1. ' This First Rent Appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as Ordinance), has ben filed against the order dated 26-1-1983 of XII Senior Civil Judge and Rent Controller, Karachi, whereby the restoration application filed under Order 9, Rules 9 and 4, read with section 151, C.P.C., was dismissed.
2. ' Facts are that appellant filed rent case in the year 1977, on the ground of personal bona fide requirement. The written statement was filed and both the parties also filed affidavit-in-evidence of their witnesses. The rent case came up for hearing on 20-12-1981, when Advocate for appellant applied for adjournment. His request was refused thereby on 23-12-1981, an application under Order 9, rule 9/151, C.P.C., was filed in which it was prayed that appellant be allowed to re-open his side which was closed. This application was dismissed by an order dated 26-1-1983. Hence this appeal.
3. ' I have heard Mr. R.F. Veerji for the appellant. It is argued by the learned counsel that First Rent Case came up for hearing when he applied for adjournment on the ground that he is busy in the High Court in four cases. It is argued that ground was reasonable. He has referred to the case reported in 1982 SCMR 673. It is contended by the learned counsel that this order is a final order in the sense that Rent Controller has no other option but to pass an order on the evidence of the respondent as ex parte. He has referred to the cases reported in PLD 1987 Kar. 252; 1984 CLC 3030; 1986 CLC 1987; 1986 SCMR 261; 1980 SCMR 298.
4. ' Mr. Abdul Naseer Khan appearing for the respondent submitted that appeal is not competent as the order is an interim one which is not appealable. He has referred to the cases reported in 1982 CLC 375; 1982 CLC 2282; 4983 CI,C 1905; PLD 1981 Karachi 500; 1983 CLC 998; and PLD 1978 Lahore
488. It is also contended by the learned counsel that the order of the Rent Controller on facts is also proper one.
5. ' In the first instance, I would like to deal with the main objection about the maintainability of the appeal. The adjournment was refused and Rent Controller in his order closed the side of the appellant and also subsequently application for re-opening the side was dismissed. In case of Hayat Ali v. Mst. Aziza Mahmood (1980 SCMR 298), the Supreme Court held that orders alongwith an application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, and striking off the defence of the tenant as well as rejecting such an application and refusing to strike off the defence are appealable and same view has been taken in case of Mst. Zubeda Begum v.
6. Mrs. S.T. Naqvi, reported in 1986 SCMR 261. Under section 21 of the Sindh Rented Premises Ordinance, 1979, appeal is provided against "an order not being an interim order."
7. ' In my view rejecting the application of the landlord and refusing to allow him to lead the evidence is not an interim order because in case his evidence is not allowed to be recorded, the consequence is apparent that his application is likely to be dismissed being an ex parte. On this case of Anwer Fatima and others v. Muhammad Ali Mutlaq reported in PLD 1987 Kar. 252, it has been held that order dismissing the application for striking off the defence being final an appeal is maintainable. In case of Sattar Ahmed v. Vth Senior Civil Judge and Rent Controller, reported in 1984 CLC 101 (relevant 102) it has been observed as under:-- "Now the question arises whether an ex parte order dismissing the ejectment application can be set aside. The main contention of the learned counsel is that as Order IX, rule 9, C.P.C., is not applicable the Controller has no jurisdiction to restore an application which has been dismissed for default. Similar question arose in C.P. 112/83 where we have held that although Order IX, rule 9 is not applicable in terms to the proceedings before the Controller, its principles can be applied for proper administration of justice. Therefore, principles of Order IX, rule 9 can be pressed in service where it is a demand of justice. Reference can be made to PLD 1972 Lah.
8. 603."
9. ' The other cases cited by Mr. Naseer Khan are mostly on the Constitutional jurisdiction of this Court and some of the other orders which are not relevant in this case. I, therefore, hold that the order impugned is appealable. Now, I come to the facts.
10. ' The adjournment application was refused on 20-12-1981 and the learned counsel has pointed out that according to the Case Diary, the Rent Controller allowed the adjournment application. I would like to reproduce the relevant Diary as under:-- "20-12-1981.---Parties' Advocates present. Adjournment application granted. Case put of to 9-2- 1982, for evidence."
11. ' This clearly shows that without any reasonable ground, the adjournment application was refused and there is material contradiction in the Case Diary and in the Order. The learned counsel for the appellant has referred to the Case Diaries since 1981, and submitted that all along the rent case was not proceeding as Court was lying vacant and he never sought any adjournment. It is regretted to note that application for re-opening the side was filed on 23-12-1981, and this application was pending after more than one year before the Rent Controller and finally in the year 1983, he dismissed whereas he has not allowed the learned counsel one adjournment. Both the orders apparently required interference. For the reasons stated above, I set aside the order of the Rent Controller and allow the appeal. Consequently the case is remanded back and learned counsel are directed to appear before the Rent Controller on 15-3-1988, and produce their evidence. The Rent Controller should decide the case as early as possible on merits and according to law.