1. SALAHUDDIN AHMED, J.--This appeal by special leave is from an order of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore, allowing the respondent's second appeal and remanding the case to the Rent Controller to pass a fresh order for the deposit of rent in accordance with law.
2. The respondent is a tenant under the appellant in respect of a shop. On 8-9-1966, the appellant applied before the Rent Controller for ejectment of the respondent under section 13 of West Pakistan Urban Rent Restriction Ordinance (VI of 1959), on the ground that the latter had defaulted to pay rent for the period from 17-1-1966 to 16-8-1966. On 18-3-1967, the Rent Controller without determining the approximate amount of rents due, as was required under section 13(6) of the said Ordinance in the case of any dispute about the amount of rent due, ordered the respondent to deposit arrears of rent for the period 17-1-1966 to 28-2-1967, by 15th April 1967, and further that he shall continue to deposit future rent before the 15th of each succeeding month. The Rent Controller also directed that the rent, if any, already deposited shall be adjusted.
3. The appellant's case is that the respondent having failed to comply with the aforesaid direction of the Rent Controller, the respondent's defence was struck off and he was ordered to deliver possession of the shop in question to the appellant before the 1st March 1968, by an order of the Rent Controller dated January 19, 1968. The respondent's appeal from the order of ejectment having been dismissed by the learned Additional District Judge on 30-7-1969, he preferred a second appeal before the High Court.
4. The High Court found that in spite of the fact that there was a dispute about the amount of rent due as the respondent had specifically pleaded that he sent a sum of Rs. 660 to the appellant landlord by a cheque on 1-6-1966, the Rent Controller failed to determine the approximate amount of rent as required under section 13(6) of the said Ordinance, and ordered deposit of rent thereunder. The receipt of this amount has been admitted by the appellant but he pleaded that this was in repayment of a loan advanced by him to the respondent. Of course no document has been produced in support of this loan. The Rent Controller thus failed to determine the nature of this alleged payment, and this in itself, was a good ground for the High Court to remand the case to the Rent Controller.
5. It has been contended on behalf of the appellant that in any event the aforesaid payment of Rs.
6. 660 by cheque prior to the date of the Rent Controller's order for deposit could not be taken into consideration inasmuch as the said order directed adjustment against only such rent which was deposited in Court. This contention was rightly repelled by the High Court, for, if as a matter of fact, some rent was in fact paid by the respondent and accepted by the appellant, it could not legally be omitted from adjustment although it had been paid before the order for deposit was made.
7. The appellant has next contended that inasmuch as the afore, said interlocutory order for deposit of rent was appealable and no appeal had been preferred from it and the appeal having become barred by time, the respondent could not legally challenge the order of deposit in an appeal from the order of eviction. The contention is untenable. Firstly, because the respondent is no compelled by law to appeal from every interlocutory order. He can wait until the final decision and then appeal against it on all such grounds as are available to him. The interlocutory order, no doubt is an order constituting the final decision, and it seems unreasonable that its legality cannot be challenged in appeal from the final decision. This view finds support from a decision of the Privy Council in Maharaja Moheshur Singh v. The Bengal Government (7 M I A 283). In the case under report, in a similar situation, the Privy Council has observed thus:- "We are not aware of any law or Regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which 1;4 may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting for ever the benefit of the consideration of the appellate Court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything could be more detrimental to the expeditious administration of justice than the establishment of a rule which could impose upon the suitor the necessity of so appealing ; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities. We believe there have been very many cases before this Tribunal in which their Lordships have deemed it to be their duty to correct erroneous interlocutory orders, though not brought under their considera--tion until the whole cause had been decided, and brought either by appeal for adjudication."
8. This case was followed by the Privy Council in the case of Alexander John Forbes v. Ameeroonnissa Begum (10 M I A 340), and in the case of Shah Mukhun Lall and others v. Baboo Sree Kishen Singh and others (12 M I A 157 ,). In the case. Of Jiando Khan v. Muhammad Ishaq (PLD 1964 Kar. 61), it has been observed :- "In the present case, the District Judge and the High Court have been designated as appellate authorities under the Ordinance and it is clearly open to them to examine the legality and correctness of orders passed by the learned Rent Controller under subsection (6) of section 13 of the Ordinance, and it cannot be said that because the defence of the tenant was struck off by the learned Rent Controller, the tenant now cannot be heard in any superior forum as well.
9. A seemingly contrary view expressed in the case of Abdul Hamid and others v. Hafiz Abdullah (PLD 1969 Kar. 82), was by way of obiter dicta, but even there the learned Judges have made the following observation :- "It is true that adverse orders under the Civil Procedure Code, which are of interlocutory nature, can still be questioned in an appeal which may be passed against the decree."
10. This was a decision in Second Appeal and the landlord who sought to strike off the defence of the tenant failed to obtain an order in his favour and yet did not appeal from the order refusing to strike off the defence. The learned Judges of the High Court, in disposing of the case on this point held that there was another aspect of the matter which, according to them, was more important and that was that the Controller had, for reasons indicated in the order, condoned the delay in depositing the rent in question.
11. Secondly, because the very basis of the ejectment order being that the respondent is a defaulter in respect of payment of rent, it is highly unreasonable to argue that he is shut out from proving on evidence on record that he is not a defaulter.
12. It may be mentioned here that this contention was never raised before the learned Single Judge in S. A. O. No. 227 of 1969. It was raised before the learned Judges in the petition under clause 19 of the Letters Patent for grant of Certificate, but was rejected as without any force.
13. For the reasons stated above, we find no substance In the appeal and it is accordingly, dismissed without any order as to costs.