JUDGMENT , MUHAMMAD AFZAL ZULLAH, J.-Common questions of law are involved is these six Second Appeals (S. A. Os. Nos. 238, 239, 198, 190, 789 and 853 of 1976), arising out of Appellate order passed under section 15(I) of the West Pakistan Urban Rent Restriction Ordinance, 1959. These are being disposed of together.
2. This larger Bench was constituted to consider the question "Whether an order of a Rent Controller refusing to set aside ex carte proceedings or order of ejectment is appealable under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959." One of us had made the following reference for the decision by the larger Bench: "One of the main questions involved in this case is whether an order of a Rent Controller, refusing to set aside ex parte proceedings or order of ejectment is appealable under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1.959.
If it is appealable, then the question of limitation for filing the appeal against the ex parte order of ejectment might become of secondary importance in this case.
If, however, the said order of refusal is not appealable then the question of limitation qua the original ex parte order of ejectment would become important. The resolution of last mentioned two questions does not present any difficulty in this case but it all depends upon the answer to the first question.
With regard to the all important first noted question there is divergence of opinion. In N. Q.
Industries v. Mrs. Bapai Kaikhusro PLD 1968 Kar. 589 and Hazoor Bux v. Muhammad Yaqoob PLD 1975 Quetta 39 it was held that an order of Rent Controller refusing to set aside ex parte order/proceedings, is appealable under section 15 of the Ordinance, while the Lahore High Court held in Mst. Asghari Begum and another v. Fazal Haq and others (S. A. O. No. 238 of 1967, decided on 23-4-1970) that such an appeal is not competent. In Letters Patent Appeal (L. P. A. No. 92 of 1970) in this case, although the question of competency of appeal against an order of Rent Controller, refusing to set aside ex parte proceedings was noted, but it was left undecided. The same question was also noted in the appeal in the same case taken to the Supreme Court, reported as Ayub Khan and another v. Fazal Haq and others PLD 1976 SC 422 but the same was not decided for reasons mentioned at page 425 of the report. Another ruling in this behalf needs to be noticed. It is Siraj Din v. Mst. Iqbal Begum PLD 1968 Lah. 639. The learned Single Bench originally deciding the case of Mst. Asghari Begum thought that in this ruling (in Siraj Din's case) it was assumed that such an appeal is competent (though without discussion of the point). However, with respect it is pointed out that it appears, there was no such decision. The first appeal in case of Siraj Din was filed against the formal order of ejectment passed under section 1.3 of the Ordinance and not against the order refusing to set aside ex parte proceedings. The tenant having been proceeded against had, before ex parte ejectment order was passed against him, applied for setting aside the ex parte proceedings. He did not succeed. In other words, he was not allowed to join the proceedings which later on culminated in an independent order of ejectment against him under section 13 of the Ordinance. Thus, the first appeal in that case, it appears, was against the normal order of ejectment under section 13 of the Ordinance and not against an order refusing to set aside an ex parte proceedings.
In view of the above discussion the position that emerges is that while there are two single Bench rulings: one from Karachi and the other from Quetta, declaring that an appeal against an order of Rent Controller, refusing to set aside ex parte proceedings is competent under section 15 of the Ordinance; another ruling from this Court by a learned Single Bench in an unreported case of Mst.
Asghari Begum, noted above, declares it otherwise. The point is of general public importance. I, therefore, consider it necessary to direct the Office to place these proceedings before the learned Chief Justice for constituting a larger Bench so that a more authoritative pronouncement is made on the aforenoted question. Order accordingly."
3. The conflict of authority is obvious from analysis made in the order of reference. It may be mentioned that in yet another unreported case of Muhammad Din v. Saeed Ahmed (S. A. O. 26/74) it was held that appeal against the order rejecting an application for setting aside ex part'e order of ejectment was not competent.
4. The controversy in our view, has now been set at rest by a Supreme Court ruling in the case of Mlan Manzar Bashir v. M. A. Asghar & Co. (PLD 1978 SC 185). When considering the validity of the view taken in the Karachi case of N. Q. Industries, their Lordships of the Supreme Court observed as follows: "In N. Q. Industries v. Mrs. Bapai Kaikhusro (PLD 1968 Kar. 589), the question arose as to whether the order rejecting the application to set aside the ex parte order of ejectment was appealable or not?
Noorul Arfin, J., as he then was, held that such an order `approximates in nature to an order of eviction under section 13 and, therefore, it was appealatle under section 15(1-B) of the Ordinance'.
Such an order if 1 may say so, is seemingly definitive as it has a direct bearing on the whole subject of the controversy concluded by an earlier order and a fortiort, it can be regarded as an order under section 13 of the Ordinance. It is comparable to an order, under Order IX, rule 13, C. P. C., rejecting an application to set aside a decree passed ex parte which is appealable under Order LXIII,"
5. It is clear from the afore-quoted observations that there is a basic difference between an order by a Rent Controller setting aside an ex pane order of eviction and an order rejecting an application for setting aside such an order. While in the former situation the proceedings are re- opened from the ex parte stage, giving the tenant opportunity of joining the same and showing cause against eviction application; in the latter the tenant's failure to obtain the reopening of the case assumes the character of finalization. That is why such an order has been termed as definitive "having direct bearing on whole subject of controversy concluded by an earlier order and a fortiort, it can be regarded as an order under section 13 of the Ordinance." On the other hand an order setting aside an ex pane order on account of the afore-explained reason would remain an interlocutory order of the type explained in Ibrahim's case (PLD 1975 SC 457) and is not appealable under section 15(1) of the Ordinance.
6. In the light of the foregoing reasons we are in respectful agreement with the view taken in the Karachi ruling in the case of N. Q Industries on the question posed in the opening part of this judgment and affirm the same. And for the same reasons we are, with profound respect, of the opinion that the view taken in Lahore cases of Siraj Din v. Mst. Iqbhal Begun (PLD 1.968 Lah. 639) and Muhammad Din v. Saeed Ahmad S. A. O. 26 of 1974 and Mst. Asgharl Begum and another v.
Fazal Haq and others S. A. O. No. 238 of 1967 is not correct. It is, therefore, held accordingly, that an appeal from an order rejecting an ~ application to set aside an ex parte order of eviction, is competent under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959.
7. In the six appeals before us the point pressed is the same qua maintainability of the afore- discussed first appeal. In S. A. Os. 198, 2.38 and 239 of 1976 the first appeals having been held maintainable, were allowed and setting aside ex parte orders of eviction, cases were remanded to Rent Controllers for further proceedings. In the light of our decision on the question raised in these matters, it is held that the lower appellate orders in these three appeals, are unexceptionable.. They are, therefore, dismissed. There shall be no order as to costs.
8. The remaining three second appeals namely, S. A. Os. Nos. 190, 789 and 853 of 1976 were filed on account of refusal of the lower appellate forums, in each case, to set aside orders of rejection of the applications for setting aside ex parte orders on the ground (in S. A. O. No. 789 of 1976 there is also additional reason) that they are not appealable. They have taken an incorrect view of the law.
As discussed above, these three appeals merit acceptance. The fact that in S. A. O. No. 789 of 1976, the learned Additional District Judge also considered the case on merits does not make any difference. The learned Judge bad also upheld the objection of the learned counsel regarding the competence of the appeal. It is not possible from the discussion in the impugned judgment, to discover as to whether the learned Judge was not more influenced by jurisdictional aspect of the case. In the circumstances of the case the appeal, notwithstanding, the above reason, merits acceptance. Order accordingly. These three cases are remanded to the learned lower appellate forums for fresh decision of first appeals, in accordance with law. There shall be no order as to costs.