P L D 1959 (W (PLP)

KAIKAUS, J.-Muhammad Abdul Hai the respondent in this first appeal is the tenant of a shop in Bori Bazar, Saddar, Karachi and the appellant is its owner. The appellant applied to the Rent Controller on 13-9-1952 for a certificate under section 10 of the Karachi Rent Restriction Act to the effect that he needed the shop in good faith for his personal use. Such a certificate is under that section necessary befog-a a land lord can take proceedings for ejectment of the tenant. The allegations of the appellant were that whereas he was previously in private service he had left it and now intended to carry on business in the shop. The Rent Controller came to the conclusion that the need of the appellant was genuine but he was of the opinion at the same time that the appellant did not need the whole shop and that it would be sufficient if the tenant is ejected from half of the shop. He, therefore, granted him a certificate only to the extent of one half of the shop. Against this order of the Rent Controller both parties filed applications for revision which under section 15 of the Karachi Rent Restriction Act lie to the Central Government but the power to hear which had been delegated by the Central Govern ment to the Chief Judge of the Small Causes Court, Karachi in accordance with section 15 (5). The Chief Judge, Small Causes Court Karachi agreed with the Rent Controller that the appellant needed the shop bona fide for his personal use. He did not agree with the Rent Controller, however, that the shop should be partitioned and that the certificate should be issued only in respect of half of it. He observed that the shop was 6' x 4' only, that there was no partition in it and that the ejectment of the tenant from half of it only will create com plications. He granted to the appellant a certificate on 9th October, 1953, in respect of the whole shop. It was open to the appellant after he secured the certificate either to file a suit for ejectment or to apply to the Small Causes Court, Karachi for an order of ejectment of the tenant under section 18 of the Karachi Small Causes Court Act which provides for a summary procedure for the ejectment of tenants. The appellant adopted the latter course and put in an applica tion under section 18 on 5th November 1953. At this the respondent applied for stay under section 24 of the Karachi Small Causes Court Act, undertaking to file the suit mentioned in that section. In accordance with that section when an application is filed under section IS for ejectment it is open to the defendant to apply for a stay of the proceeding on furnishing security to the effect that he will file a suit for compensation for criminal trespass. The application of a person under section 18 when he is not entitled to recover possession of the property is regarded as being by itself an act of trespass. The respondent furnished security and the Small Causes Court thereupon stayed proceedings in the application under section 18 as it was bound by law to do. On the 9th November 1953 the respondent applied for a review of the order passed by the Chief, Judge in revision. The application for review was submitted to the Central Govern ment but was transferred by the Government for disposal to the Chief Judge, Small Causes Court. This review lies under section 15 (2) of the Karachi Rent Restriction Act. The application for review was dismissed by the Chief Judge on 29th January, 1954. On 1st April 1954 the respondent filed the suit out of which the present appeal arises in compliance with his undertaking under section 24 of the Karachi Rent Restriction Act. It was claimed in the suit that the defendant appellant was a trespasser because he had no right to recover possession on the date when he filed an application under section

18. It was conceded that the respondent was a tenant of the appellant but it was alleged that as yet there was no valid certificate in his favour as required by section 10 of the Karachi Rent Restriction Act because the Chief Judge had no jurisdiction in law to dispose of the review application. The review application was therefore as yet pending and as the certificate issued by the Chief Judge while acting in revision had not yet become final, the appellant had no right to recover possession of the premises. The learned Additional District Judge who heard the suit gave effect to this contention of the respondent. He held following a judgment of the Karachi Bench of the West Pakistan High Court that the Central Govern ment could not have delegated its power of hearing the review application to the Chief Judge and therefore the Chief Judge's decision of the review application was of no legal effect. As the application for review was still pending the question of the grant of the certificate could not be said to have been finally decided and the act of the appellant in filing an application under section 18 was a trespass. On this conclusion he decreed the suit. In this appeal by the defendant it is urged (1) that the appellant had with him a valid certificate under section 10 on the date on which he filed the application for ejectment under section 18 of the Karachi Small Causes Court Act i.e., 5th November, 1953, (2) that even if he, had not a valid certificate with him he would still be a person entitled to recover possession because his right to recover possession did exist though there was an obstacle in the way of remedy and (3) that the suit filed did not properly fall under section 24 of the Karachi Rent Restriction Act. In order to appreciate the points raised it is necessary to reproduce some provisions of the Karachi Small Causes Court Act and the Karachi Rent Restriction Act.: " Karachi Small Causes Court Act. Summons against person occupying property without leave.

18. When any person has had possession of any immovable property situate within the local limits of the Court's juris diction and of which the annual rental value does not exceed two thousand rupees, as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn, and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property.

20. Order for possession :-If the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall, if the Court is satisfied that he is entitled to apply under section 18, be entitled to an order addressed to the bailiff of Court directing him to any possession of the property to the applicant on such day as the Court thinks fit to name in such order. S.22. Applicant, if entitled to possession, not to be deemed trespasser for any error in proceedings occupant may sue for compensation: When the applicant, at the time of applying for any such order aforesaid was entitled to the possession of such property, neither he nor any person acting in his behalf shall be deemed, on account of any error, defect or irregularity in the mode of proceeding to obtain possession thereunder, to be a trespasser but any person aggrieved may bring a suit for recovery of compensation for any damage which he has sustained by reason of such error defect irregularity: when no such damage is proved, the suit shall be dismissed and when such damage is proved but the amount of compensation assessed by the Court does not exceed ten rupees, the Court shall award to the plaintiff no more costs than compensation, unless the Court certifies that in its opinion full costs should be awarded to the plaintiff. S.

23. Liability of applicant obtaining order when not entitled: Nothing herein contained shall be deemed to protect any applicant obtaining possession of any property under this Chapter from a suit by any person deeming himself aggrieved thereby, when such applicant was not at the time of applying for such order as aforesaid entitled to the possession of such property. Application for order in such case an act of trespass: And when the applicant was not, at the time of applying for any such order as aforesaid, entitled to the possession of such property, the application for such order, though no possession is taken thereunder, shall be deemed to be an act of trespass committed by the applicant against the occupant. S.

24. Stay of proceedings on occupant giving security to bring suit against applicant: Whenever on an application being made under section 18 the occupant binds himself, with two sureties, in a bond for amount as the Court thinks reasonable, having regard to the value of the property and the probable costs of the suit next hereinafter mentioned, to institute without delay a suit in the Chief Court against the applicant, for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant, the Court shall stay the proceed ings on such application until such suit is disposed of. If the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order, if any, made under section

20. Karachi Rent Restriction Act 10. (1) Save as hereinafter provided, no order for the recovery of possession of any premises shall be made by any Court so long as the tenant pays or is ready and willing to pay the rent payable under this Act and performs the other conditions of the tenancy. (2) Nothing in subsection (1) shall apply where the landlord has obtained a certificate from the Controller certifying- (a) that the tenant has committed any act contrary to the provisions of clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct which is a nuisance or an annoyance to adjoining or neighboring occupiers, or (b) that the tenant has sublet the premises without the permission of the landlord, or (c) that the premises are reasonably and in good faith required by the landlord- (i) for the erection or reconstruction of a building, or (ii) for his own use or for the use of any person for whose benefit the, premises are held, or (d) that the tenant has infringed any conditions of the tenure on which the premises are held by the landlord. (3) Where a landlord has got back possession of any premises from a tenant on the ground that they were reasonably and in good faith required by the landlord for the erection or reconstruction of a building or for his own occupation or for the occupation of any person for whose benefit the premises are held, if the erection or reconstruction of the building is not commenced or the premises are not occupied by the landlord or the other person aforesaid within fifteen days of the vacation of the premises by the original tenant, or having been so occupied are re-let within two months of the said date to any person other than the original tenant, the Controller may, on the application of the original tenant made within three months of his vacating the premises, direct the landlord to place the original tenant in possession of the premises on the original terms and conditions and to pay him such compensation as may be fixed by the Controller. (4) When the Controller directs under subsection (3) that the landlord should pay compensation to the tenant the Controller may recover the amount of such compensation as an arrear of land revenue and may, for the purpose of such recovery, exercise all or any of the powers conferred upon a Collector under Chapter XI of the Bombay Land Revenue Code, 1879. (5) Nothing in subsection (1) shall apply in the case of any premises- (a) which being situated within the Municipal limits of the City of Karachi have been specially certified for the purpose of this Act to be in a ruinous or dangerous condition by the Chief Officer of the Corporation. (b) which, being situated in a cantonment, have been so certified to be in an insanitary state or unfit for human habitation by the Cantonment authority, and (c) in respect of which notice has been issued under section 190 of the City of Karachi Municipal Act, 1933, or under section 119 of the Bombay District Municipal Act, 1901, or under section 140 or 142 of the Cantonments Act, 1924. 15. (1) The Central Government may, on an application to be made within thirty days of any order made by the Controller under this Act, call for the relevant record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings, if any, in which the order was made, and may pass such order thereon as it deems fit and may stay the order of eviction pending the hearing and disposal of the matter. (2) The Central Government may, upon application made to it in this behalf, review any order made by it under the preceding subsection and the provisions of Order XLVII in the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to such review. (3) where an application has been made under either of the two preceding subsections, no application by any person in respect of the matters decided by the order of the Central Government under either of those subsections shall be made to the Controller (or if made shall, together with any other made by the Controller in respect of it, be void and of no effect), but any person aggrieved by the order of the Central Government as aforesaid, not being a person who was a party to the applicant first mentioned in this subsection, may make an application to the Central Government for review of such order and the provisions of subsection (2) shall apply to such application. (4) The provisions of Order IX in the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to applications under this section. (5) The Central Government, may, by general or special order direct that the powers conferred on it by subsection (1) shall, subject to such conditions as may be specified in the order, be exercisable by a person not below the rank of a Judge, Small Causes Court". We have reproduced from the Karachi Small Causes Court Act the main portion of the Chapter which relates to the eject ment of tenants from immovable property. This is a special and summary jurisdiction with which the Small Causes Court of Karachi has been invested. It will be observed that the tenant or rather the person against whom an application for ejectment is put in has been granted three remedies against the summary order. In case there is merely an error or irregularity in the proceedings while the applicant is in fact entitled to the possession of the property, the remedy of the opposite party is only for damages in accordance with section

22. If on the other hand the applicant was not on the date when he applied for an order of ejectment entitled to possession of the property the opposite party is not in any way prejudiced and can always take any proceedings to recover possession. This is provided in section 23: At the same time there is a special provision in section 24 that when the opposite party undertakes to file a suit for establishing that the applicant was not entitled to recover possession of the property on the date he put in the application and for compensation for trespass the proceedings in the application under section 18 are to be stayed. The application is by itself regarded as an act of trespass. We proceed now to consider the first point raised, that is, whether the appellant was, on the date on which he applied under section 18, entitled to possession of the property, that is the requirement of sections 23 and 24 of the Karachi Small Causes Court Act. For the purpose of deciding this point we will be assuming that the absence of a certificate under section 10 of the Karachi Rent Restriction Act affects his right to possession so that if he has not a certificate from the Rent Controller in accordance with section 10 of the Karachi Rent Restriction Act he has no right to possession. The question whether the Rent Restriction Act only bars the remedy and does not affect the right is the subject-matter of the second contention of the appellant and will be considered separately. On 5th November 1953 the appellant had with him a certificate from the Chief Judge of the Small Causes Court to the effect that he had-, genuine need of the premises in dispute. The point urged on behalf of the respondent is that as this order was subject to review, and a review had in fact later been filed and had not yet been decided there was no final certificate yet in existence. The review, it is urged, was as yet pending because according to the judgment of a learned Single Judge of this Court the Central Government could not delegate its power to hear a review petition. Section 15 (5) which provides for delegation of powers, refers only to section 15 (1) and not to section 15 (2), and we will assume for the present discussion that the Chief Judge had no jurisdiction to hear the review petition. It is contended that as there was no final certificate as yet in favour of the appellant it could not be said that he was entitled to possession of the shop in dispute on the date when he applied for ejectment. So the simple point is whether the possibility of a review and the subse quent filing of a review and its pendency would affect the force of a certificate. That the mere possibility of a review cannot affect the force of the certificate can be easily demonstrated. We asked learned counsel for the respondent to tell us from which date the certificate obtained by the appellant from the Chief Judge would become effective if it was not effective on 5-11-1953 because it was yet subject to a review. If there was some limitation provided for the filing of a review petition he might have answered (not that we would have accepted it) that the certificate became effective when the period of limitation expired. But there is no period of limitation provided for a review application in section 15 and learned counsel was forced to say that the certificate was effective on 5-11-1953. The only other alternative for learned counsel would have been to say that it never became effective till a review was in fact filed and dismissed. When a decree or order is passed it can be executed at once even though it is subject to appeal review and revision and the time for taking further proceedings has not yet expired. Simi larly, a certificate granted under section 10 of the Karachi Rent Restriction Act becomes effective the moment it is granted. The case of a certificate is in fact stronger than that of a decree or order, for a certificate simply removes the bar placed by law on the exercise of an already existing right. If the possibility of a review does not suspend the force of a certificate, does the actual filing of an application for review have that effect? The filing of an appeal, review or revision against a decree of Civil Court does not operate as stay of proceedings under a decree. With respect to an appeal there is an express provision to this effect in Order XLI, rule 5, C. P. C. and a review or revision is much weaker than an appeal. Though the Appellate Court can stay proceedings under Order XLI, rule 5 it can do so only if substantial injury is proved. In the case of an appeal to the Supreme Court, even if the appeal be only a second appeal, the provision about stay (Order XLV, rule 13) is very stringent and allows a stay of execu tion of decree only in exceptional circumstances. So far as a revision or review is concerned there is no specific provision for a stay although the Court may in the exercise of its inherent jurisdiction order one. No reason exists for applying to a certificate a principle other than that applicable to decrees and orders. So far as review of a certificate is concerned it is hardly a possible argument that the moment a review application is filed the force of the certi ficate is suspended. If after the close of arguments in a suit for ejectment the tenant just put in an application for review under section 15 a decree for ejectment would, on the argument of learned counsel for the respondent, become invalid, though the review was not even brought to the notice of the Court. And till that time should the Court wait for a decision of the review petition ? The subordinate Courts possess no machinery for forcing the Government to decide a review petition. The tenant might get the application for review dismissed for default and then file another and thus endlessly delay proceedings. There is neither authority nor reason for holding that review operates as a stay. There is one matter which should be clarified. If a certificate is reversed on revision or review the reversal would relate back to the date of the certificate. If this was not so the fact that a certificate existed on the date of the application for ejectment would deprive the tenant of the right to attack the ejectment proceeding for, it will be observed, sections 23 and 24 of the Karachi Small Causes Court Act require only that the applicant be entitled to possession on the date of the application, and make him a trespasser only if he was not entitled to possession on that date. When an order is set aside in appeal, revision or review, it is deemed never to have existed except for the purpose of adjusting equities between the parties. Let us state here that after the decision by a single Judge of this Court that the Central Government could only delegate the power to hear the revision, section 15 of the Karachi Rent Restriction Act was amended by President's Order No. XVII of 1956 and a delegation of the power of review was also provided for. After this amendment the Chief Judge again heard the review petition and dismissed it by his order dated 15-3-1958, a copy of which has been placed on file. After the amendment there had been a delegation of power to him to hear review petition. The second contention of learned counsel for the appellant is that even in the absence of a certificate a landlord is a person entitled to possession of the rented property. He urges that section 10 of the Karachi Rent Restriction Act does not take away the right which the landlord has to possession of the rented property on the determination of the lease and only bars the remedy. There is no doubt a clear distinction between the taking away of a right and the barring of a remedy. A right may be intact and yet its enforcement may be barred. It is true that " right " is, by its definition, an interest protected by the law, and normally the law grants a remedy if a right is infringed. But the law provides for conditions for, what may be called, the direct enforcement of rights, that is, when the person who has a right himself approaches the machinery of -justice for its enforcement. The law demands Court fee : it may require registration of the plaintiff or applicant before a suit or applica tion is filed ; it may necessitate the obtaining of a sanction from an authority it may prescribe a notice ; and it may, and in fact generally does provide, a period within which the Court may be approached. Sometimes, the compliance with a condition pre cedent may become impossible as where limitation expires so that the remedy becomes absolutely barred. But in the case of expiry of limitation the disability of the person concerned is not in kind different from that which is due to a firm of having been registered, or sanction not having been obtained, lot not having been served or Court fee not having been paid. The right exists though there is an impediment in the way of its direct enforcement. When the remedy is barred that does not mean that the right is no longer recognised or protected by the law. The law still recognizes the right and protects it though its " direct enforce ment " is barred. I have deliberately used this expression, by which I mean that the person who has the right approaches the Court for its enforcement. The law still grants the right " indirect enforcement ". If a time-barred debt is paid the debtor cannot claim a refund. If a debt owing to an unregistered firm is paid outside Court the payment only discharges the obligation. But the question that arises is whether the provisions of the Karachi Rent Restriction Act simply bar the remedy or whether they affect the right of the landlord to possession. When the law provides that even after the expiry of lease for a fixed period the tenant cannot be ejected unless he does not pay the rent, or that unless the landlord produces a certificate from the Rent Controller that he requires the premises for his own use he is not entitled to sue for possession ; does it place restriction only on the remedy of the landlord? There is no reason for holding that these provisions only place restrictions on the remedy. They are not technical provisions which have to be complied with by the person who approaches the Court. They provide, on the otter hand, that the liability to ejectment of the tenant shall depend on the existence or non-existence of F certain facts. When the grant of relief depends on the existence or non-existence of antecedent facts relating to the matter in respect of which relief is to be granted, it means that the right which is the basis of the relief is itself affected. The clear effect of section 10 is that the landlord has not the right to possession as long as the tenant is ready and willing to pay rent and the circumstances in subsection (2) do not exist. The Karachi Rent Restriction Act affects the contract of tenancy itself. Its effect is to engraft on the contract of tenancy the conditions mentioned in section

10. Trus, this engrafting remains in force only as long as the Karachi Rent Restriction Act is in force. If the Act were repealed the conditions would disappear. But as long as the Act is in force, the rights of the parties are effected. We reject the second contention of the appellant. The third contention of learned counsel for the appellant, too, has little force. Section 24 of the Karachi Small Causes Court Act requires a suit for, compensation for trespass. We reproduce below the relevant portion of that para of the plaint in which relief is specified :- "

17. That the plaintiff prays for the following reliefs.- (d) That it be declared that the defendant has committed a trespass within the meaning of section 23 of the Small Causes Court Act and therefore is liable to pay damages of Rs. 200 to the plaintiff ". Learned counsel for the appellant contends that in this clause only a declaration relating to the liability to pay compensation has been sought and that there is no prayer for a money decree. The clause is not happily worded, but it becomes clear, when we read it along with para. 16 of the plaint, that the plaintiff is risking for a money decree. In para. 16, which is the para relating to valuation, the relief as to compensation is valued at Rs. 200 and Court-fee has been paid on this valuation. In any case, this is a technical objection and considering that the plaintiff has even paid Court-fee for a decree for Rs. 200, we have no hesitation in overruling it. Before this judgment is concluded, we should mention that while learned counsel for the appellant was arguing, learned counsel for the respondent had once interrupted him by saying that the order passed in revision too was without jurisdiction because the Chief Judge had, for the purpose of deciding the revision, inspected the premises and had based his order partly on this inspection. During his own argument however learned counsel for the respondent did not urge this point. We then ourselves called upon him to explain the objection to which he had referred while learned counsel for the appellant was arguing. After hearing him and after going through the record we have decided to give effect to the contention of learned counsel for the appellant that we should not allow this matter to be raised. This was not ground of attack before the trial Court. The validity of the order of the Chief Judge in revision had been conceded by the respondent in the trial Court and the only ground on which he based his claim in the suit was that the review application was as yet pending. As we have held that the appellant was, on the date when he put in his application under section 18 of the Karachi Small Causes Court Act, entitled to possession of the premises in dispute, we accept this appeal and dismiss the suit with costs in both Courts. A.H. Appeal accepted.