Amir Imtiaz VS Learned Rent Controller West Islamabad

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.2494 of 2021 Aamer Imtiaz Versus Learned Civil Judge/Rent Controller-West Islamabad and another S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 12.07.2021 Mr. Awais Haider Malik, Advocate for the petitioner.

Through the instant writ petition, the petitioner, Aamer Imtiaz, impugns the order dated 26.06.2021 passed by the Court of learned Rent Controller, Islamabad whereby he was directed to pay tentative rent from 01.08.2020 to December 2020 at the rate of Rs.2,55,000/- per month which came to an amount of Rs.12,75,000/-. Furthermore, for the period between 01.01.2020 to June 2020, the petitioner was directed to pay tentative rent at the rate of Rs.3,06,000/- per month which came to an amount of Rs.18,36,000/-. These amounts were required to be paid by 13.07.2021 failing which the penal provisions under Section 17(9) of the Islamabad Rent Restriction Ordinance, 2001 (“IRRO”) were to ensue. Future tentative rent was fixed at Rs.3,06,000/- payable before the 15th of every month.

2.It is an admitted position that the petitioner has not shown compliance with the tentative rent order. The consequences of not showing compliance with a tentative rent order had been provided in Section 17(9) of the IRRO which is reproduced herein below:- “(9) If the tenant fails to deposit the amount of rent before the specified date or, as the case may be, before the fifteenth day of the month, his application if he is an applicant shall be dismissed or his defence, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings.”

3.Learned counsel for the petitioner submitted that the tentative rent order had been passed without the recording of evidence; and that had the petitioner been allowed to produce evidence he would have shown that the petitioner had paid rent for the period for which the tentative rent order had been passed by the learned Rent Controller. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

4.I have heard the contentions of the learned counsel for the petitioner and have perused the record with his able assistance.

5.The record shows that vide lease agreement dated 24.08.2020, respondent No.2 (Abdul Hamid Khan) had given on rent House No.10, Street No.38, F-8/1, Islamabad (“the rented premises”) to the petitioner for a period of five years and five months with effect from 01.08.2020. For the first five months of the lease period, the monthly rent was agreed to be Rs.2,55,000/- whereas from 01.01.2021 onwards, the monthly rent was agreed to be Rs.3,06,000/- with an annual increase of 10%.

6.The ejectment petition was filed by respondent No.2 on the ground that the cheque for the rent between August 2020 and December 2020 given by the petitioner had been dishonoured on presentation, and that the petitioner had committed a default in the payment of rent.

7.The petitioner has not annexed any document along with this petition to show that he had indeed paid rent for the period for which the tentative rent order had been passed by the learned Rent Controller. The excuse given by the

petitioner in this writ petition is that due to the lockdown caused by the COVID-19 pandemic, he had suffered a huge financial loss.

8.As regards the determination of tentative rent is concerned, it is, as the word “tentative” conveys, only provisional and approximate in nature. For fixing tentative rent the recording of evidence is not required. The purpose of fixing tentative rent is to afford protection to the landlord during the pendency of the eviction petition. This determination is made in a summary manner. No doubt the learned Rent Controller is not required to determine the rent due finally for the purpose of a tentative rent order, which could be approximate but such order should be a judicious order and after considering all the material placed on record. In holding so, I derive guidance from the law laid down in the cases of Mrs. Zarina Khawaja Vs. Agha Mahboob Shah (PLD 1988 SC 190), Pakistan State Oil Company Limited Vs. Abdur Rehman Khan (2000 MLD 689), Mst. Shagufta Shaheen Vs. Muhammad Ismail Qureshi (PLD 2011 Peshawar 238) and Tabassum Iqbal Sheikh Vs. District and Sessions Judge

(2007 CLC 546).

9.Be that as it may, in the case at hand the impugned order dated 26.06.2021 is an interlocutory order. The said order is not appealable under the provisions of the IRRO. Section 21(1) of the IRRO provides that any party aggrieved by a final order of the Rent Controller may prefer an appeal within thirty days of the date of such an order. Section 21(2) of the IRRO explicitly provides that no appeal shall lie from an interlocutory order passed by the Rent Controller. It is perhaps for this reason that the petitioner has instituted a writ petition to challenge the said

interlocutory order dated 26.06.2021. In the case of Saghir Ahmad Naqvi Vs. Province of Sindh (1996 SCMR 1168), the Hon'ble Supreme Court of Pakistan has held that where a statute excludes a right of appeal from an interim order, the same cannot be bypassed by bringing under attack such interim orders in the Constitutional jurisdiction of the High Court. Furthermore, it was held that the affected party had to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders. Furthermore, in the case of Muhammad Taj Vs. Muhammad Younis Khilji (2008 CLC 1666), this Court in paragraph 6 of the report inter alia held as follows:- “6. There is another aspect of the matter that the instant writ petition has been filed against interim order and section 21(2) of Islamabad Rent Restriction Ordinance, 2001 specifically bars any appeal against the interlocutory orders of the Rent Controller which does not dispose of the entire case before it. The intention of legislature can be gathered from the provisions of section 21(2) of the Ordinance that to avoid delay in disposal of the cases by the Rent Controller, a specific bar has been imposed to challenge the interlocutory orders passed by the Rent Controller, therefore, the petitioner cannot be allowed to circumvent the legislative intent by filing against the interim order a constitutional petition. There are numbers of judgments under West Pakistan Urban Rent Restriction Ordinance, 1959 and Cantonments Rent Restriction Act, 1963 wherein it has been held that if legislature has not made an interim order appealable, the writ petition cannot be permitted to be filed to challenge such an order.”

10.As Section 21(2) of the IRRO expressly bars a right of appeal from an interim order passed by a Rent Controller, the same cannot be circumvented by challenging such an interim order in the Constitutional jurisdiction of the High Court. A party aggrieved by such an interim order has to

wait until a Rent Controller passes a final order and then to challenge it under Section 21(1) of the IRRO before the Court of the learned District Judge. The purpose behind barring an appeal against an interim order of the Rent Controller is to avoid delays in disposal of the cases by the Rent Controller. An interim order merges into the final verdict which is appealable under Section 21(1) ibid. In an appeal against the final verdict, the interim order can also be subjected to challenge.

11.However, it is my view that exceptional circumstances which could justify invoking the jurisdiction of the High Court under Article 199 of the Constitution would be when the order or action assailed was palpably without jurisdiction, malafide, void or coram-non-judice. The order impugned in this petition is clearly interlocutory in nature and does not dispose of the entire case before the learned Rent Controller. The impugned order is neither without jurisdiction, nor malafide, void or coram-non-judice.

12.The order dated 26.06.2021, being purely interlocutory in nature, could not be subjected to challenge by filing a Constitutional petition before this Court as it would amount to defeating the legislative intent behind Section 21(2) of the IRRO. Therefore, I am not inclined to interfere in the interlocutory order dated 26.06.2021 passed by the learned Rent Controller.

13.For the foregoing reasons, the instant writ petition, being devoid of merits, is dismissed in limine.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*