1. ' In the ejectment application field by the appellant the Rent Controller passed an order under section 13(6) for deposit of rent directing the respondent to pay the arrears from 1-1-1978 to 31-10- 1978 at the rate of Rs, 450 p.m. Before 1-1-1979. The current rent for each calendar month was to be deposited at the same rate before 15th of each subsequent month. The appellant deposited the rent for the month of November on 17-12-1978 instead of 15-12-1978. The appellant filed an application under section 13 (6) of Urban Restriction Ordinance for striking off the defence. The respondent filed counter-affidavit stating that due to serious illness he was bed-ridden from 10-12- 1978 to 16-12-1978 and the moment he recovered he deposited the rent on 17-12-1978. The learned Controller however by an order dated 13-5-1979 struck off the defence, but this order was set aside by the lower appellate Court and the case was remanded with direction to consider the question of default in the light of the medical certificate and the evidence if any adduced by the parties. The respondent filed his affidavit in evidence and he was cross-examined. The appellant did not produce any evidence. The learned Controller by the impugned order dated 12-1-1982 dismissed the application.
2. ' M. Mustafa Lakhani the learned counsel for the respondent has raised preliminary objection that the appeal is not maintainable against the order dismissing the application under section 13(6). Mr. A.F.M. Mokarim the learned counsel for the appellant has relied on Rana Zahid All Khan and 5 others v. Ahsan Ellahi PLD 1977 Lah. 538 in which the following observation was made:- "It is now authoritatively established that the Rent Controller has no power to extend the time of making the deposit whether such time has been fixed by him under the powers given to him by subsection (6) or the time is fixed statutorily by the same provision. In these circumstances two types of case can be within the contemplation of the legislative. One is case where in view of the default committed by the tenant in complying with the order of Rent Controller, the Rent Controller directs the striking off the defence and the consequent ejectment of the tenant. The other alternative is that the Rent Controller after coming to an erroneous conclusion that the tenant has not been in default within the meaning of that term as explained in Ghulam Muhammad Lundkhor v. Safdar All PLD 1974 SC 530 where it was held that the most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is in no way responsible, refuses to strike off the tenant's defence. For all practical purposes this type of order will be akin and analogous to an order dismissing the application of a landlord under section 13. This type of order will be an order virtually dismissing the application to strike off the defence. For the purpose of finality, therefore, no distinction can be made between the two types of orders which can be passed by the Rent Controller even under section 13 (6) irrespective of whether it be an order of striking off the defence and ejecting the tenant or of refusing to pass such an order. The order falling in the second category cannot be treated to be an interlocutory order for the simple reason that if a different view on merits be taken by the Appellate Court, it may be in a position to pass an order of striking off the defence of the tenant and directing his ejectment. The finality of order under section 13 (6) should be judged from the point of view whether the Appellate Court by reversing the finding of the Rent Controller can pass a final order terminating the proceedings of ejectment pending before the Rent Controller. I have no manner of doubt left that the order refusing to pass an order of ejectment by striking off the defence should be considered to be a final order which will give a right to the landlord to file an appeal against it."
3. ' Mr. Mustafa Lakhani has relied on Ibrahim v. Muhammad Hussain PLD 1975 SC 457 where following observation has been made:- "This brings in to hold belief in the provisional character of the order made under the first part of section 13(6) which in the event of default need not necessarily result in the striking off the defence and order of ejectment. The possibility cannot be entirely excluded that the Rent Controller, upon the final determination under the second part of the clause, comes to the conclusion that the tenant was never in default. The provisional fixation of current rent and the amount of arrears, under the first part of the clause remains provisional and until it is followed by final determination or the culmination of the other contingency postulated in the clause namely striking off the tenant's defence and putting the landlord in possession, the order would not be appealable under section 15(1) or else a provisional fixation of current rent or past arrear would per se be equated with the default and striking off the defence within the meaning of section 15(1) of the Ordinance, for which, so far as can be seen, there is no warrant in law."
4. The order under section 13(6) refusing to strike off the defence is either incidental or collater and "does not embrace the whole gamut of the dispute". The controversy again starts from the stage the application was filed. It is, therefore, interlocutory and is not appealable. As the appeal is not maintainable it is not necessary to enter into the merits of the defence raised by the respondent.
5. ' The appeal is dismissed with no order as to costs.