1990CLC661 (PLP)

Date of hearing: 12th October, 1989. This First Rent Appeal is directed against the order dated 23‑9‑1989 Passed by the IInd Senior Civil Judge and Rent Controller Karachi (South) dismissing the application filed by the appellant under section 22 of Sindh Rented Premises Ordinance 1979 read with section 12 (2) of C.P.C. challenging the order passed by this Court in F .R . A. No 797 of 1986 on 9‑4‑1987. The brief facts giving rise to the present appeal are that the respondents filed an ejectment application being Rent Case No.2051 of 1985 against the appellant No.2 before the learned Rent Controller. That during the pendency of the rent application respondent filed an application under section 16 (1), Sindh Rented Premises Ordinance which was allowed on 16‑4‑1986 and the following order was passed: "Heard learned counsel for the applicant and perused the objection filed by the counsel for the opponents. According to opponents the rate of rent is Rs.50 per month for each flat and according to the applicant the rate of rent is Rs.90 p.m. for each flat. The opponent is depositing rent in Misc. R.C. No.1887/85 since August, 1985 and he has deposited the rent upto date. I, therefore, tentatively fix the rent at Rs.50 p.m. for each flat and order the rent from the August 1985 be adjusted towards arrears of rent in this case. I, further direct that the future rent be deposited in this Court on or before 10th of every succeeding calendar month till final decision of this rent case. However, the appellant failed to comply with the tentative order and therefore an application under section 16 (2) of the above Act was moved but the same was dismissed and therefore, the respondent filed an appeal being F.R.A. No.797 of 1986 before this Court which was allowed on 18‑5‑1987 and the following order was passed:‑‑ "It is therefore quite clear in my view that the respondents have committed disobedience of the order of the Rent Controller passed under section 16 (1) of Sind Rented Premises Ordinance, 1979 and were therefore liable to get their defence struck off. I therefore set aside the order of the learned Rent Controller and order that the defence of the respondents be struck off and that the respondents should vacate the premises and hand over its vacant possession to the appellant. I allow six months' time to the respondents to vacate the premises on condition that they shall regularly deposit current rent on or before 10th of every succeeding month." That the respondent filed execution application before the learned Rent Controller on which the appellants filed application under section 22 of the Sind Rented Premises Ordinance read with Section 12 (2) C.P.C. The learned Rent Controller after hearing the Counsel for the parties has dismissed the application. The present appeal is directed against the said order rejecting the above application. I have heard Mr. Hamid Ahmed Ayaz learned counsel appearing for the appellants, Mr. Akhtar Hussain learned counsel appearing for the respondent and have also gone through the documents produced alongwith the appeal as well as the documents produced by the advocate for the respondent including the order dated 9‑4‑1987 passed by this Court. It was contended by Mr. Hamid Ahmed Ayaz learned counsel appearing for the appellants that the order passed by the Rent Controller under section 16 (2) was not appealable and therefore this Court had no jurisdiction to pass order dated 9‑4‑1987 as the said order was interim order and no appeal could be filed against interim order. That the learned counsel M/s. Niazy A. Khaliq, Haji Ameer Ahmed Khan, Zainuddin Shaikh, Akbar Khan Ghori and Sannaullah Khan Ghori, who appeared for the parties had committed fraud and they were in fact not engaged by the parties and had no authority to appear for them and therefore the order passed by the learned Rent Controller was liable to be set aside. He has further contended that since the learned counsel had committed forgeries and fraud they were liable to be prosecuted. Mr. Akhtar Hussain, learned counsel appearing for the respondent has contended that the order passed by the learned Rent Controller under section 16 (2) of Sind Rented Premises Ordinance was appealable and therefore, this Court had the jurisdiction to hear the appeal. In support of his contention the learned counsel has relied upon P L D 1986 Karachi 252 and an unreported case of the Honourable Supreme Court in Civil Appeal No. 195‑K of 1986, decided on 17th January, 1989. It was further contended that the application under section 22 of Sind Rented Premises Ordinance read with section 12 (2) C.P.C. was mala fide and the same was not maintainable before the Rent Controller as was held by the learned Rent Controller. I have considered the contentions of the learned counsel and have gone through the documents. As far as the first contention of Mr. Hamid Ahmed Ayaz learned counsel appearing for the appellants was concerned, I am afraid the same is untenable. Once an order under section 16 subsection (1) was passed and it was found that the tenant had failed to comply with the same, the Rent Controller was bound to order that the defence of the tenant be struck off and possession of the ' demised premises be handed over to the landlord, and refusal to do so cannot be construed to be an interlocutory order. In the case of Mst. Anwar Fatima and 5 others v. Mohammad Ali Mutlaq (P L D 1986 Karachi 252) it was observed by this Court that: "Now it is well‑settled that the order refusing to strike off defence is not an interim or interlocutory order. The consensus is that an order dismissing an application for striking off defence is a final order. The appeal is, therefore, maintainable:" In Civil Appeal No.195‑K of 1986 Mohammad Ali Mutlaq v. Mst. Anwar Fatima and 5 others decided on 17th January, 1989, their Lordships of the Supreme Court while relying upon number of decisions came to the conclusion that the appeal against the order passed under section 16 (2) of the Ordinance refusing to strike off the defence was competent. In view of the above legal position, I am of the considered view that the appeal against the order under section 16 (2) of Sind Rented Premises Ordinance, 1979 refusing to strike off defence of the appellant was mantainable. Adverting to the second contention of the learned counsel, there is no Afrasiab Khan, J) evidence to show that M/s. Nia7y A. Khaliq, Advocate and other Advocates had committed any forgery or fraud and even no affidavit of the appellants has been filed in this Court to support allegations against them. They are Senior Advocates of this Court and it is unfortunate that reckless allegations have been made against them without producing any proof in support thereof, and therefore, I am of the considered view that the contention is misconceived and baseless. cannot but deprecate such attitude of making reckless allegations against Senior Advocates of this Court. Moreover, the fraud and forgeries if any were alleged to have been committed before this Court and the final order was also passed by this Court and therefore application under section 12 (2) C.P.C. could only be riled before this Court and not before the Rent Controller who could not adjudicate upon the orders passed by this Court. The learned Rent Controller has given cogent reasons for dismissing the application and the order does not suffer from any infirmity, and therefore, does not call for interference from this Court. The appeal is accordingly dismissed in limine. M.BA./K‑179 Appeal dismissed.