P L D 1969 Karachi 546 (PLP)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 (6) & IS‑Order for deposit of rent‑Interlocutory in nature‑Terminates and becomes ineffective with decision of main application under S. 13 by Controller‑Order cannot be invoked during appellate proceedings to strike off tenant's defence‑Appellate authorities competent, however, to make fresh order for deposit of rent‑Such order of deposit by appellate authority may be made on date when appeal admitted to regular hearing or as soon thereafter as possible but before final hearing of appeal. Where the question was whether an order for deposit of rent under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 continues to survive the decision of main appli cation itself by the Controller so that such an order remains alive and in effect even during appeal proceedings: Held, the only reasonable construction of the provisions of section 13 of the Ordinance is that the order for deposit of rent does not survive the conclusion of the eviction proceedings before the Controller and that such an order either exhausts itself when the main proceedings conclude before the Controller or becomes merged in the order by which rent is finally determined and direction is made for payment of this rent by the tenant to the landlord, either under the second part of section 13 (6) or under subsection (8). The order for deposit of rent under section 13(6) of the Ordinance does not survive the conclusion of the proceedings before the Controller whether these proceedings terminate by the tenant's defence being struck off, or by order of eviction, or by dismissal of the landlord's application for evic tion of the tenant. The order for deposit of rent, being in the nature of an interlocutory order, exhausts itself with the conclu sion of these proceedings or becomes merged in the order which contains the final determination of rent and direction for its payment to the landlord, which order is made either under part 2 of section 13 (6) or under subsection (8). Thus, the order for deposit of rent made by the Controller cannot be invoked during the appellate proceedings under the Ordinance to strike off the tenant's defence The appellate authorities will have to make a fresh order for deposit under section 13 (6) of the Ordinance. An appellate authority under that Ordinance should make the order of deposit either on the date when the appeal is admitted to regular hearing, or as soon thereafter as possible, but before proceeding with the final hearing of the appeal. Qazi Qahir Khan v. Abdullah Jan and others P L D 1963, Quetta 21; Muhammad Hussain and another v. Mehraj Din and another P L D 1965 Lah. 179; D. Lobo v. Sh. Muhammad Zaki P L D 1967 Lah. 194; Ghulam Rasool Khan and others v. Jamshed Dubash and another Second Appeal No. 220 of 1966 and Major Feroze Din Khan and others v. Sh. Muhammad Amin P L D 1967 Lah. 966 ref. Appeal is continuation of original proceed ings‑But mere presentation of appeal would not suspend or interrupt original decree or order. When an appeal is filed the matter becomes sub judice and is reheard afresh by the appellate Court, which does not act merely as a Court of error, and the original and appellate proceed ings are steps in one proceedings. However, the argument that as soon as an appeal is filed the order of the original tribunal is rendered ineffective and inoperative, so as not to be deemed to be in existence at all would be based on erroneous assumption. The rule is well recognized that mere pre sentation of an appeal would not suspend or interrupt the original decree or order though, of course, this rule is subject to the further rule that when an appeal is presented the appellate tribunal has seisin of the whole case. But this is quite different from saying that the original order ceases to exist as soon as an appeal is preferred there‑against. Juscurn Boid v. Pirthichand Lal Choudhry A I R 1918 P C 151; F. A. Khan v. The Government of Pakistan P L D 1964 S C 520 and The Province of East Pakistan v. Muhammad Hussain Mia P L D 1965 S C 1. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15, Explanation‑Mention of Part VI of C. P. C. in Explanation‑

A mistake or misprint‑

What is intended is to incorporate Part VII, C. P. C. The mention of Part "VI" in the Explanation to section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 is based on a mistake or a mis‑print. Part VI contains supplemental proceedings to enable the Court to issue warrants for arrest of the defendant, to give direction to the defendant to furnish security, to grant temporary injunctions, to make other interlocutory orders and to make orders for payment of compensation in case where arrest, attachment or injunction was applied for on insufficient grounds or where the suit was instituted without reasonable or probable cause. Part VI of the Code is followed by Part VII, which contains sections 96 to 112, making provisions with regard to appeals. Now, the Explanation in section 15 of the Ordinance deals wholly with appeals against the orders of the Controller. The mention of Part VI of the Code in the Explanation does not seem to have any justification. What the Legislature, intended was to incorporate the provisions of Part VII of the Civil‑Pro cedure Code in section 15, because it is this part which contains provisions as to appeals under the Code of Civil Procedure. One should therefore read in the Explanation "Part VII" for "Part VI" quite justifiably as otherwise the mention of Part VI in the Explanation would be incapable of any meaning. That the Court is competent to correct this kind of mistake is now a judicially accepted rule. (d) Interpretation of statutes‑ Mistake in statute committed by Legislature‑Court competent to correct. Statute Law, 6th Edn., pp. 520 and 521; Lyde v. Barnard (1836) I M & W 101; Green v. Wood (1845) 7 Q B 178 and R. v. Wilcock (1845) 7 Q B 317 ref. (e) Interlocutory order--‑ Interim order exhausts or becomes merged in final order made in case. Ramchand v. Pitam Mal and another I L R 10 All. 506 and Malik Taj‑ud‑Din Ahmad v. Dr. Muhammad Abdul Shakoor P L D 1962 Lah. 175 ref. (f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 (6)‑Expression "till the final decision of the case"‑ Means final decision of case by tribunal of first instance i.e. Controller himself and does not mean decision which emerges after remedies by way of appeals exhausted. Chunnikaur v. Dwarkaprasad 1887 All. W. N 297; Mohini Mohan Misser and others v. Surendra Narain Ningh and others A I R 1915 Cal. 173; Ayissa Umma and others v. Puthiyapurayil Kannachamkandi and Abdullah and others A I R 1924 Mad. 178; Bal bhaddar v. Balm and others. A I R 1930 All. 387 (2); Khushi Rant and another v. (Firm) Mukat Behari Lal Taj Pak and others A I R 1935 La h. 718; Madho Prasod and others v. Draupadi Bai A L R 1921 All. 99; kamchand v. Pitam Mal and another I L R 10 All. 506 and Dular Singh v. Ram Chander and another A I R 1934 All.

165. Second Appeal No. 334 of 1966 Second Appeal No. 493 of .1966. Second Appeal No. 620 of 1966 Mohd. Halim, Assistant Advocate‑General and Naimuddin Amicus curiae. JUDGMENT NOORUL ARFIN, J.‑

These three second appeals under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), hereinafter referred to as "the Ordinance" have been referred to this Division Bench by the order of my Lord the Chief Justice made on 15‑1‑1918. The appeals raise a common question of law, namely, whether an order for deposit of rent made by the Controller under section 13(6) of the Ordinance does not terminate or exhaust itself with the Controllers decision of the main application under section 13 but continues to be effective until remedies by way of appeal come to a final conclusion.

2. Before discussing this question, the brief facts of each of the three appeals may be stated: Second Appeal 334 of 1966 (Roshan Din v. S. M. Badruddin) is with regard to flat No. 2 in the building known as Kashana‑e‑Badar, Teja Street, Bohra Pir, Karachi. The landlord of the building sought eviction of the tenant on the ground of the latter's default in payment of rent and the landlord's requirement of the flat for his personal use. On 16‑4‑1965 the Controller made an order for deposit of rent under section 13(6) of the Ordinance. On 27‑8‑1965, an order of eviction was made against the tenant on merits. This order was challenged before the first appellate authority in appeal by the tenant who, however, remitted rent of the flat to the landlord by money orders, one of which sent on 13‑9‑1965 and the other on 15‑10‑1965. The landlord refused to accept these remittances, on 7‑12‑1965 the tenant deposited Rs. 162 in the office of the Controller on account of arrears of rent due from him. But on 12‑7‑1966 the first appellate authority, on the landlord's application, struck off the tenant's defence on the ground that he had failed to deposit the monthly rent in accordance with the Controller's order dated 16‑4‑1965. In Second Appeal 493 of 1966, the premises in dispute is a shop bearing No. A/679, situated in Dhan Mandi, Station Road, Matli. An order for deposit of rent was made in this case under section 13(6) of the Ordinance on 31‑8‑1964. On 31‑5‑1965 the landlord's application for eviction was accepted and the tenant was directed to quit and vacate the disputed shop. This order was taken‑in appeal by the tenant before the Additional District Judge, who struck off .the tenant's defence by order dated 6‑10‑1966, on the ground that the tenant had failed to deposit monthly rent as required by the Controller's order made under, section 13(6) of the Ordinance. Second Appeal 620 of 1966 is with regard to the building known as Zainab Manzil, situated in Fatima Jinnah Colony; Karachi. The landlady sought the tenant's eviction on the ground of her personal requirement and the tenant's default to payment of rent. The order for deposit under section 13(6) of the Ordinance was made in this case on 20‑2‑1963. The main application for ejectment, however, was dismissed by the Controller on 29‑11‑1965, whereupon the landlady went in appeal before the first appellate authority. On 25‑11‑1966 the first appellate authority struck off the tenant's defence on the ground that he had not complied with Controller's order made under section 13(6) of the Ordinance during the period from the date of the dismissal of the landlady's application for ejectment and the service on the tenant of the notice of appeal filed by the landlady.

3. Thus in all the three cases, the question at issue is, whether an order for deposit of rent under section 13(6) of the Ordinance survives to decision of the main case itself by the Controller, so that such order continues to be in effect even during the appellate proceedings, in which case if the tenant makes default in continuing to deposit rent in accordance with such order, his defence is liable to be struck off by the appellate authorities.

4. The view that the order for deposit of rent survives the decision of the main case is sought to be supported by two arguments, that is: (i) that the appellate and original proceedings are steps in the same proceedings, and when an appeal is filed the matter is re‑heard, and then the only operative order is that of the appellate tribunal; and (ii) that the expression "final decision of the case" in section 13(6) of the Ordinance means the decision which emerges after remedies by way of appeal have been exhausted. On the other hand, the contention of Mr. Mohammad Haleem, the learned Assistant Advocate‑General and Mr. Naimuddin (who both were called upon to assist the Court as amicus curiae in view of the general importance of the question at issue), with whom the learned Advocates who appeared for the tenants agreed, was that the order for deposit of rent is in the nature of an interim or interlocutory order, and such order either exhausts itself on the decision of the main case by the Controller or, alternatively, merges in the final order for payment which is required to be made .either under the second part of section 13(6), of the Ordinance or under subsection (8) of this section. Mr. Naimuddin in particular supported this view by referring to several decisions, which I will discuss latter, given under the analogous provisions of the Code of Civil Procedure.

5. The question whether the order for deposit of rent made under section 13(6) survives the decision of the main case by the Controller, has come up for consideration in several cases, the judgments in which were pressed before us by the learned Advocates who appeared in these cases on behalf of the landlords. These cases are Qazi Qahir Khan v. Abdullah Jan and others (P L D 1963 Quetta 21), Muhammad Hussain and another v. Mehraj Din and another (P L D 1965 Lah. 179), D. Lobo v. Sh. Muhammad Zaki (P L D 1967 Lah, 194) and the unreported decision in Second Appeal 220 of 1966 (Ghulam Rasool Khan and others v. Jamshed Dubash and another). The decision in the first case is that of Nazir Ahmed Mahmood, J., who held that the requirement of section 13(6) of the Ordinance that the tenant should deposit the monthly rent till the final decision of the case means that the order of the Rent Controller would continue to be operative until the case is finally decided by the appellate authorities. In Muhammad Hussain and another v. Mehraj Din and another the order of the Controller refusing to strike off the tenant's defence was challenged in appeal which was accepted by the First Appellate Authority, who struck off this defence. It was held by the High Court that the power of the Controller to strike off the tenant's defence for his failure to comply with the order for deposit made under section 13(6) is available to the appellate authorities by reason of the provisions of section 15(1)(b) of the Ordinance, read with Order XLI, rule 33 of Civil Procedure Code. In D. Lobo v. Sh. Muhammad Zaki it was held that an appal under section 15 of the Ordinance is a continuation of the original proceedings brought under section 13, and accordingly the tenant's defence can be struck off by the appellate authority in appellate proceedings, even if the appeal is that of the landlord and is directed against the dismissal of his eviction application, if there is failure to deposit rent during the appellate proceedings in accordance with the Controller's order made under section 13(6). Here reference may be made to another decision, namely, Major Feroze Din Khan and others v. Sh. Muhammad Amin (P L D 1967 Lah. 966), in which my brother Mohammad Akram, J. took the view that the order of the Controller directing deposit of rent under section 13(6) could not be invoked in appellate proceedings against the dismissal by the Controller on the landlord's application for ejectment. My brother considered the effect of the decisions in Qazi Qahir Khan v. Abdullah Jan and Muhammad Hussain and another v. Mehraj Din and another. The latter case was held to be not applicable to the question at issue, as what was decided there was only this, that the appellate authority has the same powers as the Controller to make such orders as may be necessary. The Quetta cases was distinguished on the ground that Nazir Ahmed Mahmood, J., was dealing in that case with quite a different situation, that is, that the case had gone back on remand to the Controller, when the power to strike off the tenant's defence was exercised by the Controller for the tenant's failure to comply with the order for deposit made before the case went in appeal. All these decisions came up for consideration before my learned brother Qadeeruddin Ahmed, J., in Second Appeal 220 of 1966 (Ghulam Rasool Khan and others v. Jamshed Dubash and another), who agreed with the view taken by Nazir Ahmed Mahmood, J. in the Quetta case and that of Mushtaq Hussain, J. in D. Lobo v. Sh. Muhammad Zaki and justified this view on the ground that an appeal ordinarily reopens the whole case before the appellate tribunal and is therefore only a continuation of the original proceedings. Referring to the situation where the landlord's application for ejectment is dismissed, and the tenant is not aware of the institution of the appeal against this dismissal, the learned Judge observed that in such cases the tenant may be excused for failure to deposit rent for such time as he has no notice of the appeal on considerations of "equity" and "justice".

6. The view that the order for deposit of rent made by the Controller under section 13(6) of the Ordinance can be invoked even during the appellate proceedings has further been sought to be supported before us on the strength of two decisions of the Supreme Court, namely, F. A. Khan v. The Government of Pakistan (P L D 1964 S C 520) and the Province of East Pakistan v. Muhammad Hussain Mia (P L D 1965 S C 1). In F. A. Khan v. the Government of Pakistan, it was held by their Lordships that when an appeal is filed the matter becomes sub judice and is reheard afresh by the appellate A Court, which does not act merely as a Court of error, and that the original and appellate proceedings are steps in one proceedings. The same view was reiterated in the later decision, the Province of West Pakistan v. Muhammad Hussain Mia. But the arguments which proceeded before us on these decisions appeared to assume that as soon as an appeal is filed the order of the original Tribunal is rendered ineffective and inoperative, so as not to be deemed to be in existence at all. In my opinion, this assumption is based on an erroneous appreciation of the Supreme Court's decisions. What their Lordships held was only that an appeal is a re‑hearing of the case and the original order becomes merged in the appellate order. It has not been held by their Lordships that the original order should be deemed to be inoperative altogether on the filing of an appeal there against. The rule is well recognized in our legal system that mere presentation of an appeal would not suspend or interrupt the original decree or order. See Juscurn Bold v. Pirthichand Lal Choudhry (A I R 1918 P C 151), though, of course, this rule is subject to the further rule that when an appeal is presented the appellate tribunal has seisin of the whole case. But this is quite different from saying that the original order ceases to exist as soon as an appeal is preferred there against.

7. Before considering the effect of the words "final decision of the case" used in section 13(6) of the Ordinance, it would be convenient to examine the scheme of section 13 itself. Sub sections (1), (2) and (3) provide that a tenant shall not be evicted from a building or rented land except in accordance with the provisions contained in subsections (2) and (3). Under subsection (4), the Controller is empowered to make an order for restoration of possession to the tenant of the building or rented land from which he has been evicted on the ground of the personal requirement of the landlord or any of his children, if the building or rented land is occupied neither by the landlord nor by any of his children within one month from the date of obtaining possession, or, if so occupied, the same is re‑let within two months of he said date. Subsection (5) makes the landlord liable to the penalty of imprisonment or fine if, having obtained possession of the building for demolition and re‑construction, he does not do so within stipulated period, and in such an event, under subsection (5‑A), the Controller is further empowered to make an order for restoration of the possession of the building to the tenant. Under subsection (5‑B), power is conferred on the controller to mike an order that the landlord should give to the tenant a portion in the new building equal in area to the portion in the old building from which the tenant was evicted to enable the landlord to construct a new building. Then comes sub section (6), which being of material importance in the proceedings before us, I would re‑produce in full: Subsection (7) makes the landlord liable for payment of compensation if it is found that his application for eviction is frivolous or vexatious. This subsection is followed by subsection (8), which again is of importance to the present proceedings and therefore is reproduced here in full: "The rent deposited by the tenant under this section shall, subject to the final determination of rent as payable by the tenant, be paid to the landlord at the conclusion of the proceedings or on such earlier date as may be specified by the Controller."

8. The provisions of section 13 of the Ordinance which require consideration are the second part of subsection (6) and subsection (8). Under the first provision, the Controller is empowered to finally determine the amount of rent due from the tenant and to direct payment of this amount to the landlord. This provision is preceded by the provision whereby the Controller is enabled to strike off the defence of the tenant for his failure to deposit rent under section 13(6). Under sub section (8), it is provided that at the conclusion of the proceedings (or at such earlier date as may be specified by the Controller), the rent deposited by the tenant shall, subject to final determina tion as to its quantum, be paid to the landlord. The second part of subsection (6) was introduced by the West Pakistan Urban Rent Restriction (Amendment) Ordinance (XXX of 1960). A question was raised that this provision is relatable both to the stage at which the tenant's defence is struck off, as well as to the stage when the proceeding for the tenant's eviction come to a conclusion. This suggestion is not without force, and it may be that the Legislature, by bringing this particular provision, intended to provide for the final determination of the rate of rent its amount and its payment to the landlord at the conclusion of the proceedings, whether the proceedings, conclude when the tenant's defence is struck off or when the main case is itself decided by the Controller. However, it is not necessary in these proceedings to express any final opinion on this point. I will proceed on the assumption that the second part of subsection (6) comes into operation when the tenant's defence is struck off for failure to deposit rent as directed by the Controller, and that subsection (8) relates to the stage when the main case itself concludes. Now, if the tenant's defence is struck off for failure to comply with the order of deposit made under section 13(6) of the Ordinance, then this by itself does nut put to an end to the proceedings before the Controller. He has to proceed further: in that under the second part of subsection (6), he has to finally determine the amount of rent payable by the tenant and make an order directing the tenant to make payment of the rent so determined to the landlord. If an order to this effect is made, then the order for deposit of rent under the first part of subsection (6) becomes ineffective. This order of deposit, in effect, can be said to have merged in the order by which the Controller finally determines the amount of rent payable by the tenant and directs him to make payment of this amount to the landlord. Likewise, when the main case under section 13 comes to conclusion, either by an order for eviction or by dismissal of the landlord's application in this behalf, the Controller has to make a further order, that is, he has in such a case also to determine the rent payable by the tenant, and subject to this determination, to make an order that the rent deposited under subsection (6) should be paid to the landlord. The order for deposit of rent would again become merged in the final order of the Controller for payment of rent. That this is so, should become clear if two situations are taken into consideration. It will be noted that if there is dispute with regard to the rate of rent, then under section 13(6) the Controller fixes the approximate rent which the tenant is required to deposit every month under this provision. Suppose, in a case the approximate rent is fixed at Rs. 100 per month, but at the stage when the tenant's defence is struck off, or at the stage when the eviction proceedings come to a conclusion, the Controller makes a final determination of the rate of rent either under the second part of subsection (6), or under subsection (8), and this final determination is, at Rs. 50 per month. Under either of these provisions an order will have to be made for payment of rent to the landlord at this rate. Now if the case is taken in appeal, whether by the landlord or by the tenant, at what rate the rent should be deposited by the tenant during the continuation of the appellate proceedings at the rate of Rs. 100 per month, which has only an approximate determination of rent under the first part of subsection (6), or at the rate of Rs. 50 per month, which is the final determination of the rent either under the second part of subsection (6) or under subsection (8). The second situation may be like this the application for eviction is dismissed and is challenged in first appeal by the landlord; this first appeal is dismissed summarily, and the second appeal to the High Court also meets the same fate; the landlord's application for grant of a certificate under clause 10 of the Letters Patent for a further appeal to the Division Bench is also rejected, and ultimately the landlord takes the case to the Supreme Court, where he may be granted special leave to appeal. All these proceedings may continue for several months, without the tenant being at all aware of the same. This situation was visualised by two learned judges of this Court. In Major Feroze Din Khan and others v. Sh. Muhammad Amin, Mohammad Akram, J., took the view that the power to strike off the defence under section 13(6) of the Ordinance could not be invoked after the dismissal of the landlord's application for ejectment, as it would be illogical to take such action after the tenant's stand has been vindicated before the Controller, and that the argument that the appellate proceedings are continuation of original proceedings cannot be invoked to support the contention that the appellate authority can ignore the final order of the Controller on the merits of the case. In the unreported decision in 11 Appeal 220 of 1966 (Ghulam Rasool Khan and others v. Jamshed Dubash and another) Qadeeruddin Ahmed, J., dissented from this view, though he was conscious of the difficulty involved in accepting the contention that the order for deposit of rent would continue to be effective during the appellate proceedings, notwithstanding the dismissal by the Controller of the landlord's application for ejectment. For such a situation, my learned brother suggested that the tenant should commence depositing rent on receipt by him of the notice of appeal, and that the omission of the tenant to make this deposit during the period between the date of the dismissal of the ejectment application and the date on which he receives notice of the appeal may be excused on grounds of "equity and justice". But a question was raised that if the law is that the obligation of the tenant to deposit rent under section 13(6) of the Ordinance under the order of the Controller continues to be in effect, even after the conclusion of the proceedings before the Controller, whether by dismissal of the application for eviction or otherwise, then on what principle considerations of equity and justice can be imported to relieve the tenant of this obligation, which is based on a statute. I find it difficult to answer this question. If the two situations I have referred are kept in mind, then the view that the order for deposit of rent made under section 13(6) of the Ordinance survives the conclusion of the proceedings before the Controller would lead to illogical results. In my view, the only reasonable construction of the provisions of section 13 of the Ordinance is that the order for deposit of rent does not survive the conclusion of the eviction proceedings before the Controller and that such an order either exhausts itself when the main proceedings conclude before the Controller or becomes merged in the order by which rent is finally determined and direction is made for payment of this rent by the tenant to the landlord, either under the second part of section 13(6) or under sub section (8).

9. An attempt was made to support the contention that the order for deposit of rent survives the conclusion of the eviction proceedings before the Controller by two further arguments, that is, (i) that the first proviso to subsection (2) of section 15 requires that no stay order shall be made by the appellate authority "in respect of the payment or deposit of rent determined by the Controller"; and (ii) that if it was held that the order for deposit did not survive the conclusion of the eviction proceedings, then there is no provision in the West Pakistan Urban Rent Restriction Ordinance, 1959 by which the tenant may be required to deposit monthly rent during the appellate proceedings. The first argument is based on misreading of the relevant proviso. Every order under section 13, including orders under subsections (6) and (8), are made appealable under section 15 of the Ordinance. The first proviso to section 15(2) deals with two kinds of orders. One is the order made under section 13(8) or under the second part of subsection (6). Such an order is either proceeded by the Controller's decision of the main proceedings or by an order striking off the tenant's defence. If the appeal is directed against the final determination of rent and direction for its payment, or against this order and the decision of the main proceedings or order striking off the tenant's defence, then under the proviso the Controller's direction for payment shall not be stayed except on conditions contained in the second proviso to section 15(2). In such cases, stay of the order of deposit does not arise, as this order is not in existence, having exhausted itself or having become merged in the order for payment of rent made under the second part of subsection (6) or under subsection (H). The second order envisaged by the first proviso is the order for deposit of rent, and this order itself being appeal able, the proviso requires that it will not be stayed except again, subject to the conditions contained in the second proviso. Thus, when the first proviso says that no stay of the order of deposit will be made by the appellate authority, then this direction is only with reference to an appeal against the order of the Controller for deposit of rent under section 13(6) of the Ordinance, and not with reference to the order made at the conclusion of the proceedings before the Controller.

10. As regards the second argument, every one agrees that an appeal is a continuation of the original proceedings. This is the rule which now finally prevails in view of the Supreme Court decisions referred to above, that is, F. A. Khan v. The Government of Pakistan and Province of East Pakistan v. Muhammad Hussain Mia. With regard to the proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, if an appeal is continuation of the original proceedings, then the appellate authority has the same powers as the original tribunal itself, and in cases under the West Pakistan Urban Rent Restriction Ordinance, 1959, the appellate authority would, therefore, have, like the Controller, power to make an order for deposit of rent. This Court has already held in Muhammad Hussain v. Mehraj Din and another that Order XLI, rule 33 of the Code of Civil Procedure has been made applicable to proceedings in appeal under section 15(1)(b) of the Ordinance, and accordingly the appellate tribunal is empowered to make any order which the original tribunal itself could make. The main judgment in this case was given by Yaqub Ali, J., (who is now Judge of the Supreme Court) and perhaps his Lordship's view rested on the Explanations which is inserted in section 15 after subsection (4). It is no doubt correct that this explanation refers to appeals to the High Court under the preceding section, that is, subsection (4). But I would respectfully accept the view taken in this case that provisions relating to appeal contained in Order XLI of the Civil Procedure Code are equally applicable to first appeals before the District Judge or the Additional District Judge under section 15(1)(b) of the Ordinance. But then a question was raised whether rule 33 of Order XLI would in terms apply to the appellate proceedings, so as to enable the appellate authority to wake au order for deposit of runt. The Explanation in section 15 makes applicable to the appellate proceedings not only the provisions as to appeal contained in the First Schedule to the Code of Civil Procedure, but also "Part VI" of the Code. In my opinion, the mention of Part "VI" in the Explanation is based on a mistake or a mis‑print. Part VI contains supplemental proceedings to enable the Court to issue warrants for arrest of the defendant, to give direction to the defendant to furnish security, to grant temporary injunctions, to make other interlocutory orders and to make orders for payment of compensation in case where arrest, attachment or injunction was applied for on insufficient grounds or where the suit was instituted without reasonable or probable cause. Part VI of the Code is followed by part VII, which contains sections 96 to 112, making provisions with regard to appeals. Now, the Explanation in section 15 of the Ordinance deals wholly with appeals against the orders of the Controller. The mention of Part VI of the Code in the Explanation does not seem to have any justification. What the Legislature, in my opinion, intended was to incorporate the provisions of Part VII of the Civil Procedure Code in section 15, because it is this part which contains provisions as to appeals under the Code of Civil Procedure. I would therefore read in the Explanation "Part VII" for "Part VI" and I would be justified in doing so, as otherwise the mention of Part VI in the Explanation would be incapable of any meaning. That the Court is competent to correct, this kind of mistake is now a judicial accepted rule. I may refer to three English decisions which have been cited in Craies on Statute Law (6th Edition, pp. 520 an 521). In Lyde v. Barnard ((1836) I M & W 101) Lord Abinger rejected the word "upon" in section 6 of the Statute of Frauds Amendment Act, 1828 as "non‑sensical". In the same case Parks B. observed "We must make an alteration in order to complete the sense and must either transpose some words or interpolate others". In Green v. Wood ((1845) 7 Q B 178) the Court read the words "execution issued" in the Warrants of Attorney Act, 1822. In R. v. Wilcock ((1845) 7 Q B 317 338) the Statute under consideration was the payment of Workmen's Wages Act, 1818, which in part repealed several Acts described by their titles and dates. Among these was an Act of 13th Geo. 3, but agreeing in title with 17th Geo. 3,

56. Lord Denman said‑ "A mistake has been committed by the Legislature; but having regard to the subject‑matter and "looking to the mere contents of the Act itself, we cannot doubt that the intention was to repeal the Act of 17 Geo. 3, and that the incorrect year must be rejected."

11. I have said that the order for deposit of rent made under the first part of section 13(6) of the Ordinance exhausts itself on the conclusion of proceedings before the Controller or becomes merged in the order which finally determines the rent and directs the tenant to pay this rent to the landlord, which order is made either under the second part of subsection (6) or under subsection (8). I have based my view on the provisions of section 13 of the Ordinance itself. But independently of this section the rule is well recognised that interim or interlocutory orders exhaust themselves or become merged in the final orders made in the case. I derive support for this view from the judgment of Mahmood, J. in Ramchand v. Pitem Mal and another (I L R 10 All. 506) to which I will advert in detail shortly. Reference may have to be made to the decision of a Division Bench of this Court also Malik Taj‑ud‑Din Ahmad v. Dr. Muhammad Abdul Shakoor (P L D 1962 Lah. 175), in which the Landlord's application for eviction was dismissed and in appellate proceedings instituted by the landlord, the appellate authority truck of the tenant's defence for two defaults made in deposit of monthly rent during the pendency of the proceedings before tile Controller. Yaqub Ali, J., held that the order for deposit, being an interim order, exhausted itself when the Controller made the final order dismissing the landlord's application.

12. Much argument before us turned on the following words in section 13(6) of the Ordinance. "to deposit regularly till the final decision of the case, before the 15th day of each month, the monthly rent due from him." It was contended that the words "final decision" mean the final decision of the case by the appellate authorities, and support for this argument was taken from the several decisions referred to above, in which it has been held that an appeal is a rehearing of the original case. Similar question has come up for the consideration of the Courts from time to time with regard to orders of attachments before judgment and temporary injunctions under Orders XXXVIII and XXXIX of the Civil Procedure Code. I will first take up the cases in which the question of the duration of temporary injunction has been considered, that is, whether such injunction survives the decision of the suit by the Court of first instance. The first case in point is Chunnikaur v. Dwarkaprasad (1887 All. W N 297), in which it was held that a temporary injunction comes to an end on the termination of the suit before the original Court. The High Court of Calcutta held in Mohini Mohan Missar and others v. Surendra Narain Singh and others (A I R 1915 Cal. 173) that in a suit for perpetual injunction, a temporary injunction granted by the Court is ipso facto dissolved by a decree of the Court granting a perpetual injunction. The Madras High Court held in Ayissa Umma and others v. Puthiyapurayil Kannachamkandi Abdullah and others (A I R 1924 Mad. 178) that an injunction granted pendente lite until the disposal of the suit or until further orders will and in any case on the disposal of the suit before the original Court. The Allahabad High Court followed this view in the decision in Balbhaddar v. Balla and others (A I R.1930 All. 387(2)). In this case the plaintiff had sued the defendant on a simple money bond and at the same time applied for an injunction under Order XXXIX, rule 1, Civil Pro cedure Code, restraining the defendant from transferring his house. This injunction was granted and the suit was decreed on the same that is, 18th of August 1926, on the next day, the 19th of august the defendant transferred the house to another creditor. It was argued that this transfer, in view of the temporary injunction granted by the Court, was null and void. This argument wits rejected and the High Court held that a temporary injunction does not extend beyond the date of the decree given by the trial Court. The Lahore High Court also has taken the same view in Khushi Ram and another v. (Firm) Mukat Behari Lal Taj Pak and others (A I R 1935 Lah. 718). In this case a security bond was given for the purpose of vacating the temporary injunction granted under Order XXXIX, rule 1, Civil Procedure Code. The question arose as to whether this bond enured for the benefit of the decree‑holder so as to enable him to enforce the decree of the appellate Court against the surety. It was held that an injunction issued under Order XXXIX, rule 1 subsists only until the disposal of the suit, or until further orders, and that the words "until further orders" merits not beyond the suit but ending with the disposal of the suit, and "a fortiori" a security bond given for vacation of such injunction also would not subsist beyond the disposal of the suit, nor would this bond be revived as soon as a decree was made by the appellate Court in the plaintiff's favour. These decisions are of considerable importance, Order XXXIX, rule 1, Civil Procedure Code, provides that the temporary injunction will remain in effect "until the disposal of the suit or until further orders". The disposal of the suit has been held to mean the decision of the Court of the first instance and so far as I have been able to find out, the proposition has not been accepted by the Courts that as the appeal is the re‑hearing of the whole suit and that the suit and the appeal are steps in the same proceedings, interlocutory orders in the nature of temporary injunction granted by the trial Court would remain in operation during the appellate proceedings also. It was said that Order XXXIX, rule 1, C. P. C. does not use the word "final" before the words "disposal of the suit", unlike section 13(6) of the Ordinance, which use the words "final deci sion of the case". In my opinion the absence of the word "final" in Order XXXIX, rule 1 does not make any material difference. However, there is a case in which the effect of the words "final decision" has been considered. The case is Madho Prasad and others v. Draupadi Bai (A I R 1921 All. 99). In this case the trial Court, in a declaratory suit, refused temporary injunction to restrain the execution of a decree. The High Court, on appeal, first granted a temporary injunction, and later, accepting the appeal, issued injunction restraining sale of the property in question "pending the final decision of the suit." The plaintiff's suit ultimately failed, and a further appeal to the High Court also was dismissed. Thereupon the decree‑holder applied to the executing Court to take up the execution proceedings, and the question arose whether the period of limitation for this application should be computed from the decision of the High Court upholding the dismissal of the suit, or from the date of the trial Court's decree by which the declaratory suit was dismissed. The contention was raised that the expression "final decision of the suit" used in the order of the High Court, where by injunction to restrain sale in execution proceedings was granted, would mean the final decision of the suit by the appellate Court. The argument, however, was rejected and it was held that the words "final decision of the suit" in their plain and ordinary meaning refer to the passing of the final decree in the declaratory suit pending before the trial Court, and that the injunction granted by the High Court could not survive the trial Court's decree.

13. I would now turn to cases in which the Courts have granted attachments before judgment under Order XXXVIII, rule 5 of this Order requires that the Court shall order the attachment to be withdrawn when the suit is dismissed. The question whether such an attachment would continue to be operative if no order for its withdrawal was made, notwithstanding the dismissal of the suit, has been discussed by Mahmood, J., in Ramchand v. Pitam Mal and another. This case related to a suit for recovery of money, in which several properties of the defendant were attached before judgment. The suit was, however, dismissed, without any order being made by the Court withdrawing the attachment. On appeal, the suit was eventually decreed, whereupon the plaintiff applied for execution of the decree, upon which the properties which had been attached before Judgment in the suit were directed to be notified for sale without, however first attaching the properties. This order was made, presumably, in view of the provisions of the old Code corresponding to Order XXXVIII, rule 11 of the Code of Civil Procedure, 1908. According to this provision, if in a case attachment before judgment is made and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary, upon an application for execution of the decree, to apply for re‑attachment of the property. The judgment‑debtor objected to the sale on the ground that there was no attachment of the properties as required by the provisions contained in the old Code for execution of decree. The question, therefore, arose whether the attachment before judgment survived the dismissal of the suit by the trial Court, or continued to be effective even during the appellate proceedings, so as to enure for the benefit of the plaintiff whose suit was ultimately decreed by the High Court. Mahmood, J. held that an attachment before judgment, like a temporary injunction, becomes "functus officio" as soon as the ‑suit terminates Referring to section 488 of the former Code of Civil Procedure (which corresponds to Order XXXVIII, rule 9 of the present Code), the great jurist held that the direction as to the removal of attachment would not alter the principle that ad interim proceedings become merged in the final order of decree of the Court, and that the requirement that an order should be made withdrawing attachment when the suit is dismissed would not make an attachment before judgment into a perpetual attachment, if no such order for withdrawal was made. The Allahabad High Court took the same view in a subsequent decision, Dular Singh v. Ram Chander and another (A I R 1934 All. 165), in which it was held that when a suit is dismissed, an attachment before judgment terminates without any order of the Court and that reversal of the judgment in appeal would not revive the attach ment so as to affect an alienation made before the order of ireversal. The Madras High Court also has taken the same view in its decision in Balaraju Chettiar v. Masildrriani Pilai and others (126 I C 614).

14. It will thus be seen that though an appeal is a continuation of the original proceedings yet interim or interlocutory orders in the nature of attachments before judgment or temporary injunctions do not survive the final judgment in the suit by the Court of first instance, except in cases which come under rule 11 of Order XXXVIII, Civil Procedure Code. This, principle has been consistently followed by the Courts., Mahmood, J., in the Allahabad case referred to above, has laid down the rule in very clear terms that interlocutory orders by way of attachment before judgment or temporary injunction become ` functus officio" with the termination of the suit in the trial Court. This being the principle widely applied under the Code of Civil Procedure, I do not see any valid reason to import a, different rule with regard to interlocutory orders, including orders for deposit of rent, made by the Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959.

15. The above discussion leads to the conclusion that the order for deposit of rent under section 13(6) of the Ordinance does not survive the conclusion of the proceedings before the Controller whether these proceedings terminate by the tenant's defence being struck off, or by order of eviction, or by dismissal of the landlord's application for eviction of the tenant. The order for deposit of rent, being in the nature of an interlocutory order, exhausts itself with the conclusion of these proceedings orb becomes merged in the order which contains the final determina tion of rent and direction for its payment to the landlord, which order is made either under part 2 of section 13(6) or under subsection (8). Thus, the order for deposit of rent made by the Controller cannot be invoked during the appellate proceedings' under the Ordinance to strike off the tenant's defence. The appellate authorities will have to make a fresh order for deposit under section 13(6) of the Ordinance. In this view of the matter, I will accept the three appeals before us and set aside the orders by which the First Appellate Authority struck off the tenant's defence for failure to deposit rent under the order made by the Controller under section 13(6) of the Ordinance during the pendency of the proceedings before him. Since there have been. conflicting judicial decision on the question at issue before us, I. would leave the parties to bear their own costs. M. A. ZULLAH, J.‑

I agree. Appeals accepted.