FAZAL MUHAMMAD vs ROSHAN DIN etc.
The matter concerns an eviction dispute regarding a shop in Faisalabad. The appellant obtained an ex parte eviction order against the respondents in 1972, which was executed in 1973. Subsequently, the respondents successfully applied to set aside the ex parte order on the grounds of non-service, a decision upheld by the District Judge and the High Court on the basis that the order was not appealable. The core legal question before the Supreme Court was whether an order setting aside an ex parte eviction order constitutes a final order appealable under Section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The Supreme Court dismissed the appeal, holding that the order setting aside the ex parte decree was merely interlocutory, not definitive, and did not resolve the entire dispute. The Court affirmed the principle that only orders embracing the whole gamut of the dispute are appealable, whereas orders that merely revive proceedings to ensure a fair hearing—by correcting a lack of jurisdiction due to non-service—remain interlocutory and are not subject to appeal under the Ordinance.
- Is an order setting aside an ex parte eviction order appealable under the West Pakistan Urban Rent Restriction Ordinance 1959?
- Does an order setting aside an ex parte decree due to lack of service constitute a final order or an interlocutory order?
- What is the test for determining whether an order is appealable under the West Pakistan Urban Rent Restriction Ordinance 1959?
- Section 13, West Pakistan Urban Rent Restriction Ordinance 1959
- Section 15, West Pakistan Urban Rent Restriction Ordinance 1959
1. ' MUHAMMAD HALEEM, C.J.-- The dispute relates to the eviction of the respondent from shop No, P/419, situate in Mohallah Doughlaspura, Faisalabad.
2. The appellant sued for their ejectment in 197: on the grounds of default, bona fide personal use and damage caused to the property. As the respondents failed to accept service, the Rent Controller passed an ex parte order on 10th of April, 1972, followed by an order of eviction dated 2nd November, 1972. Thereafter in execution of the order, the appellant was put into the possession of the shop on 19th July, 1973, and on the same day, the respondents filed an application for setting aside the ex-pare order, which prayer was allowed by order dated 29th of June, 1977, on the ground that the respondents were not duly served with summons. Aggrieved by it, the appellant appealed to the District Judge, but did not succeed as it was dismissed on the ground that the order dated 29th June, 1977, was not an appealable order. Second appeal also failed on the same ground.
3. ' On these facts leave was granted to consider as to whether this order fell under section 13 of the Ordinance so as to be appealable.
4. It was again urged that the impugned order was not an inter locutory order of provisional character or of fragmentary nature as it had the effect of setting aside the final order passed by the Rent Controller, and, therefore, was appealable under section 15 of the Ordinance. This contention does not take note of the ex parte order of eviction has clearly held that there was no due service on the respondents; and if that be so then the orders dated 10th of April, 1972 and 2nd of November, 1972, were both without jurisdiction and a nullity in law; and the respondents were entitled to count limitation from the date of the knowledge of the order, i,e,, the date on which the order was sought to be executed. If the order was nullity the necessarily it had to be set aside as it could not be acted upon and technically what happened was that the application for eviction was revived and had to be disposed of on merits. In this view of the matter, it cannot be argued that the order setting aside the order of eviction was an order in terms of section 13 of the Ordinance. This point was considered in Mian Manzar Bashir and other v. M.A. Asghar & Co. PLD 1978 SC 185, and it was held: "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 that 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 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 terms as interlocutory and not one which finally decides the controversy under section 15 of the Ordinance."
5. ' The learned counsel was unable to distinguish this case on any ground whatsoever.
6. ' Accordingly, we find no merit in this appeal, and dismiss it, but with no order as to cost.