1983 PLP 480 (CLC)

This Constitution Petition is directed against the order dated 22‑4‑1980 passed by Extra Joint Civil Judge, Larkana (Respondent No. 2) acting as Rent Controller. By the impugned order the learned Civil Judge had accepted the ejectment application of Respondent No. 2 and directed the Petitioner to vacate the tenement in question and hand over its possession to Respondent No. 1.

2. The main ground on which the order of the Respondent No. 2 has been challenged is that on the relevant date he was not competent to exercise the powers of the Rent Controller in terms of section 2(b) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereafter referred to be as Ordinance of 1959).

3. Section 2(b) of them Ordinance of 1959 defines the "Controller" as a Judicial Officer who is appointed by the Provincial Government to perform the functions of a Controller under the Ordinance of 1959. The main question therefore which falls for determination in this petition is whether on the relevant date i. e. 22‑4‑1980 when the ejectment order was passed by respondent No. 2, the latter was empowered so exercise the powers of a Rent Controller.

4. The first notification under section 2(b) of the Ordinance of 1.959 was issued by the then West Pakistan Government on 12‑3‑1959 whereby all first and second class Civil Judges and Subordinate Judges in West Pakistan except Quetta and Kalat Divisions, were invested with the powers of Rent Controllers. This is Notification No. H. G.‑10‑2/59, dated 12‑3‑1959 of West Pakistan Government. Thereafter on 6‑11‑1963 another notification was issued by the then West Pakistan Government in continuation of the first notification, whereby "all 3rd Class Civil Judges and Subordinate Judges in West Pakistan except Quetta and Kalat Divisions" were invested with the powers of Rent Controllers. On 1‑4‑1964 yet another notification was issued under the Ordinance of 1959 "investing all first and second class Civil Judges in West Pakistan except Kalat Division" with powers of Rent Controllers. This notification specifically superseded the first notification dated 12‑3‑1959. Butthere is no specific reference therein to the supersession of the second noti fication dated 6‑11‑1963 referred to above. The last notification, which still holds the field, was issued by the Provincial Government on 21‑12‑1964. In order to appreciate the arguments of the learned counsel for the parties it would be appropriate to reproduce this Notification. It runs as under :‑ No. Judl‑1‑17(4)/59.‑In pursuance of the provisions of clause (b) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (West Pakistan Ordinance VI of 1959) and in supersession of Govern ment of West Pakistan, Home Department Notification No. JudlI‑17(4)/59, dated the 25th March, 1964 (appointing certain officers to perform the functions of Controllers under the said Ordinance), the Governor of West Pakistan is pleased to appoint the following Officers to perform the functions of Controllers under the said Ordi nance in the Urban areas within the limits of their respective civil jurisdiction. (i) all First and Second Class Civil Judges in West Pakistan, except Kalat Division, (ii) all Nazims (Magistrates First Class) in Kalat Division.'

5. From the above notification it would appear that only First and Second Class Civil Judges in the province were competent to act as Rent Controllers under the Ordinance of 1959. The learned counsel for Respon dent No. 1 has argued that the last notification does not have the effect of superseding the 2nd notification i. e. of 6‑11‑1963 referred to above which vested even third Class Civil Judge with the powers of Rent Controllers.

6. A reading of the second notification will show that "all third Class civil Judges and Subordinate Judges in West Pakistan" were intended to bed invested with the powers of Rent Controllers. The words "Subordinate Judges "include Civil Judges of all classes. Hence if the intention under lying the last notification were to continue the powers of Third Class Civil Judges to act as Rent Controllers, then a fresh notification conferring powers on First and Second Class Civil Judges would not have been necessary at all. We are of the view that the last notification dated 21‑12‑1964 had the effect of superseding all previous notifications in respect of powers of Civil Judges as Rent Controllers. The conclusion therefore is that on 22‑4‑1980 when the ejectment order was passed by the respondent No. 2, only First and Second Class Civil Judges were empowered to act as Rent Controllers. This Court had sent for comments of the respondent No. 2. on the question whether on the above date he was invested with the powers of Second Class Civil Judge. The particular Judge who had passed the ejectment order was Mr. Muhammad Ishaq Memon. The comments of Respondent No. 2 in respect of powers of Mr. Muhammad Ishaq Memon are on record from which it transpires that Mr. Muhammad Ishaq Memon was Third Class Civil Judge on 22‑4‑1980 because he was invested with the powers of Second Class Civil Judge by the High Court relevant date, by Notification dated 17‑7‑1980.

7. The learned counsel for the respondent does not dispute the point that on the relevant date Respondent No. 2 was Third Class Civil Judge. His contention mainly was that even Third Class Civil Judges were competent to exercise powers of Rent Controller by virtue of Notification dated 6‑11‑1963. We have already held that the last Notification of December, 1964 shall have the effect of superseding, by implication, all previous notification in this behalf, notwithstanding the fact that the previous notifications have not been specifically referred to therein.

8. In view of the above finding the ejectment order passed by Respon dent No. 2 on 22‑4‑1980 is null and void having been passed by a Court which bad no jurisdiction to pass such an order. No case law need be cited to set aside an order which is coram non judice. The impugned order is, therefore, liable to be set aside on the above ground and is hereby set aside. The petition is allowed with no order as to costs. M. Y. M. Petition allowed.