1985 PLP 814 (SCMR)

NASIM HASAN SHAH, J.‑‑An ejectment application was instituted by respondent No I against the petitioner on the grounds of default in payment of rent and personal need. The petitioner contested this petition and issues were framed on the question of default and personal need. The parties led their entire evidence and the case put up for arguments and was partly argued on 10‑i1‑1982. It was then adjourned for final arguments for 13‑11‑1982. On 11‑11‑1982, however, the respondent filed an application praying for withdrawal of his ejectment petition with permission to file a new one ostensibly because it suffered from some legal defects. The learned Rent Controller allowed this application of respondent No.l, as prayed, observing in his order that his order was not passed under Order XXIII, rule 1, C.P.C. but under the provisions of the Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), which, according to him, was a complete Code in itself. The respondent No. 1, we are informed, has, therefore, filed a fresh ejectment application, which is pending before Mr. Manzoor Hussain, Civil Judge, Gujrat, with powers of the Rent Controller allegedly on the same grounds, on which he filed the earlier petition, namely, on the grounds of default and personal need. In the meanwhile, the petitioners, who felt aggrieved by the order of the Rent Controller dated 13‑11‑1982, whereby the petition was allowed to be withdrawn with leave to file fresh one on the same cause of action, challenged the aforesaid order by filing a writ petition before the High Court. The learned Judge in the High Court, who heard this petition, dismissed it, vide his order dated 12‑12‑1982 on the ground that as a statutory alternative remedy in the form of an appeal under section 15 of the Ordinance against the order dated 13‑11‑1982 was available to the petitioner, the writ petition was incompetent. Taking a clue from the above order of the High Court, the petitioner filed an appeal before the Additional District Judge challenging the aforementioned order of the Rent Controller, dated 13‑11‑1982. Curiously, the learned Additional District Judge, Gujrat without adverting to the order of the High Court, dated 12‑‑12‑1982, wherein it was observed that the petitioner had a statutory right of appeal under section 15 of the Ordinance held that no appeal under the said section was competent because the order of the Rent Controller dated 13‑11‑1982 was, in fact, only an interlocutory order and not a final order. He, accordingly, on this view of the matter, dismissed the appeal preferred before him. The petitioner, therefore, again approached the High Court by a writ petition. Although the same learned Judge, who had earlier opined that an appeal was the proper remedy against the order of the Rent Controller dated 13‑11‑1982 heard this petition, he did not take any notice of the conduct of the learned Additional District Judge in not giving any consideration to his dictum, in the earlier judgment dated 12‑12‑1982 presumably because he felt that the view of the learned Additional District Judge about the non‑maintainability of the appeal was correct, which inference can be drawn from a perusal of the following extract from his order: "As regards the observation made in my order dismissing in limine the earlier writ petition on the question of maintainability of appeal, I would like to add that the said observation is to be understood in the context of the question raised and argued. However, on further consideration, I am of the opinion, that the question of maintainability of appeal under section 15 of the Rent Restriction Ordinance, 1959 against order permitting withdrawal be left open for decision in some appropriate case." As to the petition filed before him, the same was rejected on the ground that the permission given by the Rent Controller to file a fresh petition did not in any way adversely affect any of the defenses or pleas otherwise available under the law to the present petitioner and, therefore, he did not feel persuaded to interfere in the matter in the exercise of the constitutional jurisdiction. Hence this petition for leave to appeal. We have heard Mr. S. Zamir Hussain, Advocate at some length. We agree with the learned counsel that the learned Judge in the High Court should not have abandoned the finding given by him in his earlier judgment that an appeal against the order of the Rent Controller dated 13‑i1‑1982 was competent. The order-dated 13‑11‑1982 passed by the Rent Controller allowing the respondent to withdraw his petition was an order whereby the ejectment petition filed by respondent No.l had come to an end. Accordingly, the said order ought to have been treated as an order of dismissal of the ejectment petition filed by respondent No.l "as not pressed". Consequently, an appeal would be competent against the said order of the Rent Controller dated 13‑11‑1982. The mere fact that the said order did not decide any of the questions in issue between the parties did not imply that it was as interlocutory order. The said order was a final order in so far as the ejectment petition no longer remained pending adjudication before the Rent Controller. Hence, the dismissal of the appeal, directed against this order by the learned Additional District Judge vide his order, dated 19‑5‑1983 on the assumption that it did not finally decide the case and was only an "interlocutory order" does not appear to be correct. Although it could more appropriately be dismissed on the ground that there was nothing in the appeal. Be that as it may, the High Court should have, consistent with its own earlier order dated 12‑12‑1982, maintained that an appeal was competent in law. . However, we agree with the High Court that the proceedings started by the petitioner to challenge the order, dated 13‑11‑1982, whereby the respondent was allowed to withdraw his petition and to file a fresh petition, on the same subject‑matter, will not serve any useful purpose. The proper course for the petitioner may be to take a preliminary objection in the new petition filed by the respondent that it is liable to be summarily rejected under section 14 of the Ordinance. The said section is in the following terms:‑

14. Decisions which have become final not to be reopened.‑‑The Controller shall summarily reject any application under subsection (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance." Since, already observed the permission granted by the Rent Controller in his order dated 13‑11‑1982 to file a fresh petition cannot, in any way, adversely affect any of the defenses or pleas otherwise available to the petitioner under the law, he can, if he is able to show that the second petition is, indeed, barred under the provisions of section 14 of the Ordinance, get it summarily rejected. As he will be at liberty to take such a plea, despite the terms on which the Rent Controller allowing Respondent No.l to file a fresh petition granted permission, we do not understand why he is insisting on assailing the validity of the order of the Rent Controller dated 13‑11‑1982. The upshot of the above discussion is that this petition is dismissed, with the foregoing observations. M.I. Leave refused.