' For the sake of convenience, I propose to decide these two appeals brought at the instance of tenants to call in question the orders dated 1st November, 1987 and 9th August, 1988 passed by the learned 1st Senior Civil Judge & Rent Controller, Karachi-South, in Rent Case Nos. 841 and 842 both of 1987. The facts in so far as they are relevant to decide these appeals are these. The respondents are owners/landlords of Agaria Building, situated on Plot No, L.R. 4-1-2, of Nishtar Road, Karachi and the appellants are their tenants in respect of Shops Nos.3 and 4 on a monthly rent of Rs,300 and Rs,400 respectively.
2. On 21-5-1987, the respondents filed two separate applications under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called "the Ordinance") for eviction of the appellants from the aforesaid premises on the grounds of (1) personal bona fide requirement of their two grown up sons named Sabir Hussain (29 years) and Zafar Yab Hussain (27 years), respectively, and
(2) carrying out alterations and additions in the demised premises thereby impairing the value thereof. The appellants put in appearance through their attorney Moulana Abdul Quddus Bihari and presented an application (which is available at pages 25 and 27, respectively, of the second part of the R & P.), stating that the property in question is an evacuee property and hence no rent case could be filed in respect thereof.
3. On behalf of respondents affidavit-in-evidence was filed by Haji Muhammad son of Nathu Bhai, the respondent No,1 and attorney of the respondent No,2. On 19-7-1987, as per order sheet entry, the Rent Controller put off the cases to 15-8-1987 for written statement and cross. On the abovementioned last date, Mr. Zahid Alvi, Advocate filed power on behalf of the appellants and also filed an application under section 151 read with section 148, C.P.C., separately in both the cases seeking permission to file written statement. The learned Rent Controller after issuing notice of these applications to the respondents dismissed them on 1-11-1987, with the observations that the application in each case, filed by Mr. Abdul Quddus Bihari was in fact written statement and since there is no provision in Rent Restriction Ordinance for filing any written statement or additional written statement, hence the application was without merit. The appellants' counsel then cross- examined the witnesses of the respondents and also filed the affidavits of (1) Badruddin and (2)
Salahuddin in R.C. No, 841/87 and (1) Nasir Khan, (2) Salahuddin (3) Dr. Anjum Sohail Rasheed and
(4) Abdul Majeed in Rent Case No, 842 of 1987.
4. The learned Rent Controller vide his identical impugned orders dated 98-1988 passed separately in each case, has allowed the applications and directed the appellants to vacate the respective demised premises as stated above. Hence these appeals. The learned Rent Controller formulated three issues in each case, of which the issue No,1 regarding the existence of relationship of landlord and tenant between the parties and the issue No,2, as to whether the premises is required by the respondents for use of their son in good faith, have been answered in the affirmative; whereas the 3rd issue pertaining to carrying out the alterations and additions in the demised premises without the consent of the respondents, has been replied in the negative.
5. When these appeals came up for hearing before me on 1st March, 1990, the learned counsel for the appellants attempted to argue that the order dated 1st November, 1987 passed by the learned Rent Controller in each case, was improper and illegal. It was, however, contended by Mr. N.K. Jatoi, Advocate, the learned counsel for the respondents that the appellants were not legally entitled to do so on account of their having failed to file appeals against those orders within the statutory period of thirty days. According to Mr. N.K. Jatoi, the said orders dated 1st November, 1987, being final orders were appealable. Mr. Naeem Ahmed, advocate, the learned counsel for the appellants, on the other hand, submitted that they were interlocutory orders and hence no appeal could legally be filed against them. The hearing was, therefore, adjourned to provide an opportunity to Mr. N.K. Jatoi to study the case-law and make his submissions in this behalf. It has now been argued by the learned counsel for the respondents that the word 'interim' as per Concise Oxford Dictiornary means 'intervening time; intervening; provisional, temporary'. The same word is defined in the Stroud's Judicial Dictionary, 3rd Ed. As "for the time being". He then referred to the meaning of the word 'interlocutory' as given in the Manual of Law Terms & Phrases by H. Sarkar (7th Ed.). It reads as follows: 'an application or order or judgment which is made during the pendency of litigation or finally determines it.' Mr. N.K. Jatoi also relied on the following cases:--
(i) Wahid Bux Soomro v. Ghulam Muhammad Baluch 1982 CLC 1436.
6. In this case the ex parte order of ejectment was passed on 28-2-1980 and the respondent was ejected in execution thereof on 14-5-1980. The respondent filed an application on 15-5-1980 for setting aside the ex parte order and for restoration of possession which was granted by the learned Rent Controller on 20th May, 1980. The appellant-landlord thereupon filed an appeal in this Court. A preliminary objection was raised by the counsel for the respondent that the impugned order, being interim order was not appealable. It was, on the other hand, pleaded by appellants' counsel that order under appeal was interlocutory order, but not an interim order, and hence the appeal was competent under section 21(1) of the Ordinance. Ajmal Mian, J. (as he then was), after referring to the definitions of the words 'interim' and 'interlocutory' as given in Ballentine's Dictionary, 3rd Edn.
And the case-law cited before him, reached the conclusion that it was an interim or an interlocutory order & as the case remained pending before the Rent Controller; hence he held that the appeal was not competent because of the express provisions provided for in section 21(2) of the Ordinance. Consequently the appeal was dismissed being incompetent.
(ii) Hafeezuddin v. Muhammad Suleman PLD 1981 Kar.
500.
7. This appeal was filed to assail the order passed by the learned Rent Controller dated 13th May, 1980 whereby it was held that there existed a relationship of landlord and tenant between the appellant and the respondent. The question before this Court was whether the said order was an 'interim order' or a final order and, consequently, whether the appeal was competent under section 21 of the Ordinance. It was contended on behalf of the appellant-tenant that since preliminary issue, which related to the assumption of jurisdiction by the Rent Controller, was disposed of, after recording the evidence, it cannot be considered as an "interim order" as envisaged by section 21 of the Ordinance. According to the counsel for the appellant, the decision of the Controller on the preliminary issue was final and on the basis of analogy of section 11 C.P.C. It would be res judicata and cannot be agitated in subsequent appeal, if any, filed on merits. It was, on the other hand, contended by the counsel for the respondent-landlord that the appeal was not competent as it had been filed against an interim order of the Controller passed on preliminary issue relating to relationship between the parties and the appellant had a legal right to assail the finding on the disposal of the original ejectment application. The learned Single Judge held as under:-- "The mere fact, that an issue as to jurisdiction has been decided, cannot be ground for granting a right of appeal, when on the wording of relevant provisions, it is not possible to do so keeping in view (sic.) laid down by Hon'ble Supreme Court in this authority, since section 21 of the Sindh Rented Premises Ordinance, 1979, has not provided an appeal in respect of such orders, which do not dispose of the entire application initiated under the provisions of the said Ordinance. Therefore, I am of the opinion, that impugned order is only an "interim order" for purposes of assuming jurisdiction and as such the appellant has a legal right to challenge the finding which is a subject- matter of the impugned order, in a regular appeal, on disposal of the ejectment application on merits, if such disposal goes against him and as such the above appeal is not maintainable, as being one against an "interim order", which is only related to the assumption of jurisdiction and does not dispose of ejectment application filed by the respondent."
(iii) Syed Mumtaz Hussain v. Muhammad Ismail 1984 CLC 2716.
8. This appeal in this Court was filed against the order of the Controller, dated 14th October, 1982 whereby he ordered that the rent case filed before him be stayed till the decision of another case filed earlier by the landlord. The landlord in this case filed a rent application on the ground of default, which was pending before another Rent Controller, hence vide his impugned order he stayed the proceedings of the case filed before him under section 14 of the Sindh Rented Premises Ordinance,1979 with the observations that there is likelihood of conflict in judgments between the two Courts. It was agitated in appeal before this Court that the impugned order dated 14th October, 1982, was not a final order and hence it was not appealable. Reliance was placed on the case of Hafizuddin (supra). A learned Single Judge held the appeal to be competent with the following passing observations:- "The judgment of the Rent Controller by staying the proceedings sine die is arbitrary and contrary to law therefore in my view it is appealable."
' No case-law or process of reasoning is available in the above judgment which persuaded the learned Single Judge to hold the impugned order to be final. It is, therefore, in my opinion, not of much assistance in resolving the issue in hand. And I, therefore, find it difficult to follow it.
(iv) Gurdasmal v. Pahlaj Ram and another (1986 CLC 43)
10. In this matter the order passed by the Controller, dated 14-10-1984, refusing to strike off the defence of the tenant-respondent in a pending rent case, was the subject-matter of appeal. The appeal came up for hearing before my' brother Saeeduzzaman Siddiqui, J. Who inquired from the counsel of the appellant as to how the appeal was maintainable under section 21 of the Ordinance, as the impugned order did not have the effect of having concluded the controversy before the Controller and, therefore, for all practical purposes it was an interim order within the meaning of section 21 ibid. The appellant's counsel cited two decisions both recorded on appeals filed under section 15 of the repealed Ordinance VI of 1979, to contend that the appeal was maintainable. My learned brother Saeeduzzaman Siddiqui also proceeded to note the other two authorities cited in two authorities on which the counsel for the appellant placed reliance as well as other several reported cases. His Lordship also at length examined the difference between the repealed Ordinance VI of 1979 and the present Ordinance XVIII of 1979 and ultimately held that the order under appeal against the tenant was not a final order but only an interim order and, consequently, the appeal against it was not maintainable. I think it appropriate rather advantageous to reproduce the following observations made in the said judgment appearing at page 52 of the report:-- "Further, in my humble view the real test to hold whether an order passed by the Rent Controller is interim in nature or a final order will depend largely on the consequences flowing froing that order.
In my most humble view if the order appealed against did not terminate the proceedings before the Rent Controller it should be treated for all practical purposes as an order interim in nature whereas if the effect of such an order is to terminate the proceedings finally pending before the Rent Controller it should be held to be an order which is final in nature. It, therefore, necessarily follows that an order which only decides the matter which is incidental and collateral to the main proceedings is to be treated as interim/interlocutory order whereas if the order passed by the Controller encompasses the whole gamut of dispute before the Controller it is a final order."
' In all the above cases cited by the learned counsel for the appellant barring the case reported in 1984 CLC 2716 it is held that all orders which do not result in finally deciding the main matter or dispute are interim orders and appeals against them are not maintainable.
11. In the instant case the impugned orders passed by the Rent Controller on 1st November, 1987 are in my opinion, of an interim nature inasmuch as the real controversy between the parties still remained to be decided and proceedings were necessarily to be continued to achieve that end. It would not be out of place to stress here that the said applications filed by Moulana Abdul Quddus Bihari, the attorney of the appellants, have been placed in the second part of the Controller's record, which by itself manifestly indicates that they were treated as miscellaneous applications.
Had they been taken to be the written statements then they would have been filed in the 1st part of the R & P. Even otherwise, I do not entertain any doubt whatsoever that the objections filed by the attorney of the appellant were in the nature of preliminary objections to the jurisdiction of the Rent Controller. If the learned Controller would have upheld the preliminary objections then, of course, it would have been final order so as to give a right to the respondents/landlords to file appeals against them under section 21 of the Ordinance. The learned Rent Controller, therefore, erred in dismissing the appellants' applications vide his orders dated 1-11-1987 and thereby not allowing an opportunity to the appellants to file appropriate written statements or their defence so as to enable the Rent Controller to decide the case on merits. The order dated 1-11-1987 passed by the learned Rent Controller, therefore, deserves to be set aside. The proceedings from that stage onwards adopted by the Rent Controller, and culminating in the passing of the impugned orders dated 19th August, 1988 are, therefore, also to be held bad in law. The result, therefore, is that both the appeals are allowed and the impugned orders dated 1st November, 1987 passed on the applications of the appellant and so also the final orders dated 9-8-1988 are set aside and the cases are remitted to the learned Rent Controller with a direction to provide the appellants an opportunity to file written statements within reasonable time and then to proceed further from that stage onwards to dispose of the case as expeditiously as possible in accordance with law. The parties are left to bear their own costs.