' This second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) arises out of the following facts.
2. The appellant Mst. Fatma Bai w/o Khoja Abdullah is the tenant of respondent Mst. Fatma Begum w/o Sb. Muhammad Qasim in the disputed premises. On 12-8-69 the respondent brought ejectment action against the appellant on the sole ground of default in the payment of rents since April, 1969. On 25-3-72 the learned Controller passed tentative order for deposit of arrears for the months of April and September, 1969 and February, 1972 before 1.5-72 and further directed the appellant to deposit the future rents before 15th of each ca lender month.
3 On 24-11-72 the respondent moved for striking off the defence of the appellant under section 13
(6) of the Ordinance, on the ground that the appellant had failed to deposit rent for the month of May, 1972 and for depositing the rent for the month of June, 1972 late on 15-7-72. On 30-4-73 the respondent moved another application under section 13 (6) of the Ordinance on the ground that the rents for the months of October and November were paid on 15th instead of before 15th of the following months. Thus taken together objection was taken for non-payment of rent for May, 1972 and late deposit by one day for June, October and November, 1972. The appellant filed objection on 21-7-73 and pleaded that the rents were deposited on the 15th instead of before 15th of each month under a genuine misconception that the deposit on 15th would be in order The appellant was examined in support of her objection ns.
4. After hearing the parties the learned Controller believing the testimony of the appellant reached the conclusion that no wilful default was committed but that owing to the misinterpretation of the word "before 15th", the rents were deposited on 15th. Accordingly he dismissed the application. It may be mentioned, here that, in this appeal a question has been raised that the learned Controller only applied his mind to the second application under section 13 (6) of the Ordinance and the first application remained on the file pending.
3. The respondent being aggrieved with the order of the Controller appealed to the District Judge, Karachi. Before the learned II Additional District Judge, Karachi on whose file the case was forwarded for disposal, the counsel for the present appellant produced before the learned Judge a receipt for the deposit of rent for the month of May, 1972. It appears that this receipt in original was not placed on record and subsequently it was alleged that the original receipt was misplaced and lost by the counsel. The genuineness of this receipt and the payment evidence thereby was seriously questioned by the respondent. An enquiry was therefore held by the learned Judge and the Assistant Cashier of the Nazarat of the civil Courts, Karachi was examined in this behalf. The learned H Additional District Judge came to take the view that the deposit of rent for three months on the 15th of the month was willful default as it was in violation of the statutory provisions and was made despite the first application in which the attention of the appellant was drawn to this legal position. As regards the default in respect of May, 1972 the learned Judge reached the finding that there were discrepancies in the ledger book and the payment seemed to have been manipulated subsequently. Upon this finding he held the receipt to be not a genuine document and found the appellant guilty of wilful default. As a result he upheld the appeal and after striking off the defence of the appellant, ordered her ejectment by the impugned judgment.
6. I have heard Mr. Nittai A. Khaliq for the appellant and Mr. Fazal Bhoy for the respondent.
7. It was first contended on behalf of the appellant that the appeal filed by the respondent against the order of the Controller was not competent as no appeal lies under section 15 (1) of the Ordinance against the interlocutory order passed under section 13 (6). Reliance in this behalf was placed on Ibrahim v. Muhammad Hussain (1) and Abdul Sulam v. Raft Bibi (2). The Quetta case followed the aforesaid Supreme Court decision and therefore reed not be discussed. In the first cited case the Supreme Cdurt, while considering the competency of appeal against an order passed on the preliminary issue their Lordships construed the amended section 15 of the Ordinance and observed "It would be idle to contend that as respects cases falling under any of the above four sections (referring to sections 4, 10, 12 and 13), subsection (1) of section 15 postulated appeal in relation to a matter which is not germane to the substance of the dispute, but which is merely incidental or collateral to the dispute and which has been disposed of by an interlocutory order."
8. The question in this case bad arisen out of an order parsed by the Rent Controller on the preliminary issue as to the existence of relationship of landlord and tenant, which was decided in favour of the landlord. The Supreme Court came to the conclusion that such an interlocutory order is essentially an order made to dispose of a collateral matter and as such no appeal lay against it.
In this case reference was made to a former decision in the case of Abdul Ghafoor v. Ahmad Kureshi (3) in which case it was held that an order of the Rent Controller under the first part of subsection (6) of section 13 provisionally fixing the rate of rent and the amount of arrears due was of a provisional character and as such cannot be equated with an order passed under the second part of the subsection regarding the default and striking off the defence as an order within the meaning of section 15 (1) of the Ordinance.
9. In the face of these authoritative and binding pronouncements, it can no longer be contended that an appeal is competent against the interlocutory orders on preliminary issue regarding the existence of relationship of landlord and tenant, as well as the order fixing the tentative rent and the amount of arrears under subsection (6) of section 13 ; so also against all interlocutory orders disposing of collateral matters not 'germane to the substance of the dispute'.
10. It was however, argued on behalf of the respondent that the question whether there has been default committed by the tenant in the compliance of the order under subsection (6) of section 13 so as to entail summary ejectment cannot be deemed to be a matter incidental or collateral to the dispute of interlocutory nature but is a final order and as such an order appealable within the meaning of section 15 (1) of the Ordinance. In support of this argument reliance was placed upon a D. B. Case of the
(1) PLD 1975 SC 457 (2) PLD 1976 Quetta 31
(3) PLD 1969 SC 424 ' West Pakistan High Court, Karachi Bench reported as Abdul Harmed v. Hafiz Ahdullah (1) which fully supported the submission. In this case it was held that the order of the Controller under section 13 (6) refusing to strike out the defence of the tenant was final order in so far as its impact on the proceedings was concerned. Similar view was expressed by a Division Bench of the same Court at Lahore in Muhammad Hussain v. Mehraj Din (2) wherein Yakoob Ali, J., reviewing his previous opinion, observed that if an order striking off defence is open to appeal a fortiori the appellate authority is competent to pass a correct order in the cast. Thus it was held that an appeal lay against an order refusing to strike off defence.
11. 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 lbrahlm'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 be ejected and in the case of an order under the first part of subsection (6) of section 13 fixing the rate 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 positon is entirely different. In such case the statute proviJes 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 an order of eviction either on merits provided the tenant continuous to comply with the tentative order or under subsection (6) of section 13 by a summary procedure in case of defsult in compliance of the tentative order. 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.
Dr. Andric' Ashraf (3) 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 ElAhl (4) in relation to this specific point and came to the conclusion that the order refusing to strike of 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 defence of the tenant and directing his ejectment.
12. In view of the above discussion, therefore, 1 find no substance in the contention that the appeal against the order passed by the Controller was not competent.
(1) PLD 1969 Kar. 82 (2) PLD 1965 Lab. 179
(3) PLD 1977 Kar. 305 (4) PLD 1977 Lah. 538
13. On the merits the matter is quite simple. It was contended that the default in making payment on the 15th of the month instead of before the 15th was as a result of bona fide misunderstanding and therefore, as held in Sarfaraz Khan v. Muhammad Abdul Raul (1), the appellant cannot be held to be in default. The rule laid down in this decision is not a rule of law to be applied invariably. The facts of that case were correctly held to be distinguishable as in that case the question was whether the tenant could be deemed to have committed default in the payment of arrears of rent ordered to be paid by the tentative order "before" the specified date. The learned Judge was inclined to hold that the error could be the result of bona fide misunderstanding in appreciating the difference between the word "before" in the Controller's order and the word "by". However, in the present case the question was of the deposit of tentative rent payable month after month under the statutory provisions of section 13 subsection (6) whereby such recurring rent is required to be deposited "before the 15th day of each month".
14. Be that as it may, the appellant was alleged to have committed default In the payment of rent for the month of May, 1972. As stated earlier, the plea of the appellant was that the rent for this months was actually deposited with the Nazir of the civil Courts for which an official receipt was obtained. The learned Additional District Judge had enquired into this matter and after a thorough scrutiny of evidence came to the conclusion that the receipt cf which photo copy was placed before him was not a genuine receipt. I have carefully scrutinized the judgment and examined the reasons given in support of this finding. In my opinion, no fault can be found with this finding. It was found by the learned Additional District Judge that the counterfoils in the receipt book produced by the Assistant Cashier of the civil Courts were duly numbered consecutively except one counterfoil which bore no number. In his opinion if there was any extra receipt on which the number was not printed, normally such reciept ought to have been cancelled. Admittedly the ledger book where entry for this payment was made did not bear sh receipt number as was the case in respect of other entries, although the cage of the Assistant Registrar was that the unnumbered receipt was given No, 3485-A. The photo copy placed on the record did not bear the corresponding number or any number at all. In my opinion, these are very weighty considerations for arriving at the conclusion that the receipt was not genuine. I am therefore, not pursuaded to interfere with the finding in III appeal. The result is that the appellant was rightly found to have committed default in complying with the order under section 13 (6) and was liable to be evicted as a result of the default.
15. For the aforesaid reasons, this appeal has no merit and is accordingly dismissed, The appellant shall have four moths to hand over possession to the respondent. In the circumstances of the case there will be no order as to costs.
(1) PLD 1969 Kar. 176