IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petition No. S – 2438 of 2017
Petitioner : Syed Ali Abbas Rizvi through
Mr. Muhammad Ali Lakhani, Advocate.
RespondentNo.1 : The Additional Controller of Rents, Clifton
Cantonment Board, Karachi.
Respondent No.2 : Saeed Ahmed through
Mr. Iftikhar Javaid Qazi, Advocate.
Date of hearing : 08.03.2019.
O R D E R
NADEEM AKHTAR, J. – Through this Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner / tenant has impugned an interlocutory order passed on 02.11.2017 by the learned Additional Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No.90/2007, whereby the application filed by him in the said rent case for production of additional evidence was dismissed. The above rent case was filed by respondent No.2 / landlord against the petitioner seeking the latter’s eviction from ground floor hall (full), mezzanine floor (full) and basement measuring 900 sq. ft. in the building constructed on Plot No.11-C, Stadium Lane No.2, Phase V, D.H.A., Karachi, (‘demised premises’) on the grounds of unauthorized alterations therein and personal need.
2. Regarding the maintainability of this petition against the impugned order, which is admittedly an interlocutory order, it was contended by learned counsel for the petitioner that the petition has been filed in view of several previous applications filed by the petitioner in the above rent case, the orders passed thereon and previous proceedings arising therefrom viz. an appeal and two separate constitutional petitions before this Court. According to him, this petition is maintainable as the impugned order has been passed by learned Rent Controller without complying with the “writ” issued by this Court in the said previous petitions, therefore, reference to same is necessary for deciding the instant petition.
3. Brief background of the case, as averred in this petition, is that in addition to his detailed written statement, the petitioner also filed an application in the above rent case for summary rejection thereof, which was allowed by the learned Rent Controller vide order dated 07.06.2008 by dismissing the rent case. In FRA No.38/2008 filed by respondent No.2 against dismissal of his rent case, the matter was remanded by this Court vide judgment dated 10.04.2009 with direction to the learned Rent Controller to decide the same afresh. After remand of the case, the petitioner filed a second application for summary rejection of the rent case, which was dismissed by the learned Rent Controller vide order dated 29.04.2010. Against the said order, the petitioner filed C.P. No.S-597/2010 before this Court which was disposed of vide order dated 31.05.2010 by directing the learned Rent Controller to frame a preliminary issue with regard to his jurisdiction and to decide such issue prior to determining the merits of the respondent No.2’s case, and thereafter to decide the other issues if the said preliminary issue was decided in the affirmative. Vide consent order dated 24.08.2010, the review application filed by respondent No.2 in the said C.P. No.S-597/2010 was disposed of in terms of the aforesaid order dated 31.05.2010. Thereafter, vide order dated 24.01.2011, learned Rent Controller directed the parties to adduce evidence on the preliminary issue of maintainability of the rent case. At this stage, a third application was filed by the petitioner for summary rejection of the rent case, which was again dismissed by the learned Rent Controller vide order dated 05.01.2012. When the petitioner attempted to produce certain documents at the stage of his evidence, an order dated 27.05.2015 was passed by the learned Rent Controller by holding that the petitioner was not entitled to produce such documents as the same were not filed by him with his written statement nor was the respondent No.2 confronted by him with such documents at the time of cross-examination. The said order dated 27.05.2015 was challenged by the petitioner before this Court in C.P. No.S-1248/2015 which was dismissed as withdrawn vide order dated 01.12.2016 in view of an application for withdrawal filed by him. Thereafter, the petitioner filed an application dated 02.12.2016 before the learned Rent Controller seeking permission to produce the documents mentioned in his affidavit-in-evidence as additional evidence. Through the impugned order dated 02.11.2017, the said application was dismissed by the learned Rent Controller by holding that vide order dated 27.02.2015 he had already declined such production by holding that the petitioner was not entitled to produce any such document that was not filed by him along with his written statement or with which respondent No.2 was not confronted by him at the time of cross-examination.
4. It was argued by learned counsel for the petitioner that the “writ” issued by this Court in the petitioner’s earlier petition was to the effect that learned Rent Controller was bound to accept documents / evidence from the petitioner in order to decide the preliminary issue with regard to his jurisdiction as well as the other issues, whether or not such documents were filed by the petitioner with his written statement ; and, by not allowing the petitioner to produce additional evidence, the learned Rent Controller has in fact disregarded the “writ” issued by this Court. In support of his above contention, he had mainly relied upon consent order dated 24.08.2010 passed by this Court in C.P. No.S-597/2010. It was further argued by him that due to the above reason, this petition against an interlocutory order is maintainable. In support of his above submissions, he placed reliance upon number of cases which, with due respect to him, are not relevant to the facts and circumstances of the case at hand and as such I am not inclined to discuss them as they relate to cases where constitutional petitions were entertained by the High Court under Article 199 of the Constitution against interlocutory orders when such orders were either without jurisdiction or had been passed in excess of jurisdiction. For the following reasons, I am of the view that the order impugned through the present petition does not suffer from any such defect or illegality which requires interference by this Court in its constitutional jurisdiction.
5. It is a matter of record that when the petitioner attempted to produce the documents in question, an order was passed by the learned Rent Controller on 27.05.2015 whereby it was specifically held that the petitioner was not entitled to produce such documents as they were not filed by him with his written statement nor was the respondent No.2 confronted by him with such documents at the time of cross-examination. It is also a matter of record that C.P. No.S-1248/2015 filed by the petitioner before this Court against the above order was dismissed as withdrawn on 01.12.2016 in view of an application for withdrawal filed by him. Thus, the said order dated 27.05.2015 rejecting production of the documents in question had attained finality long ago and as such the petitioner was not entitled to repeat the same request / application again. Despite this position, an application was filed by him seeking permission to produce the same documents as additional evidence. The said application was rightly dismissed by the learned Rent Controller as it was not maintainable and was barred under the principle of res judicata. This view expressed by me is fortified by the recent case of Gulistan Textile Mills Ltd and another V/S Soneri Bank Ltd and another, 2018 CLD 203, wherein the Hon’ble Supreme Court was pleased to hold inter alia that the general legal principles of res judicata would most certainly apply to interlocutory applications ; and therefore, an order passed pursuant to any interlocutory application at one stage of the proceedings would operate as a bar upon similar interlocutory application made at a subsequent stage of the proceedings. Reliance is also placed on Shaikh Abdul Aziz V/S Mirza and 3 others, PLD 1989 SC (AJ&K) 78, wherein it was held that the principle of res judicata is applicable also to proceedings other than Suits. Needless to say it is well-settled that provisions of the Code of Civil Procedure, 1908, are not applicable in rent proceedings in stricto senso, however, Rent Controller is entitled to follow the equitable principles and enabling provisions thereof ; and, the principle of res judicata is applicable to proceedings before the Courts of special / exclusive jurisdiction as well. It may be observed that if the above principle is not followed strictly and the parties are allowed to file similar applications even after dismissal of earlier application filed by them on the same ground or for the same purpose, there will be no end to such applications and the principle of finality of orders will stand completely negated. Moreover, such conduct on the part of a litigant will also be treated as an abuse of the process of the Court.
6. Regarding the application dated 02.12.2016 filed by the petitioner seeking permission to produce the same documents as additional evidence that were declined by the learned Rent Controller vide order dated 27.07.2015, it may further be noted that no reason whatsoever was disclosed by the petitioner in his said application for not filing the said documents with his written statement or for not confronting respondent No.2 with them at the time of cross-examination. It was also not his case that the said documents came to his knowledge or possession subsequently. On this ground also, the application was not maintainable.
7. The consent order dated 24.08.2010 passed by this Court in C.P. No. S-597/2010, on which learned counsel for the petitioner has placed reliance to argue that the instant petition is maintainable, shows that it was ordered therein that the parties will lead evidence on the point of jurisdiction as well as on the merits of the case ; the learned Rent Controller will first decide the preliminary issue regarding maintainability of the rent case which will be dismissed if it is held that the rent case is not maintainable ; and, if the rent case is held to be maintainable then findings will be recorded in relation to other issues as well in terms of judgment delivered by this Court in FRA No.38/2008. It was nowhere mentioned in the above order that the learned Rent Controller should accept additional evidence for the above purpose or that the petitioner will be entitled to produce additional evidence or such evidence production whereof has already been declined by the learned Rent Controller through a speaking order. Therefore, reliance on the above order by learned counsel for the petitioner is misplaced and his contention that while passing the impugned order the learned Rent Controller has disregarded the “writ” issued by this Court, is fallacious.
8. The rent case was filed by respondent No.2 in the year 2007 for the eviction of the petitioner inter alia on the ground of personal need. It is a matter of record that the petitioner had filed three applications one after the other seeking summary rejection of the main rent case and after failing in all such attempts and despite rejection of his request for production of additional evidence, he still chose to file an application seeking production of the same documents that were declined by the learned Rent Controller through a speaking order ; and, after dismissal of his said application, he has now filed this petition under the constitutional jurisdiction of this Court. If the petitioner was of the view that the rent case was not maintainable, which plea has been raised by him in his written statement and a preliminary issue has been framed for this purpose, he, like an honest and fair litigant, should have waited for the final order in the rent case ; and, in case of any grievance, he could have challenged the said order in appeal in accordance with law. However, instead of following the procedure prescribed by law for putting the controversy at rest, he opted to complicate and side-track the main issue due to which even the evidence in the rent case could not be completed despite passage of twelve (12) years, let alone the conclusion thereof. The present petition is the second petition that has been filed by the petitioner against an interlocutory order instead of waiting for the final order in the rent case. Section 24 of the Cantonments Rent Restriction Act, 1963, specifically bars appeals from interim orders and this restriction has been imposed by the law makers clearly with a view to avoid piecemeal decision in cases and to ensure expeditious disposal of rent proceedings under the said Act. If parties to a rent case are allowed to invoke constitutional jurisdiction of High Court where appeal is specifically barred, such practice would negate the very purpose of the statute and render the provisions thereof meaningless.
9. Record shows that in all the above mentioned orders passed by the learned Rent Controller whereby the applications repeatedly filed by the petitioner for summary rejection of the rent case were dismissed and the parties were directed to produce evidence for expeditious disposal of the rent case in compliance of the orders passed by this Court, as well as in the impugned order, it was observed by the learned Rent Controller that the hearing and disposal of the main rent case was being delayed because of the said applications filed by the petitioner. In view of the history of the instant case, I am constrained to observe that the petitioner has not only made all possible attempts to delay the rent proceedings, but has also abused the process of the learned Rent Controller and this Court, and such conduct on his part is deplorable.
10. As the impugned order is an interlocutory order and it does not suffer from any jurisdictional defect or error, this petition, being misconceived and malafide, is not maintainable. The learned Rent Controller is directed to decide the subject rent case within forty five (45) days from receipt of this order strictly in accordance with law and in view of consent order dated 24.08.2010 passed by this Court in C.P. No.S-597/2010 and the judgment delivered by this Court on 10.04.2009 in FRA No.38/2008, and to report compliance within seven (07) days thereafter to this Court through MIT-II. With the above direction, the petition is dismissed with costs of Rs.25,000.00 (Rupees twenty five thousand only) to be deposited by the petitioner with the Sindh High Court Clinic without fail within fifteen (15) days from the date of this order.
J U D G E