MANZAR BASHIR Versus M. A. ASGHAR & CO.

ORDER

1. MUHAMMAD HALEEM, J .‑The petitioners seek special leave to appeal against the order of the Lahore High Court dated 25th of April, 1978, by which S. A. O. No. 508 of 1977 was dismissed. The petitioners are the owners of building known as Mian Shah Din Building, situate at Shahrah‑e‑Quaid‑e‑Azam, Lahore. The respondent is a tenant of one of the shops in the same building. On 17th of July, 1974, the petitioners filed an application for ejectment on the grounds : firstly, that since the beginning of 1972, the respondent had not been carrying on his business and had locked the shop and the basement thereunder with the result that the demised premises was in a state of disrepair which had materially impaired its value and utility ; and secondly, that the shop was required for the bona fide use and occupation of the first petitioner. Despite repeated efforts, personal service could not be effected on the respondent and, therefore, he was served by substituted service by axing summons on the date of the shop as well as by publication in a newspaper. As he failed to appear, the Rent Controller, by order dated 15th of March, 1975, directed his eviction from the shop. Later, the possession of the shop was also delivered to the petitioners on 26th of April, 1975. 'Thereafter, the respondent moved the Rent Controller for setting aside the ex parte order of ejectment which prayer was accepted by order dated 10th of November, 1977. The petitioners, thereupon, filed the first appeal which was dismissed by the Additional District Judge by order dated 13th of September, 1977, as he held that the order appealed against was not a final order and hence the appeal was incompetent. The petitioners, thereupon went in second appeal but that too was dismissed by the learned Single Judge for the same reason.

2. In seeking leave to appeal the learned counsel for the petitioners contended that the order dated 10th of November, 1977, setting aside the ex parse order of ejectment was appealable under section 15(1) of the West Pakistan Urban Rent Restrict7on Ordinance. Before adverting to this legal contention it would be relevant to mention that the Rent Controller has held that the respondent was not duly served and, therefore, the ex parte order was illegal. As to the legal effect of such an order it was held by this court in Gulzar Hussain Shah v. Ghulam Murtaza and others (P L D 1970 S C 335) as under :‑

3. "Even otherwise the order dated 8th of August, 1969, suffers from the principles of natural justice. It was passed in the absence of respon dents for no fault of theirs. It was, therefore, a nullity in the eye of law and the question involved should have been re‑examined and decided in the presence of the parties."

4. Accordingly; such an order was liable to be set aside; and if the Rent Controller had exercised his inherent power to set it aside, no exception can be taken to it, for, in law such a power is possessed by every tribunal.

5. The question now arises as to whether this order was appealable as contended. The test for determining whether such an order is appealable or not was enunciated by, this Court in Ibrahim v. Mahammad Hussain ( P L D 1975 S C 457).. It was held

6. "It is well‑settled principle that right of appeal is a creature of the statute and it is not to be assumed that there is right of appeal in every matter brought before a Court for its consideration. The right is expressly given by a statute or some authority equivalent to a statute such as a rule take the force of a statute. Therefore, existence of right of appeal cannot be assumed on any a priori ground. This is an sharp contrast with the right to sue. A litigant has a general right to institute a suit of civil nature independently of any statute, unless such general right is expressly or by necessary implication barred by a statute to the contrary. Therefore, in respect of any order made in proceedings before the Rent Controller, right of appeal will have to be clearly established within the four corners of subsection (1) of section 15 of the Ordinance.

7. It is plain that subsection (1) of section 15 is restrictive in character and limits right of appeal against an order falling under section 4, 10, 12 or 13 of the Ordinance. Therefore, when an appeal is sought against any order made by the Rent Controller, the question will always be, whether the order sought to be appealed against properly falls under any of the above sections."

8. Accordingly, an interlocutory order which is either incidental or collateral is excluded. It is only that order which embraces the whole gamut of the dispute which is appealable. Applying this test to the impugned order, it is not definitive as it re‑opens the proceedings from the stage it was declared ex parte against the respondent to give effect to the mandatory requirement B of subsection (2) of section 13 of the Ordinance, namely, that of giving reasonable opportunity of showing cause against the application. Accordingly,, it can only be termed as interlocutory and not one which finally decides the controversy under section 13 of the Ordinance.

9. In Muhammad Umar and another v. Dr. Amina Ashraf (P L D 1977 Kar. 345) Fakhruddin G. Ebrahim, J., applied this test to an order rejecting the application for substitu tion of the vendee in place of the vendor who had filed an application for ejectment and held that such an order was not appealable.

10. The learned counsel, however, placed prime reliance on Syed Iqbal Hussain v. Mst. Sarwari Begum (P L D 1967 Lah. 1138. ). But this case was decided on the language of section 15(1) (a) and the notification issued thereunder before its amendment; and the decision turned on the construction of the words "case and order". The former was held to include an interlocutory order and the latter to convey the meaning of an order which decides a case. It is true that in that case the order setting aside the ex parte order of ejectment was thus held to be appealable but that principle will not be applicable to a case covered by the amended section 15(l) of the Ordinance.

11. In Muhammad Aslam Mirza v. Mst. Khurshid Begum (P L D 1972 Lah. 603), the decision turns on the question whether the Rent Controller could set aside the ex parte order of ejectment in the exercise of his inherent power ; and further, whether such an order could be attacked on merits in view of subsection (5) of section 15 of the Ordinance. In this case, there was a difference of opinion and Karam Elahee Chauhan and Fazle Ghani, JJ., who held the majority view observed :‑

12. "Apart from the fact that the scope of the appeal, under the Ordinance, is limited, still even under general law also it is doubtful as to whether the sufficiency of the cause of absence of a, defendant can be gone into in an appeal by him against an ex parte decree."

13. This observation, though in different context, militates, against the‑ proposition that such an order is appealable.

14. In N. Q. Industries v. Mrs. Bapai Kaikhusro (P L D 1968 Kar. 589 ), the question arose as to whether the order rejecting the application to set aside the ex parte order of ejectment was appealable or not? Noorul Arfin, J., as he then was, held that such an order "approximates in nature to an order of eviction under section 13 and, therefore, it was appealable under section 15(1‑B) of the Ordinance." Such. an order, if we may say so, is seemingly definitive as it has a direct bearing on the whole subject of the controversy concluded by an earlier order and a fortiori, it can be regarded as an order under section 13 of the Ordinance. It is comparable to an order under Order IX, rule 13, C. P. C. rejecting an application to set aside a decree passed ex parte which is appealable under Order LXIII. Accordingly, this decision cannot also advance the case of the petitioner.

15. In Hazoor Bux v. Muhammad Yakoob (P L D 1975 Quetta 39) Zakaullah Lodhi, J., held that an order rejecting an application to set aside ex parte order was appeal able. There is no discussion but the learned Judge seems‑to have proceeded on the concession of the counsel for the respondent that it was appealable. The decision, however, follows the view taken in N. Q. Industries' case.

16. Lastly, in Mrs. Feroze Aslam v. Muhammad Akhtar (P L D 1978 Lah. 488) the order setting aside the ex Porte order of ejectment was assailed in writ jurisdiction but the petition was dismissed on the ground that being an interlocutory order it could be challenged in the appeal against the final order under section 13 in case it is against the petitioner. This discussion is against the proposition canvassed and the High Court has mainly relied on it for rejecting the appeal.

17. It was next contended that an appeal lies to the High Court under subsection (4) of section 15 against an order which does not fall within the ambit of subsection (1) of section 15. In support of his contention the learned counsel relied on the expression "and if an appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final." Further support, was taken for this proposition from the judgment of this Court in Qazi Ahmad Khan v. Mrs. S. Henry Lai and another (1976 S C M R 515) in which it was held

18. "Ch. Qadir Bakhsh, learned counsel for the petitioner, has contended that the order challenged in appeal before the High Court was not covered by the class of cases mentioned in section 15(l) of the Rent Restriction Ordinance, 1.959. He, therefore, contended that no direct appeal lay to the District Judge and a direct appeal to the High Court under section 15(4) as no appellate authority under section 15(1) has been provided for such class of cases. This contention of the learned counsel, prima facie, appears to be correct."

19. Reading subsection (4) of section 15 as a whole, there is reference to an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1) of section 15 and then follows the expression on which the proposition hinges. Obviously, therefore, this subsection has reference to the unamended section 15(1) (a) where power was given to the Government to notify the appellate authority. In that context the expression in the second part of subsection (4) of section 15 provides that if no such appellate authority is notified then a direct appeal shall lie to the High Court against an order of the Rent Controller. Section 15(1) (b) has now, been amended and substituted by subsections (1), (l‑A) and (l‑B). Subsection (1) has dispensed with the appointment of the appellate authority and instead the District Judge having jurisdiction is designated as an appellate authority. Therefore, the expression relied on in subsection (4) of section 15 cannot stand out to provide a direct appeal in the face of the designated appellate authority to hear an appeal against the order of the Rent Controller under subsection (1) of section 15. Even as section 15 stood unamended it was a residuary provision intended to provide for a direct appeal where the Govern ment had not appointed an appellate authority for any area or class of cases. The Legislature, while amending section 15(1) (a) omitted to delete the words "clause (a)" from subsection (4) and the provision for a direct appeal as it had no efficacy on account of the appellate authority having been designated in subsection (1) of section 15. Therefore, this contention carries no weight. As to the observation of this Court in the above‑cited case there is no conclusive opinion but only a prima facie evaluation of the proposition. Accordingly, in the light of the above discussion, subsection (1) of section 15 cannot be bye‑passed and no such direct appeal, as is contended, lies to the High Court.

20. For the foregoing reasons, it is manifest that the impugned order of the Rent Controller was not appealable as it was not definitive. Accordingly, the Courts below were correct in holding that the appeal against it was incompetent.

21. The petition has no force and is dismissed.

22. WAHEEDUDDIN AHMAD, J.‑I agree.

23. KARAM ELAHLE CHAUHAN, J.‑I agree.

24. S. A. H. Petition dismissed.