1. This is an appeal seeking to call in question an order of the 1st Senior Civil Judge and Assistant Sessions Judge, Karachi, dated 16th September, 1981 in Rent Case No. 6396, 1980. There is a connected appeal, bearing No. F.R.A. 589/1981, in which the facts and issues are the same. This arises out of an order in Rent Case No. 6397/1980, decided by the same learned Judge on the same day, and by a common order, I propose to dispose of both these appeals by a single order.
2. The facts, briefly, are that the appellant is a tenant of the respondent, and an application was made by the respondent seeking eviction of the appellant under section 10 of the Sind Rented Premises Ordinance. During the pendency of the application, the Controller passed an order in compliance with section 16 of the Sind Rented Premises Ordinance, directing the appellant to deposit tentative rent. It may be pointed out that in both the cases, there was a dispute in regard to rate of rent, for the appellants/tenants stated that the rent was Rs. 45 per month, whereas the respondent landlord claimed the rent at the rate of Rs. 200 per month. Since averments were oral, the learned Senior Civil judge tentatively fixed the rate of rent at Rs. 200 per month, and directed the appellants in both the cases to deposit such rent. It is this order, directing the appellants to deposit the arrears of rent, which is challenged before this Court. When this matter was placed before me for admission on 1st December, 1981 1 had pointed out to Mr. Badruduja Khan that it was doubtful if such an appeal was maintainable under section 21 of the Sind Rented Premises Ordinance. The learned Advocate stated that, in similar circumstances, several other appeals had been admitted, and he requested for time, so that the same could be traced out in the office. Mr. Badruduja Khan has made a statement before me that he has not been able to trace out any case in the office, in which an appeal may have been entertained in this Court against an order of deposit of rent. The point that requires consideration is whether this appeal is maintainable.
3. Section 2t of the Sind Rented Premises Ordinance states that any party aggrieved by an order, not being an Interim Order, trade by the Controller may, within thirty days of such order, prefer an appeal to the High Court. (The underlining* is mine). The above provision would clearly show that no appeal lies against an interim order, as distinct from a final order that may be passed by the Controller after hearing the evidence of both parties, or, even ex porte. The sole question is, whether, the order for deposit of rent can be stated to be a final order, as distinct from an interim order.
4. First of all, a reference to the provisions of the West Pakistan Urban Rent Restriction Ordinance of 1959 would be apt. Even under the old enactment, the provision in regard to appeal was contained in section 15, and there is a string of decisions on the point that such appeal lay against a final order, and, in any case, did not lie against an order, requiring the tenant to tentatively deposit the amount of rent in Court. The scheme even of the present Ordinance is more or less similar to the scheme of the previous Ordinance, and one must say that, on the contrary, the new Ordinance tends to protect the interest of the landlords better than the old one.
5. The arrears of rent are directed to be deposited in the Court in pursuance of the provisions of section :6 of the Sind Rented Premises Ordinance. Section 16 reads as follows :- "16. 01) Where a case for eviction of the tenant has been filed the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.
(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (t), his defence shall be struck of and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf.
(3) Where the rent has been deposited under this section, it shall subject to such order as the Controller may make in this behalf, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller."
6. There are some words in this section which significantly tend to show that the order under section 16 is an interim order within the meaning of section 21 of the Sind Rented Premises Ordinance. In fact, subsection (3) of the said section makes the position amply clear. This subsection provides that; after the rent had been deposited in pursuance of an order passed under subsection (2) of section 16, the disbursal thereof shall have to abide by an order, which the Controller may make in this behalf at the time of conclusion of the case, or, even earlier. This would mean that whatever amount is directed to be paid is a mere deposit, and the disbursal of that amount has to be determined finally after the case is concluded, or at any subsequent stage in the case. This would clearly show that the order is an interim order as distinct from a final order. Mr. Badruduja Khan has, however, invited my attention to the provisions of subsection (6) of section 13 of the W.P.U.R.R.
7. Ordinance, 1959, and attempted to distinguish that, while no remedy by way of appeal was available under the, old Ordinance, such remedy has not been specifically barred by the present Ordinance. In this context, Mr. Badruduja Khan has specifically referred to the word "approximately", appearing in section 13 (6) of the previous Ordinance. I do not think this argument takes the case of 4 Mr. Badruduja Khan any further, and I would say that despite thus omission of the word "approximately" in subsection ,(3) of section 16 of the Sind Rented Premises Ordinance, the very fact, that the Controller has a power to re-open the matter at a subsequent stage, would seem to indicate that, in suitable cases, the Controller could at an initial stage pass an order, directing deposit of an approximate amount. In my view, there is no substantial difference between the old provision and the present provision, which might tilt the scales in) the present case.