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Constitutional .Petition No. D‑171 of 1983, decided on 26th March, 1963.

‑‑ O. IX, r. 9‑Sind Rented Premises Ordinance (XVII of 1979), S. 15‑Restoration of application dismissed for default‑Principles of O. IX, r. 9, C. P. C., held, can be pressed in service when justice demands.

P L D 1972 Lah. 603 rel.

‑‑ S. 21‑Appeal‑Object of providing no appeal in Ordinance against interlocutory orders and fragmentary decisions is to avoid delay in determination of main controversy about liability of tenant for ejectment ‑Parties in such case, held, should wait till final order is passed and then file appeal challenging both orders.

P L D 1978 S C 185 ; P L D 1978 Lah. 488 ; P L D 1976 Lah. 99 and P L D 1978 Lab. 450 rel.

‑‑ Art. 9‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss. 15 & 21‑Civil Procedure Code (V of 1908), O. IX, r. 9‑Writ jurisdiction‑Order of restoration of ejectment application, held, can be challenged in appeal against final order of Rent Controller in case petitioner aggrieved by that order‑Interference declined in writ jurisdiction.

Abdul Rehman v. Haji Mir Ahmed Khan P L D 1983 S C 21 rel.

Moinuddin Ahmed for Petitioner.

Date of hearing : 10th March, 1983.

.‑This petition has been filed challenging the order of the Controller, the respondent No. 1, whereby the ejectment application filed by the respondent No. 2 which was dismissed, has been restored. The respondent No. 2 filed ejectment application under section 15 of Sind Rented Premises Ordinance against the petitioner who appeared and filed his written statement. The parties filed their affidavits of evidence. On 24th March, 1981 the matter was fixed for cross‑examination of the respon dent No. 2 when an application for adjournment was filed on the ground he was not well. This application was rejected mainly on the ground that no medical certificate had been produced. The respondent No. 1 observed that as respondent No. 2 was not appearing for cross‑examination there was no evidence in support of his application and, therefore, it was dismissed. The respondent No. 2 filed application under Order IX, rule 9, C. P. C. for restoration of his ejectment application which was granted on 18th December, 1982 on payment of cost of Rs. 100.

Mr. Moinuddin Ahmed the learned counsel for the petitioner has contended that the respondent No. 1 has no jurisdiction to restore the application and alternatively as the application was dismissed on merits the same could not be restored.

Taking the last contention first, it may be pointed out that respondent No. 1 bad dismissed the application mainly on the ground that the respondent No. 2' had not appeared in Court. The respondent No. 1 has not even referred to the merits of the case and has passed ex parte order in default. The order, dated 24th March, 1981 cannot be termed to have been passed on merits.

Now the question arises whether an ex parte order dismissing the ejectment application can be set aside. The main contention of the learned counsel is that as Order IX, rule 9, C. P. C. is not applicable the Controller has no jurisdiction to restore an application which has been dismissed for default. Similar question arose in C. P. 113/83 where we have held that although Order IX, rule 9 is not applicable in terms to the proceedings before the Controller, its principles can be applied for proper administration of justice. Therefore, principles of Order IX, rule 9 can be pressed in service where it is a demand of justice. Reference can be made to P L D 1972 Lah. 603.

Under the Sind Rented Premises Ordinance no appeal is provided against an interlocutory order. The object is to avoid appeal on "fragmentary decisions" which delay the determination of main controversy about the liability of the tenant for ejectment. In such cases; the parties should wait till the final order is passed and then file an appeal challenging both the orders. Reference can be made to P L D 1978 S C 185 ; P L D 1978 Lah. 488 ; P L D 1976 Lah. 99 and P L D 1978 Lah. 450.

After a review of all the aforestated authorities in Abdul Rehman v. Haji Mir Ahmed Khan (PLD1983SC21) the following observation was made;-----

Keeping the aforediscussed aspects of the question raised before the High Court and the trend of authority regarding exercise of writ jurisdiction in rent matters, it is held that the petition in the High Court, was liable to be dismissed on the short ground of availability of adequate remedy to the petitioner it' ever any adverse final order was passed against him, that being so, this petition must fail."

The dictum laid down by the Supreme Court equally applies to the' present case. For these reasons by a short order the petition was dismissed in limine. It may be clarified that if the petitioner is aggrieved by the final order that may be passed by respondent No. 1, he would be at liberty to file appeal against that final order and challenge the impugned order in those proceedings.

M. Y. H. Petition dismissed.

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