P L D 1980 Lahore 506 (PLP)

This second appeal has arisen out of an application filed by the appellants, Muhammad Bakhsh and another for the ejectment of the respondent, Haq Nawaz, from a house. The application was resisted by the respondent contending that the relationship of landlords and tenant did not exist between the parties. His plea was upheld by the Rent Controller, who had heard the application. As a result, the application was dismissed.

2. Feeling aggrieved by the order of the learned Rent Controller, the appellants went in appeal before an Additional District Judge. The view taken by the learned Additional District Judge was that the appeal was directed against an interlocutory order and was, therefore, not competent. Accordingly, the appeal was dismissed.

3. Being dissatisfied with the order of the Appellate Authority, the appellants have come up in second appeal to this Court.

4. Learned counsel for the appellants argued that since the order challenged before the Appellate Authority was an order under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance, it was appealable under section 15 of the said Ordinance. He maintained that by the aforesaid order the entire case before the learned Rent Controller was disposed of and, therefore, the learned Additional District Judge had erred in treating it as an interlocutory order. In this connection, he invited my attention to Ibrahim v. Muhammad Husain (P L D 1975 S C 457), Muhammad Aslam v. Badrul Islam (P L D 1979 Note 31 at p. 20), Muhammad Husain v. Muhammad Bashir and 4 others (P L D 1974 Lab. 446), Messrs M. Malik Electric Company v. Ataul Haq (Law Notes 1969 Lab. 253), and an unreported case, namely Abdul Ghafoor v. Mst. Sadlq Bibl, S. A. O. No. 157 of 1967 decided by my learned brother Aftab Husain, J.

5. On the other hand, learned counsel for the respondent submitted that the order of the learned Rent Controller regarding the non-existence of relationship of landlord and tenant between the parties was an interlocutory order and, therefore, no appeal lay against that order. He relied on Messrs Kandawala cPc Co. Ltd., Lahore v. Sh. Rashid-ud-Din (1969 S C PEI R 720); and Jalil Ahmad Khan Niazi v. Qamar-ud-Din Ahmad (P L D 1976 Lab. 80) to support his plea.

6. As regards the authorities cited by the learned counsel for the respondent, in the case of Messrs Kandawala 8c Co. Ltd. Lahore it was held by the Supreme Court that no appeal lay under section 15 of the said Ordinance against the finding of the Rent Controller, on a preliminary issue, that relationship of landlord and tenant existed between the parties. The main reason for which the Supreme Court bad ruled as above was that the finding recorded in the cited case regarding the existence of the said relationship was not an "order" referred to in section 15 of the said Ordinance. The said difficulty is, however, not here in the present case inasmuch as the decision in the instant case, which was challenged before the Appellate Authority, was not merely the Rent Controller's finding to the effect that the respondent was not a tenant under the appellants but his order by which the appellants' ejectment application was dismissed by him on the ground that due to absence of relationship of landlords and tenant between the parties he had no jurisdiction to hear the application. The case of Messrs Kandawala & Co. Ltd. Lahore is, therefore, of no avail to the respondent. In the case of Jald Ahmad Khan Niazi, the respondent in an ejectment application had denied that he was a tenant under the applicant but his plea did not find favour with the Rent Controller. On this, the tenant went in appeal before an Additional District Judge but without success. He then filed a second appeal to this Court, and it was held by a learned Single Judge of this Court that the appeal was not competent. Although the case of Jalil Ahmad Khan Niazi was not a case of dismssal of the application for non-existence of the aforesaid relationship yet his Lordship made observations suggesting that even where the Rent Controller dismisses an ejectment application due to the absence of the relationship of landlord and tenant the appeal would not be competent.

7. As for the authorities on which reliance was placed by the learned counsel for the appellants, it was ruled in the case of Muhammad Husain that where an ejectment application is dismissed due to the non-existence of relationship of landlord and tenant between the parties the appeal would be competent. Similar view was expressed in the cases of Muhammad Aslam and Abdul Ghafoor. In the case of Messrs M. Malik Electric Company it was held that an order directing deposit of rent under subsection (6) of section 13 of the said Ordinance was appealabe and that the point of relationship of landlord and tenant could be agitated by the tenant while preferring an appeal against the aforesaid order. In Ibrahim's case, however, it was ruled by the Supreme Court that no appeal lay against an order for deposit of rent. It was also observed in the case of Ibrahim that an order of Rent Controller which did not dispose of the "whole gamut of the dispute" was an interlocutory order and, therefore, not appealable. In other words, their Lordships were of the view that if by an order of the Rent Controller the entire case is decided that order could form the subject-matter of an appeal.

8. The language of section 15 of the said Ordinance too appears to support the proposition that when an ejectment application is dismissed for the reason that the respondent therein is not found to be a tenant under the person making the application, the order of the Rent Controller in this behalf would be appealable. One of orders which can be challenged by means of an appeal under section 15 is an order under section 13 of the said Ordinance. This order is to be passed by the Rent Controller on an application for ejectment of tenant. By the order so made either the application is accepted and the tenant directed to vacate the disputed premises or the application is dismissed and thus eviction of the tenant is refused. This means that an order of dismissal of an application is as much an order under section 13 as an order of the acceptance of the? application. The order passed in the instant case was also of the dismissal of the application. It was, therefore, an order under section 13 which could be appealed against under section

15. The mere fact that the order of the' dismissal of the application was made not due to the failure of the appellants to substantiate the averments made by them for seeking ejectment of the respondent but for the reason that the respondent was not found to be a tenant under the appellants qua the disputed premises would not make the order of a category different from that of an order under section 13 of the said Ordinance. According to the phraseology of section 1 of the said Ordinance, therefore, the order of the Rent Controller dismissing an application under section 13 for non-existence of relationship of landlord and tenant between the parties can be assailed by means of an appeal.

9. As for the argument of the learned counsel for the respondent that the impugned order was an interlocutory order and, therefore, no appealable, I am unable to agree with him. An interlocutory order is a order which decides some point or matter involved in a case but not the case itself. Since, in the case in hand, the learned Rent Controller bad, b making the impugned order, disposed of the whole of the ejectment proceedings that order cannot be classified as an interlocutory order.

10. In view of the wording of section 15 of the said Ordinance and the observations made in the cases of Ibrahim, Messrs Kandawala & Co. Ltd., Lahore, Muhammad Aslam, Muhammad Husain and Abdul Ghafoor, I am of the opinion that where a Rent Controller records a finding that the relationship of landlord and tenant exists between the parties, his decision in this behalf is not an order much less an order under section 13 of the said Ordinance and is, therefore, not appealable; but where he holds that such relationship is not there and, consequently, makes an order dismissing the ejectment application for want of jurisdiction, his order is an order under section 13 and can be appealed against under section

15. In this view of the matter, :, with respect, express my inability to follow the dictum laid down in the case of Jalil Ahmad Khan Niazi that an appeal would not lie even against as order of dismissal of an ejectment application on the ground of the absence of relationship of landlord and tenant between the parties.

11. Resultantly, I hold that the first appeal filed before the learned Additional District Judge, which was dismissed by him by the impugned order, was competent. His order of the dismissal of the first appeal on the ground that it did not lie is, therefore, not sustainable. Consequently, I accept this second appeal with costs, set aside the aforesaid order of the learned Additional District Judge and remand the first appeal to him with the direction that he shall now decide the same on merits.

12. The parties are directed to appear before the learned Additional District Judge on 15th March, 1980, for further proceedings. Petition dismissed.