1. ' MUHAMMAD TASNIM, J.---This petition is directed against the judgment dated 2-11-2009 passed by learned IIIrd Additional and District Judge, Karachi (South) in F.R.A. No,242/2009 filed by respondent No,1, whereby order dated 28-8-2009 passed by respondent No,2 (Vth. Senior Civil Judge and Rent Controller, Karachi (South), was set aside.
2. ' Brief facts leading to this petition are summarized as under:--Petitioner Mst. Raheela Yasmeen filed rent case No,305/2008 before Vth Senior Civil Judge and Rent Controller, Karachi (South) against respondent No,
1. It is the case of the petitioner that respondent No,1 was not served through normal mode of service but service was effected upon the respondent through publication. After holding the service good against respondent on the basis of publication, respondent was ordered to be proceeded ex parte vide order dated 3-9-2008 by the learned Rent Controller. Respondent No, 1 appeared in Court on 4-9-2008 and filed an application for setting aside the order dated 3-9-2008. Learned Rent Controller heard the parties and vide order dated 28-8-2009 dismissed the said application with the following observation:-- "Admittedly, the matter should be decided on merit, but when the party despite his attendance failed to file written statement within time which amounts negligence on one hand and on other hand he sleeps over his own right by not presenting application within time. Such ignorance of law cannot be facilitated nor any sort of favour can be extended to such negligent person. I do not find any justified reason/cause in the present application for setting aside the order dated 3-9-2008 the opponent has not explained any delay for filing this application after lapse of three months.
3. From the reasons recorded above, I do not find any reasonable excuse with the opponent, the said application stands rejected. There is no order as to costs."
4. ' Feeling aggrieved against the aforesaid order of the learned Rent Controller, respondent No,1 filed F.R.A. No,242/2009 before IIIrd Additional District Judge, Karachi South. Learned Appellate Court heard the arguments of the parties and vide judgment dated 2-11-2009 allowed the appeal and set aside the order impugned with the following observations:-- "For the foregoing reasons, I set aside the impugned order of the learned trial Court but subject to payment of cost of Rs,20,000 to be paid to respondent within a week with the Nazir of this Court.
5. Both the parties are at notice and they are directed to approach before the learned trial Court on 10-11-2009 and on the same date, appellant/opponent would file written statement without fail. The matter is remanded back accordingly. In case, written statement is not filed, and cost is not paid, as ordered, the learned trial Court would be entitled to proceed ex parte against the tenant. Appeal is disposed of in above terms accordingly."
6. ' I have heard the learned counsel for petitioner and have gone through the record. I have also examined the case law cited by learned counsel for the petitioner.
7. ' Learned counsel for petitioner has made the following submissions:--
(I) That no appeal lies against the interim order, hence learned appellate Court, through the impugned order, could not have set aside the order passed by learned Rent Controller on 28-8- 2009. In support of this submission, learned counsel has placed his reliance upon judgment of (1), PLD 1978 SC 185 Mian Manzar Bashir and others v. M.A. Asghar and Co., (2). 1982 CLC 1436 Wahid Bux Soomro v. Ghulam Muhammad Baloch, (3). 1990 SCM R 1070 Haji Mohibullah and Co. And others v.
8. Khawaja Bahauddin, and (4). 2008 SCM R 322 Zahoor v. Election Tribunal, Vehari and others.
9. ' Learned counsel is correct in saying that no appeal lies against the interim order passed by the learned Rent Controller while the rent proceedings are pending. But in the present case the ex parte order was passed on 3-9-2008 and on the next date tenant appeared and made an application on the ground mentioned in such application. The learned Rent Controller without considering the fact that service was not effected through ordinary mode of service but respondent No,1 was served through publication. Learned Rent Controller should have provided opportunity to the respondent to file his written statement and should have decided the matter on merits instead the learned Rent Controller passed order dated 28-8-2009 rejecting application filed by the respondent No,l. Since the order passed by the learned Rent Controller, disallowed the respondent No,1 to place his defence before the Court, this order was not an interim order but the effect of such order was of final in nature. Resultantly respondent No,1 filed appeal before the Appellate Court who after hearing the parties passed the above quoted order dated 2-11-2009.
10. While allowing the appeal of the tenant, the Appellate Court also imposed costs of Rs,20,000 to be paid to the present petitioner within a week's time and remanded the case to the learned Rent Controller to decide the same on merits in accordance with law.
11. ' The case law cited by the learned counsel does not improve the case at all as in the case cited at Sr. No,1 it was decided by the honourable Supreme Court of Pakistan that learned Rent Controller in exercise of inherent powers can set aside the ex parte order passed by him and no exeption can be taken to such order. In the case cited at Sr. No,2 it was held that no appeal lies against the interim order. There is no cavil with this proposition as it is specifically provided under section 21 of Sindh Rented Premises Ordinance 1979 that no appeal lies against the interim order but appeal can only be filed against the final order. But in the present case order passed by the learned Rent Controller refusing for recalling ex parte order dated 3,9-2009 was final in nature, hence judgment cited by the learned counsel are not attracted in the circumstances of the case. Judgment cited by learned counsel at Sr.No,3 is distinguishable as such judgment relates to West Pakistan Urban Rent Restriction Ordinance 1959, and such judgment was not passed relating to provision of Sindh, Rented Premises Ordinance 1979, hence not applicable in the present case. With regard to judgment cited by learned counsel at Sr. No,4, in such case it has been held that constitutional jurisdiction of the High Court can be exercised in case where subordinate Court/Tribunal exceeds its jurisdiction or acts without jurisdiction. There is no cavil to the above proposition, but in the present case learned Rent Controller has not exercised the jurisdiction vested in him. Reference can be made to 1982 SCM R 570 (Mashlakhuddin v. Syed Ali Haider) wherein it has been held that learned Rent Controller is empowered to set aside ex parte order in view of provisions of section 19(2) of Sindh Rented Premises Ordinance 1979. It has been further provided that the use of word 'found' and words 'without any reasonable excuse' clearly mean and imply that the Rent Controller has to record a finding that a notice has been served and further that the default in making reply was without any reasonable excuse. Unless findings on these two facts are recorded, the Controller cannot give full effect to section 19(2) of Sindh Rented Premises Ordinance 1979.
12. ' In view of above the learned Appellate Court vide his order dated 2-11-2009 rightly set aside the order passed by the learned Rent Controller, hence does not call for any interference by this Court in its constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973.
13. ' Accordingly this petition fails and is dismissed in limine with no order as to costs.