P L D 1983 Karachi 208 (PLP)

Appellant above-named, being aggrieved by order dated 22nd April, 1981 of 1st Rent Controller, Karachi, in Rent case No. 2678/77, has filed the above appeal, on the following facts and grounds :

2. That in the month of August, 1977 the respondent, who is the landlord of House No. JM/3/526, New Catholic Colony, Dadabboy Naurogy Road, Karachi, filed an application before the Ist Rent Controller, Karachi, under section 13 (2) of the Sind Urban Rent Restriction Ordinance, 1959 for the ejectment of his tenant i. e. the appellant.

3. That the said application was pending trial before the learned lower Court when on 4-12-1980, the same was dismissed in default for nonappearance of the respondent, as per order attached as Annexure `B'.

4. That the respondent, instead of filing any appeal- before this court under section 21 (1) of the Sind Rented Premises Ordinance, 1979, moved a review application before the said Rent Controller under section 114, C. P. C. read with Order XLVII, rule 1, C. P. C.

5. That on 4-4-1981, when the. review Application of the respondent came up for hearing before the learned Rent Controller, the counsel for the appellant raised the preliminary objection, that the learned Controller was not competent to entertain or hear the review application of the respondent and that the same should be dismissed then and there, without going into the merits of the case.

6. That on 21-4-1981, as a precautionary measure, the counsel for the appellant also submitted a brief of his arguments in writing supported by rulings of the higher Courts of Pakistan as per Annexure `D', but the learned lower Court did not take them into consideration and passed the impugned order.

7. The appellant above-named being aggrieved by the impugned order has filed the above appeal on the grounds mentioned in the memo. of appeal.

8. In support of the above appeal the learned Advocate for the appellant submitted, that the impugned order is without jurisdiction as powers of review are not vested in the learned Rent Controller. In support of this contention the learned Advocate for the appellant relied upon cases reported in P L D 1973 Lah. 95 and P L D 1981 S C

94. The learned Advocate for the appellant further submitted, that the impugned order is a final order and as such the above appeal is maintainable and in support thereof he relied upon the case reported in P L D 1976 Kar. 933.

9. The learned Advocate for the respondent, on the other hand submitted as under (a) That the above appeal is not maintainable, as the same has been filed against an interlocutory order and in support of his contention he relied upon case reported in 1982 C L C 1436. (b) That mere mention of the wrong section in the heading of the application, which was in fact an application for setting aside order of dismissal for non-prosecution, did not make the application filed by the respondent a review application and the learned Rent Controller was fully justified in setting aside dismissal of the ejectment application on ground of non-prosecution only, by the impugned order. 1n support of this contention the learned Advocate for the respondent relied upon cases reported in P L D 1978 Kar. 952, P L D 1972 Lab. 603 and P L D 1976 Lah. 269. 10. 1 have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as the impugned order and the application for sating aside the order dated 4-12-1980,

11. The main question which requires consideration in the above appeal is, whether the application dated 11-12-1980 filed by the respondent was really a review application or it was an application for setting aside dismissal of respondent's ejectment application for non-prosecution on account of his absence and as such maintainable. Prima facie the application filed by the respondent was moved as a review application, but in fact by this application, the respondent sought setting aside dismissal of his ejectment application on the ground of his non-appearance, on the date, when the said ejectment f application was not fixed for regular hearing and as such maintainable. The contention of the learned Advocate for the appellant, that the learned. Rent Controller has no powers of review cannot be disputed in view of the law laid down by this Court as well as Hon'ble Supreme Court, on which the learned Advocate for the appellant has relied upon. However, it is necessary to examine the respondent's application as a whole in this connection. I have gone through the respondent's application purporting to be a review application and find that the main ground for setting aside dismissal order for non-appearance was, that on 4-12-1980 respondent's ejectment application was fixed. for pronouncement of orders on certain application, but the learned Rent Controller dismissed the entire application on account of non-appearance of the respondent and his Advocate. In view of this in my opinion, the respondent in fact by the application in question sought setting aside of dismissal order of his ejectment application on the grounds mentioned in his said application, and as such in my opinion the cases cited by the learned Advocate for the respondent reported in P L D 1972 Lah. 603 and P L D 1978 Kar. 952 are fully applicable to the present case. I find from the record and proceedings of the learned trial Court, that the ejectment application in question was fixed on 1-11-1980 for passing orders on certain application 'and was again adjourned to 14-12-1980 for the said purpose. However, on this date, the learned Rent Controller instead of passing orders on appellant's review application dismissed the ejectment B application of the respondent for non-appearance of the respondent and his Advocate, which was contrary to settled principles of law and consequently on respondent's application the said order was set aside mainly on the ground, that the respondent's ejectment application was not fixed for regular hearing on the said date. In .view of this, I see nothing illegal about the impugned order in question and the cases cited by the learned Advocate for the appellant relate in the decision, that C. P. C. is not applicable to the proceedings before the learned Rent Controller and as such the said cases have no hearing on the respondent's application, which was in fact for setting aside dismissal order of ejectment application for non-prosecution, on the date, when it was not fixed for regular hearing.

12. In addition to my above conclusion regarding maintainability of the respondent's application for setting aside dismissal of his ejectment application for non-prosecution, the contention of the learned Advocate for the respondent, that the above appeal is not maintainable, as the same ha been filed against interlocutory order, has great force. It is very clear, that by impugned order the ejectment application filed by the respondent does not stand disposed of finally, but is still pending and will have to be disposed C of on merits by the learned Rent Controller. The impugned order, I am afraid, cannot be considered to be a final order so as to attract the provision of appeal provided under the relevant law. On * this ground also the above appeal is liable to be dismissed.

13. Therefore, I dismiss the above appeal for the above conclusion arrived at by me and direct the learned Rent Controller to dispose of respondent's ejectment application as well as all other applications that may be pending before him filed by the appellant, on merits in accordance with the law, within three months from the receipt of the copy of this order, as the main ejectment application has been pending disposal since 1977, after giving full opportunity to both the parties.

14. In view of the facts and law points involved in the above appeal, I pass no order as to costs. M. Y. M.