Admittedly the appellant was not a party to the proceedings before the Rent Controller but has filed this Appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance of 1979") against the judgment dated 23rd December, 1997 passed by the IIIrd Rent Controller, Karachi East in Rent Case No,500 of 1993 (Zakir Ali v. Yaqoob Ali) whereby respondent No,2, namely, Yaqoob Ali was directed to hand over peaceful and vacant possession of Shop No,C-90, Liaquat Market, Malir Township, Karachi (hereinafter referred to as the "tenement in question") to respondent No,1, namely, Zakir Ali within a period of sixty days from the date of aforesaid judgment.
2. Present appellant claims to be owner of the tenement in question by virtue of a gift deed dated 16-3-1989 executed by Mst. Shehzadi Begum, widow of late Maqbool Hussain. On the basis of such gift deed, the appellant filed an application under Order 1, Rule 10, C.P.C. For joining him as one of the parties in the proceedings before the IIIrd Rent Controller. This application was heard and finally disposed of by the learned Rent Controller on 23rd July, 1997 on the following grounds:-- "It is, therefore, clear that the gift deed in favour of applicant Zakir Ali is prior to the alleged gift deed in favour of the intervener. Moreover the intervener has not explained in his affidavit with this application that as to why he remained silent for such a long time to become party in this case.
The opponent is admittedly tenant in the demised premises and he has nothing to do with the ownership. Moreover he also started depositing rent in the Court in the name of the applicant even prior to filing of the present case. Since the ownership of the intervener is not clear as having been based on the subsequent gift deed, therefore, in my humble view the proper course for the intervener is to move the competent Court of law to seek the declaration to the effect that he is the lawful owner of the premises in question by virtue of deed of declaration of gift. At present the applicant is owner by virtue of gift deed executed in his favour about 2 years prior to deed of declaration of gift in favour of the intervener."
3. After dismissal 'of appellant's application under Order 1, Rule 10, C.P.C., by the Rent Controller he filed a suit for declaration, permanent injunction, cancellation of gift deed and for delivery of physical possession before this Court on its original civil jurisdiction which is numbered as Suit No,1298 of 1997 (Habibullah v. Zakir Ali and 4 others) wherein both the present respondents have been impleaded as defendants Nos.1 and 2 respectively. In that suit, the appellant filed an application (C.M.A. 6737/1997) under Order XXXIX, Rules 1 and 2, C.P.C. Upon which ad interim injunction was granted on 9th October, 1997, directing defendant No,1, namely, Zakir Ali and defendants No,3 and 4, namely, K.D.A. And Sub-Registrar, T-Division, Karachi, to maintain status quo. In that suit, the appellant who is plaintiff is also seeking delivery of physical possession from the present respondents. On the last date of hearing it was ordered that case file of Suit No,1298 of 1997 be summoned which I have examined today with the assistance of both the learned counsel.
4. I have heard Mr. Zahid Marghoob, Advocate for appellant and Mr.S.M. Haider, Advocate for respondent No,1 who is on pre-admission notice. In this case, respondent No,2, against whom order of ejectment was passed, was also served and has engaged Mr. Mehmud A.H. Baloch, Advocate, who is not appearing since last two dates. However, another appeal filed by respondent No,2 has been admitted for regular hearing. On 27th May, 1998, respondent No,1 filed written preliminary legal objections which can be summarised in the following, manners:-
(a) That the appellant is not an "aggrieved person" to maintain an appeal under section 21(1) of the Ordinance, 1979.
(b) That the appeal is time-barred as it has been filed after a delay of nearly six months. In other words, the appellant was required to file appeal against the Order dated 23rd July, 1998, through which appellant's application under Order 1, Rule 10, C.P.C. Was rejected and not against the final order of eviction dated 22-12-1998.
(c) That so far as appeal is concerned, the judgment impugned in it is not the final order and that the final order was dated 23rd July, 1998.
4-A. In reply, it is contended by Mr. Zahid Marghoob that the order appealed against is not final order through which opponent No,2 has been ordered to be evicted and this being the final order, earlier order dated 23rd July, 1998 has been merged into the same and the present appellant is legally competent to maintain an appeal against the same. It is further argued that the order dated 23rd July, -1998 being interim and not final was not apealable. He has placed reliance on the following cases:--
(i) Capt. Rahat Majeed v. Mst. Kubra Bai 1982 CLC 1171.
(ii) Gurdasmal v. Pahlaj Ram and another 1986 CLC 43.
(iii) Habib Alavi Athar v. Hasan and 7 others 1986 MLD 1656.
(iv) Mst. Amena Bano and 4 others v. Muhammad Rahim and another 1997 CLC 29.
5. On the other hand, Mr. S.M. Haider, has drawn my attention to a decision of a Full Bench of Hon'ble Supreme Court in the case of Muhammad Mubin Siddiqui v. Mst. Shahzadi Begum and 2 others 1982 SCMR 233 which as a matter of coincidence arises out of a dispute pertaining to the same tenement as of the instant appeal. He has further placed reliance on the case of Sarfaraz Ali v.
Shahjehan Begum and another 1996 CLC 1034; Muhammad Ishaq v. Syed Muhammad Zubair 1996 MLD 797. Before proceeding further, it would be advantageous to examine provision of section 21(1) of the Ordinance, 1979, which reads as under:-- "21. Appeal.--(1) Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court.
(2)......................................................................
(3)......................................................................
Perusal of subsection (1) of section 21 of the Ordinance, 1979, indicates that there are two conditions for maintaining an appeal before this Court, namely, (i) the party filing appeal must be "aggrieved person"; and (ii) the order against which appeal has been preferred must not be "interim order".
With this view, I propose to examine contentions of both the learned counsel advanced at the Bar.
6. Admittedly, present appellant is claiming to be owner of the tenement in question and, therefore, moved an application for joining him in the rent case which was manifestly pending since 1993. It is not denied that the appellant -was in the knowledge of pendency of the said rent case. He has not explained the delay in not resorting to that remedy earlier. Application under Order 1, Rule 10, C.P.C.
Moved by the appellant was dismissed on 23rd July, 1998 by the learned Rent Controller; which, so far as present appellant is concerned was the final order. The judgment was passed on 22nd July, 1998 directing respondent No,2 to hand over and deliver the vacant possession of the tenement in question to respondent No,1. Mr. Zahid Marghoob was not able to satisfy this Court as to how he is aggrieved by this present Order. This proposition was considered by the Hon'ble Supreme Court in the case of Muhammad Mohin Siddiqui (supra) where the petitioner in that case attempted to join the proceedings before the Court of Rent Controller through an application filed under Order 1, Rule 10, C.P.C. Which was dismissed but he did not file an appeal against the said order and waited till final decision when his petition seeking leave to appeal before the Honourable Supreme Court was dismissed with the following observations:-- "7. This argument has no force because after the decision of the preliminary issue holding that Mobin Siddiqui was not a tenant under Mst. Shahzadi Begum, he was no longer a party to the case.
If he, at all, wished to contest the matter further, he should have filed an appeal against the aforementioned order of the Rent Controller dated 31-5-1978 because as far as he was concerned that was the final order in this case. Not having done so he was not entitled now to file an appeal against the order of ejectment before the Additional District Judge and the High Court, as he was not a party to the case in which that order was passed."
7. In the case of Capt. Rahat Majeed (supra), a learned Judge of this Court while following the rule laid down by the Lahore High Court in the case of Allah Ditta and another v. Muhammad Hussain and others PLD 1965 Lah. 29 held that an order of the Appellate Court rejecting application under Order 1, Rule 10, C.P.C. Was not available in view of section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The case of Gurdasmal (supra) also arises from the interpretation of section 15 of the Ordinance of 1959. In that case it was held that the order of Rent Controller passed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, striking off the defence of tenant was not appealable. In the case of Habib Alavi Athar (supra), the question of maintainability of a Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, was under discussion and it was held that those orders which are not appealable may be called in question but where the same could be agitated in appeal practice of filing such petition should be deprecated. The last cited case from the appellant's side is of Amena Bano (supra) where a learned fudge of this Court, Abdul Latif U. Qureshi, J. (as he then was) while interpreting term "aggrieved party" as used in section 21(1) of the Ordinance of 1979, referred to the case of Muhammad Azeem Qureshi v.. Hakim Syed Akhtar Irshad and 4 others 1990 CLC 122; H.M.
Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 and Ghulam Haider v. Muhammad Haneef and others PLD 1979 Kar. 167 and held that the term "aggrieved party" does not mean only a party to a proceeding but any person aggrieved by the order, claiming that the order complained against was prejudicial to him and affects his interest adversely.
8. It will be seen that all such orders which are not interim in nature have been made appealable under section 21(1) of the Ordinance, 1979. It is misconception that appeal is provided only against the final order passed by the Rent Controller, either allowing eviction or disallowing the same. The test whether an order is interlocutory or a final order in reference to section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 was considered by the Honourable Supreme Court in the case of Mian Manzar Bashir and others v. M.A. Asghar & Co. PLD 1978 SC 185, where an interlocutory, which is neither incidental nor collateral, was defined as an order which embraces the whole gamut of the dispute. The rule laid down by this Court in the case of Muhammad Umer and another v. Dr. Amina Ashraf PLD 1977 Kar. 305 was approved. For further reference see Ibrahim v.
Muhammad Hussain PLD 1975 SC 457. This Court in several cases has held that where the Rent Controller dismisses an application seeking striking off the defence of Opponent/Tenant, such order was appealable. It was so held by Nasir Aslam Zahid, J. (as his Lordship then was) in the case of A.M. Qureshi v. The Secretary, Government of Sindh, Education Department and another 1986 CLC 1587. Reliance was placed on cases Zubaida Begum v. Mrs. S.T. Naqvi 1986 SCMR 261 and Hayat Ali v. Mst. Aziza Mehmood 1980 SCMR 298. Same view was reiterated by another Judge of this Court Saleem Akhtar, J. (as his Lordship then was) in the case of Mst. Anwar Fatima and 5 others v.
Muhammad Ali Mutlaq PLD 1986 Kar.
252. The last case cited was followed by this Court in the case of Mrs. Khairun Nisa and another v.
Mrs. Mehrun Nisa 1990 CLC 661. Again this Court in the matter-of Eastern Express Company Ltd. v.
Messrs Haji Khushi Muhammad 1995 MLD 470 held that the order of Rent Controller rejecting the application of the landlord thereby refusing him to lead evidence was not an interim order because in case the landlord was not allowed to lead evidence, the consequences which may follow would be the rejection of his main eviction application. Thus, it is settled that an order of a Rent Controller which decides a controversy between the parties being not an interim order is always appealable. In view of the case-law cited above as well as in view of the facts of this case, it cannot be termed that the order of learned Rent Controller rejecting appellant's application under Order 1, Rule 10, C.P.C. Was an interim order. This order was appealable as held by Hon'ble Supreme Court in the case of Muhammad Mobin Siddiqui (supra). The impugned judgment ordering eviction of respondent No,2 could not be attacked by the present appellant, as he is not an aggrieved party in stricto senso.
9. What is the effect when a party is impleaded particularly as one of the defendants in a suit? The answer is to be found in sub-rule (3) to Rule 10 of Order 1, C.P.C. Which provides that the pleadings are to be amended in such a manner as may be necessary. In case the appellant's application under Order 1, Rule 10, C.P.C. Would have been granted the applicant before the Rent Controller, (respondent No,1 herein) was required to amend his pleadings and likewise appellant as well as other respondents were also entitled to file their amended written replies and consequently the appellant would also be entitled to lead his evidence but upon rejection of his application all these stages have been lost. In case an earlier appeal had been filed against the Order dated 23rd July, 1998 the appellant could have obtained stay against the proceedings of Rent Controller and upon his success could have joined the proceedings but he waited till the conclusion of the proceedings and has filed the instant appeal against the earlier order, through which his application under Order 1, Rule 10, C.P.C. Was dismissed. If this appeal is allowed it will amount to de novo trial of the Rent Case before the Rent Controller and will further result into multiplicity of the proceedings.
Appellant has already filed a suit seeking delivery of physical possession of the tenement in question. If he succeeds there, he could easily obtain physical possession from the present respondents (defendants in the suit) irrespective of order of this Court in other F.R.A. No,49 of 1998 and there will be no prejudice or grievance to the present appellant.
10. In the aforesaid circumstances, this first rent appeal is dismissed in limine with the direction to respondent No,1 not to part with the physical possession of the tenement in question or to create any third party interest till the final decision of Suit No,1298 of 1997.