P L D 1963 (W (PLP)

"In proceedings under this section, on the first date of hearing, or as soon as possible after that date, and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to the adjustment of the approximate amount deposited by the tenant."

5. Section 15 of the Ordinance under which appeals lie enacts as follows:‑ "(1) (a) Government may by a general or special order, by notification, confer on such District Judges and Additional 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 juris diction. (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 authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such pro ceedings. (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 for otherwise, except as provided under this Ordinance."

6. Under section 15 (l) (b) of the Ordinance, any party aggrieved by "an order" passed by the Controller may prefer an appeal in writing to the appellate authority having jurisdiction. A controller, as such, may make an order under sections 4, 5, 8, 9, 10, 12 or 13 of the Ordinance. These are therefore the only orders which are appealable under sections 15 (1) (b) and 15 (4). We are concerned here only with an order made by a Controller under section 13 (6) of the Ordinance, by which the Controller, (i) shall direct (on the first date of hearing or as soon as possible after that date and before issues are framed) the tenant to deposit the rent due from him and future monthly rent (until the decision of the case) before the 5th of each month; (2) shall determine the amount due approximately, if there is a dispute about the rate of rent due; (3) shall direct the tenant to deposit the amount before the date to be fixed; and (4) shall strike off his defence and put the landlord in possession (before taking any further proceedings in the case), if he is the respondent and makes a default in obeying the order. The firstly and the thirdly are directions, which a Controller is enjoined by the law to give, and he has to fix a date by which the direction is to be obeyed. With respect to the deposit of monthly rent, the date is fixed by the Statute. If the rate or the amount of rent due is not in dispute, there is no determination by the Controller, and no question of appeal arises. The necessity for making an order to determine the amount approximately arises when there is a dispute either about the monthly date of rent or the amount of rent due. It is because of the dispute that he has to determine it, and when he determines it, there is a decision or determination in writing about it, though approximate. In the case of default in obeying a direction to deposit the approximately determined amount or future rent by the specified date, the Controller has no option but to order that the defence of the tenant, if he be a respondent, shall be struck off, and the landlord put in possession. The fourthly is an order, which has to follow the default as a necessary consequence, and being a final order under section 13 (6) is without a shadow of doubt open to appeal, but is not the approximate determination of the amount also appealable? It is a determination under section 13 (6) and satisfies the ordinary definition of the word "order" used in section 15 (1) (b) which to the dictionary meanings means a "decision" or "determination in writing". In Wharton's Law Lexicon, it is defined as a mandate, precept or command. In the Code of Civil Procedure, it is defined in section 2 (14) as meaning a formal expression of any decision of a Civil Court, which is not a decree. Therefore, the word "order" in substance means a decision or determination in writing. The determination of the Controller under secondly is a decision of a dispute between two parties, and if a party is aggrieved, whether it be the landlord or the tenant, then the necessary conditions for an appeal under section 15 (1) (b) exist.

7. Section 15 (1) (b) of the Ordinance, which provides for an appeal, is widely worded. "Any party aggrieved by `an order' of the Controller may prefer an appeal" are words of wide import, and the generality of these words cannot be cut down or arbitrarily restricted to make the word `order' applicable to some orders and not to others. I would, however, like to make it clear that I do not intend to say that a right of appeal exists from any order made by the Controller whether it be in the nature of adjourning a case, summoning witnesses or refusing to summon a witness or deciding miscellaneous applications, which are not covered by any provision of the Ordinance. In my view only such orders are appealable as are passed by the Controller under sections 4, 5, 8, 9, 10, 12 and 13 of the Ordinance, and though I agree (with respect) with the view that the wide scope of the words "an order" which occur in sections 15 (1) (b) and 15 (4) of the Ordinance, cannot arbitrarily be restricted, I beg to differ (I say so with great respect) from the view of my learned brother Qadeer‑ud‑Din Ahmad, J., that the word "order" includes even an order of the Controller rejecting preliminary objections filed by a tenant, as in the case of Faqir Chand v. Bibi Zulekha (P L D 1962 Pesh. 1). This was not an order made by a Controller under sections 4, 10, 12 and 13 of the Ordinance, from which an appeal lies to the appellate authority under the notification which confers powers of the appellate authority on District Judges. The notification under section 15 (1) (a) is No. Judl‑1.17 (4)/59, dated the 18th of December 1962, by which the Governor of West Pakistan conferred powers on all District Judges in West Pakistan and Majlis‑i‑Shoora in the Kalat Division, for the purposes of the Ordinance, the powers of the appellate authority, in respect of the urban areas in their respective jurisdictions with regard to orders made by the Controller under sections 4, 10, 12 and 13 of the Ordinance. (By an amendment in the Act, the power has been conferred on all Additional District Judges also.) There fore, an appeal lies to the District Judge or Additional District Judge only from orders under sections 4, 10, 12 and 13 and for the purposes of the Ordinance. From other orders i.e., orders under sections 5, 8, 9 and 10, and appeal lies to the High Court. An appeal is not provided in case of orders made on miscellaneous application or on preliminary objections which do not fall under these sections. It was conceded by the learned counsel for the appellant that the view taken by my learned brother could not be supported.

8. The main objections to the appeal ability of the order of approximate determination are that it does not really decide rights of the parties, for it is an interim or interlocutory order, and is to merge in the final order, that it does not decide the case, and that it is not an executable order under section 17 of the Ordinance in a Civil Court, as if it were a decree of the Court. These objections cannot take away a right of appeal where it clearly exists on a plain construction of the section. We have to interpret section 15 (1) (b). Its meaning is clear. The intention is plain. No more is needed. The distinction which exists in the Code of Civil Procedure between final and interlocutory orders does not exist in section 15 (1) (b) of the Ordinance. Section 104, C. P. C. provides for orders from which an appeal lies, and states that it shall lie from no other orders, and further that no appeal shall lie from any order passed in appeal under this section. No such provision is made here, and if it was not intended to make some of the orders appealable, it should have been specifically stated. In the absence of any expressed restriction on the words "any party aggrieved by an order may appeal", it is not permissible to restrict their meaning and application. The interim nature of the order cannot be treated as a weighty consideration for holding to the contrary, because where the direction is not obeyed, it becomes a final order, and also leads to serious consequences. It has far‑reaching effect on the defence of the tenant, which is struck off, however good it may be. If the consequences of the order are so serious and far‑reaching, it may lead to grave miscarriage of justice if there is no appeal from the order. It cannot be ignored that in some cases the rent may be fixed too high, and the tenant may not be able to deposit the rent or arrears of rent at that rate, though he may have been in a position to deposit a fairly determined rent. The necessary consequence of failure to obey the order is the striking out of his defence, and his ejectment follows, the only hope left being that he may succeed in the appeal against the order of ejectment to have the fixation of rent modified. In this he runs a grave risk. Thus there is always a danger of injustice being caused in the absence of an appeal.

9. Though the approximate determination of rent or the amount due to the tenant is not an order which decides the case per se, but as stated above, it may decide the fate of the case. It is an important decision, though it is not an executable order within the meaning of section 17 of the Ordinance (as its obedience rests on the will and choice of the tenant) but for an order to be appealable, it need not necessarily be executable. The Ordinance does not draw a distinction between interim, inter locutory or final orders and, therefore, such a distinction is not relevant to the interpretation of sections 15 (1) (b) and 15 (4). The scope and object of the Ordinance is to safeguard the interests of the tenant from being arbitrarily ejected and to ensure the rent due to the landlord. This result is better achieved if there is an appeal, and it may be that for this reason section 15 (1) (b) has been so worded as to provide for an appeal against "an order" of a Controller under the provisions of the Ordinance.

10. A right of appeal is usually the creation of a statute, and in deciding whether there is a right of appeal, the principle too be followed is that the benefit of doubt should not go to the party, who seeks to establish the right of appeal. In Salimuddin Ahmad v. Rahim Sheikh and others (A I R 1926 Cal. 1113) it was held that "in a matter which relates to the curtailment of a right of appal, if there is the slightest doubt in one's mind, the benefit of that doubt should go to the party who seeks to appeal." Again, in Surendra Das v. Bhola Prasad Kain and others (A I R 1950 Assam 22), it was observed that "the test for determination whether a person has got a right of appeal is whether any part of the decree affects his interest adversely. If the answer to the question is in the affirmative, he will have a right of appeal. It is a question of fact to be determined in each case according to its peculiar circumstances. Where existence of this right is in doubt, the benefit ought to go to the appellant." No decided case to the contrary has been cited before us. On the plain construction of section 15 (1) (b) of the Ordinance, an appeal is provided against "an order" of the Controller, and the approximate determination is as much an order, and therefore a right of appeal exists. Even if a doubt exists that doubt must be resolved in favour of there being a right of appeal.

11. An argument was raised that to confer a right of appeal against approximate determination of the rate of rent or the amount of rent is to bring about a multiplicity of appeals and to delay the decision. This may be so in some cases, but not necessarily so in all cases, but if it is a clear intention of section 15 that an appeal should lie, this consideration will not override the plain meaning. The advantage of an appeal in any case is that a more correct determination of the rate of rent and the amount of rent follows, and this is more appropriate to the circum stances.

12. For the reasons given above, my answer to the question referred to the Full Bench is that a right of appeal lies against an order which approximately determines under section 13 (6) of the Ordinance a dispute about the rate of rent or the amount of rent due. Hence a further appeal lies to this Court under section 15 (4) of the Ordinance from the order of the appellate authority; and this S. A. O. by the tenant is competent, but in the circumstances of the case, the question of its decision may be taken up after the decision of the tenant's appeal pending before the appellate authority.

13. In the application under Order XLV, rule 1 and section 151, C. P. C. the operation of the order of ejectment, passed by the Controller against the appellant‑petitioner, has been stayed. I would confirm this order pending the decision of the appeal of the tenant by the appellate authority against the striking off of his defence and the order of putting of the landlord in possession. ABDUL AZIZ KHAN, J.‑--I agree. MUHAMMAD YAQUB ALI, J.‑--It is unnecessary to recapitulate the facts of the case which are fully set out in the order proposed to be delivered by my learned brother S. A. Mahmood in the case. Suffice it to say, the question before the Full Bench is whether an order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance of 1959, determining approximately the rate of rent to be deposited by a tenant during the pendency of an application for his eviction, is open to appeal under section 15 of the Ordinance or not.

2. Since this reference was heard, I had the opportunity to deal with a similar question in S. A. O. No. 57 of 1963, decided on the 18th of February 1963, in which I gave following reasons in returning a reply in the negative:‑ "In support of the contention that a second appeal is competent from each and every order made by the Rent Controller, Mr. Karam Elahi Chauhan relied on the words `such class of cases' in section 15 (1) (a), `a party aggrieved by an order passed by the Controller' in clause (b) and the clause in subsection (4) `if an appellate authority has not been appointed in respect of any class of cases any party aggrieved by an order of the Controller may prefer an appeal in writing to the High Court'. According to the learned counsel, the term `an order' embraces all kinds of orders made by a Rent Controller, including those which finally adjudicate upon the rights of the parties and those which merely regulate the proceedings resulting in final adjudication in an action brought under the provisions of the Ordinance. In an earlier case (not reported) I have analysed the scheme of the Ordinance and interpreted the term `an order' in clause (b) of section 15(1) and subsection (4) as an order passed under the specific provisions of the Ordinance, such as an order under section 4 determining fair rent, an order under section 5 authorising increase in fair rent, an order under section 8 for recovery of rent which should not have been paid, an order under section 9 for increase of rent in certain circumstances, an order under section 10 directing the landlord not to interfere with the amenities enjoyed by a tenant, an order under section 12 authorising the tenant to make necessary repairs if the landlord fails to make them and an order under section 13 for the eviction of a tenant. Section 15 (1), which deals with the appointment of appellate authorities, contem plates that the powers of all such authorities may not be the same, although in actual practice they are. The wisdom of this provision is not apparent, but it is worthy of note that the appellate authorities are to be appointed `for the purposes of this Ordinance' which brings out that the appellate authorities will hear appeals from such orders as are contemplated in the Ordinance and not otherwise. If the term `an order' is given such wide meaning as the learned counsel contends for, then every routine order, e.g., an order adjourning the hearing of the case, summoning of witnesses, production of documents, framing of issues, allocation of onus of proof, etc., would be appealable to the High Court as the appellate jurisdiction of the District Judge is confined to orders under sections 4, 8, 10 and

13. Surely, it could not have been the intention of the author of the Ordinance that in case of all important orders which may be passed under the Ordinance appeals will lie to the District Judge, but in case of routine orders, the appeals will lie to the High Court. I feel fortified in the view that this was not so by the Explanation to section 15 (4) whereby an appeal from an original order is to be heard and determined as an appeal from a decree under section 96 and from an appellate order under section 100, Civil Procedure Code. An appeal under section 96, C. P. C., lies from a decree which is defined in section 2 (2) as follows:‑ " `decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include‑ (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default." An appeal under section 100, C. P. C., is confined to the decision being contrary to law or to some usage having the force of law, etc. An appeal under section 15 (4) of the Ordinance must, therefore, be from such orders which are formal expression of an adjudication which so far as regards the Controller expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the application under one or other of the sections of the Ordinance quoted above. The words which require special attention in this respect are `conclusively determines the rights of the parties'. If this consideration is kept in view, there is no scope for the contention that all orders made by a Rent Controller to regulate the proceedings under the Ordinance can be brought in appeal before the High Court. "There is yet another aspect of the case. Under the ordinary law, ejectment of tenants or adjudication of other disputes arising out of the relationship of landlord and tenant was to take place by suits under section 9 of the Code of Civil Procedure. As it took long time to decide these suits, the jurisdiction of Civil Courts was ousted and Courts of Rent Controllers created for expeditions disposal of these matters. To this end the provisions of the Civil Procedure Code, except the power of summoning and enforcing the attendance of witnesses and compelling the production of evidence, were trot made applicable to the proceedings under the Ordinance. But if an appeal is competent from each routine orders made by the Rent Controller, as contended for by Mr. Karam Elahi Chauhan, then certainly the object of the Ordinance to expedite the disposal of actions which might be lodged under it is defeated, indeed there will be no end to such proceedings.‑

3. My learned brother S. A. Mahmood has come to the same conclusion, but he has gone a step further and held that an order under section 13(6), determining approximately the rate of rent to be deposited in Court by a tenant during the pendency of the proceedings for his eviction is as much appealable under section 15 as the final order which may be passed in the case. With utmost respect, I beg to differ at this point. An order under section 13(6) does not determine in any manner the rights of the parties, though it does regulate the proceedings leading to final adjudication of the matter in issue between them. I am fortified in this view by the fact that no real hardship is caused to either party by denying to him a right of appeal from such an inter-locatory order as an appeal lies from the final adjudication in the case and grievance, if any, regarding approximation of rent can b redressed in it. A similar situation has, indeed, arisen in this case. In the first instance, the Rent Controller determined the approximate rent at Rs. 69 per mensem. On appeal, the learned District Judge reduced it to Rs. 50 per mensem. During the pendency of the present appeal from that order, the Rent Controller has, on account of the failure of the appellant to deposit the requisite amount, struck off his defence. An appeal from that order is currently pending before the District Judge. In the circumstances of the case, the District Judge is, no doubt, precluded from re‑determining the approximate rate of rent, but if a further appeal is filed from his order to this Court, an exception can be taken to the order of approximation of rent as well. This will bring out that no injustice or hardship will fall on a tenant or a landlord by denying to either of them a right of appeal at the initial stages in the proceedings under section 13 of the Ordinance, which will invariably protract and delay the proceedings under the Ordinance and also lead to multiplicity of litigation between the parties.

4. For the foregoing reasons, I hold that the order of the Rent Controller determining the approximate rate of rent of the shop in question was not open to appeal under section 15 of the Ordinance. A fortiori no second appeal lay from the order of the District Judge to this Court. This appeal must, therefore, be dismissed with costs. (Muhammad Yaqub Ali, J. announced the majority judg ment of A. A. Khan and S. A. Mahmood, JJ. and his own dissenting judgment). A. H. Order accordingly.