1982 PLP 1436 (CLC)

The facts leading to the filing of above appeal shortly are that on 26th November, 1979 the appellant filed ejectment application for seeking ejectment of respondent from the house in his possession inter alia on the ground of default. The Rent Controller by an order dated 9th February, 1980 made the respondent ex parte and thereafter passed an ex parte ejectment order on 28th February, 1980. He was ejected on 14th May, 1980. The respondent filed an application on 15th May, 1980 for setting aside the ex parte order for restoration of the possession. The application has been granted by the learned Rent Controller by his aforesaid order dated 20th May, 1980. The appellant being aggrieved by the above order has filed the present appeal. 2. (a) Mr. Sadik Ali Khoja, learned counsel for the respondent has raised a preliminary objection on the question of maintainability of the appeal in view of the language used in section 21 (1) of the Since Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) wherein it has been provided that "any party aggrieved by an order, not being an interim order, made by the Controller, may, within 30 days, of such order, prefer an appeal to the High Court. His contention was that an order of setting aside ex parte ejectment order and in consequ ence thereof an order of restoration of possession are interim orders and therefore, are not appealable. Reliance has been placed on the case of Mian Manzar Bashir and others v. M. A. Asghar & Co. (1). Whereas Mr. Ali Akbar learned counsel for the appellant has urged the following contentions in support of his argument that the appeal is competent‑ (i) that the order under appeal can be termed as an interlocutory order, but not an interim order and, therefore, the appeal is not excluded by virtue of the above section 21 (1) of the Ordinance ; (ii) that since the order of the learned Rent Controller is in violation of the express provisions of section 19 (2) of the Ordinance the same was without jurisdiction and, therefore, the appeal would be competent, and would lie in the same manner as an appeal would lie from a decision with jurisdiction. (b) Reverting to the case of Mian Manzar Bashir, it may be observed that in the above appeal the facts were that the Rent Controller had set aside an ex parte ejectment order though there was no express provision provided for in the West Pakistan Urban Rent Restriction Ordinance 1959, empowering the Controller ,to sea aside such an order. The landlord filed an appeal before the Additional District Judge and thereafter an appeal in the High Court but both the appeals failed. The question before the Supreme Court was as to whether the aforesaid order was an appealable order under section 15 (P L D 1978 S C 185) of the West Pakistan Urban Rent Restriction Ordinance. While discussing the above point, it was held by the Supreme Court that the order of setting aside an ex parte order is an interlocutory order, and therefore, it was not appealable. (c) The sole question before me is, as to whether there is any distinc tion between an interim order and an interlocutory order. Mr. Ali Akbar learned counsel for the appellant has invited my attention to the definition of the words `interim and interlocution' given in the Chamber Twentieth Country Dictionary, 1979 Edition "interim.‑the time between or intervening the meantime : (cap.) in history of the Reformation, the name given to certain edicts of ‑`4 the German emperor for the regulation of religious and ecclesiastical matters, till they could be decided by a general council‑as the Authburg interim (154$), etc,""' temporary. ‑ adv. (rate) meanwhile", "interlocution, conference ; an intermediate decree before final decision.‑ In this regard reference may also be made to Ballentines Dictionary Third Edition, wherein, the words, 'Interim and Interlocutory' have been defined as follows :‑ "Interim Order" ‑A provisional order of Court such as a temporary injunction. A provisional or temporary order by an administrative agency, 2 Am J2d Admin L

466. An interlocutory order, "interlocut ory". Not decisive of the cause but determining an intervening matter relating to the cause. Mora v. Sun‑Mut. Ins. Co. (NY) 13 Abb. Pr. 304, 307, intermediate." In may be noticed that the definition of the word interlocutory given in the above well known dictionary to the effect that interlocutory means not a decision of the cause, but determination of an intervening matter to cause. In my view the above definition fits in with the definition of the term `interim'. It was also urged by Mr. Ali Akbar that in ‑fact there are three stages in a civil suit in which an application for injunction is filed, namely, (i) ex parse interim injunction order ; (ii) interlocutory injunction after hearing the parties on the application, and (iii) final decision of the Court in the suit. In my view the above distinction cannot be pressed into service while interpreting provisions of the Ordinance. The intention of subsection (i) of section 21, of the Ordinance seems to be to shorten the period of litigation in rent cases by excluding the right of an appeal .in respect of an interim order, which does not result in the disposal of the rent case finally, but remains pending before the Rent Controller. B In the instant case, since the case remained pending before the learned Rent Controller, the order of setting aside the ex parte order can be said to be an interim order or an interlocutory order. In this view of the matter the appeal is not competent because of the express prohibition provided for in the above section 21 (1) of the Ordinance :‑ (d) Reverting t8 the second contention of Mr. Ali Akbar that the learned Rent Controllor bad no power to review an ex parte order as section 19 (2) of the Ordinance expressly provides that after the passing of an ex parte order the Controller shall have no power to rescind such and, therefore, the order under appeal is without jurisdiction and would lie in the same manner as an appeal would have been competent from an order with jurisdiction, In this regard he has referred to the case of Mohammad Ashraf v. Tire State reported in P L D1973 S C 368 the case of .Farhatullah Khan v. Mustafa Ali Khan reported in P L D 1979 Lah. 132 and the case of Abdul Qaiyum v. Salahuddin Qureshi P L D 1974 Kar.

10. It will suffice to observe that in the above cases, it has been laid down that if a Court having no jurisdiction, wrongly exercises such jurisdiction, an appeal shall lie from that decision in the same manner as an appeal lies from a decision with jurisdiction. In my. view the ‑above cases have no relevancy to the instant case inasmuch as under section 21 of the Ordinance an appeal against an order passed with jurisdiction would be only competent if it was a final order. Since no appeal is provided against an interim order with jurisdiction under the Ordinance it must follow that there cannot be an appeal against an interim order without jurisdiction. In view of the above discussion I dismiss the above appeal being in competent, but there will be no order as to costs. M. Y. H. Appeal dismissed.