1988 PLP 2332 (CLC)

These two First Rent Appeals Nos. 1061 of 1987 and 1150 of 1987 are against the orders of the Rent Controller whereby he on the applications of the landlord restored the Rent Case which were dismissed by him due to non‑prosecution. The points taken in these appeals are identical therefore I propose to dispose of both these rent appeals by this single order.

2. The facts of First Rent Appeal No. 1061 of 1987 are that Rent Case No. 7190 of 1980 was pending in the Court of Vth Senior Civil Judge (East), Karachi. On 21st April, 1987 the case was called and no one was present for the parties and there was no intimation from the other side, therefore, at 2‑00 p.m. The Rent Controller dismissed the case for non‑prosecution. The application under section 151, C.P.C. supported by affidavit was filed by the respondent for the restoration of the case. The notice was ordered and finally by an order dated 29‑10‑1987 the Rent Case was restored to its original position. Appellant G.H. Malik Tenant filed this first rent appeal against the order of restoration. In First Rent Appeal No. 1150 of 1987 the facts are that Rent Case No. 183 of 1985 was fixed before the 4th Rent Controller (South) Karachi on 24‑3‑1987 when there was no appearance for the applicant while tenant was present with his counsel. The application was dismissed for non‑prosecution. The application for restoration was made and the order of dismissal was set aside by the Rent Controller on 22‑10‑1987 and rent case was restored to the stage it was dismissed. Appellant being aggrieved with the restoration of the Rent Case has filed appeal.

3. I have heard Mr. Faizuddin and Mr. A.F.M. Mokaram appearing for the appellants in both the cases. The following legal points have been taken by the learned counsel:‑ (1) That order for the restoration. being an interlocutory order for which appeal is not competent. (2) The Rent Controller has no power to restore the Rent Case which was dismissed by him. (3) The landlord should have filed appeal against the order of dismissal .of the Rent Case and review is not competent. Reliance has been placed on the cases in P L D 1983 Kar. 208, 1982 C L C 1436, P L D 1978 SC 185, 1986 C L C 1546 and 1984 C L C 2898. Messrs Badar Alam and Mr. Mian Ahmad Mushtaq appearing for the respondent submitted that the order of the Rent Controller by which Rent Cases were restored are in accordance with the law and this order is final one as restoration of the applications amounts to eviction as Rent Controller in original orders dismissed Rent cases. It is also argued that in number of cases, the Rent cases have been restored and against those orders appeals were filed. Reliance is placed on P L D 1983 Kar. 527, P L D 1983 SC 151, P L D 1987 Kar. 16 and 1986 M L D 1656.

5. Under section 20 of the Sind Rented Premises Ordinance, 1979 the Rent Controller has got power of the Civil Court to the following extent:‑ "20.????? Power of Civil Court.‑‑(1) Subject to this Ordinance, the Controller an t e appellate authority shall, for the purpose of any case under this Ordinance, have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the matters, namely:‑ (a) summoning and enforcing the attendance of any person and examining him on oath; (b) compelling production or discovery of documents; (c) inspecting the site; and (d) issuing commission for examination of witnesses or documents." The procedure for disposal of Rent cases is given in section 19 as under:‑ "19.????? Procedure.‑‑ (1) Where an application other than the application under section 14 has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed by him for reasons to be recorded, issue a notice to the respondent to file written reply, if any, within such period not exceeding fifteen days of the receipt of the notice. (2) Where on the day fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse, the Controller may, proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order. (3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence first of the applicant and his witnesses and then of the respondent and his witnesses. (4) A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such other party shall have the right to cross‑examine the witness on such affidavit and if the witness has been cross‑examined the party producing the witness may re‑examine him. (5) The Controller shall, instead of formally framing issues arising between the parties, state them briefly in the judgment and shall record findings on each such issue separately." The Rent Controller has been empowered to proceed ex parte under subsection (2) of section 19 when respondent has failed to file his reply without any reasonable excuse then and then the Controller may proceed to make an ex parte order and he has no power to rescind such order. In this section or in the Ordinance there is no provision by which the Rent cases are to be dismissed due to non‑prosecution. This point has not been considered in all the above cases cited by the learned counsel. Therefore, when there is no provisions for dismissal due to non‑prosecution it is to be seen whether the provision of the C.P.C. will apply or provisions of the General Clauses Act will attract in these circumstances. Normally the practice in this Court is that due to non‑appearance of the appellant the rent appeals are dismissed and subsequently restored. Now it is to be seen whether appeal dismissed due to non‑prosecution could be restored. Now I proceed to discuss the authorities cited by the learned counsel. In case of Mir Ali Ahmed Khan Talpur v. Joseph D'Mello reported in P L D 1983 Kar. 208 it has been held that order setting aside dismissal of ejectment application for non‑prosecution not a final order but an interlocutory order therefore provisions of appeal do not attract. In this case review application which was fixed was dismissed for non‑appearance and on respondent's application Rent Controller set aside order of the dismissal mainly on the ground that ejectment application was not fixed for regular hearing on that day therefore the order of the Rent Controller setting aside the order of dismissal held not legal. In case of Wahid Bux v. Ghulam Muhammad Baloch reported in 1982 C L C 1438 was ex parte order was set aside by the Rent Controller and it was held that order being an interlocutory order an appeal is not competent. In case of Mian Manzar Bashir and others v. M.A. Asghar & Co. reported in P L D 1978 SC 185, their Lordships have discussed the interlocutory orders and their consequences and it has been observed at page 187‑B as under:‑ "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 termed as interlocutory and not one which finally decides the controversy under section 15 of the Ordinance." In case of Ali Muhammad Brohi v. Mohammad Hashim reported in PLD 1983 Kar. 527, interlocutory orders meaning, definition and explanation have fully been discussed at length. In case of Mohammad Shafi v. S.M. Emamul Haq and another reported in 1986 C L C 1546 Mr. Justice Tanzil‑ur‑Rehman has taken the view that Rent Controller not being a Civil Court, the provision of section 151,, C.P.C.could not be pressed into service and similarly section 20 of the Act, 1956 is not applicable in Rent cases therefore application for review of order of Rent Controller held was entirely misconceived. But in case of Haseem Ahmed Khan v. Irshad Khan reported in P L D 1987 Kar. 16 Mr. Justice Sajjad Ali Shah has observed at page 22 as under:‑ "So far the legal aspect of the matter is concerned, no doubt Sind Rented Premises Ordinance, 1979 does not provide for a review of the order already passed by the Rent Controller but such power of review is available by invocation of section 20 of West Pakistan General Clauses Act, 1956. It is held in N.Q. Industries v. Mrs. Bapai Kaikhusro by Noorul Arfin, J. (as he then was) that Rent Controller and First Appellate Authority acting under provisions of West Pakistan Urban Rent Restriction Ordinance 1959 are competent to recall, review, rescind, vary, cancel, alter or amend their orders for the reason that Authority which is competent to issue order also has power to vary or cancel the order as is contemplated under section 20 of the West Pakistan General Clauses Act." And came to the conclusion that when there is no provision for review in the Ordinance the Rent Controller could exercise the provision of section 20 of General Clauses Act of 1956. In case of Mashlakhuddin v. Syed Ali Haider reported in 1982 C L C 644, it has been held as?under:‑ "On reading of the impugned order it appears to me that the learned Rent Controller was of the view that he has absolutely no powers to set aside an ex parte order. I am unable to agree with such stringent interpretation of subsection (2) of section 19 of the Sind Rented Premises Ordinance, 1979. This provision reads as follows:‑ "(2) Where on the day fixed in the notice for respondent to file reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse, the Controller may, proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order. I find on a plain reading of this provision that in cases of this nature the Rent Controller has to keep two facts in mind and give a finding on the same. This subsection states that it should be found that the notice has been served and further that the default in filing of reply is without reasonable excuse. The use of the words 'found' and the words ' without any reasonable excuse' clearly mean and imply that the Rent Controller has to record a finding that a notice has been served and further that the default in making reply was without any reasonable excuse. Unless finding on these two facts are recorded, the Controller cannot give full effect to subsection (2) of section 19 of the Sind Rented Premises Ordinance. My attention has also been drawn to the Division Bench judgment in the case of Agha Brothers v. Tharparkar District T.B. Association 1979 C L C

831. I was a member of that Bench which delivered the judgment in that case. In addition this view would appear to be supported by the judgment of the Supreme Court in the case of Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazal Khan P L D 1975 SC

331. In any case the principles of natural justice which are deeply embedded in the substratum of legislation in spite of not being vividly expressed, would also support the proposition that before a person loses his right to defend a cause it is to be shown that he has notice about the pendency of a cause in a competent Tribunal." On this, I also refer to a case of Haider Ali v. Hasan and 7 others reported in 1986 M L D 1656, where it has been held that interlocutory orders having effect of final order can be attacked by aggrieved party in appellate jurisdiction and in this case his Lordship has also considered the case of Mian Manzar Bashir v. M.A. Asghar & Co. reported in P L D 1978 S C

185. Both the Rent cases were dismissed due to non‑prosecution and not disposed of on merits. Consequently, the tenants are liable to be evicted on the basis of this dismissal order, in case appeal was not filed or rent case not restored, the order of dismissal will be final. The Rent Controller as stated above only proceed ex parte under section 19 (2) of the Ordinance and he has not been empowered to dismiss any case due to non‑prosecution. The presumption is that when evidence is taken, affidavit‑in‑evidence filed, the Rent Controller had to decide on merits. But in this case, it has not been done, so normally the cases which are disposed of due to non‑prosecution when applicants or their counsel are found absent are to be restored. This position has also been considered in some cases of civil revision as there is no provision for dismissal of civil revision in default and in some cases it was held that when revision is dismissed without specific provision then the Courts had no power to restore but in case of British India Steam Navigation Company v. National Security Insurance Company Ltd., reported in 1985 C L C 1720 the matter was discussed finally and cases reported in 1978 S C M R 940, 1971 S C M R 740, P L D 1975 Lah. 911, P L D 1972 Lah. 514 PLD 1982 Lah. 250 were considered and revision was restored in the interest of justice. Not only this, but when there is no power in the Rent Controller to dismiss or restore the provisions of section 20 of General Clauses Act do attract in case reported .in P L D 1987 Kar. 16,; wherein my brother Mr. Justice Sajjad Ali Shah has discussed this point that provisions of the General Clauses Act do attract. In these' circumstances, I am of the view that Rent cases which were dismissed by the Rent Controller and restored were not against the principles) of natural justice and law. Now, I come to the next point whether these orders are interlocutory orders or final orders. On this number of authorities have been cited by the learned Counsel and the cases reported in PLD 1983 Kar. 527; 1986 PLD 1656 have a direct bearing on these appeals. I have already stated that had the Rent cases not been restored, the tenants were not to be ejected and order of this nature were final. So far the merits of the cases are concerned, the cases had not been decided on merits. In the interest of justice the parties should be given chance to adduce evidence and there are so many authorities on this point. The cases are to be decided on merits. For the reasons stated above, I dismiss both the appeals and maintain the orders of the Rent Controller. H.B.T./S‑243/K?????????????????????????????????????????????????????????????????????? Appeals dismissed.