POWERS OF LINK/IN CHARGE JUDGE DURING VACATIONS

POWERS OF LINK/IN CHARGE JUDGE DURING VACATIONS

2012 MLD PAGE 783 ...SINDH HIGH COURT

link/incharge judge having jurisdiction is authorized to perform all judicial functions and is competent to record evidence of the parties and to pass any order on merits within the four corners of law.

Sindh High Court
Ahmad Ali M. Sheikh, J

Muhammad Saeed Shah VS Mst. Philpana And Another
Constitution Petition No. S-989 of 2011
18th January, 2012

ORDER

AHMAD ALI M. SHEIKH, J. -Petitioner through this Constitution Petition impugns the order dated 8-8-2011 passed by the VI-Rent Controller, Karachi South, dismissing an application under section 21 of General Clauses Act, filed by the petitioner for recalling the order dated 28-2-2011 whereby he was debarred from filing written statement/objections.

2. Facts giving rise to this petition are that the respondent No.1 filed Rent Case No.1379 of 2010 against the petitioner, inter alia, on the ground of default. After service of notice, counsel for the petitioner filed power and sought time to file written statement/objection. However, in spite of obtaining many adjournments the petitioner did not file written statement and ultimately, on 28-2-2011 the Incharge Rent Controller, Karachi (South), after giving a final chance, debarred the petitioner from filing written statement and directed the respondent to file her affidavit in ex parte proof. Subsequently, the petitioner filed an application under section 21 of the General Clauses Act for recalling the order dated 28-2-2011. Nonetheless, on 8-8-2011 the Vth Rent Controller, Karachi South, after hearing the parties dismissed the same, which culminated into filing of the present proceedings.

3. It is, inter alia, contended by the learned counsel for the petitioner that the impugned orders were passed in post-haste, mechanical manner and without taking into consideration the legal as well as the factual aspects of the case. It is further contended that instead of debarring the petitioner from filing the Written statement, the learned Rent Controller was legally obliged to provide proper opportunity to the petitioner to present his version and defend the case. She:also contended that neither there was any negligence on the part of the petitioner nor sufficient opportunity was provided to him to put up his defence. According to the learned counsel technicalities cannot prevent High Court from exercising its powers under Article 199 of the Constitution and affording relief, which otherwise petitioner is entitled to receive. She in support of her contention has relied upon the case of Muhammad Ibrahim v. Zeenat Bibi reported in 1991 CLC 1967, case of The State v. Ali Akbar Sabzor reported in 1990 PCr.LJ 1729, case of Haseen Ahmed Khan v. Irshad Khan reported in PLD 1987 Karachi 16, case of Muhammad Bashir v. Abdul Karim reported in PLD 2004 SC 271, case of Rasheed Ahmed v. Province of Punjab reported in 2004 SCMR 707 and case of Liaquat Ali v. Zarafat Ali reported in 2009 CLC 471.

4. On the other hand, learned counsel for the respondent No.1/landlord while supporting the impugned orders has questioned the very maintainability of the petition. Per learned counsel the impugned order was passed on an interlocutory application and according to settled principles of law neither any Appeal lies against such order nor under the Sindh Rented Premises Ordinance, 1979, the Rent Controller has power to review his earlier orders. According to him, if a Constitutional Petition against an interim order passed on an interlocutory application is entertained the very purpose of section 21 of the Sindh Rent Premises Ordinance, 1979, would be defeated. He further contended that although number of opportunities was provided to the petitioner to present his defence but he miserably failed to avail the same. Consequently, the Rent Controller was left with no other option but to debar the petitioner from filing written statement/objections. According to the learned counsel under subsection (2) to section 19 of the Sindh Rented Premises Ordinance, the Rent Controller cannot rescind, amend or review any interim order, therefore, impugned order dated 8-8-2011 was passed in accordance with law. He has further contended that in absence of presiding officer, the link/incharge/vacation judge having jurisdiction was competent to pass any order or judgment. In support of his contention he has relied upon the following reported cases:

(1) Mehmood Ahmed v. State Life Insurance Corp. Pak (1998 CLC 1987)

(2) Fazal Ahmed Naqvi v. Laiquddin (1999 YLR 1947)

(3) Intesar Ali v. Ahmed Din Khan (1983 CLC 998)

5. Heard learned counsel for the parties and perused the record. From the pleadings it appears that on 23-11-2010 a Rent application was filed by the respondent. On 18-1-2011 copy of the application was received by the petitioner/opponent. The counsel representing the petitioner instead of filing written statement/objections kept on seeking adjournments one after the other while on 28-1-2011 the trial Court has given last opportunity to him to present his defence. The record further shows that the matter was fixed on 7-2-2011, 18-2-2011 and 25-2-2011 but the petitioner did not file written statement/objection. Ultimately, the case was fixed on 28-2-2011 for filing the written statement but on that date neither the petitioner nor his counsel turned up, and finally at 1-00 p.m. The Rent Controller passed the impugned order debarring him from filing written statement and directed the respondent No.1 to file affidavit in ex parte proof. In view of the above, it is crystal clear that the sufficient opportunities were provided to the petitioner to file written statement/objections but he has failed to avail the same. Therefore, the Rent Controller was left with no option but to debar the petitioner from filing written statement. Therefore, the contention of the learned counsel for the petitioner that proper opportunity was not provided to him to submit the written statement is devoid of force and untenable.

6. As far as the contention of the learned counsel for the petitioner that the link/incharge Judge has no power to pass the impugned order, the same is misconceived and has no force. In law, the link/incharge judge having jurisdiction is authorized to perform all judicial functions and is competent to record evidence of the parties and to pass any order on merits within the four corners of law.

7. So far as the contention of the learned counsel for the respondent No.1 that the petition is not maintainable, it has been held in the case of Mehmood Ahmed supra 1998 CLC 1987 that no Constitutional petition is maintainable against an interim order of the Rent Controller for the reason hat if Constitutional Petitions were to be entertained the very purpose of section 21 of the Ordinance would be defeated. Similarly, in the case of Intesar Ali supra (1983 CLC 998) it has been held that if legal remedy by way of appeal is not available against interim order, such order cannot be permitted to be challenged by invoking extraordinary constitutional jurisdiction of this Court. Conversely, the case-law cited by the learned counsel for the petitioner are quite distinguishable on facts and circumstances of the case.

8. For the foregoing reasons and in view of the dicta laid down by the two Division Benches of this Court in aforementioned reported case, I am of the considered view that instant Petition is not maintainable against an interim order passed on an interlocutory application as such order cannot be permitted to be challenged by invoking extraordinary constitutional jurisdiction of this Court. Resultantly, this Constitutional Petition is dismissed in limine along with the listed application.

The above are the reasons of short order dated 18-1-2012 whereby this petition was dismissed.

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