This single order shall decide the present writ petition (W.P.No,20804 and W.P.No,20805 of 2001), as the common questions of law and facts are involved in both the petitions.
2. Through the filing of these Constitutional petitions, the petitioners/ tenants have called in question order dated 29-9-2001. whereby the learned Additional District Judge. Faisalabad. accepted the appeals, filed by the respondent and directed the learned Rent Controller to strike of the defence of the petitioners.
3. Facts. giving rise to the filing of these two petitions are that respondent No,1 filed two ejectment petitions, under the provisions of Punjab Urban Rent Restriction Ordinance, 1959, (hereinafter referred to as Ordinance), against the petitioners, seeking their ejectment from Shops Nos,6, 7 and 8 situated in D-ground, People Colony, Faisalabad. on the ground of default in payment of rent, before the learned Rent Controller. The petitioners contested the ejectment petitions thereby controverting the allegations of default and thereupon the learned Rent Controller. findings that there are no arrears of rent due against the petitioners. passed an order under section 13(6) of the Ordinance, thereby directing the petitioners to deposit the future monthly rent. The learned Rent Controller framed the issues and respondent No,1 was called upon to produce evidence, but she could not procure the attendance of her witnesses on numerous dates and ejectment petitions were dismissed for non-prosecution, however, the ejectment petitions were subsequently restored.
Thereafter, the respondent filed an application under section 13(6) of the Ordinance, praying tor the striking off the defence of the petitioners, however, the said application was dismissed on 21-11- 2000. The said respondent assailed the aforenoted decision of the learned Rent Controller by filing two separate appeals before the learned District Judge, and the learned Additional District Judge accepted both the appeals, set aside the order of the learned Rent Controller and further directed the learned Rent Controller to strike off the defence of the petitioners vide judgment dated 29-9- 2001. Aggrieved by the aforesaid order, the petitioners filed two appeals, before this Court, however, the same were withdrawn in order to file the Constitutional petitions, hence, the present petitions.
4. Learned counsel for the petitioners has contended that the order of the learned Rent Controller dated 2111-2000, whereby he refused to strike off the defence of the petitioners and was impugned through filing an appeal before the learned appellate authority, was an interlocutory order in nature, thus, no appeal against the said order was competent, as such, any order passed on an incompetent appeal is void and has no legal value, therefore, the impugned order is liable to be declared as illegal and have no lawful authority. Conversely, the learned counsel for the respondent has refuted the arguments and submitted that an order passed by the learned Rent Controller declining to strike off the defence of the tenants is not an interlocutory order and, thus. appealable before the appellate authority. It has been submitted by the learned counsel for the respondent that the impugned order was pass ed on an appeal, competently filed by the respondent, therefore, it does not call for any interference by this Court.
5. It flows from the above contentions raised by the learned counsel for the parties that the question which has arisen for determination by this Court is as to whether an order passed by the learned Rent Controller refusing to strike off the defence of a tenant in exercise of its powers under section 13(6) of the Ordinance. is an interlocutory. order or a final order and as to whether an appeal is competent against such an order.
6. The said legal question came up for decision before this Court and it was held in Rana Zahid Ali Khan and 5 others v. Ehsan Elahee (PLD 1977 Lahore 538) that the learned Rent Controller is not empowered to extend time for making deposit of rent and an order refusing to pass an order of ejectment by striking off defence should be considered to be a final order which will give a right to the -landlord to tile an appeal against it.
7. The same question came up for determination before the Sindh High Court and it was declared in the case of Mst. Fatima Bai v. Mst. Fatima Begum (PLD 1977 Karachi 1007) that the question of non-compliance with order under section 13(6) of the Ordinance, is a question germane to dispute whether the tenant is liable to be evicted, such order if correctly passed may result in decision of the entire controversy and may terminate the proceedings so for as the Controller is concerned. It was, thus, held that such an order is a final order and appeal to challenge its correctness would lie under section 15 of the Ordinance. The same question of law was considered by the Honourable Supreme Court of Pakistan in the case of Hayat Ali v. Miss Aziza Mehmood (1980 SCM R 298). It was laid down by the apex Court of the country, While relying upon the aforesaid judgments of Rana Zahid Ali Khan and Mst. Fatima Bai, that the order refusing to strike off the defence of a tenant is a final order and as such appealable in the same manner as if the defence of the tenant has been struck off and the appeal is maintainable. It would be advantageous to reproduce the relevant portion of the judgment of Hayat Ali's case:- "In assessing whether there is default or not the Rent Controller has to consider the explanation resting on facts and in a given case his decision might be erroneous. If he holds against the tenant his order, beyond doubt, is final as it leads to ejectment of tenant. As such the order is appealable; and again it is for appellate Court to judge as to whether Rent Controller was right in holding that tenant was guilty of default; and if he is not so held, he is absolved of consequence of default. Vice versa if Rent Controller decides against landlord, can it then be said that such an order is not appealable, howsoever, erroneous it may be as it does not conclude proceedings? This would mean putting a premium on the right of the landlord to have the legality of the order determined in appeal, for, in that eventuality it may be that the appellate might come to a contrary conclusion and hold default to have been proved, in which case his defence will be struck off. In either case there has to be an application of mind on the question of default which culminates in passing of an order for striking off the defence or condonation of non-compliance. The former leads to ejectment of tenant while the latter condones default. But what it pivotal is that is concludes controversy presented by the second part of subsection."
8. In the case of Mrs. Zubaida Begum v. Mrs. S.T. Naqvi (1986 SCM R 261) the Honourable Supreme Court of Pakistan declared the law that an appeal against Rent Controller's order refusing to strike off the defence is maintainable and the order of the Rent Controller passed under section 13(6) of the Ordinance refusing to strike off the detence of the tenant is as much appealable as one striking out tenant's defence.
9. Same view was followed by Baluchistan High Court and it was held in Haji Abdul Ghafoor and 2 others v. Muhammad Ibrahim (1996 M LD 138) that an appeal under section 15 of the Ordinance is competent against an order striking off defence of tenant on account of non-compliance of tentative rent order of Rent Controller and non-striking off defence of tenant on that account. It was held that appeal in both such cases would be competent.
10.After having examined the case law as noted above, I have come to the conclusion that the consistent view of the Honourable Supreme Court of Pakistan and all the High Courts of the country is that an appeal under section 15 of the' Ordinance is competent and maintainable against an order A passed by the learned Rent Controller under section 13(6) of the Ordinance, 1959, either striking off the defence of the tenant or refusing to strike off the defence of the tenant.
11.Applying the aforesaid yardstick to the present petition as the only question raised by the learned counsel has duly been answered, same is devoid of any force, thus, the solitary contention raised by the learned counsel is hereby repelled.
12.In view of the above discussion, the writ petitions are devoid of any merits, thus, both of them are dismissed with no order as to costs.