' This is an appeal against an order passed by Mr. Muhammad Sharif. District Judge, Sahiwal dated 19-6-1976 setting aside the order of the Rent Controller extending time for deposit of arrears of rent as well as rent for the month of May, 1975, and striking off the defence of the appellant resulting in their ejectment forthwith.
2. The relevant facts are that the respondent-landlord filed a petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance for ejectment of the appellants from House No, 272, Block VIII, Nai Abadie Sahiwal. The learned Rent Controller passed an order on 25-7-1974 by which he fixed rate of rent as Rs, 150 per month and directed the appellants to deposit the same within the period fixed in that order. An appeal was filed against this order which culminated in the rate of rent being substituted by Rs, 105 by the appellate authority. Thereafter a fresh order fixing the time for deposit of the rent was passed and the appellants were directed to deposit the arrears of rent before the 17th of June, 1975 and also to deposit the future rent before the 15th of each month. The rent for the month of May was payable by the 14th of June, 1975 while the arrears were payable according to this order by the 16th of June, 1975. Since the appellants defaulted in these deposits, an application was submitted on the 17th of June, 1975 for extension of the period on the ground that appellant No, 1 (Rana Zahid Ali Khan) was suffering from fever, stomach trouble, heart-trouble and appendicitis since 14th of June, 1975 and for this reason he could not make the necessary deposit. In support of the application a medical certificate from the Medical Officer, Civil Hospital, Arifwala was also subsequently filed. On the 30th June, 1975, the learned Rent Controller acting on the certificate held that the default was not deliberate and intentional and allowed the appellants to make the deposit of the arears as well as of the rent for the month of May,1975 before the 3rd of July, 1975. The respondent-landlord filed an appeal against this order which was allowed by the learned District Judge on the 19th of June, 1976. A preliminary objection was taken before him about the competence of the appeal but the learned District Judge held that since the appeal was in continuation of the original proceedings and if accepted it would entail the striking off of the defence and the ejectment of the appellants, the order of the learned Rent Controller was appealable. On merits he disbelieved the medical certificate on the ground that it was strange that appellant No, I had become hail and hearty within two days i,e, on the 17th of June, 1975 to move an application for extension of time. He also observed that if respondent No, 1 was ill there were other respondents who could make the deposit. He further found that in any case the extension of time for the deposit of the rent for the month of May, 1975 had no statutory justification since this period could not be extended by the Rent Controller.
3. The learned counsel for the appellants argued the case only on the ground of maintainability of the appeal. In support of his arguments he relied upon Ibrahim v. Muhammad Hussain (1) in which it was observed that interlocutory orders made under section 13 were not appealable. In this connection it was held that an order deciding a preliminary issue whether of relationship of landlord and tenant or of territorial jurisdiction of the Rent Controller was not appealable. Similarly the order of provisional fixation of current rent and the amount of arrears made under the first part of subsection (6) of section 13 was not appealable since it remains provisional unless followed by "final determination or the culmination of the contingency postulated in the clause namely striking off the tenant's defence and putting the landlord in possession".
4. The learned counsel for the respondent on the other hand relied upon Abdul Hamid and others v.
Hafiz Abdullah (2) wherein it was held that an order of the Rent Controller refusing to strike off the defence was a final order in so far as its impact on the proceedings of ejectment was concerned.
He, therefore, argued that the order of the Rent Controller being virtually
(1) PLD 1975 SC 457 (2) PL D 1969 Kat. 82 by an order of the character had fulfilled all the conditions of finality and had become an appealable order.
5. The difficulty in this case arises because of the use of the word 'namely' after the words "it is followed by final determination or the culmination of the other contingency postulated in the clause". It can, therefore, be argued that the final determination of a case under section 13(6) has been considered to be a determination which results in striking off the tenant's defence, it can, in these circumstances be urged that word "namely" is exhaustive in character. But I am of the view that it should be considered to be merely illustrative to distinguish a final order from interlocutory order. The Rent Controller who is seized of the matter under section 13 has the power to pass an order of ejectment of a tenant if a case is made out by the landlord he has as well to dismiss the application for ejectment if the landlord fails to establsh his claim. The right of the landlord to file an appeal under section 15 (1) of the Ordinance against the order of dismissal of his application cannot be questioned on any principle of law. Section 13(6) provides for a case in which an order of deposit of rent made by the Rent Controller has been violated by the tenant. It provides that in such a case the Rent Controller has no option except to order the striking off the defence of the tenant and to direct his ejectment forthwith. It is now authoritatively established that the Rent Controller has no power to extend the time for waking the deposit whether such time has been fixed by him under the powers given to him by subsection (6) or the time is fixed statutorily by the same provision. 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 and the 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 All (1) 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 default 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 dismssing the application of a landlord under section 13. This type of order A 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 the two types of orders which can by passed bo 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 by the appellate Court, it may be in a position to pass an order of strikin off the defence of the tenant and directing his ejectment. The finality o order under section 13(6) should be judged from the point of view whethe the appellate Court by reversing the finding of the Rent Controller can pass a final order terminating the proceedinge 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 to be a final order which will give a right to the landlord to file an appeal against it. Although the authority relied upon by the learned counsel for
(1) PLD 1974 SC 530 the respondent is an authority of the period much prior to the change of view about the maintainability of the appeal brought about by Ibrahim v. Muhammad Hussain, but the point involved in that case also was whether such an order was a final order. The answer of the Division Bench of the High Court of West Pakistan was in the affirmative. I am in respectful agreement with this decision and I am of the view that the order of the Rent Controller in the present case was a final order and was appealable under section 15(1), particularly when it is clear from the order of the District Judge that the learned Rent Controller had exceeded his jurisdiction in extending the time even for the payment of the future rent and thus in refusing to pass an order striking off the appellant's defence. I, therefore, dismiss this appeal as being without merits. I, however, leave the parties to bear their on costs.