O R D E R

SALAHUDDIN PANHWAR, J. Through above captioned petitions, petitioner has assailed the order dated 19^th August 2013, passed by 1^st Rent controller and Senior Civil Judge, whereby application under section 16(1) of Sindh Rented Premises Ordinance 1979, preferred by respondent No.2, was allowed.

2. Precisely, relevant facts as set out in the petition are that petitioner is tenant in respect of shop No.30 and 38 located on Ground floor, Clifton Shopping Arcade, constructed on Plot No.FL/1 in Block 5, Clifton, Karachi, by virtue of MOU(memo of understanding) executed with respondent No.2. Petitioner is paying rent in terms of aforesaid MOU. Such MOU further provides that in case respondent No.2 sells the instant property, the petitioner will have preferential right to purchase the same. Respondent No.2 filed eviction application before Rent Controller (respondent No.1), during pendency of the application, an application under section 16(1) of SRPO 1979 filed by the respondent No.2 was allowed; the Rent Controller without conducting summary enquiry which is mandatory procedure as envisaged in relevant section, regarding the determination to the effect whether petitioner has defaulted in respect of rent, has directed the petitioner to deposit the specified rent in Court. Petitioner has been depositing the rent in MRC No.467/2012, since April 2012. During pendency of rent proceedings, efforts for reconciliation were also made, thereby the petitioner has paid Rs.50,000/- through cheque to the respondent No.2.

3. Learned counsel for petitioner has, inter alia, contended that impugned order is against the principles of settled law; no enquiry was conducted; circumstances of the instant case warrants recording of evidence but such exercise was not undertaken by the trial Court; petitioner is in possession of shop No.30 and 38 only; whereas possession of shop No.39 is not with him; petitioner is paying monthly rent and all utility charges. Such bills are appended with this petition, which reflects that he is in possession of Shop No.30 and 38 only. In support of his contention he made reliance on 2013 CLC 1021 (Mrs. Durre Shamim Rafi vs. Muhammad Zubair Khan & another), 2007 YLR 363 (Mrs. Jumana Khursheed vs. 1^st A.D.J, Karachi East& others), PLD 2011 Karachi 494 (Independent Music Group, SMC (Pvt) Ltd & another vs. Federation of Pakistan and another), 2011 PTD 647 (BP Pakistan Exploration and Production Inc. vs. Additional Commissioner, Inland Revenue-B, Enforcement & Collection Division-I, Karachi & another), 2011 CLC 1004 (Moulvi Saifullah Memon & another vs. Province of Sindh & others) and SBLR 2013 Sindh 1244 (Adam Sugar Mills Limited vs. Federation of Pakistan & others).

4. Conversely, learned counsel for respondent No.2 stoutly refuted the contentions raised above and argued that instant petition is not maintainable under the law as petitioner has challenged interim order with regard to the tentative assessment of rent, same can not be challenged in writ jurisdiction; petitioner is at liberty to agitate all pleas taken here before the trial Court in main proceedings and such remedy is exhaustive and can be termed as ultimate remedy. In support of his contention he has relied upon PLD 2005 Karachi 554 (Messrs. Shamim Akhtar vs. State Life Insurance Corporation of Pakistan & 2 others), 2008 MLD 1229 (Agha Wasif Abbas vs. Muzaffar Ali Isani and another), SBLR 2009 SC 135 (Muhammad Iqbal Haider & another vs. 5^th Rent Controller/Senior Civil Jude & others), 2008 CLC 1087 (Mst. Fauzia Irfan vs. Mst. Sabeeha Ishrat & 2 others), 2011 CLC 648 (Habib Bank AG Zurich & another vs. Nazir Ahmed Waid& another), PLD 1983 Supreme Court 1 (Mst. Akhtar Jehan Begum & others vs. Muhammad Azam Khan).

5. I have heard the respective counsels and perused the record.

6. Before discussing factual aspects of the case and examining the above noted contentions of the learned counsel for respective parties, it would be appropriate to mention here that the jurisdiction of this Court under Article 199, is extraordinary in nature which is aimed only for proper dispensation of justice and to avoid abuse of the process of law. Thus, normally such jurisdiction is not to be exercised by the High Court to interfere with the discretionary orders of the subordinate Courts, particularly where jurisdiction has been conferred upon it by some special statutes, as held in case of Messrs Mehraj (Pvt.) Ltd., v. Miss Laima Saeed and others (2003 MLD 1033) :

"Jurisdiction of this Court under Article 199 of Constitution cannot be invoked to circumvent the provisions of rent laws so as to serve the purpose of second appeal, which has been specifically done away by the legislature, while promulgating the Ordinance of 1979, unless the findings recorded by the Tribunal are found to be based on patent misreading of evidence or the same are arbitrary, capricious, and perverse and have resulted in gross miscarriage of Justice.”

7. On the above touchstone, I have examined the impugned order and considered the contentions, raised by parties, thus it would be conducive to refer last 3 paragraphs of the impugned order which is relevant to decide instant petitions, same is as follows:-

“In regard to the above the perusal of the written statement specifically in para 4 wherein it is stated that Zahid son of Bashir Ahmed who has executed the rent agreement dated 1^st August 2001, with predecessor tenant Ahmed Shah in respect of Shop No.30 and 38, on 12 months advance rent with security deposit of Rs.10,00,000/-, opponent was good friend of Zahid since then and he was also signatory to that agreement, predecessor tenant joined the shops, started the business of restaurant which is apparent from the rent agreement, utility bills of that time placed through an annexure A. However in para 5 he stated that on vacation of the demised premises by predecessor who demanded the security deposit and other liabilities, Mr. Zahid approached to the opponent and shared his concern in respect of amount due against him in lieu of advance amounting to Rs.10,00,000/- and other payments which were received by Zahid from Ahmed Shah and Zahid wanted to get rid from the cage of Ahmed Shah, in this regard he requested to Abdul Jabbar (opponent) and offered him both the shops No.30 and 38 and after due deliberation it was agreed that Rs.35,50,000/- is to be paid by the opponent and both the shops can be retained by the opponent as they are and Mr. Zahid is ready to execute tri-partee agreement, with certain terms and conditions mentioned therein on cash payment of Rs.20,00,000/- to Zahid on same date before the witnesses. Opponent also agrees / owes to pay the due outstanding to Ahmed Shah towards Zahid which were amounting to Rs.15,50,000/- which was subsequently paid by the opponent to Mr. Ahmed Shah on monthly installments through cheques of Al-Falah Bank such memorandum of outstanding was also signed by predecessor tenant Ahmed as well.

In connection to this the applicant has filed a statement wherein he specifically stated that the opponent is a defaulter in payment of rent since September, 2008 at the rate of Rs.15,000/- per month, that the applicant filed the rent case in February, 2012. He further added that he is entitled to claim arrears of rent for the period of three years prior to the filing of rent case. The rent arrears will be from January 2009 till January 2012 which comes to Rs.5,40,000/- is equal to 36 into 15000/-. He further added that the opponent started depositing the rent with effect from May, 2012 upto November, 2012 in MRC No.467/2012 and he may be directed to continue deposit the rent in MRC No.467/2012 by the 10^th of every calendar month. He also stated that the rent for the month of February, March and April 2012 is also due and payable and that the opponent may be directed to deposit the same in the court in present ejectment proceedings.

In the above circumstances, the contentions of the parties require evidence for the reason that in the present rent application, the objection filed by the learned counsel for the opponent is the same in two rent applications i.e. Rent application No.111/2012 and 112/2012 wherein the applicant are different and the opponent are the same. However the contentions of the opponent for Rent application No.112/2012. The shop is number 39, whereas the opponent denied the same and laid the stress on Shop No.38 but admitted that he is a tenant. Henceforth in the interest of justice the opponent is directed to deposit the rental amount of the demised premises for the alleged period from January 2001 to January 2012 amounting to Rs.5,40,000/- and also to deposit the rent for the month of February, March and April 2012. It is further directed to deposit the future rent as the same is being deposited in MRC NO.467 of 2012 which is for the month of May 2012 upto November 2012 per month before 10^th of every month. The deposited amount will remain in the field till the final disposal of the rent application. Order passed accordingly with no order as to costs.”

7. Examination of all the merits of the case, keeping in view, the proposition of law (supra), suffice to say that candidly impugned order, challenged through instant constitutional petition, is interim in nature hence no appeal or constitutional remedy can be sought against interim order passed by Rent Controller as the same has not been provided by the legislature in their own wisdom. Further more, apart operative part of the order in question reveals that learned trial judge has given direction for depositing the amount with clear instructions that this will remain in the field till the final disposal of the rent application thus it is patently show no illegality has been committed by trial Court. Needless to add here that the petitioner will be at liberty to agitate all the pleas during course of final determination of the main petition which he wishes to.

8. Besides, it is not the requirement of law that in summary enquiry / proceedings within meaning of subsection (1) of Section-16 of the Ordinance, the evidence should be recorded, particularly when purpose of such summary enquiry is only in respect of determining the arrears of rent due else objective of the provision of Section 19 of the Ordinance and even may prejudice the evidence to be led by the respective parties in relation(s) to disputes finally to be determined by the Controller which may also include the issue of arrears of rent.

9. Moreover, The learned Rent Controller has also considered the plea of the petitioner regarding his possession over shop No.38 in place of shop No.39 and committed no illegality for the reason that petitioner and respondent No.2 both claims to be on tenancy in respect of two shops hence simple difference of number of shop is not sufficient to absolve the petitioner from his obligations / duties. Even otherwise, this, being a disputed question, can only be determined by the learned Tribunal.

10. Regarding the case law relied by learned counsel for petitioner it is pertinent to mention that facts and circumstances of referred cases are distinguishable to the facts of present case in hand.

11. Thus instant petition is devoid of merits hence same was dismissed by a short order dated 07.11.2013.

O R D E R

Imran/PA J U D G E