1. ' The predecessor-in-interest of the appellants filed application for ejectment against the respondents under section 15 of the Sind Rented Premises Ordinance, 1979, in respect of premises on plot No, 43 situated in Malir Township, Kala Board, Malir, Karachi which was rented out to the respondent under an agreement dated 13-9-1966, on a monthly rent of Rs, 512. The main ground for ejectment was that the respondent has committed default in payment of rent from November, 1979, to February, 1980. The respondent in his written statement admitted the tenancy and rate of rent but denied that any default has been committed. His plea was that rent from November, 1979 to January, 1980, was paid but no receipt was issued to him and the rent for February, 1980, was remitted by money order on 3-3-1980, which was refused and thereafter from April, 1980, he started depositing rent in Court in miscellaneous case No, 1159 of 1980. On 26-4-1980, the deceased landlore nied an application under section 16(1) of the Ordinance seeking direction to the respondent to deposit the arrears of rent and also the future rent in Court. The learned Controller by his order dated '24-5-1981, 'directed the respondent to deposit the arrears of rent from November, 1979 to January, 19x0, amounting to Rs, 1,536 to Court on or before 15th July, 1981, and to continue payment of future monthly rent in Court on or before 10th of each month. On 23-11-1981, the deceased landlord filed an application under section 16(2) of the Ordinance for striking off the defence of the respondent as he had not complied with the order dated 24-5-1981. The report of the Nazir confirmed that the respondent bad not deposited arrears of rent for the months of November, December, 1979 and January, 1980. Conseq- uently, by order dated 18-3-1982, the defence of the respondent was struck off. The respondent filed an appeal against the said order and. By judgment dated 30-10-1984, the said order was set aside and the case was remanded to the Controller for first deciding the question whether the ejectment application was competent under the Sind Rented Premises Ordinance 1979, and further direction was given that if finding was in the affirmative the Controller should decide the application under section 16(2) dated 23-11-1981.
2. After the remand the learned Controller recorded the evidence of the appellant. The respondent, however, did not file his affidavit of evidence. The learned Controller after hearing the parties by order dated 20-1-1985, held that the ejectment application was competent and he had jurisdiction in the matter. Thereafter application under section 16(2) was taken up for consideration to which the respondent had filed his objection. The learned Controller by the impugned order dated 3-3- 1982, dismissed the application.
3. ' Mr. Syed Inayat Ali, the learned counsel for the respondent, has raised a preliminary objection that as the order dismissing the application under section 16(2) is an interim and interlocutory order no appeal lies under section 21 of the Sind Rented Premises Ordinance 1979, which reads as follows : ' Any party aggrieved by an order, not being an interim order made by the Controller may within thirty days of such order, prefer an appeal to the High Court.'
4. ' The learned counsel for the respondent has relied on Anwar Hussain v. Kuntz Abbas and others (1), where it was held that order passed by the Controller under section 16(1) for deposit of rent was an interim order and appeal against that order is not maintainable ; it was further held that there was no substantial difference between section 13(6) of the previous Ordinance of 1959 and section 16(1) of the present Ordinance of 1979. The next case cited by the learned counsel for the respondent is Syed Intesar Ali v. Ahmed Din and others (2). In this case the appellant had
(1) 1982 CLC 2282 (2) 1983 CLC 998 challenged the order whereby his side was closed by the Controller as he had not filed the affidavit of his witesses. It was held that the impugned order was in the nature of interim order and, therefore, appeal did not lie. In Sultan Ahmed v. Senior Civil Judge Ii Rent Controller and others (1), where the appellant had challenged the order of the Controller setting aside the order of dismissal of the ejectment application and restoring the same for bearing, it was held that appeal against such interlocutory order did not lie. It was observed that the object is to avoid appeal on fragmentary decisions which delay the determination of main controversy. In such cases thesarties should wait till the final order is passed and then file an appeal challenging both the orders. For this observation reliance was placed on PLD 1978 SC 185 and PLD 1983 Kar.
21. In this regard reference. Can also be made to a judgment reported in Wahid Bakhsh v. Ghulam Muhammad Baloch (2), where it was held that interim or interlocutory order means -not a decision of the cause but the determination of an intervening matter to the cause. It was held that an order for setting aside for ex parte order thereof an order of restoration of possession are interim orders and are not appealable.
5. ' From the 'cases cited by the learned counsel for the respondent it is clear that none of them relate to an order passed rejecting application under section 16(2) for striking off the defence for non- compliance of order of deposit of rent. The orders considered in these cases were orders for, deposit of rent, order setting aside the ex parte order of dismissal or closing the side. Such orders are in the nature of interim order as they do not in any manner relate or decide the main controversy or dispute between the parties.
6. ' Mr. Baqir Advocate for the appellant No, 2 has ably argued that the order rejecting the application for striking off the defence has been held to be a final order as it finally concludes the controversy and, therefore, it is not an order in the nature of an interim or interlocutory order and appeal is maintainable. In this regard the learned counsel has referred to Abdul Hamid and others v. Hafiz Abdullah (3), where the Division Bench consisting of Justice A. S. Faruqui and Justice Dorab Patel observed as follows :- ............................... `We are, however, of the opinion that this order under section 13(6) would have concluded the proceedings because subsection (6) of section 13 provides that the defence, in the circumstances narrated in that section, shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. So would appear that the order of the Controller refusing to strike out the defence was a final order in so far its impact on the proceedings was concerned.'
7. ' In Rana Zahid-Ali Khan and 5 others v. Ehsan Elahee (4), while considering the provisions of section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, with particular reference to question whether order granting or rejecting application for striking off defence under section 13(6) is an interlocutory order it was held as follows :- ' In these circumstances two types of cases can be within the contemplation of the Legislative. One is a case where in view of the default committed by the tenant in complying with the order of the Rent Controller, the Rent Controller directs the striking off the defence
(1) 1984 CLC 101 (2) 1982 CLC 1436
(3) PLD 1969 Kar. 82 (4) PLD 1977 Lab. 538 and on 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 Ali 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 purposes of finality, therefore, no distinction can be made between these two types of orders which can be passed to 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 in 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 as a final order which will give a right to the landlord to file an appeal against it.
8. ' The learned counsel for the appellant also relied on Ant. Fatima Bat v. Fatima Begum (I), where referring to PLD 1969 Kar. 82 and P LD 1965 Lah. 179 it was observed as follows :- ' No decision to the contrary was brought to my 'notice by either counsel. The matter lies within a narrow compass, in view of the principles laid down by the Supreme Court in Ibrahim's case referred to above. In the case of preliminary issue regarding the relationship of landlord and tenant the matter is obviously collateral and incidental to the main dispute whether the tenant is liable to .
9. Be ejected and in the case of an order under the first part of subsection (6) of section 13 fixing the rap of tentative rent and the amount of arrears, the matter is obviously of a provisional nature and, therefore, interlocutory in character. Such cases are not, therefore, envisaged to form the subject- matter of appeal. However, the question arising at the stage where violation of the tentative order under section 13(6) is alleged and denied, the position is entirely -different. In such case the *statute provides that in case of non-compliance with the order passed for deposit of rent provisionally fixed, the defence of the tenant is liable to be struck off and the landlord put into possession of the property without taking any further proceedings in the case. Thus section 13 envisages the making of itt order of eviction either on
(1) PLD 1977 Kar. 1007 merits provided the tenant continued to comply with the tentative order or under subsection (6) of section 13 by a summary procedure in case of default in compliance of the tentative order.
10. Obviously, therefore, the question of non-compliance of the order under subsection (6) of section 13 is a question germane to the dispute whether the tenant is liable to be evicted. Such order from its nature if correctly passed may result in the decision of the entire controversy and may terminate the proceedings so far as the Controller is concerned. It, therefore, follows that such an order is a final order and an appeal to challenge its correctness would lie under section 15(3) of the Ordinance. In Muhammad Oomar v. Amino Ashraf PLD 1977 Kar. 305, a learned Single Judge of this Court held that an order passed by the Controller to substitute the purchaser of the building in dispute pending decision of the ejectment application, was neither interlocutory nor determinative of a matter merely incidental or collateral to the dispute and as such was appealable. A learned Single Judge of the Lahore High Court construed the provisions of section 15(1) of the Ordinance in Zahid All v. Ehsan Elahi PLD 1977 Lab. 538 in relation to this specific point and came to conclusion that the order refusing to strike off defence is appealable 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 difference of the tenant and directing his ejectment.'
11. ' In this judgment, following the aforestated judgments the order dismissing application for striking off defence was held to be a final order appealable under section 15(1) of the West Pakistan Urban Rent Restriction Ordinance. The learned counsel for the appellant referred to Hayat Ali v. Miss Aziza Mahmood (1), where similar question as in the previous judgment was considered and the view expressed in Rana Zahid All Khan and Fatima Bars cases was approved and it was observed as follows :- "In seeking leave to appeal the learned counsel for the petitioner contends that the impugned order of the Rent Controller is not determinative in the sense that it finally decides the controversy.
12. This necessarily involves the consideration as to the nature and scope of the order passed under the second part of the subsection keeping in view the meaning of the word 'default' occurring therein. As held in Ghulam Muhammad Khan Londkhor v. Safdar All PLD 1967 SC 530 in every case of non-compliance the question arises as to whether the default is avoidable or not. If it is avoidable then it cannot excuse non-compliance and the mandatory consequence follows that is, the striking off the defence. Again, if the default is unavoidable then the non-compliance is excusable in which case the Rent Controller can condone the nonperformance of the direction. In assessing whether there is default or not the Rent Controller has to consider the explanation resting on facts and in a given case his decision might be erroneous. If he holds against the tenant, the order, beyond doubt, is final as it leads to his ejectment. As such this order is appealable, and again it is for the appellate Court to judge as to
(1) 1980 SCM R 298 whether the Rent Controller was right in holding that the tenant was guilty of default and if he is not so held, he is absolved of the consequence of a default' Vice versa if the Rent Controller decides against the landlord, can it then be said that such an order is not appealable howsoever, erroneous it may be as it does not conclude the proceedings? This would mean putting a premium on the right of the landlord to have the legality of the order determined in appeal, for, in that eventuality it may be that the appellate Court might come to a contrary conclusion and hold the default to have been proved, in which case his defence will be struck off. In either case there has to be an application of mind to the question of default which culminates in the passing of an order for the striking off the defence to the condonation of the noncompliance. The former leads to the ejectment of the tenant while the latter condones the default. But what is pivotal is that it concludes the controversy presented by the second part of the subsection. Accordingly, both the orders are to be treated at par in determining their nature, for, if they are reviewed in appeal vice versa conclusion can follow which gives to it finality. On this view of the matter the High Court was correct in holding that the appeal was competent on the view taken in Rana Zahid Ali Khan v. Ehsan Elahi and Mo. Fatima Bai v. Mst. Fatima Begun which we approve."
13. These authorities have directly dealt with the question involved is this appeal and it now well settled that the order refusing to strike of defence under section 13(6) of Urban Rent Restriction Ordinance is a final order and is appealable.
14. ' Mr. Syed Inayat Ali, the learned counsel for the respondent has contended that section 15 of Urban Rent Restriction Ordinance, 1959, is completely different from section 21 of the Sind Rented Premises Ordinance, as it specifically bars appeal against an interlocutory order. It is true that section 15 does not in clear terms specifically bar in appeal against an interim or interlocutory order but as is obvious from the aforestated authority that the Courts are of the view that only such orders are appealable which are final and germane to the main controversy between the parties. Section 21 of Sind Rented Premises Ordinance specifically provides that no appeal lies against an interlocutory order. The question, therefore, arises whether an order dismissing an application under section 16(2) of Sind Rented Premises Ordinance, 1979, refusing to strike o the defence is appealable. The aforestated authorities have held that an order refusing to strike off defence is a final order. The learned counsel for the respondent contended that words 'interim order' means an order which does not finally disposses off the proceeding and some thing is left to be done. According to the learned counsel after the dismissal o application under section 16(2) the case is not finally disposed of and further proceedings are to be taken. As stated above the Supreme Court has not termed an order refusing to strike off defence as an interim o interlocutory order. The consensus is that an order dismissing an application for striking off defence is a final order. The appeal is, therefore, maintainable.
15. ' Now coming to the merits, it seems that the learned Controller has dismissed the application under section 16(2) of the Ordinance mainly on the ground that the appellant had complained of the default in depositing the rent for the month of October, 1981, and as the respondent had produced a receipt dated 11-5- 1981, showing deposit of rent from July to December, 1981, no default has been committed. Accordiag to the learned counsel' for the appellant the learned Controller has misread the application and has completely ignored the facts stated in the application.
16. ' In paragraph 2 of the application it was alleged that the respondent has committed default and not complied with the order passed by the Court. In paragraph 3 allegation of default was made specifically in respect of the month of October, 1981, stating that it was deposited on 19-11-1981. The learned Controller, therefore. Has not correctly examine the application when he says that the complaint was made only in respect of deposit of rent for the month of October, 1981. Pursuance to this application the report of the Nazir was called from which it is clear that no deposit has been made for the months of November and December, 1979, and January, 1980. The receipts produced by the respondent d not relate to the rent for these three months. No other evidence ha been produced to show that the rent for these months was deposited. In these circumstances the respondent has clearly defaulted and has no complied with the order for deposit of rent. The defence of the respondent is struck off and the appeal is allowed. The respondent is directed to vacate the disputed premises and handover vacant possession to the appellant within four months.