ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
C. P. No.S-1195 of 2009
|
DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE |
23.1.2017.
1. For orders onM.A.No.2139/2015
2. For Katcha Peshi.
3. For hearing of M. A. No.2519/2009/2016.
4. For hearing of M.A. No.3394/2015.
Mr. Habibullah G. Ghouri, advocate for the petitioner.
Mr. Muhammad Imran Shamsi, advocate for the respondent No.3.
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NAZAR AKBAR, J.- This Constitutional Petition has been filed against the concurrent findings of Rent Controller as well as IInd Additional Sessions Judge, Shikarpur. The petitioner has lost rent case No.223/2000 on 19.05.2009 and the Rent Controller had directed him to hand over the vacant possession of tenement to the applicant within 60 days and to deposit arrears of rent at the rate of Rs.500/- per month from 1994.
2. The petitioner assailed the judgment in First Rent Appeal No.04/2009 and the appeal was also dismissed by judgment dated 20.10.2009. Against the concurrent findings, the petitioner has filed instant Constitutional Petition and got the order suspended in 2009.
3. The petition is not maintainable since there are concurrent findings of two Courts below, however, counsel for the petitioner has attempted to show that there is serious dispute on the property in question for which Civil Suit has been filed by the petitioner. However, the petitioner present in Court states at the bar that as of today no Civil Suit is pending nor any appeal and revision are pending in respect of the tenement. In the above circumstances, the plea taken in the written statement stands nullified that the petitioner’s suit for specific performance of contract in respect of the property in question is pending.
4. In the case of Mrs. Samina Zaheer Abbas v. Hassan S. Akhtar and 3 others (2014 Y L R 2331) I have already expressed my views that petition is not maintainable in rent cases, for the following reasons:
“10. Before examining the respective contentions of the learned counsel and the order impugned in this constitution petition, I would first like to examine the question of maintainability of this petition against the concurrent findings of the Courts. In this regard the learned counsel for the petitioner has simply invoked Article 4 of the constitution of the Islamic Republic of Pakistan, 1973 relating to the inalienable right of individual to be protected and treated in accordance with law. No other contention has been advanced by the counsel for the petitioner in support of the question of maintainability of this petition. It was obvious, since this petition has arisen out of an order passed by the Rent Controller under section 16(1) of SRPO, 1979 followed by an order under section 16(2) ibid holding that the petitioner has failed to comply with the tentative rent order and the learned appellate Court in terms of Section 21(3) ibid has also found that the petitioner was guilty of noncompliance of the direction of Rent Controller to deposit the future monthly rent at the rate of Rs.85,000/- per month. Admittedly these findings are findings of facts and no evidence was required by the trial Court to come to such conclusion, therefore, general grounds available to the petitioner for impugning an appellate order in rent matters through constitution petition that the trial Court and the appellate Court have failed to read the evidence or overlooked the material facts from the evidence as grounds to maintain the constitution petition was not available to the petitioner. Similarly the petitioner has not challenged the jurisdiction of the Rent Controller and the appellate Court in terms of rent laws in arriving at the findings adverse to her interest. This is also not the case of the petitioner that these concurrent findings of facts are contrary to law laid down by the superior Courts. He has argued that since there is “no other adequate remedy provided by law” (Article 199(1) of the Constitution) against the order passed by the learned appellate Court dismissing the petitioner’s first appeal, the petitioner has a right “to move High Court” for enforcement of the fundamental right guaranteed to his client under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 (Article 199(2) of the Constitution). Therefore, before elaborating I believe it would be advantageous to reproduce the relevant articles i.e. Article 4 and Article 199 of the Constitution and the provisions of section 21(3) of SRPO, 1979.
Article 4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) in Particular –
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 199. Jurisdiction of High Court.—(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,—
(a) on the application of any aggrieved party, make an order—
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Where –
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) In this Article, unless the context otherwise requires; „person‟ includes any body Politic of Corporate, any Authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court of Tribunal established under the Law relating to the Armed Forces of Pakistan; and
Sindh Rented Premises Ordinance, 1979
Section 21 Appeal.—(1) . . . . . . . . . . . . . . . . . . . . .
(2) ……………………..
(3) The appellate authority 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 himself or by the Controller, make an appropriate order, which shall be final.
11. Perusal of above provisions of Constitution suggests that the learned counsel for the petitioner has moved this Court for enforcement of his client’s fundamental right conferred on her under Article 4, of the Constitution which deals with “the right of individuals to be dealt with in accordance with law” and his further claim is that after the final order of the appellate authority in terms of Section 21(3) of SRPO, 1979, the petitioner is left with “no other adequate remedy” under the rent laws since the order is final and no remedy against the final is provided by law. Therefore, being aggrieved the petitioner has moved the High Court under Article 199 of the Constitution. In my humble view the grievance of the petitioner that his fundamental right to be protected by law and dealt with in accordance with law is denied since no remedy is available against the order under Section 21(3) of SRPO, 1979 is misconceived. The theory of equal protection of law and equal treatment of law applies equally on both the landlord and the tenant to be dealt with in accordance with the Rent laws.
12. The petitioner was required to satisfy the Court that how an order passed by a competent forum in exercise of an authority / power conferred on it under an specific provision of law can be regarded violation of Article 4 of the Constitution. More so when the petitioner has not challenged the jurisdiction of the forum to pass such an order. The perusal of section 21 of SRPO, 1979 reveals that this section by itself is a remedy, which has been provided to the petitioner against the order of Rent Controller under SRPO, 1979 and the petitioner has fully availed this remedy. The language of the remedy provided under the rent laws in terms of section 21 ibid is quite unambiguous and the law makers have very categorically stated in sub-section (3) of section 21 of the SRPO, 1979 that the appellate authority shall, after perusing the record, hearing of the parties and if necessary after further inquiry, make an appropriate order, which shall be final. The use of word „shall‟ manifestly classifies that whoever is being subjected to a judgment / order passed by the Rent Controller under section 21(3) of SRPO, 1979 shall be deemed to have been dealt with in accordance with law and both the parties namely the landlord and the tenant shall burry their hatchet in the Court of appellate authority. The law makers by declaring that such an order “shall be final” have not violated the mandate of Article 4 of the constitution since both the landlord and the tenant stand equally protected and treated in accordance with rent law whenever either of them choose to avail the remedy of appeal under Section 21 of S.R.P.O 1979. If we accept the proposition that the order passed by the appellate authority in terms of section 21 sub-section (3) of S.R.P.O, 1979 can be challenged in constitution petition for enforcement of Article 4 of the constitution then we indirectly presume that the provisions of section 21(3) of the rent laws are repugnant and ultra vires to the constitution. The learned counsel for the petitioner has not gone that far. Therefore, as long as the provision of section 21(3) is intact and the order of appellate authority under S.R.P.O 1979 is final, a person aggrieved by final order of Rent Controller cannot assert in Courts that since “no other adequate remedy is provided by (rent) law” he is an “aggrieved party”. The perusal of Rent laws shows that it is not a situation where “no remedy is provided by law”, it is the case in which keeping in view the nature of litigation, the law makers have provided only ONE remedy of appeal as “final remedy” by law. The petitioner after availing the remedy provided by law cannot claim that she is left remediless. In these circumstances, the case of the petitioner is that since “no remedy of second appeal is provided by law, therefore, she has “moved the High Court” and this practice has always been disapproved by the apex court in number of judgments. In this context one may refer to the following observation of Supreme Court in the judgment reported in PLD 1974 SC 139 (Muhammad Hussain Munir and others ..Vs.. Sikandar and others):―
“It is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case, it would make the High Court’s jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the constitution-makers.”
The Hon’ble Supreme court in 1981 following the above referred case law while affirming dismissal of a constitution petition in a rent case arising from the conflicting findings of Rent Controller and the Additional District Judge reported in PLD 1981 SC 246 (Muhammad Sharif ..Vs.. Muhammad Afzal Sohail) has observed as follows:-
“We are of the view that the petitioners were fully aware that a writ petition did not lie in these circumstances, but had filed it merely to gain time and delay their eviction from the shop. We have been noticing, of late, that notwithstanding the fact that the Legislature, in its wisdom has abolished the second appeal in cases under the West Pakistan Urban Rent Restriction Ordinance and has made the orders of the District Judge as final, yet the parties, probably after obtaining legal advice, have taken to filing writ petitions in the High Court against the final order passed by the appellate Court, merely to take another chance or to delay their eviction, hoping that the matter shall take considerable time to be disposed of or that in any case the High Court while dismissing their writ petition may be persuaded to allow further time for vacating the premises-in-question. The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judge of the High Court take great pains to re-apprise the evidence and to consider each and every contention raised by the petitioner’s side before deciding the petition without realizing that, more often than not, such petitions are merely a devise to circumvent the amendment in the law and defeat the obvious intention of the Legislature, namely, a speedy determination of cases under the Urban Rent Restriction Ordinance. Such frivolous applications not only cause the poor litigants to incur necessary expenditure but also result in the waste of valuable public time and should, therefore, be discouraged by the High Court. It has been repeatedly held that a tribunal having jurisdiction to decide the matter is competent to decide it rightly or wrongly and the mere fact that another conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction.‖ (Under lining is provided for emphasis).”
5. In view of the above discussion, this petition is dismissed with direction to the petitioner to handover possession of the premises in question within fifteen days from today. Since the petitioner has been ordered to vacate the premises in 2009 and after obtaining order of suspension of said order he has also enjoyed possession without payment of single penny despite the orders of the Rent Controller to deposit rent. The respondents are free to file suit for recovery of the arrears of rent in accordance with law, if so advised. However, in case the petitioner fails to handover possession of the premises in question within fifteen days, the writ of possession which has already been issued should be issued afresh without notice and permission to break up the lock and with police aid.
Judge
M.Y. Panhwar/*