed. On 18.5.2023, an order to maintain status quo was obtained by the Petitioner.

Today, at the very outset, the Petitioner’s Counsel has been confronted as to maintainability of this Petition against an interlocutory / tentative rent order under Section 16(1) Ordinance and in response, he, by placing reliance on certain reported cases 1 has contended that the relationship of landlord and tenant was denied; hence, no such order could have been passed.

I have heard the Petitioner’s Counsel on merits as well the very maintainability of this Petition and have perused the record.

Insofar as the order in question is concerned, it cannot be disputed that such order under Section 16(1) of the Ordinance can be 1 Qudratullah Raisani and another Vs. Abdullah (2023 M L D 121) and Ghulam Rasool Vs. Mian Khurshid Ahmed (2000 S C M R 632).

passed by the Rent Controller by making a tentative assessment of the proceedings before him. Per settled law, while passing a tentative rent order, the Rent Controller was not required to hold a full-fledged enquiry and can always pass such an order after taking into consideration the versions of the parties2. In the instant matter, the learned Rent Controller has come to the conclusion that there is an agreement between the parties, whereas, periodical payment of rent and utility bills has been made duly supported from perusal of the Bank Statement which prima facie establishes a relationship of landlord and tenant. In view of such position, a mere assertion of the Petitioner to the contrary, by denying relationship on one pretext or the other; including that the property in question was purchased by the uncle of the Petitioner from Petitioner No. 1 who has then put him into possession is immaterial as time and again, it has been held by this Court as well as the Hon’ble Supreme Court that the order passed under Section 16(1) has to be complied with, whereas, in case of failure, the right of defence can be struck of under Section 16(2) ibid. Mere institution of civil suits, per se, would not be sufficient to refuse compliance of an order of the Rent Controller under section 16(1) of the Ordinance pending final determination3. No exception to such settled principle of law has been made out.

It may also be noted that the impugned order only requires deposit of the rent in question with the Court and cannot be paid to 2 Chaudhry Rahimuddin v Chaudhry Jalaluddin (PLD 1991 SC 484) 3 Muhammad Iqbal Haider Vs. Vth Rent Controller Central (2009 S C M R 1396) reiterated in Muhammad Iqbal Haider v 1st ADJ, Karachi Central (PLD 2018 SC 35); Nazir Ahmed v. Mst. Sardar Bibi (1989 SCMR 913); Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 87), Waheedullah v. Mst. Rehana Nasim (2004 SCMR 1568), Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101), Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan (PLD 1986 Karachi 74), Habib Khan v. Haji Haroon-ur- Rasheed (1989 CLC 783); Gohar Ali Shah v. Shahzada Alam (2000 MLD 82), Iqbal and others v. Mst. Rabia Bibi and another (PLD 1991 SC 242) and Syed Imran Ahmed v. Bilal and another (PLD 2009 SC 546)

the Respondent until the case is decided. In such a situation the Petitioner was thus, required to have complied with the tentative rent order which could be adjusted and substituted by a final order on the determination of issues, whereas, any avoidance and breach of the order in question, entails penalty of striking off his defence and that being the statutory penalty, could not be avoided unless good reasons were given and sustained4.

Lastly, even otherwise, practice of challenging interlocutory orders of the Rent Controller has been deprecated time and again and it has been held that Constitutional petitions are not maintainable notwithstanding that no remedy of appeal has been provided against such orders as this would not ipso facto make such petitions competent5. It is also settled that Constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision6.

In view of the above, no case for indulgence is made out, whereas, even otherwise, this Petition which impugns an interlocutory order, does not appear to be maintainable and therefore, the same is hereby dismissed with pending applications.

The learned Rent controller shall proceed further in accordance with law.

JUDGE

Arshad/

4 Dr Arshad Kamal Khan v Mrs. Saeeda Khalid Kamal Khan (1993 SCMR 1360) 5 Seema Begum v Muhammad Ishaque (PLD 2009 SC 45) 6 President All Pakistan Women Association v Muhammad Akbar Awan (2020 SCMR 260)