1. ' This second appeal has been filed by the appellant tenant against the judgment dated 2nd December 1978, passed by the VIII Additional District Judge, Karachi, whereby the appeal of the respondent was allowed, application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was granted and ejectment of the appellant was ordered.
2. ' The appellant is tenant in respect of flat on first floor on plot No, GRE-528/5, known as Gosha-e- Aafiat situated off Bahadur Yar Jang Road, at the rate of Rs, 300 per month, of which the respondent is landlady. The respondent filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on 13th September 1976, before the Rent Controller seeking ejectment of the appellant on the grounds that she had without permission or consent of the respondent sublet the tenement to the sister of her husband and that she had failed and neglected to pay monthly rent with effect from 1st March 1976, and had thus committed default in the payment of rent.
3. ' The appellant tenant in her written statement had denied the subletting and also the alleged default in the payment of rent. The Rent Controller passed tentative rent order on 28th April 1917, directing the tenant to deposit arrears of rent amounting to Rs, 2,700 from July, 1976 to April, 1977 before 15th of July, 1977 and further to deposit rent of May, 1977 before 15th June, 1977 and to continue depositing amount of rent of each month before 15th of the subsequent month till disposal of the case. On 15th August 1977, the respondent moved an application under section 13
(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 stating therein that the applicant had committed default by non-compliance of the order dated 28th April 1977, by failing to deposit the arrears as well as current rent.
4. ' The learned Rent Controller issued notice of the application to the appellant and called for a report from the Nazir with regard to the deposit of Rent. The report showed that the appellant had deposited a sum of Rs, 3,900 on 13th August 1977. The appellant also filed counter-affidavit supported by medical certificate to show that she had been seriously ill and as such could not deposit rent in time. The Rent Controller after hearing the parties and persuing the affidavit, counter-affidavit and affidavit in rejoinder, dismissed the application of respondent dated 15th August 1977, by his order dated 4th November 1977. He accepted the explanation of the tenant that she was residing separately from her husband due to differences and she had fallen ill and had been advised bed rest for two months. The medical certificate was considered to be sufficient to corroborate her contention and the default on the part of the tenant was found not to be wilful. The respondent preferred an appeal against the order of the Rent Controller which was allowed by the VIII Additional District Judge, Karachi vide his judgment against which this appeal has been filed.
5. ' The order of the VIII Additional District Judge is dated 2nd December 1978 and. The instant appeal was filed on 21st February 1979. An application under section 5 of the Limitation Act (C. M. A. 506/79) has been made for condonation of delay in filing the appeal. It is contended by Mr. Nooruddin N.
6. Ramzan, the learned Advocate for the appellant that since the impugned order was passed without jurisdiction and is therefore a nullity, the question of condonation of delay does not arise.
7. He has relied upon the decision of the Lahore High Court in Hussain Bux and others v. The Settlement Commissioner and another (1) in which it was inter alia held that if an order is without jurisdiction and void then it need not be formally set aside and no question would therefore, arise of holding that the matter cannot be considered on merits on account of any bar of limitation.
8. ' The appellant filed application under section 5 of the Limitation Act (C.M.A. 506/79) praying for condonation of the delay of 66 days in filing appeal. Mr. Nooruddin N. Ramzan, the learned counsel for the appellant filed his own affidavit. He has stated that on lst November 1978 he had three matters before the High Court, namely, Suit No, 155/72, C. P. 590/77 and two miscellaneous applications in C. P. No, D-1408/78 and therefore, he had requested the Reader of the Court of VIII Additional District Judge, before whom Rent Appeal No, 509/77 was pending to keep aside the file until he was free from the High Court. He has further stated that he returned from the High Court to the Court of Additional District Judge by 1-15 p.m, and was informed by the Reader that the appeal has been argued in his absence by the respondent's counsel and that the case file was lying with the learned Judge for orders. The learned counsel further stated in his affidavit that he went to the learned Judge in chamber to request him to permit him to argue but he was not so permitted in the absence of the other side and he was told to wait for announcement of order. Thereafter no date was fixed and despite several enquiries from time to time be was not informed about the result of the appeal. It was only on 6th February 1979 that the respondent came to the appellant and wanted to have the document executed to the effect that the appellant would vacate the premises within two months from the said date. It is therefore, apparent from the statement of Mr. Nooruddin N. Ramzan, that the delay in filing the second appeal was due to reasons beyond the control of the party and the counsel. I see no reason to disbelieve the contents of the affidavit filed by the learned counsel specially as in the counter-affidavit filed on behalf of respondent by her husband the facts stated by {{FOOT NOTE}}
(1) PLD 1969 Lah. 1039 {{FOOT NOTE}} the learned counsel have not been controverted and it has merely been stated that the appeal is hopelessly time barred and not maintainable. The delay in filing the appeal is therefore, condoned irrespective of consideration of the question whether as contended on behalf of the appellant the impugned judgment is without jurisdiction and a nullity.
9. ' The impugned judgment has been challenged on the ground that the order of the Rent Controller being an interlocutory order no appeal lay to" the Additional District Judge and therefore the judgment was passed without jurisdiction. With regard to the contention it is further pointed out that the Rent Controller by his order dated 3rd November 1977 refused to strike off the defence of the appellant on account of the alleged default in compliance with the tentative rent order for making payment of arrears of rent and depositing the rent which was essentially an interlocutory order and therefore, no appeal could be filed against the order accepting the explanation of the appellant tenant about the delay in compliance with the tentative order.
10. ' The order of the Rent Controller is dated 3rd November 1977 and was passed after the amendment of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 by Ordinance XXI of 1965. However, even before the aforesaid amendment the position would have been more or less the same, in view of the decision of the Supreme Court in Messrs Kandawala & Co. Ltd., Lahore v. Sh. Fayyaz-ud-Din and others (1). The aforesaid case involved interpretation of section 15 (1) of the Ordinance, prior to its amendment by Ordinance of 1966. Section 15 (1) as originally enacted provided that Government may by general or special order, by notification, confer on such District Judges (Additional District Judge) as it thinks fit the power of the appellate authorities for the purposes of the Ordinance in particular area in such classes of cases as may be specified in the order. In the precedent case the order was with regard to the existence of relationship of landlord and tenant with regard to which there was no notification by the Government that an appeal would lie to the District Judge against a finding by the Rent Controller. The argument that a decision on the issue went "to the root of the case" was repelled and it was held that section 15 read with relevant notification referred to final order which the Rent Controller made under sections 4, 10, 12 and 13.
11. ' After the amendment of section 15 (1) by the West Pakistan Ordinance, XXI of 1966 there is authoritative decision of the Supreme Court in Ibrahim v. Mohammad Hussain (2) in which it was observed as under :- "It is well-settled principle that right of appeal is a creature of the statute and it is not be assumed that there is a right of appeal in every matter brought before a Court for its consideration. The right is expressly given by a statute or some authority equivalent to statute such as a rule taking the force of a statute. Therefore, existence of right of appeal cannot be assumed on any a priori ground. This is in sharp contract with the right to sue a litigant has a general right to institute a suit of Civil nature, independently of any statute, unless such general right is expressly or by necessary implication barred by a statute to the contrary. Therefore in respect of any order made in proceedings before the Rent Controller, right {{FOOT NOTE}}
(1) 1969 SCMR 721 (2)PLD 1975 SC 457 {{FOOT NOTE}} of appeal will have to be clearly established within the for corners of subsection (1) of section 15 of the Ordinance."
12. ' It was further observed in the same decision that subsection (1) of section 15 is restrictive in character and limits right of appeal against an order falling under section 4, 10. 12 or 13 of the Ordinance and therefore when an appeal is sought against any order made by the Rent Controller.
13. The question will always be whether the order sought to be appealed against properly falls under any of the aforesaid sections.
14. ' In the instant case the order was with regard to the condonation of delay in depositing arrears of rent in accordance with the tentative rent order passed by the Rent Controller. Incidentally the passing of the tentative rent order is in the nature of an interlocutory order and although the question of default in making the payment could result in the final disposal of the application before the Rent Controller, the order with regard to the condonation of delay in compliance with the order is not one which properly falls as an order under section 4, 10, 12 or 13 of the Ordinance. In the decision of the precedent case already referred to it was observed as under :- "It would be idle to contend that as respects cases falling under any of the above for sections, subsection (1) of section 15 postulates appeal in relation to a matter which is not germane to the substance of the dispute, but which is merely incidental or collateral to the dispute and which has been disposed of by an interlocutory order. For instance, in any such case objection may be taken against the territorial jurisdiction of the Rent Controller and a finding as to the existence of such jurisdiction, cannot on any discoverable principle be made a subject matter of appeal apart from appeal from the whole gamut of the dispute. On parity of reasoning the same will be the of the interlocutory order in the instant case which was made to disposed of a collateral matter in the case."
15. For the reasons given it apparent that no appeal lay from the order of the learned Rent Controller dated 3rd November 1977, which was passed with regard to the condonation of delay in compliance with th tentative rent order and which was merely an interlocutory order not properly falling within the orders under section 4, 10, 12 or 13.
16. ' 1 have already disposed of the contention with regard to the instant appeal being time barred and in view of my finding that no appeal lay from the order of the Rent Controller to the VII Additional District Judge, Karachi, this second appeal is allowed with the result that the judgment of the learned VIII Additional District Judge is set aside as being one without jurisdiction and a nullity and the matter will go back to the Rent Controller for disposal of the application of the respondent with regard to ejectment at the stage at which it was when the learned Rent Controller passed his order dated 3rd November 1977. In the circumstances however, no order is being passed with regard to costs.