The appellant above-named, being aggrieved by the order dated 13th May, 19800, passed by the VIth Rent Controller, Karachi, in Rent Case No. 4052 of 1978, by which he held that there existed a relationship of land--lord and tenant between the appellant and respondent, has preferred this appeal, inter alia on the following facts and grounds :-
2. The respondent is the owner of the premises No. 1030 final No. 811 NAC-11, Mahmoodabad, Karachi. The said premises were in possession of Abdul Quddus, Abdul Rauf, Mst. Amna Khanum and Mst. Fatima Bibi as the legal heirs of deceased Haji Muhammad Ishaq. There are five shops in the said premises and Shops Nos. 3 and 4 were let out to one Badruddin, brother of the appellant by an agreement by previous co-owner Abdul Quddus on 1-9-1966. About two years back, the said Badruddin subletted the shops in question to the appellant, without the consent of the previous owner and in order to avoid litigation, the previous owners accepted the appellant as a tenant of the shops in question. The property in question was sold to the respondent by previous owners on 24th May, 1978 and an intimation under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, was sent to the appellant regarding change of ownership by respondent and the rent was demanded from him, but he refused to pay. The appellant who is alleged to be a troublesome person also forcibly by breaking open the lock, occupied the back portion of the shop and this act of the appellant, it was alleged, has impaired the utility of the building. The appellant was alleged to be defaulter, as he had not paid the rent to the previous owners for several months as well as to respondent in spite of notice under section 13-A dated t17-7-1978. It was further alleged that the premises in occupation of the appellant are required in good faith by the respondent for erection and as such the ejectment application in question was filed by the respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the appellant contested the said application and filed his written statement in which he submitted that the respondent was not a legal owner of the shops premises and the appellant was the owner in his own exclusive rights of the plot behind his shop, he was of adverse possession and the Suit No. 1688 of 1978 in this connection was pending in the Court of Second Senior Civil Judge, Karachi. The appellant further asserted, that the heirs of late Muhammad Ishaq are the owners of the property in question, no sale or transfer of the property for the matter of ownership has taken place, and no notice of transfer was received by the appellant, from the previous owners.
3. On the basis of the above pleadings of the parties, the learned Rent Controller framed the following preliminary issue :-:.
"Whether the relationship of landlord and tenant exists between the parties ?"
4. The respondent examined himself and one witness, while the appellant led no evidence at all.
5. The learned Rent Controller; on the basis of the evidence led by the respondent and having taken into consideration, the legal arguments advanced on behalf of the appellant, decided the above-mentioned preliminary issue in favour of the respondent vide his order dated 13-5-1980, for the reasons given therein. The appellant being aggrieved by the above-mentioned decision of the Earned Rent Controller, on preliminary issue, has preferred this appeal on the grounds mentioned in the memo of appeals.
6. I have gone through the record and proceedings of the trial Court as well as taken into consideration, the arguments advanced by the learned counsel for the appellant before me and the authorities cited by him, as well as by the learned counsel for the respondent.
7. The above appeal was admitted amongst other grounds, whether the order dated 13th May, 1980, is an "interim order" or a final order and consequently whether the above appeal was competent under section 2: of the Sind Rented Premises Ordinance, 1979.
8. The learned counsel for the appellant in connection with the above legal point, submitted, that since the preliminary issue, which related to the assumption of jurisdiction by the Rent Controller, was disposed of, after recording of evidence it cannot be considered as an "interim order" as envisaged by section 21 of the Sind Rented Premises Ordinance, 1979. The learned counsel for the appellant submitted, that "interim order" mentioned in section 21 of the Sind Rented Premises Ordinance, 1979, has not been defined in the said Ordinance and as such ordinary dictionary meaning is to be given to the said term, which according to the learned counsel of the appellant would be "for the time being" as mentioned in Stroud's Judicial Dictionary, Part II, p. 1939. The learned counsel for the appellant further submitted, that decision of the learned Rent Controller on the preliminary issue is final and o the basis of anology of section 11 of C. P. C. It would be res judicata an cannot be agitated by the appellant in subsequent appeal, if any, filed on merits. The learned counsel for the appellant further submitted, that original application for ejectment was filed under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, but this appeal is to be disposed of in accordance with section 21 of the present Ordinance and as such the bar contained in section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, under which it has been held in various authorities, that no appeal lies on finding on the issue of relationship of landlord and tenant, would not apply to the present case, in view of the wording of section 21 of the Sind Rented Premises Ordinance, 1979 which is distinct and different from section 15 of the West Pakistan Urban Rest Restriction Ordinance. 1959.
9. In view of these submissions, the learned counsel for the appellant urged, that the above appeal against the impugned order was competent and should be disposed of on merit. The learned counsel for the respondent, on the other hand, submitted, that the above appeal was not competent, as the same has been filed against an "interim order" of the learned Rent Controller, relating to the relationship between the parties and the appellant has a legal right to challenge this finding, if necessary, on disposal of the original ejectment application merits by way of appeal. In support of this contention, the learned counsel for the respondent relied upon, a case reported in 1969 SCMR 720.
10. I have carefully considered the arguments advanced by both the learned counsel for the parties and have gone through the authorities cited by them. In my opinion, the impugned order of the learned Rent Controller is an "interim order" and by this order the ejectment application in question is not finally disposed of, as required by the provisions of the Sind Rented Premises Ordinance, 1979.
This impugned order has only decided the question of assumption of jurisdiction by the learned Rent Controller and as held in 1969 SCMR 720, that when Civil Court decides a preliminary issue as to the jurisdiction in favour of the plaintiff, no appeal lies against such finding. The mere fact,. That an issue as to jurisdiction has been decided, cannot be ground for granting right of appeal. When on the wording of relevant provisions, it is not possible to do so keeping in view laid down by Hon'ble Supreme Court in the authority, since section 21 of the Sind Rented Premises Ordinance, 1979, has not provided an appeal in respect of such orders, which do not dispose of the entire application initiated under the provisions of the said Ordinance. Therefore, I am of the opinion, that impugned order is only an "interim order' for purposes of assuming jurisdiction and as such the appellant has legal right to challenge the finding which is a subject-matter of the impugn order, in a regular appeal, on disposal of the ejectment application on merits if such disposal goes against him and as such the above appeal is not maintainable, as being one against an "interim order", which is only related to the assumption of jurisdiction and does not dispose of ejectment application filed by the respondent.
11. In view of my above finding, I would not like to express my opinion regarding the said "interim order" on merits, as in my opinion, the appellant has a legal right to challenge the said finding in a regular appeal on merit, on the basis of the evidence already on record and on the basis of the evidence that may be led by the appellant hereafter in the said application, which he might be able to use in support of his argument for challenging the said "interim order" in a regular appeal, if any, that may be filed by the appellant on disposal of the ejectment application in question by the learned Rent Controller. .
12. In view of the above observations and conclusions, I dismiss the above appeal as not maintainable, under section 21 of the Sind Rented Premises Ordinance, 1979, and direct the learned Rent. Controller to dispose of respondent's application on merit, after affording opportunities to the parties to lead evidence which they may, like, in respect of the said application, including any further evidence in respect of preliminary issue in question for purposes of challenging the impugned order on merit in. Regular appeal if any, that may .Be preferred--- on disposal of the ejectment application in question on merits.