2001 PLP 168 (YLR)

Mohammed Mateen v. Khursheed Dosoo Durabji Markar and others 1988 CLC 711; Mukhtar Begum v. Dildar Begum NLR 1992 AC 764 and Rehman Weaving Factory v. Industrial Development Bank PLD 1981 SC 21 ref. Ajeebullah for Appellant. Malik Khushhal for Respondent. I have heard both the learned counsel at length on different aspect of the controversy and therefore intend to dispose of this appeal finally.

2. The respondent had sought ejectment of the appellant on different grounds and the same was dismissed ‑for non‑prosecution by the learned Rent Controller on 18‑7‑1998 when it was fixed for filing affidavit‑in- evidence but no appearance was made on behalf of the respondent. An application for restoration was filed after 53 days of the order of dismissal which was dismissed on 9‑12‑1998. However an application for revival of this application was granted and the dismissal in default, dated 9‑12‑1998 was set aside vide the impugned order, dated 17‑7‑1999. The appellant/tenant has come in appeal against the aforesaid order. Mr. Malik Khushhal learned counsel for the respondent raised a preliminary objection to the effect that this appeal was only against an interim order and was therefore not maintainable. He relied upon Mohammed Mateen v. Khursheed Dosoo Durabji Markar and others (1988 CLC 711) in support of his point of view. On the other hand Mr. Ajeebullah learned counsel for the appellant vehemently contended that where an order went to the root of the controversy in rent proceedings it could not be described as an interim order for the purpose of section 21 of the Sindh Rented Premises Ordinance, 1979. He referred to a few judgments under the 1959 Ordinance but the only judgment relatable to the present statute appeared to be Mukhtar Begum v. Dildar Begum (NLR 1992 AC 764). In this case, an appeal was preferred against an order of the learned Rent Controller refusing to strike off the defence of the tenant and an objection as to its maintainability was taken by the tenant. Mukhtar Ahmed Junejo, J. (as his lordship then was) after reviewing a number of decided cases observed that when an order striking off defence of a tenant was final there was no reason to hold why order declining to do so should be treated other wise. Prima facie I am inclined to agree with the reasoning but in view of conflicting opinion refrain from expressing a final view perhaps this controversy can be resolved by larger Bench in an appropriate case.

3. In the circumstances. I would assume this appeal to be maintainable and proceed to decide on merits. The only objection seriously pressed by Mr. Ajeebullah to the impugned order was that it was passed on the basis on an application for restoration filed after 53 days of the dismissal for default. Learned counsel contended that under Article 164 of the Schedule to the Limitation Act such application could only have been tiled within 30 days of the order. I regret I am unable to agree the question of application under Article 164 was considered by the Hon'ble Supreme Court in the well known and elaborate judgment in Rehman Weaving Factory v. Industrial Development Bank (PLD 1981 SC 21) where it was held that Article 164 only applied when summons in a civil suit were issued and the defendant did not appear on the first date of hearing causing dismissal in default. The distinction between summons and notice was highlighted and it was indicated with in all cases governed by other laws of Limitation for filing such application was three (3) years under Article

181. In view of the above I find no force in the objection raised.

4. Moreover, it is well settled that the law prefers adjudication on merits and technicalities should not be allowed to stand in the way of substantial dispensation of justice. In the circumstances. I find no infirmity in the impugned order and would therefore dismiss this appeal. The R & P' shall be sent to the learned Rent Controller who will decide the matter on merits without unnecessary loss of time. Let the parties appear before the learned Rent Controller on 15‑2‑2001. H.B.T./A‑176/K Order accordingly.