P L D 1973 Karachi 419 (PLP)

Messrs Kandawala & Co. Ltd. v. Sh. Fayyaz‑ud‑Din and others 1969 S C M R 721 rel. A. Latif Shakoor for Appellant. DORAB PATEL, J.‑

The respondent has filed an eviction case against the appellant under the West Pakistan Urban Rent Restriction Ordinance (hereafter called the said Ordi nance). The appellant is contesting her eviction on the ground Inter alia that she is not the respondent's tenant. But as the Rent Controller, who was hearing the case, decided this issue against the appellant, she filed an appeal in the District Court, Karachi, which was dismissed on the ground that it was not maintainable under section 15 of the said Ordinance. The appellant, therefore, filed a 2nd appeal in this Court, which was dismissed in limine by a learned Single Judge on 23‑11‑1971. The appellant has now come In a Letters Patent Appeal against the order of the learned Single Judge. The learned Single Judge had dismissed the appellant's appeal in limine on the basis of the observations of the Supreme Court in M/s. Kandawala & Co. Ltd. v. Sh. Fayyaz-ud‑Din and others (1969 S C M R 721). There, as in the present case, the plea of the petitioner was that the preliminary issue whether he was the respondent's tenant had been wrongly decided against him and the only question before their Lordships was whether such an appeal was permissible under section 15 of the said Ordinance. Their Lordships pointed out that section 15, as it then stood, entitled a party aggrieved by an order of the Controller to file an appeal but they pointed out that some restriction had to be placed on the meaning of the word order and observed: "The section envisages orders which the Rent Controller is empowered by the Ordinance to make while learned counsel for the petitioner does not accept this interpretation; he is unable to make a reasonable suggestion as to any other limitation which can be placed on the words 'any order'. All that he has been able to contend is that an order which goes to the root of the case should also be appealable but he is unable to explain how the words of section 15 are to be interpreted so as to achieve this result. Even in a civil suit a decision which goes to the root of the matter is not always the sub ject‑matter of an appeal. When a civil Court decides a preliminary issue as to jurisdiction in favour of the plaintiff no appeal lies against the finding. The mere fact that an issue as to jurisdiction has been cited cannot be a ground for granting a right of appeal when on the wording of the relevant provision it is not possible to do so." The observations directly cover the present case and in our humble opinion the appellant's appeal was rightly dismissed by the learned Single Judge. Learned counsel, however, submitted that the observations were no longer binding on this Court because of the amendment of section 15, therefore his real submission was that the amendment of the section had enlarged the right of appeal against orders of the Controller. But, in the first place, as we have pointed out, under the section as It stood earlier a right of appeal bad been con ferred against orders passed by the Controller, yet their Lordships bad held that the word 'order' did not mean any or every order of the Controller. Secondly, the question is whether the amend ment of the section has enlarged the right of appeal. As learned counsel relied only on subsection (I), as amended, we may quote it here, and it reads as follows: "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." The subsection clarifies that an appeal can be filed only against orders under sections 4, 10, 12 and 13 and so the only point for determination is whether an order of a Controller deciding the issue of title is an order under section 4, 10, 12 or

13. Accordingly, we asked the learned counsel to specify the section under which, according to him, the issue of title had been decided against the appellant. And learned counsel stated that he relied only on section

13. But section 13 relates to be eviction of tenants, to orders for the deposit of tentative rent and to the eviction of tenants on account of their failure to comply with orders for the deposit of tentative rent. It is, thus, clear that an order holding that a person is the landlord of another does not fall s under section

13. Mr. Latif's only reply was that the effect of the impugned order would be the eviction of the appellant. But this argument is utterly fallacious. If the appellant is evicted, it will not be because of the decision of the issue of title against him but because of his failure to comply with any order for deposit of rent which may hereafter be passed. Obviously, then his case does not fall within the purview of section

13. Learned counsel then referred us to the equities In favour of the appellant and submitted that the issue of title was crucial to the proceedings before the Controller. But the alleged hardships of the appellant are not relevant to the construction of section 13 or 15 and as to the second plea, this was the very submission repelled by their Lordships in the observations which we have quoted. The appeal is without merit and is dismissed in limine. S. A. H. Appeal dismissed.