RIAZ KHALIL AND OTHERS vs Sh. MUHAMMAD SHAFIQ

1. ' MUHAMMAD AFZAL ZULLAH, J.-This petition for special leave to appeal by tenants arises out of ejectments proceedings instituted by the respondent-landlord under the Cantonments Rent Restriction Act, 1963. The learned Rent Controller by his order dated 26th of February, 1976 directed the petitioners under section 17 (8) of the Act for the deposit of the arrears of rent. The petitioners challenged the same in appeal filed before the District Judge. A learned Additional District Judge by his order dated 19th October, 1976 allowed the appeal. But instead of dealing with the deposit of rent only, he dismissed the original ejectment application filed by the respondent. Aggrieved by the appellate order the respondent-landlord filed a writ petition. Relying on the rule laid down in the case of Ibrahim (1) a learned Single Judge of the Lahore High Court by his judgment dated 11th June, 1979 allowed the writ petition. Set aside the order of the learned Additional District Judge as without lawful authority and directed the learned Rent Controller to hold further proceedings in accordance with law. Hence this petition.

2. ' Learned High Court was influenced by three factors in allowing the respondent's writ petition. One- the order for deposit of rent under section 17 (8) of the Act being an interlocutory order of provisional character, not having (by then) resulted in the petitioner's defence being struck off, was not appealable ; two-the learned Additional District Judge confused this case with another case between the same parties which had been finally decided by the learned Rent Controller, which led to an absolutely erroneous order of dismissal of respondent's application ; and three--the learned Additional District Judge was not conferred the power to hear appeals under the Cantonments Rent Restriction Act.

3. ' Learned counsel for the petitioners while conceding that for the last mentioned two reasons the appellate order was liable to be set aside, contended that the ruling of this Court in Ibrahim's case would not apply to appeals arising out of orders of deposit made under section 17 (8) of the Cantonments Rent Restriction Act, as it dealt with and arose out of the West Pakistan Urban Rent Restriction Ordinance, 1939. Therefore, according to him the appeal was competent before proper forum and on acceptance of respondent's writ petition the case should have been remanded to the learned District Judge for disposal of the petitioners first appeal in accordance with law. He has pointed out some variations in the language of the relevant provisions of the two laws while under section 13 of the Ordinance the Rent Controller is also required to determine `finally,' the 'rent due,' under section 17 of the Act there is no such obligation ; and according to section 15 of the Ordinance first appeal is

(1) PLD 1975 SC 457 ' provided only against orders passed under certain specified sections thereof, but section 24 of the Act does not prescribe any such restriction.

4. ' The differences in the two laws, in so far as the question involved herein is concerned, are of no material consequence. It all depends upon the nature of the order. If it is of provisional character and does not decide the main disptue involved in the lis, an interlocutory order might not be treated as appealable unless made so by specific provision of the relevant law. Some of the principles enunciated in this behalf from time to time are :-

(a) When preliminary, incidental, ancillary or collateral points and taken to appeal and other higher forums for correction at interlocutory stages leaving the main controversy in the litigation undecided, it is likely to result in fragmentary adjudication which besides being most "inconvenient" tends "to delay the administration of justice". And inordinate delay itself has often been termed as negation of justice.

(b) The mere fact that an interlocutory order on a preliminary issue goes to the "root of the case" would not always be the subject matter of appeal, for example when a Civil Court decides a preliminary issue as to jurisdiction in favour of the plaintiff, no appeal lies against the finding. Same would be the position qua other laws unless on the wording of the relevant law it is found that a right of appeal is clearly granted. It is so notwithstanding the importance of the decision and "its going to the root of the matter"

(c) These considerations would be attracted more pronouncely when an order is not only interlocutory and incidental or collateral, but is also of provisional character, vis-a-vis the main controversy (a in this case is the question of ejectment on stated grounds therefor), or qua an ancillary question, for example the deposit of rent during the proceedings of ejectment ;

(d) If, as pointed out in the foregoing, an appeal or for that matter an approach to the higher forum against an order the type of which is under consideration, is not an obvious possibility-neither on the basis of clear words of the relevant law nor on account of the afore noted and similar other considerations, the party concerned should wait for the decision of the main controversy ; which decision might clearly be assailable before the higher forum by way of appeal of otherwise. The apprehension and argument that in the meanwhile the party would suffer some loss can be dealt with on a more important principle-that appeal to higher forum is a question of right conferred on a party and is not subject to general considerations like inconvenience on the one mentioned above. If every apprehension or adverse decision, is sought to be allayed and corrected by higher forums at all interlocutory stages without disregard to the "clear" right of the party to interrupt the continuity of the proceedings in a normal way to the normal conclusions, the delay thus caused might clog an entire facet of mechanism inherent in (as the objects and purpose of) most of the laws which can best be illustrated by a converse accepted natural rule-"justice-delayed) is justice denied."

5. ' We accordingly in this case also, with respect, reaffirm and reiterate the law laid down in the cases of Messrs Kandawala & Co. Ltd., Lahore v. Sh. Rashid-ud-Din (1), Ibrahim v. Muhammad Hussain and Mian Mahzar Bashir and others v. M. A. Asghar & Co. (2).

6. The two provisions of the Cantonments Rent Restriction Act, 1963 relied upon by the learned counsel ; namely, sections 17 and 24 do not present any difficulty in following the above rule. No doubt section 17 the Act, unlike section 13 of the Ordinance, does not provide that the Rent Controller shall 'finally' determine the 'amount of rent due' ; but this would not change the nature of the order passed under section 17 (8) of the Act. The Rent Controller has to direct the tenant thereunder to deposit the 'rent due' from him. He has to determine the rent due. But B in case of disagreement on the amount due he would determine the same `approximately'. The chat actor of such an order qua "approximate rent," in the overall context of the proceedings, would remain incidental and in a way provisional also. That being so, appeal not having been specifically provided for in the Act, from such 'approximate' determination, the order would not be rendered appealable merely because when the tenant refuses or fails to deposit the so determined rent, his defence would be struck off.

7. Language used in subsection (2) of section 24 of the Act, has been made basis for the argument that all the orders passed by the Rent Controller, unlike the specification of the few appealable orders in subsection (1) of section 15 of the Ordinance, have been made appealable. C. The contention has no substance. While dealing with similar argument it was observed in the case of Messrs Kandawala & Co. Ltd., Lahore v. Sh. Rashid-ud-Din that "the words used in section 15 are 'an order', but learned counsel for the petitioner does not rind it possible to contend that these words are to be interpreted in their wide generality and he accepts that some qualification has to be added to these words for otherwise an order adjourning a case or summoning a witness would also be subject to appeal and learned counsel agrees that this could not be the intention". No further comment is necessary in this behalf. The contentions raised by the learned counsel have no force. This petition fails and is accordingly dismissed.

(1) 1969 SCM R 720 (2) P D 11978 SC 185