P L D 1964 (W (PLP)

Hakam Qureshi for Respondent. Dates of hearing : 18th and 25th May 1964. This revision petition has been filed by Ibrahim who was a respondent in an application for ejectment filed as against him under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) by the present respondent Muhammad Rafique. It appears from the order dated the 28th of February 1964 that an application was made under Order VI, rule 17 of the Code of Civil Procedure by the respondent so as to amend the petition for ejectment and to incorporate a further ground of ejectment, namely, his personal necessity. This application for amendment was allowed and the petitioner has come up in revision before this Court.

2. A preliminary objection has been taken by the learned counsel for the respondent to the effect that the Rent Controller being a persona designata is not a Court subordinate to the High Court and as such the provisions of section 115 of the Code of Civil Procedure are not attracted and this Court is riot competent to revise the order passed by the learned Rent Controller. I have heard the learned counsel for the parties and have gone through the various authorities cited at the Bar, reference to which may briefly be made. In Kishen Chand & Co. v. Nur Muhammad (P L D 1949 Lah. 30) a learned Division Bench of this Court held that the Controller appointed by the Provincial Government under section 2 (b) of the Punjab Urban Rent Restriction Act (VI of 1947) was a civil Court subject to revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure, but this view did not find favour with Full Bench in The Corporation of the City of Lahore v. Mst. Fahmida Begum (P L D 1952 Lah. 258). In this Full Bench decision an earlier decision of this Court reported as Sultan Ali Nanghiana v. Mian Nur Husain (P L D 1949 Lah. 301) was relied on and after survey of the various authorities placed before the learned Court for one view oil the other, the principles enunciated in Shell Company of Australia Ltd. v. Federal Commissioner of Taxation (1931 A C 275) were applied and the Rent Controller held to be a persona designata and not a Court subject to the revisional jurisdiction of the High Court. The question has been the subject‑matter of two subsequent Full Bench decisions. In Mst. Aziz Begum v. Sheikh Nur Muhammad and others (P L D 1962 Lah. 887), the majority view was for the proposition that the District Judge appointed as an appellate authority under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was a persona designata and not a Court, and, therefore, the District Judge, as an appellate authority, was not competent to transfer cases to the Additional District Judge. In other words the view taken in The Corporation of the City of Lahore v. Mst. Fahmida Begum was affirmed. In the next case reported as Muhammad Amin v. Sh. Jamshed Ali (P L D 1963 Lah. 523) the question was not directly in question but the view adopted in 1952 was not in any manner departed from.

3. In addition to this preponderance of authority of this Court, learned counsel for the respondent has drawn my attention to section 15 (5) of the Ordinance which reads as follows :‑ "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," and maintains that all other proceedings against the order of the Rent Controller and the appellate authority having been barred, the revisional jurisdiction of the High Court has also been taken away by the. Legislature. He has also referred to section 16(2) of the Ordinance, in which the Rent Controller has been clothed with the powers of a Court for purposes of Act V of 1898, and he argues, perhaps rightly, that if the Legislature desired to make the Rent Controller as a Court subordinate to the High Court for purposes of section 115, it should have not stopped short in saying that the Rent Controller will be Court for Act V of 1898 only and not a Court for Act V of 1908. He has also referred to sections 47 and 48 of the Guardians and Wards Act. In the former a provision of appeal has been made and in the latter certain orders have been clothed with finality subject to section 47 and the revisional jurisdiction of the High Court. On this analogy the learned counsel contends that if the Legislature was desirous of investing the High Court with powers of revision against the orders of the Rent Controller, it should have said so in the Ordinance itself and because he is a persona designata it cannot be urged with success that by virtue of section 141 of the Code of Civil Procedure, the Rent Controller is changed into a Court subordinate to the High Court.

4. The learned counsel for the petitioner has vehemently argued that even if it be held that the Rent Controller is a persona designata, the moment he exceeds his jurisdiction under the Ordinance he becomes a Court and in support of this proposition he has relied on Vensimal Tarachand v. Karachi District Local Board and others (A I R 1948 Sind 116), which, in its turn, has relied on Pir Bakhsh Khan Muhammad Bakhsh Khan v. Darvakhan Saindad (I L R 1943 Kar. 345). I have gone through this judgment, and no doubt observations have been made by the learned Judges for the proposition propounded by the learned counsel for the petitioner but I do not find mention of any authority for that view. With great respect to the learned Judges, I do not feel myself persuaded to accept that proposition, which is otherwise not supported by authority. If it is found that a particular persona designata has acted beyond his jurisdiction or has acted capriciously or perversely or in any other manner not warranted by the statute by which that particular tribunal is created, the proper forum will be Article 98 of the Constitution Act of 1962, or if in the alternative there is no bar expressed or implied in the statute itself, the parties may approach the civil Courts under section 9 of the Code of Civil Procedure as has been laid down by their Lordships in Muhammad Tufail v. Abdul Ghafoor and others (P L D 1958 S C 201), but recourse cannot be had to section 115 of the Code of Civil Procedure. The learned counsel has also referred to Hifzurraheman Ansarsaheb v. Hasansaheb Abansaheb Fulmandi (A I R 1944 Bom. 203) wherein Macklin, J. has made a passing reference that a revision petition is maintainable when the persona designata exceeds his jurisdic tion because in that case he becomes a Court and the High Court was not powerless to interfere under section 115 of the Code of Civil Procedure. In this decision no reference had been made to any previous authority, and this view is rather in conflict, as has been pointed out by Chagla, J. in a subsequent judgment Keshav Ramchandra v. Municipal Borough, Jalgaon and others (A I R 1946 Bom. 64), with the interpretation placed on the provisions of section 115 of the Code of Civil Procedure by the Bombay High Court. I, therefore, hold and I say so with respect to the learned Judges of the Sind Chief Court that by the mere fact that a persona designata exceeds the jurisdiction vested in him by the particular statute will not change him into a Court and he will not become a Court subordinate to the High Court for purposes of revisional jurisdiction. The negative tests laid down in Shell Company of Australia Ltd. v. Federal Commissioner of Taxation, when applied to the functions of the Rent Controller, do not in any manner advance the case of the petitioner, despite the fact that after the 1952 Full Bench judgment (The Corporation of the City of Lahore v. Mst. Fahmida Begum) the definition of the word "Controller" contains the words "judicial officer". This verbal change in the definition makes no alteration in the powers of the Rent Controller, nor does it clothe the Rent Controller with the jurisdiction of a Court, nor does it become a Court in view of the various principles enunciated in Shell Company of Australia Ltd. v. Federal Commissioner of Taxation and The Corporation of the City of Lahore v. Mst. Fahmida Begum.

5. In the alternative, the learned counsel for the petitioner has made a request that the revision petition may be changed into an appeal. This request appears to be reasonable, and in order to be just to the parties I allow this prayer. The present revision is permitted to be changed into an F. A. O. by suitable amendment.

6. Since an F. A. O. is to be admitted by a D. B., and I, sitting singly, cannot pass any order, this matter will now go in motion to a D. B. for admission. Order accordingly. K. B. A. Order accordingly.