MUHAMMAD UMER AND ANOTHER vs DR. AM1NA ASHRAF

' An eviction application was filed against the appellant tenant by the transferee Haji Jamaluddin on the ground of default in payment of rent and personal use. During the pendency of this application Haji Jamaluddin sold the tenement to the respondent herein. The respondent, in these circumstances having become the landlady made an application for substitution of her name in place of Haji Jamaluddin. This application was rejected by the Rent Controller but in appeal the order of the Rent Controller was set aside and the application made by the landlady granted.

2. Mr. Mohammad Ramzan Qureshi, the learned counsel for the appellant-tenant in support of this Second Appeal contended that no appeal lay against the order of the Rent Controller rejecting the landlady's application for substitution in place of the previous landlord Haji Jamaluddin. The contention was that this was not one of the orders against which appeal is provided under section 15 of the Rent Ordinance. It was not disputed before me that the landlady by virtue of the transfer in her favor became the landlady of the tenant but the contention was that this order, under section 13 proceedings, was an interlocutory order and, therefore, not appealable.

3. Mr. Qureshi Muhammad Ramzan firstly relied on Allah Ditta and others v. Muhammad Hussain and others. (1) in which case an order made by the Rent Controller impleading one Raj Bibi as party to the proceedings in addition to the existing tenant-respondent was held to be not appealable under section 15 of the Rent Ordinance. In the other case on which Mr. Qureshi relied, Muhammad Sulalman v. Azizuddin and another (2), it was held that an order made by the Rent Controller refusing to implead a third person who had sought to be joined as one of the respondents was not appealable. It will be noticed that in both these cases the application made by the landlord under section 13 did not stand disposed of by the order made by the Rent Controller.

4. The question now rests concluded by a recent decision of the Supreme Court in Ibrahim v.

Muhammad Hussain (3), in which it has been observed as follows :- "It would be idle to contend that as respects cases falling under any of the above four sections, subsection (1) of section 15 postulates appeal in relation to a matter which is not germane to the substance of the dispute, but which is merely incidental or collateral to the dispute and which has been disposed of by an interlocutory order. For instance, in any such case objection may be taken against the territorial jurisdiction of the Rent Controller and a finding as to the existence of such jurisdiction, cannot on any discoverable principle be made a subject-matter of appeal apart from appeal from the whole gamut of the dispute. On a parity of reasoning the same will be true of the interlocutory order in the instant case, which was made to dispoe of a collateral matter in the case."

In the present case it was admittedly not an interlocutory order nor did the order determine a matter merely incidental or collateral to the dispute between the parties. The consequence of the order is that the landlady is application under section 13 will stand rejected. In the circumstances I am A clear in my mind that the order made by the Rent Controller was appealable and the first contention of the learned counsel for the appellant has, therefore, no force.

5. It was next contended on behalf of the appellant tenant that the appeal filed by the landlady against the order made by the Rent Controller dated 22-8-1969 rejecting her application for substitution was barred by time. More particularly the contention was that an application for grant of copy was not made until 13-9-1969. Cost was paid on the same day, copy made ready on 20-10- 1969, stamp supplied on 5-11-1969 and copy delivered on the same day. Unfortunately there are over-writings as to date and without further inquiry it is not possible to place reliance on the certified copy of the order of the Rent Controller obtained by the landlady. B Furthermore, it is Mr. Fazeel's case that the landlady had no notice that copy was ready for delivery. Unfortunately the learned First Appellate

(1) PLD 1965 Lab. 29 (2) PLD 1971 Kar. 1

(3) PLD 1975 SC 457 ' Court has not adverted to the tenant's plea of limitation. In the circumstances 1 am left with no other alternative but to remand the case back to the Firs Appellate Court for its decision on this limited question.

6. The appeal is, therefore, disposed of in terms aforesaid with no order as to cost.