MUHAMMAD ATHER SAEED, J.--- The petitioners have preferred this constitutional petition against the order dated 4-5-2002 in F.R.A. No,715 of 2001 passed by IIIrd Additional District and Sessions Judge, Karachi (South), whereby the appeal preferred by the respondent/landlord was allowed the order of learned VIIIth Rent Controller, Karachi (South) was set aside and the petitioners/tenants were directed to vacate the subject premises within thirty days.
2. Relevant facts of the case are that during pendency of rent proceedings the respondent/landlord filed an application under section 16(1) of Sindh Rented Premises Ordinance, 1979, which was allowed and subsequently the respondent/landlord filed another application under section 16(2) praying to strike off defence of the petitioners/tenants on the ground that compliance of the order under section 16(1) was not made. The said application was dismissed by the learned Rent Controller vide order, dated 3-3-1991 allegedly for the reason that the application was depositing rent in MRC No,828 of 1988 against which the respondent/landlord preferred F.R.A.
No,715 of 2001 (Old F.R.A. No,230 of 1991), which was allowed vide impugned order whereby the defence of petitioner/tenant was struck off and they were directed to vacate the subject premises within thirty days. The Additional District Judge also gave a finding of fact that the present petitioner had failed to deposit the rent after February, 1989.
3. I have heard Mr. Muhammad Qasim Mirjat, A.A.-G., Sindh appearing for the appellant and Messrs Iqbal Ahmed and Asim Iqbal, Advocates for the respondent.
4. The only ground urged by the learned counsel for the appellant is that an order under section 16(2) being interim order in nature is not A appealable under the provisions of section 21 of the Sindh Rented Premises Ordinance, 1979. In this connection he drew my attention to the provisions of section 21 which reads as under:-- "21 Appeal.--- (1) 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.
(2) The Appellate Authority may pending the final disposal of the appeal, grant injunction staying further proceedings or action on the order of the Controller: Provided that no injunction shall be granted if the appeal has been preferred from the order under section 14.
(3) The Appellate Authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final."
5. The learned counsel argued that the provisions of section 21 are not completely para materia with section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and therefore, the interim order passed under section 16(2) was not appealable under section 21. In this connection he relied upon the judgment of this Court in the case of Gurdasmal v. Pahlaj Ram and another 1986 CLC 43. This case was decided on 1st April, 1985. In this case Mr. Justice Saeeduzzaman Siddiqui, Judge of Sindh High Court as he then was, held that an order under section 16(2) refusing to strike off defence of the tenant is an order which is interim in nature and therefore, is not appealable under the provisions of section 21 of the Sindh Rented Premises Ordinance, 1979.
6. The learned counsel for the respondent while replying to the arguments of the learned counsel for the appellant stated that it is by now a settled law that an order passed under section 16 of the Sindh Rented Premises Ordinance is not an interim order, but a final order and, therefore, appealable under section 21 of the Ordinance, 1979. He also stated that the appellant had not taken up this ground before the Additional District Judge and therefore, could not take this ground for the first time before this Court. In support of his contention that the order under section 16(2) is not an interim order but a final order, and therefore, appealable he relied upon the following case-laws:-- -
(1) Mrs. Zubaida Begum v. Mrs. S.T. Naqvi 1986 SCM R 261;
(2) Mst. Anwar Fatima and 5 others v. Muhammad Ali Mutlaq PLD 1986 Kar. 252; (3) Mrs. Khairun Nisa and another v. Mrs. Mehrun Nisa 1990 CLC 661.
7. Before perusing the judgments relied on by the learned counsel for the respondent it will be pertinent to deal with the second objection first. From a perusal of the impugned order it is apparent that the order has been passed ex parte and the appellant had never appeared before the learned Additional District Judge and, therefore, it was not possible for him to take this plea before the learned Additional District Judge. Even otherwise this argument is on the basis of the question of law, which goes to the very root of the matter and can be taken up at any stage. If any authority is needed in support of this contention reference can be made to the judgment of the Honourable Supreme Court in the case of Gatron (Industries) Limited v. Government of Pakistan 1999 SCM R 1072. In the light of the above settled law, I allowed the learned counsel for the appellant to argue the case on this point.
8. The first case relied upon is a judgment of the Honourable Supreme Court where under the old law they have that an order of the Rent Controller under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 refusing to strike off defence is as much appealable as striking of defence.
9. The second judgment relied on by the learned counsel for the petitioner is a judgment of this Court decided by Justice Saleem Akhtar Judge of the Sindh High Court as he then was on 1st December, 1985. In this judgment the Honourable Judge after examining the various judgments of the Supreme Court held as under:-- "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 application for striking off defence is a final order. The appeal is, therefore, maintainable."
10. The third judgment relied on by the learned counsel for the respondent is also a judgment of this Court in which the learned Single Judge relying on an unreported judgment of the Honourable Supreme Court held that an appeal against the order under section 16(2) of the Sindh Rented Premises Ordinance, 1979 refusing to strike off defence of the tenant was maintainable. The observation of the learned Single Judge is detailed below:-- "In Civil Appeal No,195-K of 1986 Muhammad 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 Sindh Rented Premises Ordinance, 1979 refusing to strike off defence of the appellant was maintainable."
11. The learned counsel for the respondent also challenged the maintainability of the constitutional petition and relied on a number of judgments in support of his contention that this Court in exercise of its constitutional jurisdiction cannot entertain a petition in which disputed facts are involved. In support of his contention on the maintainability of the constitutional petition he relied on the following cases:--
(1) Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; (2)
Saifullah v. Muhammad Bux and 2 others 2003 M LD 480; (3) Secretary to the Government of the Punjab Forest Department, Punjab, Lahore v. Ghulam Nabi and 3 others PLD 2001 SC 415; (4) Messrs Mehraj (Pvt.) Ltd. Miss Laima Saeed and others 2003 M LD 1033; (5) Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502.
12. However, since the learned counsel for the appellant has only relied on one legal ground, therefore, it is not necessary to adjudicate on the maintainability of the petition.
13. I have examined the case in the light of the arguments of the learned counsel, perusal of the judgment of the Additional District Judge under section 16(2) of Sindh Rented Premises Ordinance, 1979 and the orders passed by the learned Rent Controller under sections 16(1) and 16(2) of Sindh Rented Premises Ordinance, 1979 and carefully perused the judgments relied on by the learned counsel. Since the judgments cited by the learned counsel for the respondents are later in time and based on examination of the judgments of the Supreme Court of Pakistan in respect of the orders passed under section 16(2) of the Sindh Rented Premises Ordinance, 1979, I most respectfully follow them. As a consequence, I hold that the order under section 16(2) was appealable and since this is the only ground raised by the learned counsel for the appellant, the constitutional petition being devoid of merits dismissed.
14. The petitioners are allowed a period of three months from the date of this order to vacate the premises and hand over the possession of the same to the respondents.