1994 PLP 1123 (CLC)

Date of hearing: 6th May, 1993. Through this First Rent Appeal the appellants, as landlords, question only the finding of the learned Controller in Rent Case No. 207 of 1990 on the question of default since on the remaining question namely, that of personal requirement the impugned order dated 3‑11‑1992 has gone in favour of the appellants, the Rent Case having, in consequence, been allowed against the respondent. It is an admitted fact that the respondent‑tenant as well preferred an appeal of his own against the same order, which was numbered in this Court as FRA No. 557 of 1992 and was pending while the present appeal came to be lodged. In such background, I enquired from Mr. S.M. Akhtar Rizvi, the learned counsel for the appellants, as to how this FRA was competent. In response, the learned counsel cited some case‑law but the question emerging being not free from difficulty, I also appointed Mr. Badrudduja Khan, as Amicus Curiae to facilitate the hearing of this appeal on the preliminary question noted above. Hearing both the learned counsel on 6‑5‑1993, through a short order passed on that date, this FRA was dismissed. Reasons for such order are recorded now. The Sindh Rented Premises Ordinance, 1979, is a comparatively recent legislation, the field currently covered by it having been occupied before its enactment by the erstwhile West Pakistan Urban Rent Restriction Ordinance, 1959. The relevant phraseology used in each of these statutes, pertaining to respective rights of appeal, is more or less identical in that the right of appeal ensures to "any party aggrieved by an order ....", an expression common to section 15 of the 1959 Ordinance and section 21 of the 1979 promulgation. There are, however, differences of detail in the two statutes: Thus as regards the subject under discussion, the Ordinance of 1959, as it applied to this province, drew upon the provisions of the Code of Civil Procedure in relation to Second Appeals in the High Court but the Ordinance of 1979 has been construed to allow resort to the Code only to the extent of equitable principles therein in so far as hearings of appeals thereunder are concerned. There has been a prolonged judicial discourse in relation to the Urban Rent Restriction Ordinance, 1959, whether or not cross‑objections under Order XLI, rule 20, C.P.C. can be preferred in rebuttal of an appeal under Section 15 of that enactment. Some case‑law, relative to the 1979 Ordinance, has also since evolved. Thus in Muhammad Ashraf v. Muhammad Almas, PLD 1980 Lah. 52, Aftab Hussain, J., as he then was, found that a landlord in whose favour a rent case was decided, with one or more grounds taken going against him, could neither prefer cross‑objections nor a cross‑appeal, it being open in terms of Order XLI, rule 22, C.P.C. to support the decision also on grounds decided against him. In Shafiqur Rehman v. Abdul Ghani 1983 CLC 202, Ajmal Mian, J., as he then was, declined to decide the question of maintainability of cross‑objections under section 15 aforesaid because the respondent, in the rent appeal, could have supported the order of eviction not only on the issue of default but also on the ground of personal requirement, the first of which had gone in his favour but the second against him. In the case of Israr Ahmad v. Abdul Aziz, 1985 MLD 1562, the same learned Judge, however, while dealing with the Sindh Rented Premises Ordinance, 1979, held that a right to file cross‑objection, in the absence of an express provision in that Ordinance, could not be imported under section 21 thereof but if "the respondent was aggrieved by any portion of the order under appeal it was open to him to file an appeal in terms of section 21 within thirty days". According to Mr. S.M. Akhtar Rizvi, the observations under quote gives him the right to prefer this appeal. Reverting, Muhammad Zahoorul Haque, J., in Wali Muhammad v. Abdul Karim, 1984 CLC 2554, interpreting section 15 of the 1959 Statute, observed that a landlord could urge a ground of eviction, decided against him, in support of the order under appeal, without preferring any cross objections. The opinion of Munawar Ali Khan, J., in Abdul Haq v. Basharat Ali, 1985 CLC 1429, is directly relevant to the controversy here since that learned Judge, in the context of the Urban Rent Restriction Ordinance, 1959, expressly opined that a "successful party cannot go in appeal in respect of the points decided against such party, as the said party cannot be regarded to have been aggrieved by the order of the Rent Controller within the meaning of the said Ordinance". The learned Judge further observed that there "is no provision in the Rent Ordinance enabling such party to file cross‑objections with regard to the decision of the Rent Controller on the points decided against the said party. However, the said party can agitate the points decided against him in course of hearing of the appeal filed by the aggrieved party, while supporting the order passed in its favour". Muhammad Zahoorul Haque, J., in Hajra Bibi v. Muhammad Younus, 1987 MLD 2407 approached the same question under the current Ordinance of 1979, observing that there being no provision similar to that in the Explanation to section 15(4) of the Urban Rent Restriction Ordinance, 1959, cross‑objections in proceedings under the Ordinance of 1979 were not tenable. In the Supreme Court case of Ismail v. Shehar Bano, 1988 SCMR 772, in' the. context of the 1979 legislation, it was' held that an issue decided against a ` party, in whose favour the decision operated, could be attacked by such party in an appeal preferred by its opposite number and the appellate Court, in the absence of any cross‑appeal or objections, was duly empowered to reverse the relative finding. Qari Brothers v. Masood Hussain 1990 ALD 557 is another case from this jurisdiction decided by Naimuddin, CJ., where it was categorically declared that a landlord, as respondent was entitled to urge a ground which was taken by him before the Controller without success and further that it is only when a person does not get full relief upon trial that he may fail to get it without preferring a cross‑appeal though where a landlord had succeeded in obtaining an order of eviction it could not, in the opinion of the learned Chief Justice, be said that the landlord did not get the whole relief. The question, purely from the point of view of the Code of Civil Procedure, has also been discussed in a recent case of this Court namely, PIA Corporation v. Khalid Brothers, PLD 1992 Kar. 78 and the view taken there may not be different from that which has found favour in the authorities cited above. Having ex1mined the above‑noted case‑law, cited and supplemented respectively by Mr. S.M. Akhtar Rizvi for the appellant and Mr. Badruduja Khan as Amicus Curiae, as a general principle it may be stated that a landlord, who has succeeded in a rent case, lodged on more grounds than one, one or more such grounds going in his favour but the other or the others against him, can only (in an appeal of the adversary) support the order of eviction and such may also be on the ground or grounds decided against him but the landlord cannot either prefer an appeal or file cross‑objections, independently assailing the finding (s) on the ground (s) found against him. This seems to be the position both under the Urban Rent Restriction Ordinance of 1959 and the Sindh Rented Premises Ordinance, 1979. It arises on the premises that an order or decree can be assailed only by such a party to the lis against whom the order of decree has operated, whether wholly or in part. Examples of a partly adverse order or decree can be numerous but the most common is one, where several reliefs are claimed by a person but the order or decree accords on;, or more and declines the other or others. Now, in eviction cases under the Rent Laws the relief sought by a landlord can only be one viz. that of ejectment though it may be based on several grounds of issues. If, therefore, a landlord succeeds in getting the relief of possession, it matters little, as to which grounds or causes, urged in aid thereof have succeeded or failed. However, that remains to be considered is as to what are the implications of the several grounds of eviction envisaged in the Rent Laws applicable in Pakistan and whether each of such grounds require to be met with identical treatment for the purposes of an appeal even though their attributes may be distinct as to outcome. Thus where eviction is ordered on the grounds of default, subletting, nuisance and impairment of the value or utility of the premises etc. law does not confer any corresponding obligation on the successful landlord and the landlord, upon securing the tenant‑hold on execution of orders, should be free to deal with the premises in the manner he chooses. As distinguished from this, when eviction is ordered only on the ground of personal requirement or solely on the ground of reconstruction, the successful landlord is fixed with corelative obligations, in the first case to occupy or have the premises occupied in the prescribed manner and in the second to rehabilitate the displaced tenant according to law in the reconstructed structure. A question, therefore, arises whether the referred two sets of grounds for eviction can be equated in their treatment so far as a right of appeal, as an aggrieved party, for the landlord is concerned. The answer poses no difficulty when any of the second set of grounds is separately taken and exclusively covers the relevant rent case. An unfavourable order in such a rent case would give rise to a right of appeal to the unsuccessful landlord, must as in case of any other adverse determination. The problem becomes complex, when a rent case is founded on more than one ground and the grounds taken attract both the above‑referred categories, for instance when eviction is sought on the grounds of default and personal requirement, agitated together or when a ground of subletting is clubbed together with a ground to reconstruct. In such a case, quite arguably, the order of eviction may be exclusively based on a ground with strings attached such as that of personal need or a requirement to reconstruct and the remaining ground, involving no corresponding obligations on the part of the landlord, may have simultaneously resulted in failure. Thus because the landlord succeeds purely on the ground of personal need he would be saddled with an obligation to occupy the premises in consonance with the need or where merely a ground of reconstruction is allowed the landlord would be subject to providing commensurate space to the tenant in the reconstructed structure none of which should have been occasioned had he been allowed eviction also on a conjoined ground of default or of nuisance or of subletting or of impairment in the value or utility of the tenant‑hold. To that extent, it may be said that the landlord would be "an aggrieved part" for the purposes of the applicable right of appeal and to deny him that right may result in hardship to him. At the same time, however, it cannot be ignored that the landlord had a free choice to file separate rent cases, encompassing each ground independently in a separate rent case. Were he to fail in any such case, he' would have had a right to prefer an independent appeal. That he preferred to club such grounds together in a single rent case would imply a conscious act on his part, equating all such grounds and notionally making it manifest that success on any of those grounds would be equally acceptable, he being interested in eviction alone, irrespective of the fact as to which ground finds favour with the forum coming to adjudicate in the matter. Success on any one of those grounds should, therefore, bring complete satisfaction to him and he would not be treated as "an aggrieved part' in relation to one or more such grounds, if he has succeeded in the rent case on the remaining other or others. He would, accordingly, have no right either for a cross appeal or cross objections in relation to the grounds in which he failed to succeed and can duly substantiate the same without such appeal or cross‑objections in the appeal of the other aggrieved party. In the instant case also the landlords combined the grounds of personal requirement and default together and having succeeded only on the first cannot be permitted to prefer an appeal as to the second. This appeal, therefore, is not competent and was dismissed in limine through a short order, as reflected above. AA./M‑1918/K Appeal dismissed.