1988 PLP 1145 (CLC)

A rent case No. 27/80 was filed before the learned Rent Controller, Cantonments, by respondents No.3 and 4 against the petitioner, in respect of property No.4/42/2, situated in Model Colony, Karachi in respect of which the petitioner was the respondent's tenant. The application was allowed and the petitioner was ordered to be ejected from the demised premises. An appeal was thereafter filed by petitioner before the learned District Judge, Karachi who had been empowered under notification No. 1900/63, published in the Gazette of Pakistan, dated 19‑10‑1963 to exercise appellate jurisdiction under section 24 of the Cantonments Rent Restriction Act (XI of 1963). However, in July, 1985, Karachi was devided into three Districts and consequently, the appeal filed before the learned District Judge, Karachi was transferred to the Court of District Judge (East) Karachi from where it was again transferred to the Court of the Third Additional District Judge, Karachi (East). Thereafter, the appeal proceeded before the learned Addititonal District Judge and was later dismissed on 24‑11‑1986 and hence this petition. The contention of Mr. A.F. Mokarim, learned counsel for the petitioner, is, that the learned Additional District Judge was not competent to hear the appeal and consequently the entire proceedings resulting in passing of the order, under challenge, dated 24‑11‑1986 were coram non judice and the aforesaid order was consequently passed without lawful authority. The argument of Mr. Shaikh Abdul Aziz, learned counsel for the respondents No.2 and 3, on the other hand, firstly is that the learned District Judge was empowered to exercise power under the Code of Civil Procedure and he was, therefore, empowered to transfer the appeal to any Additional District Judge. Reliance has been placed by him on two authorities of the Lahore High Court namely, Muhammad Umar v. Mst. Fatima Begum and 2 others (PLD 1982 Lah. 47) and Muhammad Adalat Khan and others v. Additional Rent Controller and others (P L D 1982 Lah. 616) wherein it was held that the District Judge was competent to transfer appeals to the Additional District Judges under the provisions of the Urban Rent Restriction Ordinance. His second argument, in the alternative is, that since the petitioner himself submitted to the jurisdiction of the learned .Additional District Judge without raising an objection, he cannot raise objection in this respect, now when the Judgment has been passed against him. So far as the contention raised by Mr. A.F.M. Mokarim is concerned, reference to the notification No.1900/63, dated 19‑10‑1963 clearly shows that the same had conferred jurisdiction on the District Judge, Karachi to exercise powers under section 24 of Act X of 1963. The notification reads as under: "No. 1900/63. In exercise of the powers conferred by subsection (1) of section 24 of the Cantonments Rent Restriction Act, 1963 (XI of 1963) the Central Government is pleased to cenfer the following District Judges the powers of an appellate Court under the Code of Civil Procedure 1908 (V of 1908) for the purpose of the said Act and in respect of Cantonment or Cantonments specified against them:‑ x x x x x (1) District Judge, Manora, Karachi, Drigh Road and Karachi. Malir Cantt." Act XI of 1963 is a special statute and as can be spelled out from section 24 of Act XI of 1963, power can be conferred either on a District Judge or an Additional District Judge under the section to hear appeals from orders passed by the Rent Controller, Cantonments. However, as is clear from the notification, dated 19‑10‑1963. That such power was conferred on the District Judge, Karachi and not on any Additional District Judge working under him. It is therefore clear that power was conferred on the District Judge, Karachi as persona designata under the special statute. No doubt both section 24 of the aforesaid Act and the notification issued there under indicate that the District Judge had been vested with all the powers of the appellate Court under Code of Civil Procedure, but such powers clearly related to disposal of appeals by him and not to transfer the same to any Additional District Judge. Mr. A.F.M. Mokarim has further pointed out that after division of Karachi into three districts, no further notification under section 24 of Act XI of 1963 was issued conferring powers under that section on the three District Judges exercising jurisdiction within their respective local limits in Karachi. However, whatever be the case, since the notification in question had not conferred powers on the learned Additional District Judge to hear appeals under section 24 of Act XI of 1963, I have difficulty in agreeing with Mr. A.F.M. Mokarim that the learned Additional District Judge was not competent to hear the appeal. Referring to the two Judgments of the Lahore High Court on which Mr. Shaikh Abdul Aziz has placed reliance, I find that the same are not attracted to the facts of the present case as in the reported case, appeals had been preferred under section 15 of the Urban Rent Restriction Ordinance, sub‑section (2) whereof clearly empowers the District Judge to refer appeals filed before him for disposal to an Additional District Judge. As such was not the case in the present case, the two cases are clearly distinguishable. The contention of Mr. Shaikh Abdul Aziz however, has been that even it assuming that the proceedings before the learned Additional District Judge were without jurisdiction, but since the appellant did not raise any objection to the jurisdiction of the learned Additional District Judge earlier, now when the Judgment has been passed against him, the applicant cannot turn back and plead that the proceedings before the learned Additional District Judge were without jurisdiction. Reliance has been placed by the counsel on a Judgment of the Supreme Court in the case of Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (P L D 1964 SC 829). In that case the Chief Settlement Commissioner would have ceased to possess jurisdiction in the petitioner's case to hear review application if t he petitioner had informed him that he had filed a revision. Later when objection was taken to the jurisdiction of the Settlement Commissioner, it was held by the Supreme Court‑‑ "In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality. If he had succeeded in the review in getting the entire house, transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself." Again in Sardar M.uhammad Ayub v. Pakistan (1969 SCMR 969 (2)) the same view found favour with the Supreme Court once again. Mr. A . F. M . Mokarim has however, relied on the case of Muhammad Sabir v. Additional District Judge II. Rawalpindi (P L D 1979 Lah 353) wherein under identical circumstances a learned Single Judge of the Lahore High Court quashed the order passed by the Additional District Judge as without lawful authority. Although the case of Ghulam Mohi‑ud‑Din (P L D 1964 SC 829) just referred to by me above, was referred to in this Judgment but the same was distinguished on the ground that the appeal had initially been filed by the petitioner before the District Judge who had been duly empowered to decide the same and his act of transferring the appeal to the Additional Ditstrict Judge should not inflict any penalty on the petitioner. The learned Judge was also of the opinion that such being a prevailing practice, no one would ordinarily suspect that the transfer of the case to the Additional District Judge was illegal. For these reasons the learned Single Judge held that the case before him was distinguishable. With utmost respect to the view expressed by the learned Judge in this case, I find no material difference between the facts of the present case and those of Ghulam Mohi‑ud‑din's case decided by the Supreme Court. In both the cases the petitioner appeared before the Forum which had no jurisdiction in the matter. Although objection to the jurisdiction of such Forum could be raised by the petitioner, yet he allowed it to usurp the powers which it did not possess. Therefore, now, when the case has been decided against him, the petitioner cannot be permitted to raise such an objection. For the aforesaid reasons I do not find that the petitioner is entitled to any discretionary relief from this Court under Art. 199 of the Constitution and for such reasons this petition is dismissed. The parties are left to bear their own costs. H . B . T . / A‑235/ K Petition dismissed