1996 PLP 1705 (CLC)

Q. Abdul Basit for Respondents Nos. l and

2. M. S. H. Qureshi for Respondents Nos. 3 to 10 Date of hearing: 3rd. April, 1996 MIAN. MUHAMMAD AJMAL, J.‑‑‑This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the order dated 6‑12‑1994 of the learned Additional District Judge, Peshawar, whereby the petitioner was directed to deposit arrears of rent of Rs.3,000 from May, 1993 to December, 1994 at the rate of Rs.150 and further directed to regularly deposit Rs.150 p.m. before 15th of each month.

2. The facts as reflect from the petition are that respondents 1, 2 and predecessor‑in‑interest of respondents 3 to 10 instituted an ejectment petition against the petitioner from Shop No.2246 (1212), Bazar Kalan, .Peshawar City, in the Court of Rent Controller, Peshawar, which was contested by the petitioner by submitting his reply, denying the relationship of landlord and tenant between the parties; that the Rent Controller framed three issues and directed the petitioner to deposit the rent regularly from May 1993 in Court and fixed the case, for evidence. An application‑was filed by the petitioner before the** Rent Controller for recalling of the order of deposit of rent, which was accepted vide order dated 21‑7‑1994. This order of the Rent Controller was challenged in appeal before the District Judge, Peshawar, by respondents 1 to 10, which was accepted vide impugned order dated 6‑12‑1994 whereby the petitioner was directed to deposit the arrears of rent as well as the monthly rent before 15Th of each month. Thereafter, 'the Rent Controller struck off the defence of the petitioner (tenant) for non‑compliance of the aforesaid order and directed him to hand over the vacant possession of the suit shop to the respondents within a month vide order dated 23‑1‑1995. Now the petitioner has impugned the order of Additional District Judge, Peshawar dated 6‑12‑1994, as stated in para.l of, this judgment.

3. We have heard the learned counsel for the parties and perused the record of the case with their assistance.

4. After submission of the written statement by the petitioner (tenant), issues were framed and he was directed vide order dated 25‑5‑1994 to deposit arrears of rent iii Court. On 30‑6‑1994 the petitioner filed an application reiterating the denial of relationship of landlord and tenant between him and the respondents and sought the rejection of the ejectment application on the said ground. After hearing the arguments of the learned counsel for the parties, the trial Court observed in its order dated 21‑7‑1994 that; its earlier order dated 25‑5‑1994 was invalid as the tenant had denied the relationship of landlord and tenant between the parties, so insistence on depositing the rent in Court was unjust, and as such, the said order, was withdrawn, which was later set aside by the Appellate Court. .

5. The questions for determination in this writ petition are that, whether the Rent Controller could review/modify/alter its earlier order and whether interlocutory order was appealable. Under subsection (6) of section 13 of the N.‑W.F.P. Urban Rent Restriction Ordinance, 1959, the Rent Controller, on the first date of hearing before ‑framing of issues, has to direct the tenant to deposit arrears of rent and also to deposit due monthly rent regularly before the 15th of each month, default in compliance whereof would result in striking off his defence. The order to, deposit arrears and due. monthly rent entail serious consequences, therefore, it has to be passed carefully and cautiously specifying the period for which the rent is due and the amount thereof and the date on which the total arrears have to be deposited and similarly directing to deposit due monthly .rent before 15th of each month. The order dated 25‑5‑1994 of the Rent Controller was vague as it did not specify the amount of arrears of rent and the time scale as when and to what date the same was to be deposited. The Rent Controller before passing an order of deposit of the rent has to resolve the A question of landlord and tenant between the parties, whereafter he can assume jurisdiction to proceed in the rent matter. The order‑passed without determining the relationship of the landlord and the tenant between the parties was thus without lawful authority and illegal and‑ could be rectified/modified by the Rent Controller. The Court making any improper or invalid interim or interlocutory orders can modify rectify or alter the same to secure the ends of justice and to redress the wrong, as such orders do not fall within the preview of Order XLVII, Rule 1 and 2, C.P.C. '

6. First and second provisos of section 15 of the Ordinance have expressly laid ban on appeal against the interlocutory orders of the Controller, hence the interlocutory orders regarding existence of relationship of landlord and tenant between the parties, or direction 'to deposit ,of rent under section 13(6) of the Ordinance or. any other order disposing of ancillary matters not determining conclusively the rights of the parties, would not be open to appeal. The modified orders of the Rent Controller being interlocutory was not appealable, therefore, the order of the Appellate Court, passed in an incompetent appeal was without jurisdiction and void ab initio, and any edifice based thereupon would be without foundation which shall have to, fall with the fall of its base. In view of the above, this writ petition is accepted, the impugned order of the learned Additional District Judge dated 6‑12‑1994 is set aside being without lawful authority and in corollary thereto order of the Rent Controller dated. 23‑1‑1995 stands set aside. The case is sent back to the Rent Controller, D Peshawar to. proceed in the matter from the stage of order dated 21‑7‑1994. Costs to follow the events. A.A:/1953/P Case remanded.