P L D 1986 Karachi 234 (PLP)

(iv) Balance of convenience lies in favour of defendant No. 1. (v) The suit is bad for non‑joinder of Solid Corporation (Japan) which is a necessary and proper party to the suit. There is no direct dealing between the plaintiff' and defendant No. 1 as all the supplies were made by Solid Corporation (Japan) to the plat tiff.

6. Mr. Liaquat Merchant, learned counsel for the plaintiff in support of his first submission invited my attention to the words "exclusive agent‑ and "exclusive distributor", as mentioned in the Memorandum dated 14‑4‑1977 and 25‑12‑1981 respectively and several paragraphs of the plaint. To substantiate his submission that the plaintiff has an agency with interest, reference was made by him to Annexures X‑1 to X‑11. bearing advertisements made by the plaintiff in respect of Sanyo products mentioning the Plaintiff as Sole , gent/Distributor of defendant No, 1 and submitted that 50% of the said advertisement charges were paid by defendant No.

1. He also invited my attention to Annexures marked as X‑29 regarding training of plaintiff's Engineers by defendant No. _1 and X‑12 to X‑14, which are the certificates of training in Air‑conditioning issued by defendant :No. 1 to three employees of the plaintiff. He also referred to X‑27 regarding establishing workshops at Lahore and Rawalpindi and warranty certificates for Duty Free Shops and X‑39 to X‑55 for making certain enquiries by defendant No. I through the plaintiff and X‑i6 to X‑58 showing direct dealings of defendant No. 1 with the plaintiff. He also relied on the provisions of section 202 of the Contract Act, 1872.

7. In view of the contention raised by Mr. A. K. Brohi the first question which has arisen in this case is whether there exists au agency in favour of the plaintiff in terms of the provisions of the Contract Act, 1872. If so; whether it is coupled with an interest of the plaintiff in the property which forms the subject‑matter of the agency and whether the said agency, in the circumstances of the case, can be revoked.

8. Mr. Brohi to substantiate the first limb of his contention that there exists no relationship of agent and Principal has referred to a passage from the Contract Act, 1872 by Shaukat Mahmud, Second Edition, 1981, page 676 which is as under :‑ The use of the word "agent" in a general way, loosely without Specify ing the purpose of agency. does not help to determine, as a matter of fact, whether a person is an agent or not 14 Mad. L. Tim. 249 (D. B.) Where the plaintiff brings a suit for damages against the defendant describing the latter merely as a 'commission agent', that by itself would not be conclusive for determining the correct relationship between the parties. Even where the word "agent" is used. the relationship between the parties tray be still of two principals contracting with each other. The actual status of the parties must be determined with reference to all the circumstances, and not merely with reference to the word used [A I R 1963 Patna 407 (D. B.) and A I R 1933 Cal. 204 (D. B.)]."

9. To decide the question it will be advantageous to have a survey of the various provisions of the Contract Act, 1872, (elating to the law of Agency.

10. Section 182 defines an agent as a person employed to do any act for another or to represent another in dealing with third persons. Section 186 provides that the authority of an agent tray be express o implied. Section 189 authorises an agent, in emergency, to do all such acts for the purpose of protecting his principal from loss. Sections 201 to 210 deal with revocation of authority. Ago agency is terminable by the principal revoking his authority, or by the agent renouncing the business of the agency, and where the agent has himself an interest in the property which forms the subject‑matter of the agency, the agency cannot, in the absence of express contract. be terminated to the prejudice of such interest. Where there is an express or implied contract that the agency should b continued for any period of time, the principal must make a compensation to the agent, for any previous revocation or renunciation of the agency, without a sufficient cause. When an agency is terminated by the principal, the agent is bound to take all reasonable steps for the protection and preservation of the interest entrusted to him. Sections 211 to 221 provide for agent's duty to principal whereas sections 222 to 225 provide for principal's duty to agent. . '

11. Examining the facts of the case, as revealed through the plaint affidavits, counter‑affidavits and rejoinders and the various annexures filed therewith in the light of the relevant provisions of the Contract Act, quoted above, it appears that the cardinal words defining an agent under section 182 are the "doing of an act by a person employed by another to do that act, while representing the principal in dealings with third persons. It may be under a power‑of‑attorney or a letter of appointment. By the two Memorandums, referred to above, it is difficult to ascertain wit treasonable certainty the nature of the act which the plaintiff is to perform "for the principal" (defendant No. 1). Simply the use of the word "agent' or "distributor" in the said Memorandum cannot be said to be decisive so as to conclude the creation of "agency" in terms of the provisions o section 182 or some other sections of the Contract Act. which I will presendy deal with. By a bare reading of the said Memorandum it see that the plaintiff is a "Sole Purchaser" of the products of defendant NO. 1 as borne out of the said Memorandums, to the exclusion of all other intending purchasers in Pakistan. For the purchases of the said products of defendant No. 1 which the plaintiff makes or may make fro defendant No. 1 there is no limitation as to the quantity, price or com mission. It, thus, appears that be becomes an owner in law of the said products purchased by him from defendant No. 1 in that exclusive capacity, as there is no liability of the plaintiff to account qua those good which, in law, is inconsistent with the obligation, generally speaking, o ' an agent under the Contract Act. There seems to be no responsibility o the plaintiff to defendant No. 1 as no obligation is created under the said Memorandums. These two Memorandums do not say anything b way of commission chargeable on these products or for the acts done b the plaintiff to promote the sales, which the plaintiff, probably, could sell in the manner and at whatever price, it liked. There is also no en trustment of products of defendant No. 1 with the plaintiff involving any fiduciary relationship as provided in section

212. In fact, the plaints becomes the owner of the products purchased by it from defendant No.

1. It is true that the advertisements do bear the words "Sole Agent" and "Sole Distributor", the expenses whereof were partly contributed b defendant No. 1, but an advertisement is in the nature of an adventure to promote the sale and a commercial incentive to the common interest of both the plaintiff and defendant No.

1. It cannot be taken to be an exclusive sign of conferring authority on the plaintiff as an agent of defen dant No.

1. These advertisements and the purchases made by the plaintiff from defendant No. I do not prove that the plaintiff was an agent within the meaning of section 182 of the Contract Act, as nothing happened pursuant thereafter, since there was no liability to account for to the principal for the purchases made by the plaintiff. I am, therefore, clear in my mind that the plaintiff's capacity described in the said two Memoran dums as "exclusive agent" or "exclusive distributor" does not go along with and run parallel to the provision of section 182 and other provision of the Contract Act, 1872, referred by the hereinabove and the transaction, prima facie seems to be that of principal to principal. Faced with this situation, Mr. Liaquat Merchant submitted that the Contract Act, 1872 is not exhaustive, and same is the position relating to the law of agency which forms part of it. ‑Reliance was placed by him on a Privy Council's decision reported as Jawaladutt ‑R. Pillani v. Bansilal Motilal (AIR1929PC132) which referred to the case of the Irrawaddy Flotilla Company v Bugwandas ((1891) 18Ca1.620) wherein Lord Macnaghten had observed as under :‑ "The Act of 1872 does not profess to be a complete code dealing with the Law relating to contracts. It purports to do no more than to define and amend certain parts of that law. No doubt it treats of bailments in a separate chapter. But there is nothing to show that the Legislature intended to deal exhaustively with any particular chapter or sub‑division of the law relating to contracts." The provisions of this Act were enacted as long back as 1872. Nearly 114 years have passed and in this ever changing world. tile commercial transactions have taken various shapes and forms. which may not necessarily fall within the ambit of the provisions of the said Act. The Contract Act embodies a number of limiting principles which create mutual rights and obligations in a codified form, but so long as the parties do not violate some legal prohibition, they can agree on whatever terms they like in respect of the subject‑matter of their contract, and the law, which in cludes principles, trade practices and customs having the force of law, will give effect to them. I, therefore, agree with Mr. Liaquat Merchant that the provisions of the Contract Act including the law of agency embodied in the Contract Act, 1872, are not exhaustive, speaking as whole, but to the extent it lays down certain provisions it is exhaustive and imperative. However, the position of the plaintiff, as emerged in this case, nay be viewed on its own facts and circumstances though it may no be falling within the term `Agent' as used in the provisions of the Contra;, Act, as aforementioned. I am. therefore, of the view that there is a relationship between the plaintiff and defendant No. 1 which is governed by the Memorandums themselves giving exclusive right of purchase of the products of defendant No. 1 to the exclusion of all the population o Pakistan, within the period stipulated therein. Admittedly under the first Memorandum dated 14‑4‑1977, the contract, whether it is called 'agency' or `distributorship' or give it any other name, as per term con tained in it automatically got extended upto 13‑4‑1987 and in the case o second Memorandum dated 25‑12‑1981, the contract got automatically, extended upto 24th December, 1985.

12. Now, the second limb of the question to be examined is whether it is 'a contract with interest' as stipulated in section 202 of the Contract Act. The section reads as under :‑ "Where the agent has himself an interest in the property which forms the subject‑matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of suclf interest. Illustrations (a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. (b) A consigns 1,000 bales of cotton to B, who has made advances. to him on such cotton, and desires B to sell the cotton, and to repay himself, out of the price, the amount of his own advances, A cannot revoke this authority, nor is it terminated by his insanity or death." .

13. Mr. Liaquat Marchant also relied on several passages from Anson's Law of Contract 24th edition which also find place in 23rd edition at pages 584 and 585, which reads as follows :‑ "The authority given to an agent may become irrevocable in three main instances : (a) when it is coupled with an interest, (b) when at is contained in a power of attorney, (c) when revocation would cause the agent personal loss.' (page 584)." "Where the agent has, in pursuance of his authority, contracted a personal liability or become liable to personal loss, the agency cannot be revoked by the principal without his consent, for this would be to defeat rights already established. The liability incurred by the agent may either be a legal liability, as where he binds himself by contract to pay to a creditor of his principal a debt which he has been authorized to receive (Hodgson v. Anderson (182:), 3 B. & C. 842) or it my simply be a loss which is likely to occur in fact, for example, where a betting commissioner places, bets on behalf of his principal which he must pay or loss his business (Read v. Anderson (1884) 13 Q B D 779) now reversed by the Gaming Act 1892 (55 & 56 Vict., 9), S. 1 ; ante, page 316) (page 585).". He also placed reliance on the case reported as Prahlad Pd. Modi and another v. Tikairni Faldani Kumari and another (A I R 1956 Pat. 233). The learned Judges of the Patna High Court referred Law of Agency by Bewstead Article 140 of the said Book (ed. 10) at page 275, which reads as under :‑ "Where an agent is employed to enter into any contract, or do any other lawful act involving personal liability, and is expressly or impliedly authorised to discharge such liability on behalf of the principal the authority becomes irrevocable as soon as the liability is incurred by the agent." Reliance was also placed on the observation of Couch, C. J. in the case of Pestanji Mancharji Wadia v. Joseph Matchett (Bom. H C R A C 10 A) who laid down :‑ "Where an authority or power is given for a valuable consideration or is part of a security, unless there is an express stipulation that it shall be revocable, it is, from its own nature and character, in contemplation of law irrevocable, whether it is expressed to be so on the face of the instrument creating the authority or not. This rule has been acted upon in many reported cases, of which it will be sufficient to mention the following. In Gaussen v. Morton (1830) 10 B & C 731 (B), A being indebted to B, to discharge the debt, executed to B a power of attorney auth orising him to sell certain lands belonging to him, to A. .It was held that the authority could not be revoked.‑‑ In Bromley v. Holland, (I 802) 7 Ves 3 (28) (C) Lord Eldon said that, where a power of attorney is executed for a valuable consideration, the Court of Chancery would not permit it to be revoked. And in Walker v. Restron (1842) 9 M & W 411 (420) (D) Lord Abinger, in giving judgment, said, "The existence of a debt, although it be not due instantly, is a good consideration ; and so it is to take lawful and proper means to provide for payment, even though they be conditional, if we were to hold otherwise, 'you might deny the consideration for a collateral security for .any debt which might not be due at the moment, although it is very common thing to require and obtain such security."

14. Applying the principle that has emerged from the case law cited by Mr. Liaquat Merchant to the facts of the present case as borne out of the documents filed by the plaintiff alongwith the plaint and the rejoin ders, the nature of interest, as disclosed, is three‑fold :‑ (i) The plaintiff issued personal warranties/guarantees to the purcha sers of the products of defendant No. 1 which are in the nature of personal liability ; the plaintiff also issued warranties/guarantees in respect of the purchases made by customers from Duty Free Shops : ((i) The plaintiff in addition to its Service Centre at Karachi established Service Centres at Lahore and Rawalpindi as asked by defendant No. 1 and made huge investment therein ; (iii) The plaintiff got its Engineering Staff trained by defendant No. 1 and incurred a good amount of expense which will go waste, if the agency is revoked.

15. So far as the first point is concerned, it has two parts : the first relates to warranties/guarantees issued by the plaintiff on general sales in respect of Sanyo products purchased by the customers from it. This ‑sort of warranties guarantees were in the knowledge of the plaintiff and de fendant No. 1 while entering into the contract in 1977 or in 1981. The said warranty/guarantee as alleged was to continue (or 5 years, whereas the period of the contract, first agreed, was for two years only. So, it was in the contemplation of the parties and particularly the plaintiff that for the purchases made by the customers through the plaintiff it will bind itself for a period beyond the period agreed in the contract. Moreover, except for the manufacturing defect for which defendant No. 1 is held liable, the plaintiff charges for the service as is evident from the docu ments X 51, 52 and 53, which it has itself produced. Second part of the war ranties guarantees issued by the plaintiff relates to the purchases made by the customers from Duty Free Shops. It appears from the documents produced by the plaintiff that this arrangement was at the request of defendant No. 1 made to plaintiff in 1985. It does not seemingly relate to two Memorandums P. 1 and P. 4 as the plaintiff was free to accept or reject the suggestion inasmuch as the purchases made from Duty Free Shops were not the purchases made from the plaintiff under the two Memoran dums. It was a distinct arrangement between the defendant No. 1 and the Importer for Duty Free Shops which may, perhaps, be a Government agency.

16. As regards the service centre at Karachi, it went alongwith the two Memorandums. Service after sale is a well‑known commercial phenomenon in the modern business world, which works as a lever in boosting up the sales. It does not,. to my mind, create a personal interest of the plaintiff/qua defendant No. 1.

17. As regards the training of the plaintiff's Engineers, it appears that it relates to the manufacturing unit which is the subject‑matter of two other agreements, which have been brought on record during course of arguments by consent of the parties. These agreements which are termed as Technical Assistance Agreement, have nothing to do with the two Memorandums.

18. Mr. Liaquat Merchant has stressed much on the huge invest ments made by the plaintiffs in the business of the alleged agency. It appears that the plaintiff has also included the alleged huge amounts in the investments made by its associate concerns, which are not co‑plaintiffs in the suit, in relation to setting up of manufacturing/assembling unit of Air Conditioners/ Refrigerators, which admittedly are the subject‑matter of two other agreements and have nothing to do with the alleged agency. However, I am afraid, the mere investment does ring no bell unless the interest which is allegedly involved fulfils the condition that it forms part of the subject‑matter of the contract as provided in section 202 of the Contract Act. After all, the plaintiff had to make certain investments is the business, for example, on hiring the shops/offices at several places, setting up of a service centre, employing staff etc., if it is to acquire sole selling rights of the products of defendant No. 1, to the exclusive of all others, but such investment does not necessarily fall within the scope off "interest" as mentioned in the said section. Mr. Liaquat Merchant also submitted that the plaintiff acted as agent of defendant No. 1, while PAGES 245-252 MISS has committed default in payment of rent from November, 1979, to February, 1980. The respondent in his written statement admitted the tenancy and rate of rent but denied that any default has been com mitted. His plea was that rent from November, 1979 to January, 1980, was paid but no receipt was issued to him and the rent for February, 1980, was remitted by money order on 3‑3‑1980, which was refused and thereafter from April, 1980, he started depositing rent in Court in miscellaneous case No. 1159 of 1980. On 26‑4‑1980, the deceased landlord pled an application under section 16(1) of the Ordinance seeking direction to the respondent to deposit the arrears of rent and also the future rent in Court. The leaned Controller by his order dated 24‑5‑1981, directed the respondent to deposit the arrears of rent from November, 1979 to January, 1980, amounting to Rs, 1,536 to Court on or before 15th July, 1981, and to continue payment of future monthly rent in Court on or before 10th of each month. On 23‑11‑1981, the deceased landlord filed an application under section 16(2) of the ordinance for striking off the defence of the respondent as he had not complied with the order dated 24‑5‑1981. The report of the Nazir con firmed that the respondent had not deposited arrears of rent for the months of November, December, 1979 and January, 1980. Conseq uently, by order dated 18‑3‑1982, the defence of the respondent was struck off. The respondent filed an appeal against the said order and by judgment dated 30‑10‑1984, the said order was set aside and the case was remanded to the Controller for first deciding the question whe ther the ejectment application was competent under the Sind Rented Premises Ordinance 1979, and further direction was given that if finding was in the affirmative the Controller should decide the application under section 16(2) dated 23‑11‑1981. After the remand the learned Controller recorded the evidence of the appellant. The respondent, how ever, did not file his affidavit of evidence. The learned Controller after hearing the parties by order dated 20‑1‑1985, held that the ejectment application was competent and he had jurisdiction in the matter. Thereafter application under section 16(2) was taken up for consideration to which the respondent had filed, his objection. The learned Controller by the impugned order dated 3‑3‑1982, dismissed the application. Mr. Syed Inayat Ali, the learned counsel for the respondent, has raised a preliminary objection that as the order dismissing the applica tion under section 16(2) is an interim and interlocutory order no appeal lies under section 21 of the Sind Rented Premises Ordinance 1979, which reads as follows `Any party aggrieved by an order, not being an interim order made by the Controller may within thirty days of such order, prefer an appeal to the High Court.' The learned counsel for the respondent has relied on Anwar Hussain v. Kaniz Abbas and others (1982 C L C 2282), where it was held that order passed by the Controller under section 16(1) for deposit of rent was an interim order and appeal against that order is not maintainable ; it was further held that there was no substantial difference between section 13(6) of the previous Ordinance of 1959 and section 16(1) of the present Ordinance of 1979. The next case cited by the learned counsel for the respondent is Syed Inlesar Ali v. Ahmed Din and others (1983 C L C 998). In this case the appellant had order whereby his side was closed by the Controller as he had not filed the affidavit of his witnesses. It was held that the impugned order was in the nature of interim order and, therefore, appeal did not lie. In Sultan Ahmed v. Senior Civil Judge II Rent Controller and others (1984 C L C 101), where tae appellant had challenged the order of the Controller setting aside the order of dismissal of the ejectment application and restor ing the same for bearing, it was held that appeal against such inter locutory order did not lie. It was observed that the object is to avoid appeal on fragmentary decisions which delay the determination of main controversy. Ill such cases the parties should wait till the final order is passed and then file an appeal challenging both the orders. For this observation reliance was placed on P L D 1978 S C 185 and P L D 1983 Kar.

21. In this regard reference can also be made to a judgment reported in Wahid Bakhsh v. Ghulam Muhammad Baloch (1982 C L C 1436), where it was held that interim or interlocutory order means ‑not a decision of the cause but the determination of an intervening matter to the cause. It was held that an order for setting aside for ex parte order thereof an order of restoration of possession are interim orders and are not appealable. From the cases cited by the learned counsel for the respondent it is clear that none of them relate to an order passed rejecting application under section 16(2) for striking off the defence for non‑compliance of order of deposit of rent. The orders considered in these cases were orders for deposit of rent, order setting aside the ex parte order of dismissal or closing the side. Such orders are in the nature of interim order as they do not in any manner relate or decide the main controversy or dispute between the parties. Mr. Baqir Advocate for the appellant No. 2 has ably argued that the order rejecting the application for striking off the defence has been held to be a final order as it finally concludes the controversy and, therefore, it is not an order in the nature of an interim or interlocutory order and appeal is maintainable. In this regard the learned counsel has referred to Abdul Hamid and others v. Hafiz Abdullah (P L D 1969 Kar, 82), where the Division Bench consisting of Justice A. S. Faruqui and Justice Dorab Patel observed as follows :‑. We are, however, of the opinion that this order under section 13(6) would have concluded the proceedings because sub section (6) of section 13 provides that the defence, in the circum stances narrated in that section, shall be struck off and the land lord put into possession of the property without taking any further proceedings in the case. So it would appear that the order of the Controller refusing to strike out the defence was a final order in so far its impact on the proceedings was concerned.' In Raga Zahid Ali Khan and 3 others v. Ehsan Elahee (P L D 1977 Lah. 538), while consider ing the provisions of section 13(6) of West Pakistan Urban Rent Restric tion Ordinance, 1959, with particular reference to question whether order granting or rejecting application for striking off defence under section 13(6) is an interlocutory order it was held as follows :‑ In these circumstances two types of cases can be within the contempla tion of the Legislative. One is a case where in view of the default committed by the tenant in complying with the order of the Rent Controller, the Rent Controller directs the striking off the defence and on consequent ejectment of the tenant. The other alterna tive is that the Rent Controller after coming to an erroneous conclusion that the tenant has not ‑been in default within the meaning of that term as explained in Ghulam Muhammad Lund khor v. Safdar Ali P L D 1974 S C 530 where it was held that the most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is in no way responsible, refuses to strike off the tenant's defence. For all practical purposes this type of order will be akin and analogous to an order dismissing the application of a landlord under section

13. This type of order will be an order virtually dismissing the application to strike off the defence. For the purposes of finality, therefore, no distinction can be made between these two types of orders which can be passed to the Rent Controller even under section 13(6) irrespective of whether it be an order of striking off the defence and ejecting the tenant or of refusing to pass such an order. The order falling in the second category cannot be treated to be an interlocutory order for the simple reason that if a different view on merits be taken in the Appellate Court, it may be in a position to pass to order of striking off the defence of the tenant and directing his ejectment. The finality of order under section 13(6) should be judged from the point of view whether the appellate Court by reversing the finding of the Rent Controller can pass a final order terminating the proceedings of ejectment pending before the Rent Controller. I have no manner of doubt left that the order refus ing to pass an order of ejectment by striking off the defense should be considered as a final order which will give a right to the landlord to file an appeal against it. The learned counsel for the appellant also relied on Mst. Fatima Bai v. Fatima Begum (P L D 1977 Kar. 1007). where referring to P L D 1969 Kar. 82 and P L D 1;965 Lah. 179 it was observed as follows :‑‑ `No decision to the contrary was brought to my 'notice by either counsel. The matter lies within a narrow compass.. in view of the principles laid down by the Supreme Court in Ibrahim's care referred to above. In the case of preliminary issue regarding the relation ship of landlord and tenant the matter is obviously collateral and incidental to the main dispute whether the tenant is liable to be ejected and in the case of an order under the first part of sub section (6) of section 13 fixing the rate of tentative rent and the amount of arrears, the matter is obviously of a provisional nature and, therefore, interlocutory in character. Such cues are not, therefore, envisaged to form the subject‑matter of appeal. How ever, the question arising at the stage where violation of the tentative order under section 13(6) is alleged and denied, the position is entirely different. In such case the statute provides that in case of non‑compliance with the order passed for deposit of rent provisionally fixed, the defence of the tenant is liable to be struck off and the landlord put into possession of the property without taking any further proceedings in the case. Thus section 13 envisages the making of alt order of eviction either on merits provided the tenant continued to comply with the tenta tive order or under subsection (6) of section 13 by a summary pro cedure in case of default in compliance of the tentative order. Obviously, therefore, the question of non‑compliance of the order under subsection (6) of section 13 is a question germane to the dispute whether the tenant is liable to be evicted. Such order from its nature if correctly passed may result in the decision of the entire controversy and may terminate the proceedings so far as the Controller is concerned. It, therefore, follows that such an order is a final order and an appeal to challenge its correctness would lie under section 15(3) of the Ordinance. In Muhammad Oomar v. Amina Ashraf P L D 1977 Kar. 305, a learned Single Judge of this Court held that an order passed by the Controller to substitute the purchaser of the building in dispute pending decision of the ejectment application, was neither inter locutory nor determinative of a matter merely incidental or collateral to the dispute and as such was appealable. A learned Single Judge of the Lahore High Court construed the provisions of section 15(1) of the Ordinance in Zabid Ali v. Bhsen Elahi P L D 1977 Lah. 538 in relation to this specific point and came to conclusion that the order refusing to strike off defence is appeal able for the simple reason that if a different view on merits be taken by the Appellate Court, it may be in a position to pass an order of striking off the difference of the tenant and directing his ejectment.' In this judgment, following the aforestated judgments the order dis missing application for striking off defence was held to be a final order appealable under section 15(1) of the West Pakistan Urban Rent Restriction Ordinance. The learned counsel for the appellant referred to Hayat Ali v. Miss Aziza Mahmood (1980SCMR298), where similar question as in the previous judgment was considered and the view expressed in Rana Zahid Ali Khan and Fatima Bai's cases was approved and it was observed as follows :‑ "In seeking leave to appeal the learned counsel for the petitioner con tends that the impugned order of the Rent Controller is not deter minative in the sense that it finally decides the controversy. This necessarily involves the consideration as to the nature and scope of the order passed under the second part of the subsection keep ing in view the meaning of the word 'default' occurring therein. As held in Ghulam Muhammad Khan Londkhor v. Safdar Ali P L D 1967 S C 530 in every case of non‑compliance the question arises as to whether the default is avoidable or not. If it is avoidable then it cannot excuse non‑compliance and the manda tory consequence follows that is, the striking off the defence. Again, if the default is unavoidable then the non‑compliance is excusable in which case the Rent Controller can condone the non performance of the direction. In assessing whether there is default or not the Rent Controller has to consider the explana tion resting on facts and in a given case his decision might be erroneous. If he holds against the tenant, the order, beyond doubt, is final as it leads to his ejectment. As such this order is appeal. able, and again it is for the appellate Court to judge as to whether the Rent Controller was right in holding that the tenant was guilty of default and if he is not so held, he is absolved of the consequence of a default .* Vice versa if the Rent Controller decides against the landlord, can it then be said that such an order is not appealable howsoever, erroneous it may be as it does not conclude the proceedings? This would mean putting a premium on the right of the landlord to have the legality of the order determined in appeal, for, in that eventuality it may be that the appellate Court might come to a contrary conclusion and hold the default to have been proved, in which case his defence will be struck off. In either case there has to be an application of mind to the question of default which culminates in the passing of an order for the striking off the defence to the condonation of the non compliance. The former leads to the ejectment of the tenant while the latter condones the default. But what is pivotal is that it concludes the controversy presented by the second part of the subsection. Accordingly, both the orders are to be treated at par in determining their nature, for, if they are reviewed in appeal vice versa conclusion can follow which gives to it finality. On this view of the matter the High Court was correct in holding that the appeal was competent on the view taken in Rana Zahid Ali Khan v. Ehsan Elahi and Mst. Fatima Bai v. Mst. Fatima Begum which we approve." These authorities have directly dealt with the question involved id this appeal and it now well settled that the order refusing to strike off defence under section 13(6) of Urban Rent Restriction Ordinance is a final l's order and is appealable. Mr. Syed Inayat Ali, the learned counsel for the respondent has con tended that section 15 of Urban Rent Restriction Ordinance, 1959, is com pletely different from section 21 of the Sind Rented Premises Ordinance, as it specifically bars appeal against an interlocutory order. It is true that section 15 does not in clear terms specifically bar in appeal against an interim or interlocutory order but as is obvious from the aforestated authority that the Courts are of the view that only such orders are appealable which are final and germane to the main controversy between the parties. Section 21 of Sind Rented Premises Ordinance specifically provides that no appeal lies against an interlocutory order. The question, there fore, arises whether an order dismissing an application under sec tion 16(2) of Sind Rented Premises Ordinance, 1979, refusing to strike off the defence is appealable. The aforestated authorities have held that B an order refusing to strike off defence is a final order. The learned counsel for the respondent contended that words 'interim order' means an order which does not finally disposses off the proceeding and some thing is left to be done. According to the learned counsel after the dismissal o application under section 16(2) the case is not finally disposed of and further proceedings are to be taken. As stated above the Supreme Court has not termed an order refusing to strike off defence as an interim or interlocutory order. The consensus is that an order dismissing an appli cation for striking off defence is a final order. The appeal is, therefore, maintainable. Now coming to the merits, it seems that the learned Controller has dismissed the application under action 16(2) of the Ordinance mainly on the ground that the appellant had complained of the default in deposit ing the rent for the month of October, 1981, and as the respondent had produced a receipt dated 11‑5‑ 1981, showing deposit of rent July to December, 1981, no default has been committed. According to the learned counsel' for the appellant the learned Controller has mis read the application and has completely ignored the facts stated in the application. In paragraph 2 of the application it was alleged that the responder has committed default and not complied with the order passed by the Court. In paragraph 3 allegation of default was made specifically in respect of the month of October, 1981, stating that it was deposited on 19‑11‑1981. The learned Controller, therefore. has not correctly examine the application when he says that the complaint was made only in respect of deposit of rent for the month of October, 1981. Pursuance to this application the report of the Nazir was called from which it is clear the no deposit has been made for the months of November and December, 1979, and January, 1980. The receipts produced by the respondent d not relate to the rent for these three months. No other evidence ha been produced to show that the rent for these months was deposited. In these circumstances the respondent has clearly defaulted and has no complied with the order for deposit of rent. The defence of the respon dent is struck off and the appeal is allowed. The respondent is directed to vacate the disputed premises and handover vacant possession to the appellant within four months. A. A. Appeal allowed.