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Intra‑Court Appeal No. 50 of 1979, decided on 17th March, 1979

‑‑ S. 16 read with Constitution of Pakistan (1973), Art. 199‑Eviction‑Interlocutory order‑Appeal‑Writ‑Order of Rent Control ler refusing to summon witnesses desired by tenant to be examined in his defence‑An interlocutory order, hence, not open to challenge in appeal or by way of writ proceedings‑Object of Ordinance being quick disposal of cases concerning disputes between landlords and tenants, challenge of interlocutory order passed in such cases, held, might not only amount to fragmentary decisions in case of appeals but also abuse of constitutional jurisdiction in case of writs‑[Munawar Ali Shah v. Muhammad Khan etc. W. P. No. 2789 of 1976 dissented from].

Mian Manzar Bashir and others v. A. Asghar & Co. P L D 1978 S C 186 ;

Rashid Ahmad v. Muhammad Saleem and another P L D 1976 Lah. 1450; Khushi Muhammad v. Khadeja Hakeem and another P L D 1976 Lah. 99; MRs.Feroza Aslam v. Muhammad Akhtar P L D 1978 Lah. 488 ; Mushtaq Ahmad and others v. The Controller and others W. P. No. 466 of 1977 and Malik Riaz Ullah v. Sh. Muhammad Amjad etc. P L D 1979 Lah. 175 fol.

Munawar All Shah v. Muhammad Khan etc. W. P. No. 2789 of 1976 dissented from.

Ch. Qadir Bakhsh for Appellant.

MUHAMMAD AFZAL ZULLAH, J.‑This Intra‑Court Appeal calls in question an' order passed by a learned Single Judge in Chamber whereby he dismissed in linune a writ petition filed by the appellant Amanullah.

2. In the Writ Petition, the appellant had challenged a Interlocutory order made by a Rent Controller refusing to summon certain witnesses whom the appellant wanted to examine in defence of an ejectment application filed against him by the respondent Mr. Mukhtar Ahmad Khohkhar and another. The learned Single Judge dismissed the Writ Petition with the observation that "the point raised and the stage at which it is raised is squarely covered by decision of the Division Bench in case of Muhammad Saeed v. Mst. Saratul Fatima and another (P L D 1978 Lah. 1459)."

2. The Intra‑Court Appeal of Muhammad Saeed, which was decided by a Division Bench of this Court, was directed against an order for deposit of rent under the first part of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 hereinafter referred to as the Ordinance. While holding that the constitutional jurisdiction of this Court could not be invoked for assailing such orders, our learned brother Shafi‑ur‑Rehman, J., who delivered judgment for the Division Bench, observed as follows :‑

"The constitutional jurisdiction is invoked and made available in cases of imminent grave and tangible threats to valuable personal and the property rights and that too subject, inter alia, to the conditions that the legal remedy if at all any available in the circumstances i3 not efficacious or adequate. In this case, an order which by itself caused no tangible damage to the appellants, and is incapable of causing any, was challenged. In order to pose a real threat to him it has to be substituted by another order and the moment it is happens, a right of appeal would accrue to the appellant which right is certainly more extensive and beneficial being available in the same hierarchy and on both questions of law as well as of fact. Thus the case of the petitioner was not a fit one to be entertained in constitutional jurisdiction."

3. Learned counsel for the appellant contended that the case of Muhammad Saeed was distinguishable from the one in hand, he maintained that under section 16 of the Ordinance, the Rent Controller had the same powers for summoning the witnessses as enjoyed by a Civil Court, but by refusing to summon the witnesses of the appellant he had failed to discharge the duty cast upon him by the aforesaid provisions of the Ordinance. According to the learned counsel, since the order Invoked in the case of Muhammad Saeed was not an order under section 16 of the Ordinance, the dictum in the cited case was not applicable to the instant case.

4. It is true that the order assailed in the case of Muhammad Saeed was made under subsection (6) of section 13 of the Ordinance whereas the order impugned herein was passed under section 16 thereof but this is no reason for not following the ratio dicidendi of Muhammad Saeed's case. One of the reasons for which the writ petition of Muhammad Saeed a tenant, was held to be incompetent was that it had brought under challenge an interlocutory order and that the tenant would have a right of appeal if, ultimately, the ejectment proceedings resulted in an order of his eviction, This also holds good for the present case because the order of the learned Rent Controller which is the subject‑matter of the present proceedings is an interlocutory order and in the event of the success of the proceedings the appellant would, by filing an appeal against the order of eviction, be able to question the validity and legality of the impugned order as well. We are, therefore, unable to agree with the learned counsel for the appellant that the principle enunciated in the case of Muhammad Saeed is not applicable to the case in hand.

5. A perusal of Article 199 of the Constitution would show that the constitutional jurisdiction of the High Court can be invoked only when an injury is caused to a person or there is an imminent threat of its being caused to him, and no other adequate remedy is available. This pre condition for the exercise of extraordinary powers of the High Court is not satisfied in the instant case. No harm has been caused to the appellant as yet inasmuch as he continues to enjoy possession of the premises in question despite the passing of the impugned order. If his case has been prejudiced by that order, the effect thereof will be felt by him only when an order of eviction is passed against him. If, eventually, the ejectment application is dismissed, he will have nothing to worry about. On the other hand if it succeeds he will be able to challenge the order of eviction, and while so doing the impugned order also by means of a first appeal, both on questions of law and fact, and, in the event of the failure of that appeal, a second appeal on the questions of law only. Thus, at the present moment, he does not, in reality, need any remedy and the moment he will need one, there will be adequate and efficacious remedies open to him. In this view of the matter. It is not an appropriate case for exercise of the constitutional jurisdiction.

6. The object behind the legislation contained in the Ordinance was to ensure quick disposal of cases relating to disputes between landlords and tenants. If every order passed by a Rent Controller, during the hearing of a case is allowed to be challenged by means of a writ petition it might not only amount to the abuse of the constitutional jurisdiction but would also defeat the very purpose for which the Ordinance was enacted. It was, inter alia, for the aforesaid reason that appeals ‑ against interim orders were disallowed by the Supreme Court in the case of Ibrahim v. Muhamma Husain (P L D 1975 S C 457) because such appeals were likely to result in fragmentary decision which tend to delay the administration of justice. The dictum in Ibrahim' case was re‑affirmed by their Lordships of the Supreme Court in Mian Manza Bashir and others v. A. Asghar & Co. (P L D 1978 S C 185.).

7. It was in view of the spirit and ratio decidendi of Ibrahim's case that one of us (M. A. Zullah, J.) declined to exercise constitutional jurisdiction in Rashid Ahmad v. Muhammad Saleem and another (P L D 1975 Lah. 1450). The same approach as adopted in Khushl Muhammad v. Khadeja Hakeem and another (P L D 1976 Lah. 99) and Mrs. Feroze Aslam v. Muhammad Akhtar (P L D 1978 Lah. 488), The ruling rendered in the cases of Khushi Muhammad Rashid Ahmad and Mrs. Feroze Aslam was also approved a Division Bench of this Court in MRs.Feroze Aslam v. Muhammad Akhtar I. C. A. No. 22 of 1977 and decision of that case was relied upon by another Division Bench in Mushtaq Ahmad and others v. The Controller and others W. P. No. 466 of 1977. The view expressed in these cases has recently been followed in Malik Riaz Ullah v. Sh. Muhammad Amjad etc. P L J 1979 Lab. 175 also which related to an order under the Cantonments Rent Restric tion Ordinance (XI of 1963). The only case in which a contrary opinion was expressed is of Munawar Ali Shah v. Muhammad Khan etc. W. P. No. 2789 of 1976 in which our learned brother M. E. Rana J. After referring to the case of Khushi Muhammad, observed as follows :‑

"The learned counsel for the respondent on the other hand relied on Khushi Muhammad v. Khadeja Hakeem and another P L D 1976 Lab. 99 and contended that the impugned order although not raised appealable can ultimately be challenged in an appeal made against the final order of ejectment, therefore, the Writ Petition challenging such an order was misconceived. Each case has a different feature and requires determin ation on its own merits. It may be pointed out that a tenant is not to wait for his ejectment on account of an order passed without lawful authority or wait for a time his defence is struck off. A Writ Petition is an efficacious remedy against an illegality when ever it has occurred."

Since there is preponderance of the authority in favour of the view taken in the case of Muhammad Saeed, we will also, with respect like to share that view and express our inability to agree with our learned brother M. E. Rana, J.

8. We, therefore upheld the verdict assailed before us and dismiss the appeal in limine. If the appellant is not satisfied with the order of‑ the learned Rent Controller whereby he refused summon his witnesses, he may, if so advised, challenge the same by filing an appeal if and when an order of eviction is passed against him. .

S. A. H. Appeal dismissed.