1986 PLP 43 (CLC)

At the hearing of appeal I enquired from the learned counsel as to how this appeal is maintainable under section 21 of Ordinance XVII of 1979 as the order, dated 14‑10‑1979 did not have the effect of finally concluding the controversy before the Controller and, therefore, for all practical purposes it is an interim order within the meaning of section 21 ibid. The learned counsel in reply relied on the case of Mst. Fatima Bai v. Mst. Fatima Begum P L D 1977 Kar. 1007 and Rana Zahid Ali Khan v . Ehsan Ellahi P L D 1977 Lah. 538 and contended that an order passed by the Controller refusing to strike off the defence of a tenant has been held in these cases as an order falling in the category of a final order and is, therefore, open to appeal. Besides the above two cases two more cases may be mentioned here in which similar view has been expressed with regard to an order of Rent Controller refusing to strike off the defence of tenant in cases, instituted under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) and these are noted in the decisions relied by the appellant. These cases are reported as Abdul 11amid v. Hafiz Abdullah P L D 1969 Kar. 82 and Muhammad Hussain and another v. Mehrajdin and another P L D 1965 Lah.

179. It may be mentioned here that all the above‑mentioned four cases were decided under the provisions of Ordinance VI of 1959 which was applicable in Sind until 21‑11‑1979 when it was repealed by Ordinance XVI1 of 1979. In order to understand correctly the ratio decidendi of the above cases it is necessary to study carefully the provisions of sections 13 and 15 of Ordinance VI of 1959 under which the Controller is empowered to strike off the defence of tenant and appeal is provided against the order of Controller passed undcr the Ordinance, respectively. Ejectment of tenant on various grounds is provided under section 13 of the Ordinance V1 of 1959 and subsection (6) thereof makes it obligatory on the Controller to pass an order for deposit of arrears of rent due and the future monthly rent, by the tenant, on the first date of hearing or as soon as possible but before framing of issues in the case. Such an order passed by the Controller is to remain effective until final conclusion of proceedings but if the tenant makes a default in compliance of such an order then his application is to be rejected summarily if he is petitioner and his defence is to be struck off if he is respondent and the landlord is to be put in possession of the premises without taking an further proceedings in the case. The underlined words are used in subsection (6) of section 13 ordinance VI of 1959 and they have been underlined by me to highlight their significance]. These words weighed greatly with the Court in the case of Abdul Hamid v. Hafiz Abdullah, to persuade the learned Judges of the Division Bench to hold that an order of Controller refusing to strike off the defence of tenant under section 13(6) of the Ordinance was appealable being final in nature and omission to challenge the same in time had the effect of conferring finality on that order. The following observation was made by the Court which appears at page 85 of the report and may be reproduced here with advantage:‑ "Coming to the merits. of the question whether the order striking out of the defence passed by the learned Single Judge should be maintained, we would like respectfully to observe that the default of the tenant was condoned by the order of the Controller as far as 16th December, 1961. This was an appealable order. No appeal was filed against it. Instead, the landlord preferred to contest the matter on merits. It is true that adverse orders under the Civil Procedure Code, which are of interlocutory nature, can still be questioned in an appeal which may be passed against the decree. We are however, of the opinion that this order under section 13(6 would have conclude the proceedings because subsection, (6) section 13 provides that the defence, in the circumstances narrated n that section, shall be struck off the landlord into possession of the property without taking any in the case. So it would appear that the order of the Controller refusing to strike out the defence was a final order as t impact on the proceedings was concerned. The landlord ‑did not challenge it by an appeal. Having thus acquiesced in the continuation of the proceedings which culminated into a final order, we do not think he should be permitted to raise this question in a second appeal which was against the final order." (The underlining is my own). The underlined portion of the above passage will show the importance and significance attached to the expression "without taking any further proceedings in the case" by the Controller. In the case of Muhammad Hussain v. Mehraj Din and another Full Bench of Lahore High Court reviewing an earlier Full Bench decision in the case of Muhammad Amin v. Sh. Jamshed Ali P L D 1963 Lah. 523 held as follows: ‑ . "I must concede at once that I was not properly advised in expressing the view in Jalal Din and another v. Azizuddin and another P L D 1963 Lah. 436 that the power conferred on a Rent Controller to strike off defence of the respondent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was not available to the appellate authority under section 15(1)(b) of the Ordinance. Though the Ordinance does not contain provisions corresponding to section 107(2) of the Code of Civil Procedure, namely that 'the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. ' Order XLI, rule 33 of the Code of Civil Procedure, which is applicable to appeals under section 15(1) (b) of the Ordinance inter alia lays down:‑ "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, This point was not expressly raised before the Full Bench in Muhammad Amin v. Sh. Jamshed Ali P L D 1963 Lah. 523, but as observed by my learned brother Nazeer Ahmad Mahmood, J. if an order striking off defence is open to appeal a fortiori the appellate authority is competent to pass a correct order in the cases. The reference is answered accordingly." It will be seen from the above observation of Full Bench that the point answered by the Court is with regard to power of appellate authority to pass a proper order under section 13(6) of the Ordinance in appeal arising from an order of Controller passed under that provision. Although from the reference order it is quite clear that the question referred to the Full Bench related to maintainability of an appeal filed against the order of Controller refusing to strike off the defence of tenant under section 13(6) but it is only by implication that it can be said that such an appeal was held maintainable. I now turn to the two cases relied by the learned counsel for the‑appellant in support of his contention that the appeal is maintainable as it is filed against a final order. The first case referred by the learned counsel is Fatima Bai v . Fatima Begum decided by a learned Single Judge of this Court (as he then was). The decision in Fatima Bails case followed the Lahore decision in the case of Rana Zahid Ali Khan v. Ehsan Ellahi, besides referring to the decisions in the cases of Abdul Hamid v. Hafiz Abdullah and Muhammad Hussain v. Mehraj Din. In Rana Zahid Ali Khan's case the Court found that the order of Controller refusing to strike off the defence of tenant under section 13(6) of the Ordinance VI of 1959, is to be treated as a final order on the following considerations:‑ "It is now authoritatively established that the Rent Controller has no power to extend the time for making the deposit whether such time has been fixed by him under the powers given to him by subsection (6) or the time is fixed statutorily by the same provision. In these circumstances two types of cases can be within the contemplation of the legislature. One is a case where in view of the default committed by the tenant in complying with the order of the Rent Controller the Rent Controller directs the striking off the defence and the consequent ejectment of the tenant The other alternative is that the Rent Controller after coming to an erroneous conclusion that the tenant has not been in default within the meaning of that term as explained in Ghulam Muhammad Lundkhor v . Safdar Ali P L D 1974 S C 530 where it was held that the most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is in no way responsible, refuses to strike off the tenant's defence. For all practical purposes this type of order will be akin and analogous to an order dismissing the application of a landlord under section

13. This type of order will be an order virtually dismissing the application to strike off the defence. For the purposes of finality, therefore, no distinction can be made between the two types of orders which can be passed by the .Rent Controller even under section 13(6) irrespective of whether it be an order of striking off the defence and ejecting the tenant or of refusing to pass such an order. The order falling in the second category cannot be treated to be. an interlocutory order for the simple reason that if a different view on merits be taken by the appellate Court, it may be in a position to pass an order of striking off the defence of the tenant and directing his ejectment. The finality of order under section 13(6) should be judged from the in view whether the appellate Court by reversing the finding the Rent Controller can as a final order terminating the proceedings of ejectment pending before the Rent Controller. have no mann6r o doubt left that the order refusing to pass an order of ejectment by striking off the defence should be considered to be a final order which will give a right to the landlord to file an appeal against it." (The underlining is my own). From the above observations it is quite clear that the considera tions which persuaded the learned Single Judge to hold that the order refusing to strike off the defence should be treated a final order were; (i) that the Controller had no jurisdiction to extend the time for making the deposit whether fixed by him‑ or fixed under the statute; (11) that. the order refusing to strike off the defence of tenant for all practical purposes is akin and analogous to an order dismissing the application of a landlord under section 13; (iii) that it is not possible to make a distinction between an order striking off the defence and refusing to strike off the defence and lastly the finality of the order is to be judged from the point of view whether an appellate Court reviewing the finding of Rent Controller can pass a final order terminating the case pending before the Controller finally. It is this last test laid down by the learned Judge and which is also underlined by me in the above‑quoted observations, which is pressed before me vehemently by the learned counsel for the appellant to persuade me to hold that an order refusing to strike off the defence of tenant should be considered as a final order. With utmost respect I am unable to agree with the proposition. In my humble view if the test laid down above is conclusive to determine the final nature of an order then there will be no justification to hold that an order of Controller determining the relationship of landlord and tenant in the affirmative or an order of Controller recalling an ex parte order passed by him are interlocutory in nature because in. appeal if the appellate Court reversed the findings of Controller the result in each one of these cases will be final determination of proceedings before the Controller. Apart from it with utmost respect I am also unable to agree with the reasoning that because the Rent Controller could not extend the time fixed by him or under the statute for deposit of rent by the tenant in Court, therefore, the order refusing to strike off the defence of tenant should be treated as a final order. In my humble opinion, notwithstanding, the fact that a Controller will have no justification to extend the time for deposit of rent by the tenant in I Court whether fixed by him or by the statute it cannot be disputed that whenever it is alleged before the Controller that his order regarding deposit of rent has not been complied by the tenant, he has to determine whether such non‑compliance amounted to a "default" or not and in case the Controller reaches the conclusion that non‑compliance of his order did not amount to "default" he will have jurisdiction to refuse to pass an order. The fact that scope of authority of Rent Controller in this regard is very limited is of no significance so long he has the jurisdiction to pass such an order. If the Controller correctly passes an order refusing to strike off the defence of a tenant, such an order in my humble view cannot be termed as final order as the main controversy before the Controller is not concluded by such an order. In addition to it I will presently show that the provisions regarding deposit of rent under section 16 of Ordinance XVIII of 1979 are not identical to those applicable under section 13(6) of Ordinance VI of 1959. Under Ordinance V I of 1959 it is obligatory on Rent Controller in proceeding under section 13 to pass an order for deposit of arrears of rent as well as future monthly rent on the first date of hearing or as soon as possible but before issues are framed and this order remains operative until final conclusion of the proceeding except in a case where default is committed by the tenant in compliance of that order and in that event the Rent Controller is bound to strike off the defence of the tenant without taking any further proceedings in the case. In contradis tinction to the provisions of section 13(6) of Ordinance VI of 1959, under Ordinance XVII of 1979 there is no such obligation imposed on the Rent Controller in a ejectment case filed by the landlord under section 15 of the Ordinance, for making an order for deposit of arrears of rent and the future monthly rent. Under section 16 of the Ordinance XVII of 1979 it is necessary that a landlord must apply to the Controller for such an order and upon such application being made the Controller has to determine after a summary inquiry the arrears of rent due and then direct the tenant to deposit the same in Court besides making a further order for deposit of monthly rent regularly on or about 10th of every month until final conclusion of the case. No doubt under subsection (2) of section 16 the Controller shall strike off the defence of a tenant who has failed to deposit arrears of rent or the monthly rent as directed by the Rent Controller under subsection (1) and the landlord is to be put in possession of the premises within such period as may be specified by the Controller but it will be seen that the words "without taking any further proceedings in the case" which are significant in subsection (6) of section 13 of Ordinance VI of 1959 are not incorporated in subsection (2) of section 16 of Ordinance XVII of 1979. Ordinance XVII of 1979 is later in time and the omission of the abovementioned expression in subsection (2) is deliberate on the part of the Legislature. It is, therefore, possible that the consideration of an application for striking off the defence of a tenant in proceedings under Ordinance XVII of 1979 may be postponed by the Controller until passing of the final order in the case which could not be done in the case of an application filed before the Rent Controller under section 13(6) of the Ordinance V I of 1959. In addition to the above considerations there is also marked difference in the two provisions of appeals contained under Ordinance VI of 1959 and Ordinance XVII of 1979. Relevant provision of appeal under Ordinance VI of 1959 reads as follows:‑ "

15. Appeal.‑‑(1) Any party aggrieved by an order made by the Controller under section 4 , section 10, section 12, or section 13, may, within thirty days of the date of such order. Prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated. (1‑A) On such appeal being preferred, the District Judge may himself hear it or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated. (1‑B) The District Judge may recall an appeal made over by him to an Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection (1‑A) provided that the District Judge shall not so recall or make over an appeal which is part‑heard. (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal: Provided that no stay order shall be made in respect of the payment or deposit of rent determined by the Controller: Provided further, that the appellate Court may direct that instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the rent shall be furnished by the tenant. (3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller. (4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1) 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 hereof shall be final. Explanation.‑‑ An appeal under the subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if, it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as context may require, apply to such proceedings. (5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this, Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance." A reading of the above provision will show that each and every r of Rent Controller is not appealable under the above provision. It is only those orders passed by the Rent Controller which fall within sections 4 10, 12 and 13 of the Ordinance VI of 1959 which are appealable. Although there is no specific bar in the above referred provision to file an appeal against the order which is interlocutory in nature passed by the Controller with reference to the proceedings pending before him under sections 4, 10, 12 and 13 of the Ordinance but the Courts have consistently held that an interlocutory order passed by the Rent Controller will not be appealable under the above provision of Ordinance on consideration that unlike the right of a litigant to sue, the right of appeal is a creature of statute and before such a right is exercised it must be shown to have been expressly conferred either under a statute or under some authority equivalent to statute. The following passage from the case of Ibrahim v. Muhammad Hussain P L D 1975 S C 457 where the matter was brought before the Supreme Court in an appeal arising from the order of Rent Controller holding in the affirmative the issue of existence of the relationship of landlord and tenant between the parties will further clarify the position. It reads as follows:‑ "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 taking the force of a statute. Therefore existence of right of appeal cannot be assumed on any a priori ground. This is in 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. 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." In contradistinction to the provisions of section 15 of Ordinance VI of 1959 which did not contain any specific prohibition against filing of appeal from interlocutory order the provisions of section 21 of Ordinance XVIt of 1979 place specific bar on the right of appeal in a 1 case where the order appealed against is an interim order. It will be advantageous to reproduce here section 21 of Ordinance XVII of 1979 which reads as under:‑ "21.i Appeal.‑‑(1) Any party aggrieved by an order not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court; (2) The appellate authority may pending the final disposal of the appeal, grant injunction staying further proceeding or action on the order of the Controller: Provided that no injunction shall be granted if the appeal has been preferred from the order under section 14. (3) The appellate authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final." A reading of the above provision relating to appeals under the Ordinance will show that although an appeal against an interim order of Controller is prohibited but all final orders passed by the Controller under any provision of the Ordinance XVII of 1979 are made appealable in contrast to the provision of section 15 of the Ordinance VI of 1959 which permitted appeals only against those orders of Controller which fall under sections 4, 10, 12 and 13 of the Ordinance. In view of this difference between the two provisions relating to appeals and the provisions relating to passing of interim orders of deposit of rent under Ordinance VI of 1959 and Ordinance XVII of 1979 1 am of the humble view that the cases noted above which were decided under the provisions of Ordinance VI of 1959 cannot be fully imported and applied to the present case which arises under the provisions of Ordinance XVII of 1979. Further, in my humble view the real test to hold whether an order passed by the Rent Controller is interim in nature or a final order will depend largely on the consequences flowing from that order. In my most humble view if the order appealed against did not terminate the proceedings before the Rent Controller it should be treated for all practical purposes as an order interim in nature whereas if the effect of such an order is to terminate the proceedings finally pending before the Rent Controller it should be held to be an order which is final in nature. It, therefore, necessarily follows that an order which only decides the matter which is incidental and collateral to the main proceedings is to be treated as interim /interlocutory order whereas if the order passed by the Controller encompasses the whole gamut of the dispute before the Controller it is a final order. In a later decision of the Supreme Court reported in the case of Mian Manzar Bashir v. M.A. Asghar & Company P L D 1978 S C 185 an order passed by the Rent Controller recalling the ex parte order was examined and it was held that an order of Rent Controller recalling the ex parte order on the application of tenant is to be treated as an interim order and not open to appeal, I respectfully reproduce here the following observations of the Supreme Court in the above which appear at pages 187 and 188 of the report: ‑ "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. Muhammad Hussain P L D 1975 S C

457. It was held: '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 in 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. 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.' Accordingly, an interlocutory order which is neither 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 reopens 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 termed as interlocutory and not one which finally decides the controversy under section 15 of the Ordinance." In the light of the above observations of the Supreme Court am of the view that the order appealed against is not a final order butt only an interim order and, therefore, the appeal against it is not maintainable. 1 may mention here that a decision on a particular controversy before the Rent Controller in one way may lead to the conclusion that the order is interim in nature while converse decision of the Controller on the same issue may change the nature of the order and make it a final order. To illustrate the above point I here refer to a case where the Rent Controller determines the relationship of landlord and tenant between the parties in the affirmative. Such an order will be interim in nature and is not appealable. The order of Rent Controller on the same issue in the negative will convert the[ decision into a final order and it will be appealable as the effect of a negative finding of the Controller on the issue is to terminate the proceedings before that Court. Similarly the order of the Controller allowing an application of the tenant to recall an ex parte order will not be appealable being interim in nature while the order of Rent Controller rejecting the same application will amount to a final order which will be appealable under section 21, as it will have the effect of terminating the proceedings before the Rent Controller finally. As already stated by me, therefore, the effect produced by a particular order may in certain cases conclusively determine its nature. On the same analogy an order passed by the Rent Controller striking off the defence of a tenant for non‑compliance of the order passed under section 16(1)I of the Ordinance, will be a final order while in the case of conversel decision by the Controller namely, refusal to strike off the defence of tenant, the order will be only interim in its nature and will not be open to appeal under section 21 of the Ordinance. Having held that the order appealed against in the present case is of interim nature and not open to incident of appeal under section 21 of the Ordinance, there now remains one more argument to be dealt with which was raised by the learned counsel for the appellant at the hearing. It is contended by the learned counsel that if the appellant omits to file an appeal against the order of Rent Controller refusing to strike off defence of the tenant he may be precluded from challenging the same in an appeal filed against the final order of the Rent Controller as by that time the order refusing to strike off the defence may attain finality with the lapse of time: In view of the fact that I have already held that an order refusing to strike off the defence is interlocutory in nature and not open to incident to appeal such a consequence will not follow and it will be open to the appellant to take any ground in the appeal which may arise from the final order attacking the order refusing to strike off the defence of the tenant if he is aggrieved by such an order My above conclusion finds support from the case of Sultan Ahmad v . The Vth Senior Civil Judge/Assistant Sessions Judge/ Rent Controller and another 1984 C L C 101 decided by a Division Bench of this Court. The following observations made by the Division Bench in the above case appearing at page 102 are relevant:‑. "Under the Sind Rented Premises Ordinance no appeal is provided against an interlocutory order. The object is to avoid appeal on 'fragmentary decisions' which delay the determination of main controversy about the 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. Reference can be made to P L D 1978 S C 185; P L D 1978 Lah. 488; PLD 1976 Lah. 99 and P L D 1978 Lah. 450." For the aforesaid reasons the appeal filed by the appellant is dismissed as not maintainable. A A Appeal dismissed.