1980 PLP 361 (CLC)

(6) Limitation Act (IX of 1908)- -- S. 5-Aippeal not, competent before High Court-Question of con donation of delay, held, does not arise. Islam Air Qureshi for Appellant. S. Fayaz Hussain Kadri for Respondent. Date of hearing - 22nd September, 19

79. Iris appeal is directed against the order in the learned Additional District Judge, Lahore dated 31st October, 1979 in terms of which the appeal against the order of the learned Rent Controller dated 28th February, 1977 was dismissed as being not competent it? view law declared by the learned Supreme Court. in Ibrahim v. Mudarrrnad Hussain (P L D 1975 S C 457).

2. The respondent had filed an application for the eviction of the appellant from House No. 6, Street No. 16, Crown Park, Bagbbanpura, Lahore which was in his occupation on monthly rent of Rs.

135. The eviction application proceeded on the ground of default since June 1975 and also for bona fide personal use. In the written reply filed by the appellant the relationship of landlord and tenant was denied and the competency of the application through Muhammad Afzal attorney, was challenged. An issue was framed by the learned Rent Controller and after recording the evidence it was found that the relationship of landlord and tenant subsisted between the parties. No order under section 13 (6) of the Rent Restriction Ordinance was passed and no order of eviction has so far been passed against the appellant. The learned Additional District Judge relying upon the dictum laid down by the Supreme Court in Ibrahim v. Muhammad Hussain held that the appeal was not competent. This appeal was admit ted for regular bearing to consider if the appeal before the learned District Judge was not competent a direct appeal could be filed before the High Court under subsection (4) of section 15 of the Rent Restriction Ordinance. Consequently, this appeal was admitted and application for condonation of delay was admitted on the ground that the appellant had been pursuing remedy in a wrong Court. Strength had been derived from the observation of the learned Supreme Court in Qazi Ahmad Khan v. Mrs. S. Henry Lal and another (1976 S C M R 515). This was a case where the Rent Controller on account of the several adjournments granted to the tenant for filing of the written statement struck of his defence. This order was challenged in the Lahore High Court which was dismissed by a learned Single Judge of the High Court on the ground that no such appeal was directly competent before the High Court. The petitioner sought permis sion to file an appeal against the said order of the High Court and it was in this connection that the following observations were made by the learned Judges of the Supreme Court dismissing the petition in limine :- "Ch. Qadir Bakhsh, learned counsel for the petitioner, has contended that the order challenged in appeal before the High Court was not covered by the class of cases mentioned in section 15 (1) of the Rent Restriction Ordinance, 1959. He, therefore, contended that no direct appeal lay to the District Judge and a direct appeal lay to the High Court under section 15 (4) as no appellate authority under section 15 (I) has been provided for such cases, This con tention of the learned counsel, prima facie, appears to be correct. We have gone into merits of the case and have come to the conclu sion that this is not a fit case for interference. The petitioner was granted several adjournments for filing the amended written state ment. He failed to do so and in our opinion, he was thereby prolonging the litigation. In these circumstances, the learned Rent Controller was perfectly justified in striking off the defence of the petitioner. There is no ground to interfere. This petition is dismissed." The observations made by the learned Supreme Court are not relevant to the facts of the present case and authority which is directly on the question and relied upon by the learned Additional District Judge is Ibrahim v. Muhammad Hussain. In this case, order under section 13 (6) of the Rent Restriction Ordinance had been passed bus was not followed by an order of ejectment. Examining the question of maintainability of the appeal against such orders, the learned Supreme Court observed that the provisional fixation of rent and the amount of arrears under the first part of the clause remained provisional and until it was followed by final deter mination or the culmination of the other contingency postulated in the clause namely stricking off the tenant's defence and putting the landlord in possession, the order would not be appealable under section 15 (1) or else a provisonal fixation of current rent or past arrears would per se be equate with the default and striking off the defence within the meaning of section 15 (1) of the Ordinance, for which there was no warrant in law. In the case on which the learned counsel for the appellant had placed reliance the defence of the tenant had been struck off and followed by an order of eviction and therefore the observations of that case are not appli cable to the facts of the present case. The appeal was rightly dismissed by the learned Additional District Judge as not being competent an therefore the present appeal is also not maintainable in view of the la laid down by the learned Supreme Court. Since the appeal is not competent either under section 15 (1) or 15 (4) of the Rent Restriction Ordinance before the High Court, the question of the condonation of delay does no arise. -The appeal has no force and is hereby dismissed. However, keeping in view the circumstances of the case there will be no order as to costs. M. Y. H. Appeal dismissed.