MUHAMMAD IJAZ KHAN, J. Through the instant Regular Second Appeal, the appellants have challenged the order of the learned Rent Controller dated 31.01.2022, whereby they were directed to deposit monthly rent of Rs. 200,000/- on 10th day of every month onward and that of the learned appellate Court dated 17.05.2022, whereby the order of the Rent Controller was modified and the present appellants were directed to deposit monthly rent of Rs. 100,000/- on 10th day of every month onward.
2. Precisely the facts of the case are that the present respondent namely Dr. Fazal' Hamid filed a petition for ejectment of the present appellants namely Naveed Zafar and Ubaid Ullah from the rented premises on the ground of default in payment of monthly rent.
3. The present appellants, then respondents, were summoned and they put their appearance. In the meanwhile, the respondent/ landlord submitted an application before the Rent Controller for directing the appellants to deposit all outstanding monthly rent @ Rs. 200,000/- per month from November, 2021 onward with the Rent Controller and as such on the same day, the Worthy Rent Controller was pleased to direct the present appellants to deposit the monthly rent, operative part of which is as under:- "In the light of admission of respondents, application in hand is disposed of with the direction to the respondents for depositing of rent amount before the 10th date of each month onward."
The present appellants felt themselves aggrieved of the aforesaid order filed an appeal before the learned District Judge, Swat/appellate Court, however, their appeal was disposed of with some observations vide the impugned order and judgment dated 17.05.2022. The appellants have now challenged the order of the Rent Controller as well as that of the learned appellate Court before this Court through the instant Regular Second Appeal.
4. When the instant appeal was entertained, notice was issued to the respondent. Today arguments of learned counsel for the parties were heard in detail and the record perused with their able assistance.
5. At the very outset, learned counsel for the appellants was confronted that since the proceedings have been initiated under the Rent Laws, therefore the appellants were required to show that under which provision of The West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred as "Ordinance of 1959"), they have filed the instant Regular Second Appeal, his reply was that since the appellants have controverted the quantum of rent and the very order for the payment of the same as the respondent/ landlord owed outstanding amount to the appellants, therefore the said order was a final order for them and as such they have rightly filed an appeal before the appellate Court and now the instant Regular Second Appeal before this Court, however, these arguments of learned counsel for the appellants are misconceived as by all standard, it was an interim order for the payment of tentative monthly rent as proceedings with respect to other controversies are still pending before the Worthy Rent Controller and it has yet to pass a final order there-under and as such these submissions of learned counsel for the appellants do not find any support from any provision of Ordinance of 1959, which is governing the present controversy.
6. It may be mentioned here that the impugned order dated 31.01.2022 of the Worthy Rent Controller has been passed as per the mandate of Section 13 (6) of Ordinance of 1959, which is reproduced below:- "13. Eviction of tenant-- (1)..................
(2)..................
(3)..................
(4)..................
(5)..................
(6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the fifteenth day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking further proceedings in the case.
The Controller shall finally determine' the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
(Underline is supplied for emphasize)
Whereas, the right of appeal under Ordinance of 1959 has been provided by Section 15 of the said Ordinance, however, filing of an appeal has specifically been barred by the first proviso to subsection (1) of Section 15 of Ordinance of 1959 against an order of a Rent Controller passed under section 13 (6) of Ordinance of 1959, whereas second proviso has also barred filing of an appeal against an interlocutory order passed by the Worthy Rent Controller. The said provisos being relevant for the purpose of the present controversy are also reproduced below:- "15. Appeal (1) Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated; Provided that no appeal shall lie against an order made by a Controller under sub section (6) of Section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due; Provided further that no appeal shall lie from an interlocutory order passed by the Controller."
The aforesaid provisos to Section 15 of Ordinance of 1959 declare in a clear language that the Legislatures have barred the filing of any appeal against an order made by the Rent Controller under section 13 (6) of Ordinance of 1959, determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due, whereas the second proviso to subsection (1) of Section 15 of Ordinance of 1959 also speaks that no appeal shall lie from an interlocutory order passed by the Rent Controller. In view of the above provisions of Ordinance of 1959, which is a special law governing the controversies between the landlord and tenant, the Legislatures have expressly barred the filing of an appeal against an order passed under section 13
(6) of Ordinance of 1959 and the Legislatures have also specifically barred the filing of an appeal against an interlocutory order what to speak of a Regular Second Appeal against an interlocutory order which the present appellants have filed before this Court as per their own wisdom, therefore the very filing of the instant Regular Second Appeal is not maintainable.
7. It is settled law that where the Legislatures have barred the filing of an appeal and their intention is to curtail the factum of delays in decision of such matters, then a party cannot be allowed to challenge the same through any indirect remedy by filing of appeal or Regular Second Appeal or writ petition. Recently, in a rent case titled President All Pakistan Women Association, Peshawar Cantt vs. Muhammad Akbar Awan and others reported as PLJ 2020 SC 209, the Hon'ble apex Court has observed that the intent of the Legislature to keep out interlocutory/ interim orders from the scope of appeal is not difficult to understand. It is meant to curtail delays, piecemeal and fractured litigation at various fora at the same time. In our view, such orders cannot be challenged under the guise of invoking the constitutional jurisdiction of the High Court because the same would tantamount to negate the provisions of the Statute itself and rendering the bar imposed by the Legislatures in the interest of expeditious disposal of rent matters totally redundant. The High Courts exercising constitutional jurisdiction must be fully cognizant and conscious of this Rule and strictly adhere to the same in the interest of advancing the policy of law and delivering expeditious justice in accordance with the law and the Constitution.
8. Learned counsel for the appellant was specifically confronted that where the provisions of Ordinance of 1959 do not provide for filing of any appeal against an order passed under section 13
(6) of Ordinance of 1959 or against any of the interlocutory order as per the mandate of Section 15 of Ordinance of 1959, then how the First Appeal before the District Judge, Swat and now the instant Regular Second Appeal before this Court could be maintained, then he was unable to wriggle out of the same, however, he submitted that for the appellants, the impugned order is a final order but the nature of the order so passed by the Worthy Rent Controller is an interlocutory order as the controversies qua the payment of monthly rent and the quantum of rent and the period of outstanding rent are subject to the final decision of the Worthy Rent Controller under section 13 (6) of Ordinance of 1959, therefore for all legal intents and purposes, the impugned order of the Worthy Rent Controller is/was an interlocutory order against which no appeal could be filed by an aggrieved person what to speak of the Regular Second Appeal, as has been filed by the appellants.
As far as the propriety and legality of the order of the Worthy Rent Controller is concerned, as stated hereinabove that the said order was passed under the mandate of Section 13 (6) of Ordinance of 1959, therefore the Worthy Rent Controller has acted within the jurisdiction and authority vested in him.
9. It is settled law that a remedy of appeal, revisions or review cannot be availed by a party through his own whims and wishes unless and until the same is specifically created and provided by the statute. In the case of Syed, Masroor Shah and others vs. The State reported as PLD 2005 Supreme Court 173, the Hon'ble Apex Court has held that the right of appeal cannot be availed unless it is conferred in a clear manner by some enactment or statute or the rules having the sanctity of some law. Similarly, in the case of Muhammad Yar Buttar and 4 others vs. Board of Governors, Overseas Pakistan's Foundation, Islamabad and another reported as 1999 SCMR 819, the Hon'ble Apex Court has also held that the right of appeal is a statutory right. No extraneous consideration or matter can be imported in the relevant statute so as to abridge or enlarge scope of appeal. It was further held in the case of Habib Bank Ltd. vs. The State and 6 others reported as 1993 SCMR 1853, that it must be specified in clear terms that the appeal against an order is competent. This right cannot be supplemented by implications. The Hon'ble Apex Court has also held in the case of Ibrahim vs. Muhammad Hussain reported as PLD 1975 Supreme Court 457 that it is not to be assumed that there is 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 a statute such as a rule taking the force of a statute. In view of the above exposition of law, the very filing of the Regular First Appeal before the appellate Court and now the instant Regular Second Appeal before this Court are neither entertainable nor maintainable.
10. Now adverting to another important aspect of the case; as per the provision of Section 13 (6) of Ordinance of 1959 reproduced hereinabove which reads that where the Worthy Rent Controller has directed the tenant to deposit the tentative monthly rent and if the tenant makes default in compliance of such an order, then if he is petitioner, his application shall be dismissed summarily and if he is respondent (like in the present case), his defence shall be struck off and the landlord has to be put into possession of the property without taking any further proceedings in the case. In view of the above mandate of law, learned counsel for the appellants was confronted that the order for deposit of the tentative rent was passed by the Worthy Rent Controller on 31.01.2022, whether the appellants have deposited the tentative rent with the Worthy Rent Controller or not, his reply was in negative.
11. What would be the legal effect of the non-deposit of tentative rent on the part of the appellants being tenants is left to the wisdom of the Worthy Rent Controller as the said issue is not under challenge before this Court and regular proceedings are fixed in the ensuing month of July, however, it is observed that non-deposit of the tentative monthly rent has gone along way which are to be decided by the Worthy Rent Controller as per the mandate of law vested in him but in- fact the present Regular Second Appeal has been filed against the clear and specific bar as provided under the proviso of Section 15 (1) of Ordinance of 1959, therefore the same is neither entertainable nor maintainable.
12. As stated hereinabove that there is no provision of filing of a second appeal under Ordinance of 1959 and the only appeal provided under section 15 of the aforesaid Ordinance is against the final order passed by the Worthy Rent Controller, however, as discussed above, the appellants have challenged an interim order firstly before the District Court in an appeal and now before this Court in a Regular Second Appeal but even for the ordinary cases, the right of filing of second appeal has been taken back in the Khyber Pakhtunkhwa vide the KP Act No. XLIX of 2020 dated 28.12.2020, as Sections 100, 101, 102 and 103 of The Civil Procedure Code (Act No. V of 1908) have been deleted from The Civil Procedure Code (Act No. V of 1908), therefore as per the law as stand today, no second appeal even in ordinary cases could be filed.
13. For what has been discussed above, the instant Regular Second Appeal being not maintainable as well as devoid of any merit is hereby dismissed.