' Petitioner through this constitutional petition calls in question the order of the Rent Controller dated 26-6-1986 whereby an ex parte order of ejectment passed against the respondent has been set aside and a direction has been issued for restoring the possession of the premises in dispute to the respondent.
2. Facts giving rise to this petition, briefly stated, are that Bashir Ahmad Khan petitioner filed an ejectment petition against Malik Mehdi Khan respondent on 18-7-1985. Notice was issued to the respondent which he allegedly refused to receive. Service was, therefore, effected on him through affixation as also by means of a citation in Weekly 'Kehkashan'. As the respondent failed to appear to contest the ejectment petition, Rent Controller passed an ex part order of ejectment on 10-5- 1986. In execution of this order, respondent was physically dispossessed from the premises in dispute and possession was delivered to the petitioner on 18-6-1986. On the following day i.e. 19-6- 1986 respondent moved an application under Order IX, Rule 13 read with section 151, C.P.C. For setting aside the ex parte order of ejectment. He contended in this application that he was never served with any notice. Petitioner manoeuvred false report from the Process Server. Order for citation in the newspapers was also procured on the basis of false reports and that the notice was published in an unknown Weekly, which, too, did not reach him. It was further averred by the respondent that the petitioner had deliberately given his incorrect address in the ejectment petition. Respondent also asserted that he was in possession of the premises in dispute as an owner and not as a tenant under the petitioner. He denied that he ever executed any rent note in favour of the petitioner. Alongwith the petition for setting aside the ex parte order, respondent also filed an application under section 144, C.P.C. Seeking restoration of the possession of the premises in dispute.
3. Applications filed by the respondent were resisted by the petitioner. Rent Controller admittedly did not record any evidence but he found on the basis of the available record that the petitioner did not give the correct and complete address of the respondent in the ejectment petition as he omitted to give number of the Block in which the property in dispute was situated. Rent Controller also noticed certain infirmities in the report of the Process Server. Amongst others, it was pointed out that the name of the witness in whose presence respondent refused to receive the summons was not mentioned in the report and that the affidavit of the Process Server, too, did not satisfy the requirements laid down in the High Court Rules and Orders. Learned Rent Controller, therefore, held that the respondent was not validly and legally served. He also referred to the material placed on the record by either party to show his ownership of the property in dispute, and observed that the mere fact that the petitioner was shown as owner in the Excise and Taxation record was not enough. With these findings/ observations, Rent Controller took the view that it was just and proper to adjudicate the ejectment petition on merits. He, therefore, vide the impugned order allowed both the applications of the respondent and setting aside the ex parte ejectment order, directed the petitioner to restore the possession of the premises in dispute to the respondent forthwith.
4. Feeling aggrieved, petitioner took the matter in appeal before the learned District Judge.
However, while that appeal was still pending, petitioner approached this Court on 27-9-1986 through the present constitutional petition stating that it was doubtful whether the appeal filed by him was at all maintainable. Admitted position now is that the petitioner's appeal has since been dismissed as incompetent by the learned Additional District Judge on 2-10-1986.
5. Learned counsel for the petitioner has assailed the impugned order mainly on the ground that it has been passed without affording any opportunity to the petitioner to lead evidence to show that the respondent was duly and properly served. It has also been argued that even if the service effected by the Process Server suffered from some procedural defect or irregularity, it did not justify setting aside the order of ejectment. For this latter proposition, reliance has been placed on the second proviso to rule 13 (1) of Order IX, C.P.C. Which provides that "no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reasons to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim." Learned counsel submits that if the petitioner had been allowed an opportunity to lead evidence, he would have shown that the respondent was duly served and that in any case, he had the knowledge about the pendency of the ejectment petition against him.
6. Learned counsel appearing for respondent No.1 took a preliminary objection that the writ petition was not maintainable as the impugned order could well be challenged in the appeal which the petitioner may file against the final order in case his ejectment petition was ultimately dismissed.
On merits, it has been contended by the learned counsel that the respondent was never served with any summons notice and the findings in that behalf are amply supported by the material existing on the record. There was thus no need for holding any inquiry or taking any evidence.
According to the learned counsel for the respondent, report about the refusal and affixation of summons was procured by the petitioner in collusion with the Process Server and there was no valid basis for substituted service. In any case, the Weekly in which the notice/summons was published has a very limited circulation and even a copy thereof is not shown to have been sent to the respondent. Learned counsel also pointed out that on the petitioner's own showing, question of title regarding the property in dispute was involved as the petitioner has filed a civil suit for declaration that he is the owner thereof and in that suit he has challenged the sale deed in favour of the respondent.
7. I have considered the submissions made by the learned counsel for the parties and feel inclined to uphold the objection raised by the learned counsel for the respondent regarding the maintainability of the writ petition. It is not denied that the order impugned in the present petition though not immediately appealable can be brought under challenge in the appeal against the final order passed in the ejectment petition if that order goes against him. Viewed in this context, an alternate adequate remedy is available to the petitioner and, as such, he cannot be permitted to invoke the writ jurisdiction of this Court at this stage. In a similar situation where a landlord invoked writ jurisdiction of this Court to call in question an order passed by the Rent Controller setting aside his earlier ex parte ejectment order, Mr. Justice Muhammad Afzal Zullah (as his Lordship then was) declined to entertain the writ petition holding that a party aggrieved with an interlocutory order which is not independently appealable under section 15 of the Rent Restriction Ordinance, should wait till a final order is passed against it and then file an appeal and also challenge the interlocutory order therein. This view was expressed in Mrs. Feroze Aslam v.
Muhammad Akhtar PLD 1978 Lah.
488. For taking this view, reliance was placed on the following observation of their Lordships of the Supreme Court made in the case of Ibrahim v. Muhammad Hussain PLD 1975 SC 457:- "Reference has been made to these dates to underline the unfortunate fact that it has taken almost 10 years to bring the matter to this Court for its decision on a purely preliminary point, leaving the main controversy about the liability of the respondent for ejectment to be determined in the fresh round of litigation between the parties. Fragmentary decisions of this character have been described by their Lordships of the Privy Council in Nannelal v. Umrao Singh as most inconvenient (which) tend to delay administration of justice."
' The view taken in the aforementioned case was upheld by a Division Bench of this Court in Mrs. Feroza Aslam v. Muhammad Akhtar and another PLD 1979 Lah.
469. The learned Judges of the Division Bench while dismissing the Intra-Court Appeal in limine observed "The learned Rent Controller had come to the conclusion that in the circumstances of the case, it was necessary to associate the respondent-tenant, in the proceedings. This conclusion of the Rent Controller as well as the circumstances in which it was reached will be open to review on grounds of fact and law, if and when appeal against the final order is preferred. We would not, like the learned Judge in chambers, endorse interference at this intermediary stage of the proceedings and would rather prefer an adjudication on merits than on technicalities which too in their own domain, and at proper time are reviewable." To the same effect are the observations made in Khushi Muhammad v. Khadeja Hakeem and another PLD 1976 Lah.
99. In that case, an order passed by a Rent Controller recalling an earlier order of dismissal of the ejectment petition in default was sought to be assailed in writ jurisdiction. The learned Judge who decided that case observed that the petitioner had an adequate remedy available to him as the propriety of the order impugned therein could be questioned at the hearing of the appeal which he may have to file against the final order of ejectment, if and when passed. Writ petition was, therefore, held to be "absolutely misconceived".
8. There is yet another aspect of the case. The impugned order is admittedly interlocutory in nature against which no appeal has been provided. If the Legislature in its wisdom has not thought it fit to provide the remedy of appeal against an interlocutory order, it cannot be permitted to be agitated in writ jurisdiction as that would amount to defeating the legislative intent. Reference in this behalf may usefully be made to the following observations in Muhammad Saeed v. Mst. Saratul Fatima and another PLD 1978 Lah. 1459:- "What the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level, the constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutta v. Chief Administrator Auqaf etc."
9. Question as to whether an interlocutory order passed by a Rent Controller could be challenged directly in writ jurisdiction has also been examined in Abdul Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21. Their Lordships of the Supreme Court after reviewing the case-law upheld the view taken in the cases aforereferred and observed "The Petition in the High Court was liable to be dismissed on the short ground of availability of adequate remedy to the petitioner if ever any adverse final order was passed against him".
10. In view of the foregoing discussion, this petition merits dismissal on the short ground of availability of adequate remedy to the petitioner as and when any final adverse order is passed against him. Needless to observe that if the petitioner's ejectment petition is finally dismissed, it shall be open to him to challenge the impugned order in the appeal against the final order on the grounds of fact and law. With these observations, the writ petition is dismissed but there shall be no order as to costs