IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.S-1874 of 2015
Date of hearing: 17.11.2015. .
Petitioner: M/s. Ahsan Communication Network through its owner Sohailuddin through Syed Shahid Mushtaque, Advocate. .
IRFAN SAADAT KHAN, J. The instant petition has been filed with the following prayer:-
“It is therefore humbly prayed before this Honorable Court to call record and proceedings of Rent case No.181/2014 styled as Holy Quran Society v/s M/s Ahsan Communication Network from the learned IIIRD Rent Controller East at Karachi, In order to ascertain the legality and proprietary of the impugned order dated 16.10.2015, after perusing the same and hearing the parties this Honorable Court may graciously be pleased to pass order to set-aside the impugned order dated 16.10.2015 passed by the Learned Trial Court (respondent No.2) and dismissed the application under section 16(1) of Sindh Rented Premises Ordinance 1979 filed by the respondent No.1 in said rent case,
Further pleased to annul, traverse and cause eclipsing of the illegality committed by the trial court
Cost of the petition,
Any other relief which this Honorable Court deem fit and proper in favour of the petitioner, in the interest of justice.”
2. Briefly stated that the facts of the case are that the petitioner is the tenant of Respondent No.1 in respect of Shop No.5, Block-C, Jamia Rashidiya Market, Refugee Colony, Malir Tanki, Malir, Karachi. A dispute arose between the petitioner and respondent-society and thereafter an ejectment application being Rent Case No.181 of 2014 under Section 15 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred as SRPO), was filed by the society before the Court of IIIrd Rent Controller, Karachi-East, against the petitioner on the ground of default in making payment of the rent, which case is pending adjudication. However, during the pendency of rent proceedings the Respondent No.1 moved an application under Section 16(1) of the SRPO before the learned Rent Controller for fixation of tentative rent till the matter is finally decided. The learned Rent Controller then vide order dated 16.10.2015 after hearing the parties allowed the application filed under Section 16(1) of SRPO and fixed a tentative rent of Rs.5,000/- per month and directed the petitioner to pay future monthly rent on or before 10th of each English calendar month. The learned Rent Controller further directed that the future rent amount so deposited would remain withheld with the Court till such time the Court gives further directions or the ejectment application is disposed of. It is against this tentative rent order that the petitioner has filed the instant petition.
3. Syed Shahid Mushtaque, Advocate, has appeared on behalf of the petitioner and submitted that the learned Rent Controller was not justified in fixing the future rent of the premises in question at a heavy amount of Rs.5,000/- per month which is beyond the capacity of the petitioner. He further submitted that the learned Rent Controller while passing the said order has not considered the financial position of the petitioner and has fixed an arbitrary amount of Rs.5,000/- per month and, therefore, the order suffers with legal infirmity and may be set aside.
4. I have heard the learned counsel for the petitioner at some length and have perused the record.
5. I specifically asked a question from the learned counsel that since when he is a tenant of Respondent No.1 to which he replied that he is a tenant of the Respondent No.1 since 1969 and was paying an amount of Rs.250/- per month as rent. I again asked a question that how much amount of rent he is paying to the landlord/Respondent No.1 nowadays to which he replied that he is paying Rs.375/- per month i.e. from 1969 till date only an amount of Rs.125/- per month has been increased in a period of almost more than 45 years.
6 It is noted that Section 16 of the SRPO provides that if a matter is pending before the Rent Controller he has the jurisdiction under the law that after making a summary enquiry to fix a tentative rent and this type of orders are also considered to be interlocutory orders. No Rent Controller is allowed to make a thorough enquiry and only on the basis of the facts obtaining from the record the Rent Controller is required to make a summary enquiry which he deems fit to make and thereafter to determine the amount of rent and give appropriate instructions to the tenants to deposit the said rent within a specified period fixed by him. Perusal of the facts of instant case reveals that the learned Rent Controller after hearing both the parties has rejected the contention raised by Respondent No.1 with regard to payment of arrears of rent but has allowed the application under Section 16(1) of SRPO to the extent of fixing the future rent of Rs.5,000/- per month which in my view squarely falls within his doman as the said section categorically permits him to fix a tentative rent till the matter is finally decided. It is also an admitted fact that to safeguard the interest of the tenant the learned Rent Controller has categorically observed that the rent amount will remain withheld with the Court till such time the Court directs or the ejectment application is disposed of. Hence, I see no reason to interfere with the order passed by the learned Rent Controller.
7. Moreover, I was able to lay my hands on the decisions given in the cases of (1) MUHAMMAD NADEEM VS. NASIMUDDIN AND ANOTHER (2007 CLC 1956) and (2) MRS. SYEDA TAHIRA MUBASHAR VS. MST. ZAKIA KHAN AND ANOTHER (2007 CLC 1961) wherein it has been observed that constitution petition is not maintainable against an interim order of the Rent Controller. Reference may be made to the decision given in the case of AGHA WASIF ABBAS VS. MUZAFFAR ALI ISANI AND ANOTHER (2008 MLD 1229) wherein it has been held that no appeal or constitutional remedy can be sought against an interim order passed by the Rent Controller.
8. I, therefore, find no merit in the instant petition, which is accordingly dismissed in limine.
9. The above are the reasons of my short order passed on 17.11.2015.