' This is art appeal filed against the order of the Additional District Judge, dated 25-4-1978, whereby the order of the Rent Controller, Sukkur, dated 10-5-1977, had been set aside.
1. The facts briefly stated are as under :-
2. Syed Muhammad Alia whose L. Rs, figure as respondents Nos, 1 to 8, in the instant appeal had filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, before the Rent Controller, Sukkur, against the appellant and Abdul Wahid son of Adamjee, on 10-6- 1970. Shortly thereafter the aforesaid Abdul Wahid died and his L, Rs, Mst. Haleema Bai, his widow, Mst. Amna Bai, his daughter ; and Ashraf, his son ; were brought on record on 26th June, 1971. It was the case of Syed Muhammad Ala that he was the sole owner and proprietor of shop hearing C. S. No, B-2405/1, situated in Tobacco Bazar, Sukkur. On 24-3-1966 he had entered into the agreement of partnership with the opponents and had handed over his shop to them for the purpose of carrying on partnership business, under the name and style of "Sind Tobacco Stores" with effect from 1-4-1966. On 4-12-1966 he had through registered notice informed the opponents of dissolution of partnership. It was further his case that under the agreement earlier entered into between the parties, in the case of dissolution of partnership the opponents had either to hand over the vacant possession. If this shop to him or if they desired to continue in possession of the premises therefore, they had to pay the rent for the same at the rate of Rs, 300 month to him.
3. After the dissolution of partnership and in spite of the written notice acted 4-12-1969 the opponents did not hand over the possession of the premises to him but continued to remain in possession and occupation of the lime and failed to pay the agreed rent at the rate of Rs, 300 per month with red from 1-1-1970. It was therefore, his case that they had committed wilful default in the payment of rent which he claimed from 1-1-1970 to 10-1-1970 at the rate of Rs, 300 per month.
He also based his application on le ground that he needed the shop in question for his own bona fide use therefore, prayed for eviction of the opponents from the shop and a decree n. Rs, 1,800 as rent from 1-1-1970 to 30-1-1970 and he also prayed that all the decision of the application they could be directed to deposit future at the same rate. The applicant (herein) who was opponent No. 1, in the an application, filed written statement denying the relationship of landlord tenant as according to him, he, Abdul Habib and one All Bhoy, were crying on Tobacco business as partners before the shop was transferred to stoyed Muhammad Ali by the Settlement Authorities and therefore, be was tutor tenant of the shop. He. Admitted that by partnership dated 4-3-1966 a new partnership was constituted with Syed Muhammad Ali themself and Abdul Habib. According to him however, under the terms of the partnership deed Syed Muhammad Alia, had no right to dissolve the partnership of his own sweet will. The notice given by Syed Muhammad Ala, 'as therefore, invalid and the partnership .Continued un-dissolved. Under le aforesaid agreement of partnership under condition No, 3, if the other NO partners at any time or for any reason excluded Syed Muhammad Alarm partnership, only in that case vacant possession of the shop had to be handed over to him or a rent of Rs, 300 per month became payable.
4. On 4-5-1972 the appellant who was respondent in the rent application before the Rent Controller filed an application under Order XIV rules 1 and 2, ;. P. C. For deciding the following five preliminary issues on the basis of his loadings :-
(1) Whether the Court has no jurisdiction for want of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 ?
(2) Whether the application is maintainable in view of the contractual obligation contained therein in the partnership deed ?
(3) Whether the occupancy/tenancy right are independent of the partnership agreement ? If so what is its effect?
(4) Whether the application is barred by virtue of notice under section 69 of the Partnership Act?
(5) Whether the application is bad in law for want of necessary party ?
5. The learned Rent Controller, after recording the evidence of both they and their witnesses decided all the five preliminary issues in favour the L. Rs, of Syed Muhammad Ali, by order dated 27- 5-1976. After aging of the aforesaid order the appellant who was respondent before the rent Controller filed another application under Order XIV, rule 5, C. P. C. r framing the issue whether there is contractual relationship of landlord and between the parties. The learned Rent Controller, by his order dated 27-7-1976 allowed the application and by his order dated 10-5-1977 he decided the preliminary issue holding that there was no relationship of landlord and tenant between the parties. He, therefore, dismissed the rent application. Against the aforesaid order dated 10-6-1977 the L. Rs, of Syed Muhammad Ali, filed appeal before the Additional District Sukkur, against whose impugned judgment the instant appeal has been filed.
' The learned Additional District Judge, Sukkur, in his impugned order set aside the order of the learned Rent Controller, in which he had decided that there was no relationship of landlord and tenant between the parties on the main ground that the learned Rent Controller, had already decided the five preliminary issues by his order dated 27-5-1976, in favour of respondents Nos. 1 to 8 (herein) and that Issue No, 3 was decided on the admission of the tenant in his own evidence that he used to pay rent to Muhammad Ali, before the execution of the partnership Deed. It was further observed by the learned Additional District Judge, that while dealing with Issue No, 4, the learned Rent Controller, relied upon the admissions with respect to dissolution of partnership on the willingness of respondent, Haji Ahmad Saeed (herein the appellant) to pay rent at Rs, 80 instead of Rs, 300 per month. It was further observed that after passing the order dated 27-6-1976 the learned Rent Controller, should have passed the tentative order for deposit of rent but it appeared that before the same could be done another application under Order XIV, rule 4 and section 161, C. P. C., was moved by the respondent (herein the appellant) on 8-7-1976 praying for framing of additional preliminary issue with respect to the existence of contractual relationship of landlord and tenant between the parties, on the basis that the relationship of landlord and tenant had been denied in the written statement. The Additional District Judge, observed that it was strange that the learned Rent Controller, by his order dated 10-5-1971 took a contrary view on the same evidence to the view already taken by him in his order dated 27-5-1976 and it was the confirmed view of the learned Additional District Judge, that the learned Rent Controller, was not competent to review his own order. The learned Additional District Judge, distinguished the decision in N. Q. Industries v. Mrs. Bapai Kaikhusro (1) pointing out that authority was not applicable to the facts of the present case as it is not a case wherein ex parte order of eviction is sought to be set aside. He relied upon the decision. Agha Muhammad Hussain v. Merajuddin (2) wherein it was held that the power of review being statutory one could not be exercised under L the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. The learned Additional District Judge, allowed the appeal and set aside the order of the learned Rent Controller, dated 10th May, 1977. He remanded the rent application for further proceeding to the Rent Controller, in accordance with law.
6. It is contended on behalf of the respondent that the impugned order of the learned Additional District Judge, being one of remand and therefore; no final order, no appeal can lie against it.
Reliance is placed on the decision of the Supreme Court in Ibrahim v. Muhammad Hussain (3).
Before dealing with the merits of the appeal the preliminary objection taken to the filing of second appeal is being dealt with.
7. The identical contention was decided in Guldad Khan v. Rahim Shah (4) by a single learned Judge of this Court in which it was held that the {{FOOT NOTE}}
(1) PLD 1968 Kar. 589 (2) PLD 1973 Lah. 95
(3) PLD 1975 SC 457 (4) P D 1978 Kar. 19 {{FOOT NOTE}} ' jurisdiction of the High Court in second appeal was very wide under the provisions of section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance). The question for consideration in the precedent case as well as the instant case is, that when there is finding of Rent. Controller, that there is no relationship of landlord and tenant between the parties and that decision is reversed on appeal by the District Judge holding that such relationship does exist, a further appeal under section 15(4) of the Ordinance against such a finding is maintainable.
In the precedent case the learned Single Judge, who gave the decision observed as under :- "The answer to this question in my opinion, necessarily, depends upon the language employed in subsection (4) of section 15 of the Ordinance. Under subsection (1) only such order is appealable as is passed under sections 4, 10, 12 and 13 of the Ordinance and it finally disposes of the whole cases.
But under subsection (4) any order passed on appeal is made appealable subject to the limitation that the order passed by the Appellate Court is contrary to law or to some usage having the force of law or the order having failed to determine some material issue of law or usage having the force of law or involves a substantial error, or defect in the procedure. In other words appeal lies on the grounds contained in clauses (a) to (c) of section 100, C. P. C."
8. Without repeating the reasons given and the authorities referred to by the learned Single Judge, with which I respectfully agree, the preliminary objection taken to the maintainability of this appeal is overruled.
9. In the order of the learned Joint Civil Judge and Rent Controller, Sukkur, dated 27-5-1976 he had arrived at a finding on the five issues already referred to above after examination of the witnesses and the evidence of the parties. With regard to the issue as to the jurisdiction of the Rent Controller and maintainability of the application in view of the clauses of the partnership deed, the learned Rent Controller, pointed out that the opponent Haji D Ahmad Saeed, had admitted that he was tenant in the suit premises, and use to pay rent to Muhammad Ali before the property was transferred to him. The learned Rent Controller, also came to a finding that the partnership firm stood dissolved as stated by Muhammad Ali and since the opponent had admitted that he was tenant and was paying rent to the applicant, he held that no notice was necessary in the case that he had the jurisdiction to decide the matter. The aforesaid order of the Rent Controller also mentions that there was admission by opponent. Haji Ahmad Saeed (herein the appellant) that he was ready to pay Rs, 80 per month to the appellant but the applicant had demanded Rs, 300 and hence he had not made the payment. In view of the aforesaid admission the conclusion arrived at by the learned Rent Controller, in his earlier order that he had jurisdiction to decide the rent application was legal and proper. Consequently, the finding of the learned Additional District Judge, that the learned Rent Controller, was not competent to review his own order dated 27-5- 1976 assumes more importance. The learned Additional District Judge, rightly distinguished (reported in F in PLD 1968 Kar. 589) as in that decision it was the ex parte order of ejectment passed for default in appearance by the Rent Controller which being reviewed whereas in the instant case there was decision in the order of the learned Rent Controller, passed on appreciation of evidence which was sought to be reviewed and in the order of review no good reasons were mentioned for not considering the evidence already on record.
10. Under the circumstances stated there is no substance in the appeal which is dismissed with no order as to costs.