P L D 1963 (W (PLP)

FARUQUI, J.‑This case has been placed before us upon a reference made by Sajjad Ahmad, J., before whom this appeal had in the first instance come for hearing. The circumstances in which he made the reference and the facts material thereto are, briefly, these : Sher Ali, the present respon dent, moved an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance before the Sub‑Judge & Controller, Quetta, for an order of possession against his tenant Muhammad Naeem, now the appellant. Sher Ali was the mortgagee in possession of this property. One of the grounds taken by Muhammad Naeem before the Controller was that after the letting out of the premises to him by Sher Ali the property had been transferred to one Iqbal Shah by the original owner Mehar Nigar and he (Muhammad Naeem had attorned to Iqbal Shah and had paid rent to him. It was prayed that Iqbal Shah be joined as a party in the proceedings. The Controller refused to do so and rejected the application of Muhammad Naeem in that regard. Muhammad Naeem took the matter in appeal to the District Judge, Quetta, who rejected it on the ground that the appeal was not competent. Before him a judgment of Qadeeruddin Ahmad, J., reported in Faqir Chand v. Mst. Bibi Zulekha (P L D 1962 Pesh. 1), which supported the appellant on the question of jurisdiction, was cited, but the learned District Judge preferred to follow a contrary decision by S. A. Mahmood, J. reported in P L D 1961 Lah. 638 This decision is reported at p. 638 and was given in the case of Muhammad Baqaullah Khan v. Mian Muhammad Rashid. This is a Single Judge decision and not by a Division Bench as the District Judge thought. The Division Bench decision reported at page 619 of the same volume in which also the judgment was written by S. A. Mahmood, J., is not in point. The District Judge having dismissed the appeal. Muhammad Naeem came up in second appeal to the High Court under section 15 of the Ordinance. This appeal came before Sajjad Ahmad, J. and before him both the aforesaid decisions were cited and in view of the obvious conflict he considered it advis able to refer the question of law to a larger Bench. The question which he framed is as follows :‑ "Whether orders not falling strictly within the purview of sections 4, 10, 12 and 13 of the Rent Restriction Ordinance made by the Controllers, are appealable to the respective District Judges in spite of the fact that the notification issued by the Provincial Government under sub‑clause (a) of section 15 mentions that the appellate powers of the District Judges are exercise-able in respect of orders made by the Controllers under the aforesaid sections only?"

2. Before we proceed to deal with the question it would be necessary to reproduce the relevant provision of the Ordinance, contained in section 15 which reads as follows :‑ "

15. Appeal.‑(1) (a) Government may by a general or special order, by notification, confer on such District Judges as it thinks fit, the powers of Appellate Authorities for the purposes of this Ordinance, in such area, or in such classes of cases, as may be specified in the order. (b) Any party aggrieved by an order passed by the Controller may within thirty days from the date of such order prefer an appeal in writing to the Appellate Authority having jurisdiction. (2) On such appeal being preferred, the Appellate Authority may order stay of further proceedings in the matter pending decision of the appeal. (3) The Appellate Authority shall decide the appeal after sending for the record of the case from the Controller and after giving the. parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller. (4) Any party aggrieved by an order passed on appeal by the Appellate Authority appointed by the Government under clause (a) of subsection (1), and if an Appellate Authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the Appellate Authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final. Explanation. An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the Appellate Authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as context may require, apply to such proceedings. (5) No order passed by the Controller, the Appellate Authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance." In pursuance of section 15 (1) (a) and in exercise of the powers conferred therein the Government of West Pakistan by a noti fication dated 12‑3‑59, conferred on all District Judges in West Pakistan and the Majlis‑e‑Shoora in Kalat Division the powers of Appellate Authority for the purposes of the said Ordinance with regard to the orders made by the Controller under sections 4, 10, 12 and 13 of the Ordinance. It would be con venient to reproduce the whole of this Notification: "No. HG‑10‑2/59 dated 12‑3‑59, Gazette Extraordinary, dated 16‑3‑

59. In exercise of the powers conferred by clauses (a) of sub section (1) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to confer on all District Judges in West Pakistan and the Majlis‑e‑Shoora in Kalat Division, the powers of Appellate Authorities for the purposes of the said Ordinance in respect of urban areas in their respective jurisdictions with regard to orders made by Controllers under sections 4, 10, 12 and 13 of the said Ordinance."

3. Section 4 relates to the determination of the fair rent by the Controller, section 10 prohibited the landlord from inter fering with amenities enjoyed by the tenant, section 12 empowers the Controller to authorise the tenant to make necessary repairs where the landlord has failed to do so and section 13 relates to the eviction of tenants. The question that arises in this case is whether the District Judge as an Appellate Authority under the Ordinance has jurisdiction to entertain and decide appeals from orders of the Controller which do not fall under any of the four sections referred to above. S. A. Mahmood, J., held that he did not have such a jurisdiction. This is what the learned Judge said :‑ " The Appellate Authority came to the conclusion that no appeal lay against the order of the Rent Controller as the order did not fall within the purview of sections 4, 10, 12 and 13 of the Ordinance. The learned counsel for the appellant did not, in any way, challenge the correctness of this conclusion of the Appellate Authority. I am clearly of opinion that no appeal lay, and consequently a further appeal by the tenant to this Court also did not lie. The appeal is, therefore, dismissed with costs."

4. In the Peshawar case in which the contrary view was taken by Qadeeruddin Ahmad, J., the facts were these : One Mr. Faqir Chand, Advocate, who was a tenant in respect of a premises situated in Campbellpur, was sought to be evicted by the landlady who had applied to the Controller under section 13 of the Ordinance. Mr. Faqir Chand had raised three preliminary objections which were decided by the Controller, whose judgment was upheld in appeal by the District Judge, Campbellpur. Against this Mr. Faqir Chand came up in second appeal to the High Court under section 15 (4) of the Ordinance. When this appeal came up for hearing Mr. Jafar, the learned Advocate for the res pondent‑landlady, took a preliminary objection that the appeal was not competent in as far as no appeal lay to the District Judge from the order passed by the Controller inasmuch as that order did not fall within the purview of sections 4, 10, 12 and 13 of the Ordinance. In support of this preliminary objection he relied upon the decision by S. A. Mahmood, J., in the case of Muhammad Baqaullah.

5. In overruling the preliminary objection Qadeeruddin Ahmad, J., differed from the view taken by S. A. Mahmood, J. The learned Judge observed that the point had been conceded before S. A. Mahmood, J., and therefore no reasons for the view taken were given by him. He then went on to give his reason for differing from that view. Before doing so the learned Judge reproduced section 15 (1) (b) and section 15 (4) of the Ordinance and then recorded his reasons which it would be convenient to reproduce :‑ "The wide scope of the words `an Order' which occur in both provisions cannot be arbitrarily restricted, and I am not able to see any reason why the fixation of the fair rent under section 4, a direction to the landlord under section 10, or a direction to the tenant under section 12 or section 13, only, should be taken to fall within their meaning and all other decisions made under the Ordinance should be considered to be outside it. The consequence of this restriction will be that every order which the Controller is empowered to make affecting the property under other provisions of the Ordinance will become final and will be beyond redress against an aggrieved party. For instance, the Controller is empowered under sections 5 and 9 to make decisions relating to the increase of rent, under section 8 to allow recovery of rent, that was paid, and under section 11 to permit conversion of a residential building into a non‑residential building. These are important powers the exercise of which does amount to making orders. An order made under any one of these sections comes within the ambit of section 15 of the language of this section is given its plain and natural meaning. I, therefore, overrule the preliminary objection."

6. At the hearing before us Mr. Basharatullah, the learned Advocate for the appellant, almost entirely relied upon the passage quoted above in support of his contention that the District Judge, Quetta was in error in holding that the appeal before him against the order of the Controller was incompetent.

7. We have very carefully examined the view taken by our brother Qadeeruddin Ahmad, J., and his reasons for that view but with great respect we must say that we have not been able to agree with it. The learned Judge has referred only to section 15 (1) (b) and section 15 (4) of the Ordinance. There is no reference to subsection (1) clause (a), which precedes sub -clause (b), nor is there a reference to the notification dated 12‑3‑59 reproduced above and we do not know whether his Lordship's attention was drawn to it, because reading sub‑clause (b) with sub‑clause (a) and the notification issued under it, the conclusion would appear to be inescapable that the jurisdiction of the District Judge as an Appellate Authority under sub‑clause (b) is limited to the cases falling under the four sections named in the notification. Sub‑clause (b) of subsection (1) cannot be read in isolation of the preceding sub‑clause (a). Sub‑clause (a) of section 15 (1) empowers the Government to confer on such District Judges, as it thinks fit, the powers of Appellate Authority for the purposes of the Ordinance in such area or in such classes of cases as may be specified in the order. Therefore, when an order was made by the Governor and notified and the classes of cases in which an appeal was provided to the District Judge against the order of the Controller were specified, it must follow that the jurisdiction of the District Judge as an Appellate Authority must be limited to cases falling under sections 4, 10, 12 and 13 of the Ordinance which alone are contained in the notifica tion. But for the notification, referred to above, the District Judge would have no jurisdiction at all to entertain any appeal against the order of the Controller and if the instrument con ferring the jurisdiction itself says that it shall be exercised only in respect of certain specified classes of cases it is not open to the District Judge to assume jurisdiction in cases which do not fall under any one of those classes.

8. The expression "Appellate Authority" occurring in sub- clause (b) relates to the District Judges upon whom power was contemplated to be conferred as Appellate Authority in pursuance of sub‑clause (a) by general or special order, Sub‑clause (b) of subsection (1) provides for an appeal to the "Appellate Authority", i.e., the District Judge, from an order passed by the Controller. Subsection (2) empowers the said Appellate Authority to order stay of further proceedings pending the decision of the appeal and under subsection (3) it is to decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and if necessary after making such further inquiry as it thinks fit either personally or through the Controller. Then comes subsection (4). It provides that any party aggrieved by an order passed on appeal by the Appellate Authority appointed by the Government under sub‑clause (a) of subsection (1) may prefer an appeal to the High Court. The rest of subsection (4) of section 15 is not material for the present purposes because that would apply in the absence of the appointment of Appellate Authorities in pursuance of subsection (10) (a). The material part of the explana tion to subsection (4) lays down that an appeal from the appellate order shall be heard as an appeal under section 100 of the Code of Civil Procedure. All these four subsections have to be read together and from such a reading it is plain that the powers of the District Judge as an Appellate Authority under sub‑clause (b) of subsection (1) are restricted to the classes of cases stated in the notification issued in pursuance of subsection (1) (a) and the further powers of the High Court in second appeal against the judgment of the Appellate Authority are limited to questions of law arising therein just as in the case of a second appeal under section 100 of the Civil Procedure Code.

9. In view of our conclusions our answer to the reference is that the orders not falling strictly within the purview of sections 4, 10, 12 and 13 of the Ordinance made by the Controllers are not appealable to the respective District Judges.

10. In the case before us the order of the Controller appealed against related to a refusal to implead a party, namely, Iqbal Shah. This order did not fall under any of the four sections mentioned in the relevant notification. The District Judge, Quetta was, therefore, right in holding that the appeal to him was incompetent. We accordingly dismiss this second appeal with costs. K. B. A. Appeal dismissed.