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Petitioner: PAKISTAN BURMAH SHELL LIMITED VS Respondent: ADDITIONAL CONTROLLER OF RENTS
1988 M L D 1115
1988 M L D 1115
[Karachi]
Before Ajmal Mian, J
PAKISTAN BURMAH SHELL LIMITED‑‑Petitioner
versus
ADDITIONAL CONTROLLER OF RENTS and 2 others‑‑Respondents
Constitutional Petition No.S‑26 of 1987, decided on 22nd March, 1988.
(a) Constitution of Pakistan (1973)‑‑---
‑‑‑Art.199‑‑Constitutional jurisdiction, exercise of‑‑Constitutional jurisdiction would be attracted when order impugned therein was either in excess of jurisdiction or was suffering from any infirmity making same an order without jurisdiction.
(b) Cantonments Rent Restriction Act (XI of 1963)‑‑--
‑‑‑S.17‑‑Constitution of Pakistan (1973), Art.14‑‑Exercise of discretion by Rent Controller‑‑Constitutional jurisdiction, exercise of‑‑No procedure having been provided in Act of 1963 as to conduct of a rent proceeding it was, therefore, left to discretion of Rent Controller to adopt a procedure which should not be prejudicial to the parties‑‑Rent Controller by dismissing petitioner/tenant's application for hearing and deciding preliminary issue regarding jurisdiction of Rent Controller without recording any evidence, on ground that he (Rent Controller) wished to decide that question alongwith other issues, held, had not acted in excess of jurisdiction or without jurisdiction or in contravention of any provision of law‑‑Rent Controller having discretion either to hear preliminary point initially or to defer hearing of same alongwith other issues, if he had opted for later course, by doing so he had not committed any legal error warranting interference of High Court in exercise of constitutional jurisdiction.
Muhammad Riaz v. Mst. Begum Jan and another 1984 C L C 2970; Khuda Bakhsh v. Malik Mushtaq Ahmed and another 1984 C L C 1000; Mst. Shereen Masood v. Malik Naseem Hassan Judge, Family Court, Lahore and another 1985 C L C 2758; Ibrahim v. Muhammad Hussain P L D 1975 S C 457 and Mian Manzar Bashir and others v. MA. Asghar and Co. P L D 1978 S C 185; Syed Shaukat Abbas v. Mst. Bushra Rani and another P L D 1982 Lah. 281 ref.
Noor Muhammad for Petitioner.
H.A. Rahmani for Respondents Nos.2 and 3.
Date of hearing: 22nd March, 1988.
JUDGMENT
This petition is directed against an order dated 11‑1‑1987 passed by learned Additional Controller of Rents, Clifton Cantt. In Rent Case No.15 of 1986 dismissing the present petitioner's application for deciding preliminary question, whether the provisions of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act), are applicable to open site/land in respect of which ejectment proceedings were filed.
2. The brief facts leading to the filing of the above petition are that the petitioner's predecessor‑in‑interest namely M/s. Burmah Shell Oil Storage and Distributing Company Limited, which was an English Company (hereinafter referred to as the English Company) and of which the present petitioner is the successor entered into a lease agreement in respect of the suit Plot with respondent No.2 and the predecessor‑in‑interest of respondent No.3 on 3(1‑7‑1962 for a period of 30 years divided into three periods of 10 years each. It was agreed that for the first 10 years the rent was 1,250/‑ per month which was paid in advance, namely Rs.1,50;000/‑ at the time of execution of the lease agreement. It appears that petitioner took over the assets and liabilities of the English Company with effect from 1‑1‑1979. This taking over was accepted by respondents Nos.1 and 3 through joint letter dated 17‑11‑1969 Annexure P/3. It also appears that the rent for the year 1985‑86 which was to be paid on or before 1‑8‑1985 was factually paid on or about 19‑1‑1986 by the petitioner. Respondents Nos.2 and ; filed the aforesaid rent application for ejectment on the ground of default in payment of rent. The above application was resisted by the present petitioner on merits as well as inter alia on the legal ground that the Rent Controller had no jurisdiction as the Act was not applicable to land which was the subject‑matter of the lease. It seems that on the basis of the pleadings of the parties the learned Rent Controller framed the issues including the issue relating to jurisdiction. It appears that after the framing of the issues the present petitioner filed an application praying therein that the preliminary issue may be heard and decided without recording of any evidence. The above application has been dismissed by the learned Rent Controller by the impugned order. The petitioner being aggrieved by the above order has filed the present petition.
3. In support of the above petition, Mr Noor Muhammad learned counsel for the petitioner has vehemently urged that since the question of jurisdiction of the Rent Controller was the basic question involved in the case, he should have decided the same as a preliminary issue when there was no dispute on the factual aspect of the case.
On the other hand Mr. HA. Rahmani, learned counsel for respondents Nos.2 and 3 has contended that it is always discretionary with the Presiding Officer of a Court to decide a legal issue as a preliminary issue or to decide the same at the time of regular hearing alongwith the other issues.
Mr. Noor Muhammad in support of his above submission has` referred to the following cases.
(i) Muhammad Riaz v. Mst. Begum Jan and another 1984 C L C 2970.
(ii) Khuda Bakhsh v. Malik Mushtaq Ahmed and another 1984 C L C 1000.
(iii) Mst. Shereen Masood v. Malik Naseem Hassan Judge, Family Court Lahore and another 1985 C L C 2758.
On the other hand Mr. HA. Rahmani, learned counsel for respondents Nos.2 and 3 has referred to the following cases:
(i) Ibrahim v. Muhammad Hussain P L D 1975 S C 457.
(ii) Mian Manzar Bashir and others v. MA. Asghar & Co. P I: D 1978 S C 185.
(iii) Syed Shaukat Abbas v. Mst. Bushra Rani and another P L D 1982 Lah.281.
4. It will suffice to observe that writ jurisdiction is attracted when the impugned order is either in excess of jurisdiction or suffers from any infirmity which makes it an order without jurisdiction. In the Act no procedure has been provided as to the conduct of a rent proceeding and, therefore, it is left to the discretion of the Rent Controller to adopt a procedure which should not be prejudicial to the parties. In my view, the learned Rent Controller by dismissing the petitioner's application on the ground that he wishes to decide the question of jurisdiction alongwith other issues, has not acted in excess of jurisdiction or without jurisdiction or in contravention of any provision of law. It was within the discretion of the learned Rent Controller either to have heard the preliminary point initially or to have deferred the hearing of the same alongwith other issues. He has opted for the latter course and by doing so he has not committed any legal error warranting interference by this Court in the exercise of constitutional jurisdiction. It is still open to the petitioner to agitate this question before the learned Rent Controller and in case he decides the same against him he will have adequate remedy available. ,
With the above observations, the petition is dismissed but there will be no order as to costs.
H.B.T./P‑56/K Petition dismissed.