P L D 2003 Quetta 68 (PLP)

(4) That during above mentioned period, the petitioners shall continue to pay the rent to the respondents and in case of their failure to pay the rent, the respondents will be entitled to get the premises vacated forthwith. " After compromise the appellant handed over the vacant possession of shop in dispute to respondents on or about 21‑5‑1999. However, it is the grievance of the appellant that after taking over the possession of shop in dispute, the respondents neither demolished the same nor reconstructed new building for which purpose the shop was got vacated, hence filed an application under sections 13(5) and 5(A) of the Urban Rent Restriction Ordinance, 1959 with the following prayer:‑‑ "It is accordingly prayed that in the above submission and circumstances the respondent may kindly be dealt under section 13(5) and (5‑A) Urban Rent Restriction Ordinance 1959 and possession of the Shop No.6-3/300‑4 may kindly be restored to applicant in the interest of justice equity and fair play." The respondents contested the application. It has been contended in the rejoinder that after compromise between the parties in the Hon'ble Supreme Court, the property was partitioned between the shareholders i.e. legal heirs of late Ajmal Khan and subsequently transferred in the name of Sardar Muhammad Ishaq son of Sardar Muhammad Qasir who after demolish and reconstruction let out the same to the new tenant. The learned Rent Controller out of the pleadings of the parties framed following issues:‑‑ (1) Whether the application is premature and before time? (2) Whether the respondents have failed to demolish and reconstruct the shop in question? (3) Whether the applicant is entitled‑for the relief claimed for? (4) Relief. After hearing the arguments of both the parties the Rent Controller dismissed the application vide impugned judgment by holding that the application was filed prematurely because the period for demolishing and reconstruction as provided under section 13(5) of the Rent Restriction Ordinance, 1959 has not yet expired I have heard the learned counsel for the parties. It may be observed that section 13(5) of the Ordinance, 1959 provides that whenever a landlord has obtained possession of a building in pursuance of an order passed under clause (vi) of subsection (2) of section 13 of Urban Rent Restriction Ordinance, 1959 and failed to demolish the building within a period of four months from the date of taking possession or does not construct the new building within a further period of two years after the expiry of the period of four months from the date of possession of the same, he shall be punished with imprisonment for a term which may extend to six months or fine or both; unless he satisfies "Court" that he was unable to construct the building within prescribed time for reasons beyond his control. Subsection (5‑A), whereby Rent Controller has been empowered to restore possession to the tenant, comes into play after the landlord has been convicted by the Court under section 13(5) of the Urban Rent Restriction Ordinance, 1959. The word "Court" used in section 13(5) and "Rent Controller" mentioned in subsection (5‑A) of section 13 of the Ordinance clearly manifest the intention of Legislature that both the words are not synonymous to each other but have been used in different meanings. It is by now a settled principle of law that Rent Controller is a persona designata and not a Court. Therefore, before filing an application under section 13(5‑A) of the Urban Rent Restriction Ordinance, 1959 for restoration of possession before Rent Controller, it is essential for the tenant to exhaust the remedy provided by section 13(5) because action under subsection (5‑A) (supra) is subject to decision of Court made under subsection (5), that, too, if Court convicts the landlord under the said section. The word "Court" has not been defined in Urban Rent Restriction Ordinance nor any procedure has been prescribed under the said Ordinance for trial of the offence which has been made punishable under section 13(5) of the Ordinance. In my humble view the word "Court" referred in this subsection means a Court set up for trial of offences under Criminal Procedure Code. Section 29 of the Criminal Procedure Code provides as under:‑‑ "

29. Offences under other laws.-‑(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. (2) When no Court so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to be triable." Coming to this conclusion I am fortified by the observation made in case‑law reported in PLD 1969 Lahore 251 which‑reads as under:‑‑ "Criminal Procedure Code (V of 1898), S.29‑‑Mere fact that particular act is prohibited or is an offence under special law‑‑Does not exclude operation of Cr.P.C. unless that law also prescribes a special form of procedure for such offence." The perusal of the record in the present case reveals that the appellant filed an application under section 13(5) and (5‑A) before Rent Controller which in my considered view was not competent, because under section 13(5) of the Ordinance Rent Controller has no jurisdiction to punish the landlord, while section 13(5‑A) comes into play, as already observed, after a landlord is convicted as provided by subsection (5) of section 13 of the Ordinance. Joint application under both, the sections before Rent Controller was not competent (1984 CLC 2804 referred). Unfortunately the learned Rent Controller did not notice the provision of section 13(5) under which he has no jurisdiction. Similarly the learned counsel for both the parties neither properly assisted the Rent Controller in this respect nor advanced any argument before me on this point. But a Judge is supposed to wear all the laws on his sleeves, therefore, notwithstanding failure of the learned counsel to argue on this point, I decided myself to adhere to this important aspect. of the case. Upshot of the above discussion is that the order of the Rent Controller dated 4‑9‑2001 which touches the merits of the case is liable to be set aside, having been passed without jurisdiction. Similarly the application filed by the appellant before Rent Controller under section 13(5) and (5‑A) of the Urban Rent Restriction Ordinance, 1959 is also liable to be dismissed being incompetent. Therefore, I set aside the order dated 4‑9‑2001 passed by Rent Controller/Civil Judge‑III, Quetta and also dismiss the application of the appellant on the ground of having been filed before Rent Controller who has no jurisdiction in the matter. The appeal is accordingly disposed of. The parties are left to bear their own costs. Q. M. H./149/Q Appeal accepted.