MUHAMMAD MATEEN Versus KHURSHID DOSSO DORABJI MARKER , Badrudduja Khan,A.R. Akhtar

1. This First Rent Appeal is directed against the order dated 29‑8‑1984 passed by the learned Xth Senior Civil Judge/Rent Controller Karachi by which he has set aside the dismissal order dated 23‑7‑1984 and restored the rent case No.3022/73 to file.

2. The brief facts giving rise to the present appeal are that the respondents 1 to 3 filed an ejectment application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 against the appellant and the co‑respondents for ejectment before the learned Rent Controller which was ultimately fixed for evidence on 23‑3‑1984, and was dismissed in default of the witness of the applicant and the applicants/ respondents 1 to 3 and their counsel. The order passed by the learned Rent Controller reads as under:‑

3. "Learned counsel for the Opponent No.9 is present to cross‑examine the applicants' witness, but none from the other side is in attendance. Learned counsel for Opponent No.9 says that the applicants have sold out the premises and have lost their interest in the matter. From absence of applicants and witness, the statement at bar of opponent's counsel gets support. I am fully convinced that the applicants have no interest. Accordingly I dismiss the rent application No.3022/73 with no order as to costs."

4. That on 24‑7‑1984 the learned counsel appearing for the applicants‑respondents 1 to 3 moved an application for setting aside the order dated 23‑7‑1984, with a further request that the rent case be restored to file. The learned Rent Controller issued notices to the parties out of which Mr. S.Zaigam Ali Officer of Habib Bank Limited respondent No.11, and Mohammad Yameen, attorney of respondent Shaikh Mohammad Mateem filed affidavits opposing the restoration of the rent case. On the other hand Mr. Zamiruddin Advocate appearing for the applicants filed affidavit‑in‑rejoinder controverting the factual aspects of the affidavit filed by the other respondents, while respondents 4 to 7 gave no objection to the restoration.

5. The application for restoration was supported by an affidavit filed by Mr. Muhammad Zia Karim Advocate appearing for the applicants respondents 1 to 3. According to this affidavit he was under the impression that the matter was fixed on 23‑7‑1984 for hearing of various applications of Opponent No.l Habib Bank Ltd. in which they had. alleged that the applicants have either died or left Pakistan for ever. That he attended the Court at 8.15 a.m. on 23‑7‑1984, got his presence recorded on the cause list by the Bench Clerk. He attended the Court several times but the Court was busy in recording evidence. That he again attended the Court at 11‑00 a.m. but he found the Court still busy with the evidence matter. That lastly when he attended the Court at 11‑30 he noticed that D/0 was noted against the above case in the cause list and the Court was busy in hearing arguments of Mr. Dastagir Advocate, who at about 9‑00 a.m. had taken time in his presence for going to High Court. That as he was under the impression that the matter was not fixed for cross‑examination of witness of the applicants, had not advised the applicants to produce witness on 23‑3‑1984.

6. That when matter was called at about 11‑00 a.m. he was busy in Court No. XIII of Senior Civil Judge. That the statement made by the Advocate for the Opponent No.9 Habib Bank Ltd. was baseless and without any foundation as per instructions of his client. That even otherwise the Court could have closed the side of the applicant, instead of dismissing the application which was bad in law.

7. That the facts mentioned in the above affidavit were controverted to by the respondents in their affidavits and they had denied the facts mentioned in the affidavit. It was their case that the case was fixed for cross‑examination of the witness of the applicants and the miscellaneous applications were already disposed of. That the facts mentioned in the supporting affidavit were incorrect and misleading.

8. I have heard the learned counsel appearing for the parties and have gone through the documents produced by the parties.

9. Mr.Z.U. Ahmed learned counsel appearing for the appellant contended that the order passed by the learned Rent Controller restoring the rent case to file was unjustified in view of the background of the case. That the respondents 4 to 7 were in collusion with respondents 1 to 3, and therefore, their no objection could not be given any weight. That the learned Rent Controller, had failed to consider the affidavit filed by the respondents opposing the restoration application which had seriously prejudiced their case. He has relied upon 1980 S C M R 298 to show that the appeal was competent.

10. Mr. Badrudduja, learned counsel appearing for respondents 4 to 7 has contended that since the restoration application was allowed, and the rent case was restored to file, no appeal lies from that order and the appeal was not maintainable in law. In this connection he has relied upon 1984 C L C 101 and P L D 1983 S C 21.

11. Mr. Mohammad Ishaq Shams learned counsel appearing for respondents 1 to 3 has contended that the decision relied upon by Mr. Z . U . Ahmed was not applicable to the facts of the present case as the order did not decide the entire case and that no appeal could lie from interlocutory order. In support of his contention he has relied upon P L D 1983 Lah. 113.

12. Mr. A.R. Akhtar learned counsel appearing for Habib Bank Limited has supported the contention of Mr.Z.U.Ahmed, learned counsel appearing for the appellant.

13. I have considered the contentions of the learned counsel and in view of the order which I propose to pass in this appeal it is not necessary to go into the factual aspect of the matter because of the legal objection raised by the learned counsel appearing for respondents 1 to 7.

14. In order to appreciate the respective contentions of the learned counsel it is necessary to have a look at the provisions regarding appeals in the Urban Rent Restriction Ordinance, 1959 and the Sind Rented Premises Ordinance, 1979, under which the present appeal has been filed. In the Urban Rent Restriction Ordinance, 1959 the appeal was provided under section 15 (1) which reads as under:‑

15. "Any party aggrieved by the order made by the Controller under section 4, section 10, section 12 or section 13 may within 30 days of the date of such order prefer an appeal in writing to the District Judge having jurisdiction over the area where the buildings or rented land in relation to which order is passed is situated."

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18. In the Sind Rented Premises Ordinance,1979 the appeals are provided in section 21 which reads as under:‑

19. "Section 21 (i)‑‑ Any party aggrieved by an order not being an interim order made by the Controller may within 30 days of such order prefer an appeal to the High Court.

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20. In the case Hayat Ali v. Miss Aziza Mahmood 1980 S C M R 298 relied upon by the learned counsel appearing for the appellant the Rent Controller had passed a tentative order under section 13 (6) directing the tenant to deposit the arrears of rent before 16‑6‑1977 and further rent before the specified date as provided in the relevant law. It appears that the tenant failed to fulfil the direction regarding deposit of arrears of rent and instead filed an application for extension of time for such deposit as he was confined to bed on account of illness the time was allowed. The landlord went in appeal before the District Judge and the District Judge was pleased to observe that the tenant was negligent in not depositing the arrears of rent and also the future rent and therefore ordered ejectment of the tenant. The objection regarding maintainability of the appeal was disallowed. The tenant went before the High Court but did not succeed. He could not persuade the High Court that the appeal before the District Judge was incompetent. The tenant went before the Hon'ble Supreme Court and their Lordships were of the view that the order passed under the first part of subsection (6) of section 13 as well as under the second part of subsection (6) of section 13 were to be treated at par in determining their nature and the appeal was maintainable. However, the petition for leave to appeal was dismissed.

21. Admittedly the above decision arose out of the provisions of section 13 which was appealable under Section 15 but looking to the provisions of Section 21 it clearly shows that the appeal could not lie against the interim order.

22. In the case of Mir Ali Ahmed Khan Talpur v. Joseph D'Melo PLD 1983 Lah. 113 it was held by this Court that:

23. "It is very clear that by impugned order the ejectment application filed by the respondent does not stand disposed of finally, but is still pending and will have to be disposed of on merits by the learned Rent Controller. The impugned order, I am afraid, cannot be considered to be a final order so as to attract the provisions of appeal provided under the relevant law. "

24. In the case of Sultan Ahmed v. Rustam F. Cowasjee and another 1984 C L C 101 a Division Bench of this Court was pleased to observe while relying upon observation made in C.P.113 of 1983 wherein it was observed that Order 9, Rule 9 is not applicable in terms to the proceedings before the Controller, its principle can be applied for proper administration of justice. Therefore, principle of Order 9, Rule 9 can be pressed in service where it is a demand of justice.

25. It was further held in the above decision that "Under the Sind Rented Premises Ordinance no appeal is provided against an interlocutory order. The objection is to avoid appeal on "Fragmentary decision" which delay the determination of main controversy about liability of the tenant for ejectment. In such cases the parties should wait till the final order is passed and then file an appeal challenging both the orders".

26. After review of number of decisions in Abdur Rehman v. Haji Amir Muhammad Khan P L D 1983 S C 21 the following observation was made:‑

27. "Keeping the aforediscussed aspect of the question raised before the High Court and the trend of authority regarding exercise of writ jurisdiction in rent matters it is held that the petition in the High Court was liable to be dismissed on the short ground of availability of adequate remedy to the petitioner if ever any adverse final order was passed against him, that being so this petition must fail." ,

28. In view of the above legal position the impugned order passed by the Rent Controller not being final inasmuch as it does not decide the case finally and the parties are yet to lead their evidence and no final order of ejectment or otherwise has been passed against the appellant, the present appeal was not maintainable under the law. I, therefore, dismiss the above appeal but with no order as to costs.

29. A.A./M‑380/K Appeal dismissed.