1999 PLP 2861 (MLD)

2. Mr. M. Fayyaz Ahmad Khawaja, learned counsel for the appellants appearing in support of the appeal has raised the following contention:

(i) that the impugned order although, prima facie, appears to be interim in nature yet it proceeds to determine finally the controversy between the parties as to the restoration of the application dismissed in default and as such the order passed by the Rent Controller is appealable under section 24 of the Cantonment Rent Restriction Act, 1963.

3. Pre-admission notice was directed to issue to the respondent so as to appear before this Court and to assist the Court as to the maintainability of the appeal filed by the tenants/appellants. Accordingly, Mr. S. Irfan Malik, Advocate, appeared pursuant to the pre-admission notice and controverted the submissions made by the learned counsel for the appellants/tenants as to the maintainability of the appeal. Leaned counsel for the respondent maintained that section 24 of the Cantonment Rent Restriction Act, 1963, visualized an appeal only against the final order passed by the learned Rent Controller deciding the ejectment petition between the tenants and the landlord one way or the other. He submitted that the ejectment petition instituted by the respondent/landlord against the tenants/appellants had yet to be addressed by the learned Rent Controller on merits and decided and that the parties having not produced any evidence in support of the respective versions of the ejectment petition there was no occasion for the Rent Controller to decide the same. In this view of the matter, learned counsel for the respondent/landlord assailed the maintainability of the appeal filed by the appellants/tenants and sought its out-right dismissal.

4. I have considered and evaluated the respective submissions of the learned counsel for the parties and have perused the record very carefully. Learned counsel for the tenants/appellants has not placed on record the copy of the ejectment petition instituted by the respondent/landlord against the tenants/appellants so as to show as to what were the grounds on which the ejectment of the tenants/appellants was sought from the shop in dispute. Be that as it may, the fact remains that the ejectment of a tenant can be ordered by the learned Rent Controller from a shop under section 17 of the Cantonment Rent Restriction Act, 1963, only on the grounds enumerated in the said section, viz, bona fide personal requirement, reconstruction, default in the payment of rent, sub-letting and materially damaging the property subject-matter of tenancy so as to impair its look and utility etc. These being the grounds available to a landlord for seeking the ejectment cf the tenant, these alone can be pressed into service and made the basis of an ejectment petition and the decision of the learned Rent Controller on a plea raised by the landlord for seeking the ejectment of his tenant on any of the said grounds alone cane be said to dispose of an ejectment petition finally. Now in this case, let us proceed to examine for ourselves the order passed by the learned Rent Controller on 18-7-1998 which has been brought by the tenants/appellants under challenge in the instant appeal. The operative part of the order, dated 18-7-1998 reads as under:-? "The petitioner has proved his case of absence on 21-9-1995 whereas the evidence of respondents is full of contradictions and not reliable. In view of above, the orders, dated 21-9-1995 are cancelled and the application for restoration of case and decision on merits is accepted."

5. A bare perusal of the order passed by the learned Rent Controller on 18-7-1998 which has been reproduced hereinabove shows that by the order passed by him, he cancelled the order, dated 21-9-1995 whereby the application of the landlord was dismissed in default and restored the same by accepting his application for the purpose. The order, thus, passed by the learned Rent Controller only proceeded to determine the controversy as to whether the order dismissing the landlord's ejectment petition for default of appearance should or should not be restored and by accepting the application the learned Rent Controller only restored the ejectment petition. The learned Rent Controller it may be pointed out never addressed himself to the merits of the ejectment petition brought by the landlord against the tenants/appellants. Neither did he frame any issue of the basis of their pleadings as to the merits of the ejectment petition nor any evidence was recorded by him in respect of any such issue. There was, thus, no occasion for him to decide about the merits of the claim of the landlord nor he purported to decide the same or even alluded to the merits of the case in the order passed by him. As the appeal has been preferred by the tenants/appellants under section 24 of the Cantonment Rent Restriction Act, 1963, it appears appropriate to reproduce the said section so as to see for ourselves as to whether the appeal as filed is or is not competent thereunder:-- Section 24. (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 High Court may, pending the final disposal of the appeal, make an order staying further proceedings or action on the order of the Controller; Provided that no such order shall be made if the appeal has been preferred from an order made under subsection (6) of section 17-A. (3) The High Court 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 itself or by the Controller as it may deem fit, make an appropriate order which shall be final; (4) No, order of the Controller except by an appeal under this section, and ,,no order of the Appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceedings."

6. A bare perusal of subsection (1) of section 24 reproduced hereinabove would show that it visualizes only a final order to be appealed against and not an order which is interim in nature or interlocutory as is the case with the impugned order passed by the learned Rent Controller only restoring the application of the landlord dismissed in default. It is pertinent to point out that the ejectment petition instituted by the respondent/landlord against the tenants appellants never came to be addressed by the learned Rent Controller on merits and decided as such. Needless to say that the application of the landlord/respondent could alone have been considered to have been decided if the plea of the landlord on which he sought the ejectment of the tenants had been attended to and decided by the learned Rent Controller. The said plea on merits has not been even touched upon or even alluded to in the impugned order and can by dint of no reasoning and logic be said to have been finally decided by the learned Rent Controller.

7. In view of the foregoing discussion, the impugned order, dated 18-7-1998 having nothing to do with the merits of the claim of the landlord for seeking the ejectment of the tenants/appellants cannot be said to have finally determined the controversy between the parties and decided the fate of the C ejectment application on merits either in favour of the landlord or against the tenants. This being so, the appeal filed by the tenants/appellants against an interlocutory order is wholly misconceived and is legally incompetent. In this view of the matter that I take, I feel fortified by the law declared by the Hon'ble Supreme Court in Mian Manzar Bashir and others v. M.A. Asghar & Co. (PLD 1978 SC 185) which is to the effect that the interlocutory orders, either incidental or collateral are not appealable. Instead orders embracing whole gamut of dispute alone are appealable. Needless to say that the main dispute i.e the ejectment of the tenants/appellants on any of the grounds available to the landlord under section 17 was yet to be decided. It shall be the decision of the p landlord's main application of ejectment which alone shall be appealable under section ,

24. The appeal as framed directed as it is against an inter-locutory/interim order is legally incompetent and is dismissed in limine as such being wholly misconceived. Q.M.H./M-934/L???????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.