P L D 1979 Lahore 877 (PLP)

1 This second appeal is directed against an order, dated the 13th January, 19"9, passed by an Additional District Judge of Multan whereby, while accepting an appeal preferred by the respondent, Abdul Saeed Khan, he reversed an order of a Rent Controller by which he had set aside an ex parte order of ejectment passed against the appellant, Khurshid Ahmad Khan in an application filed by the respondent for his eviction from a house.

2. Learned counsel for the appellant contended that since the appeal taken to the learned Additional District Judge was directed against an order of the learned Rent Controller setting aside an ex parte order of ejectment, the appeal was not competent and as such the order passed thereon was not sustainable. He relied on Mian Manzar Bashir and others v. M. A. Asghar and Co. (P L D 1978 S C 185) to support his plea. Learned counsel for the respondent did not cite any authority to the contrary but tried to distinguish the case under report from the case in hand. It was pointed out by him that while setting aside the ex parte order, the learned Rent Controller had also ordered restoration of possession of the house in dispute to the appellant which had been obtained by the respondent in execution of the ex parte order. He maintained that since in the cited case the question of restoration of possession was not involved, the law laid down therein was not attracted to the present case. Learned counsel for the respondent also urged that the Rent Controller had no jurisdiction to order restoration of possession. He however, did not refer to any law or other authority to support his plea regarding the lack of jurisdiction.

3. It is true that the ex parte order of eviction passed against the appellant had been executed with the result that the possession of the house in question had been delivered to the respondent. It is also correct that while setting aside the aforesaid order, the learned Rent Controller had directed that the possession of the house be restored to the appellant. The direction of the learned Rent Controller regarding the restoration of possession was, however, incidental to the main order whereby he had set aside the ex parte order of ejectment passed against the appellant and since, in view of the dictum in the case of Manzar Bashir and others, the order by which the ex parte order of eviction had been recalled was not appealable the direction relating to the restoration of possession could also not be called in question by means of an appeal. Even if the order relating to the, restoration of possession is not treated as an incidental order, it will be no more than an interlocutory order which cannot form the subject-matte of an appeal. This is exactly what was ruled by their Lordships of the Supreme Court in the case of Manzar Bashir and others while following the ratio decidendi of the case of Ibrahim v. Muhammad Hussain (P L D 1975 S C 457). 1 am, therefore, of the view that in spite of the fact that while making an order for setting aside the ex parte order of ejectment the learned Rent Controller had directed that possession of the house in dispute be restored to the appellant, the appeal filed by the respondent against the said order was not competent and, therefore, the order passed on that appeal cannot be maintained.

4. The respondent also made an application stating that the appellant had filed a civil suit claiming ownership of the house in dispute and, therefore, the present appeal was not competent It was not denied by the learned counsel for the appellant that the appellant had filed the aforesaid suit. He, however, contended that the institution of suit did not affect the maintainability of this appeal. Learned counsel for the respondent could not cite any authority in support of his contention. I am, therefore, unable to agree with hive. As for the suit brought by the appellant, the respondent may defend it in such manner as be may be advised.

5. As held above, since the appeal on which the order assailed herein was passed by the learned Additional District Judge was not competent, the said order is not sustainable. I, therefore, accept this appeal, with costs;, set aside the impugned order and restore the order of the learned Rent Controller. M. A. x. ??????????????????????????????????????????????????????????????????????????? Appeal accepted.