P L D 1963 (W (PLP)

It would thus appear that the learned lower appellate Court upheld the plea of the plaintiffs that the defendant was their tenant, not on the documentary evidence produced by them but on the testimony of two oral witnesses, as mentioned above. The observations of the learned lower appellate Court that the question of ownership of the plaintiffs or their possession of the suit house within twelve years of the institution of the suit was irrelevant would have been acceptable without a challenge if the nature of the suit had been limited to what it really was a simple suit for ejectment by a landlord on the basis that the defendant was his tenant. Immediately however, the question arises whether such a suit is competent for adjudication by the Civil Courts.

5. As I have already said the question of jurisdiction was agitated in the grounds of appeal before the learned District Judge but he had left it undecided. I should have normally remanded this case for decision of the District Judge on that point and on the other matters left undecided by him, but I consider that it would entail unnecessary expense and hardship for the parties and as the issues involved are legal, I have decided to avoid a remand order by giving my own decision in the matter.

6. The relevant portion of subsections (1) and (2) of section 13 of Ordinance VI of 1959 may here be reproduced "

13. Eviction of tenant.‑(1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Ordinance or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction on that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that :‑ (1) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable ; .. the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order reject ing the application." The provisions in subsection (2) enjoin an application to the Rent Controller for a direction for the eviction of the tenant. The direction can be made after giving the tenant a reasonable oppor tunity of showing cause against the application only if the Controller is satisfied that the tenant has not paid or tendered rent due by him of the rented building or land within fifteen days after the expiry of time fixed in the agreement of tenancy or in the absence of any such agreement by the last date of the month next following that for which the rent is payable. The other circum stances mentioned in the provisions furnishing grounds for the eviction of the tenant are not relevant in this case except the one contained in subsection (3)(1)(a) of section 13, which is as follows :‑ (3) a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession (1) in the case of a residential building if (a) he requires it in good faith for his own occupation or for the occupation of any of his children.

7. The plaintiff, Mr. Sher Bahadur Khan, who argued his own case, contended before me that what is barred by section 13 is not the jurisdiction of the Civil Courts to hear cases of ejectment against the tenants or award decrees that may be passed therein, but the execution of such decrees passed before or after the commencement of this Ordinance. Apart from the judgment of Kaikaus J. in P L D 1957 Lah. 37 ; referred to above, the plaintiff has relied on the judgment of Mr. Justice Abdul Hamid, a former Judge, of this Court in Mst. Dilbar Jan v. Ghulam Muhammad Khan and others (P L D 1960 Pesh. 15). Interpreting section 13 of Act IX of 1957 which is word for word the same as section 13 of the Ordinance, it was held as follows :‑ There is no provision in the West Pakistan Rent Restriction Act, 1957, which ousts the jurisdiction of the Civil Courts, and forbids them to entertain suits for ejectment. What section 13 of the West Pakistan Rent Restriction Act, 1957, demands is that a decree for ejectment passed by a Civil Court after the commen cement of the Act is not executable unless the decree‑holder by an application to the Rent Controller proves that he is entitled to the possession of the property, besides the decree, on any of the grounds mentioned in subsections (2) and (3) of that section. This section places tenants under additional protection and those additional protections have been made available to the tenant even when the Civil Court finds that the protection contained in the terms of the lease are not of any assistance to the tenant. But obviously the provision of section 13 does not constitute a bar against the institution of suits of Civil nature in Civil Courts. The language of the section contemplates the passing of decrees by Civil Courts after the passing of the Act and recognises the jurisdiction of the Civil Courts to entertain ejectment suits. It was further observed in this case that there is no provision in the Urban Rent Restriction Act IX of 1957 which excludes in express language the jurisdiction of the Civil Courts to try suits for ejectment of the tenants within the meaning of section 9 of the Code of Civil Procedure.

8. The learned counsel for the defendant, on the other hand, has referred me to a Division Bench ruling of the Lahore Bench of the West Pakistan High Court in case Mrs. Keays Byrne v. M. Obaidullah Khan (P L D 1961 Lah.256), where in a contrary view was adopted in the following words The Rent Restriction Ordinance, 1959, is a permanent statute and the question of its expiry does not arise at all. In view of the permanent character of the Rent Restriction Ordinance, the jurisdiction of the Civil Court to try a suit for the ejectment of a tenant has been ousted and no Civil Court is entitled to pass a decree for the ejectment of a tenant after enforcement of the Ordinance. The West Pakistan Urban Rent Restriction Act, 1957, ceased to operate on the 15th of January 1958. By virtue of subsection (4) of section I of the Rent Restriction Ordinance, 1959, the provisions of the Ordinance shall be deemed to have taken effect on and from the 15th of January 1958. "By subsection (4) of section 1 of the Rent Restriction Ordinance, 1959, the provisions of the Ordinance shall be deemed to have taken effect on and from the 15th of January 1958. Subsection (1) of section 13 and subsection (5) of section 15 of the Ordinance 1959, indicate that the scheme of the Ordinance envisaged complete ouster of jurisdiction of the Civil Courts in matters relating to the ejectment of tenants. The only course left open for the landlord to eject his tenant is to apply to the Controller under the provisions of the Ordinance, and the Civil Courts have no jurisdiction to try any suit for ejectment of the tenant.

9. I consider that the Division Bench ruling which holds the field on the subject must prevail in preference to the Single Bench ruling given by Mr. Justice Abdul Hamid, referred to above, and reported as P L D 1960 Pesh. 15 which must further be held to have been impliedly repealed, although not expressly. With all respect, I am in concurrence with the views expressed in the Division Bench judgment that the scheme of the Ordinance bars the hearing of the suits of ejectment against the tenants, as contemplated by section 13 of the Ordinance. The view that the Legislature by enacting the Ordinance had barred the execution of decrees of ejectment by the Civil Courts and not passing of such decrees by them does not appear to be logically consistent, and it is difficult to attribute an intention to the Legislature that it had blessed the institution if suits and the making of decrees which in their effect were wholly useless, the decrees being incapable of execution. The view expressed by Mr. Justice Abdul Hamid in the case cited above, while seeking aid from section 9 of Civil Procedure Code, did not, and I say this with all respect, fully take into account the scope of that section. Section 9 of the C. P. C. by its plain intendment does not merely bar the jurisdiction of the Civil Courts in trying suits of a Civil nature whose cognizance is expressly barred from such jurisdiction, but also those which are impliedly so barred. The section reads : The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a Civil nature excepting suits of which there cognizance in either expressly or impliedly barred. I consider that section 13 of the Ordinance, while stating that a tenant shall not be ejected in execution of a decree except on an application to the Rent Controller and on the grounds specified therein, impliedly if not expressly bars the jurisdiction of the Civil Courts in ordering ejectment on the same grounds, although they may have jurisdiction to try cases other than those which fall within the purview of that section.

10. The judgment of Mr. Justice B. Z. Kaikaus in P L D 1957 Lah. 37 was delivered, when the West Pakistan Urban Rent Restriction Ordinance (XIX of 1956) was in force which governed the case before his lordship. As rightly pointed out by him, that Ordinance was purely of a temporary character and a suit in a Civil Court even for ejectment during the existence of that Ordinance, which barred the jurisdiction of a Civil Court, could not be infructuous, as the decree surviving after the lapse of the temporary Ordinance becomes capable of execution thereafter. As held by his lordship, the effect of such an Ordinance is only to suspend the decree for as long as the Ordinance is in force. The present Ordinance VI of 1959 is a permanent statute, having been passed under the presidential order of the 7th of October 1958. Decree ` of ejectment which is passed during its subsistence, falling right into the teeth of this Ordinance, is a complete nullity. It. I may here refer to another judgment of Mr. Justice B. Z. Kaikaus, reported as Jumo Khan v. Ramzani, (P L D 1959 Kar. 60), which was a case under the West Pakistan Urban Rent Restriction Act (IX of 1957), a permanent Act until it was repealed. In interpreting section 13 of that Act which again was analogous to section 13 of the present Ordinance, his lordship held as follows :‑ The effect of the provisions in the West Pakistan Rent Restriction Act; barring the ejectment of a tenant even in the presence of a decree is that even in suits which were pending at the date when the West Pakistan Urban Rent Restriction Act came into force, a decree for ejectment cannot be passed although, ordinarily an Act does not affect pending proceed ings.

12. In view of this, I am of the considered opinion that where a landlord seeks the ejectment of a tenancy on the basis of that relationship and the basis his claim for ejectment on any one of the grounds contained in section 13 of the Ordinance he is to seek his remedy only from the relevant controller appointed under the Ordinance and the jurisdiction of the Civil Courts to give him the relief which he seeks is clearly shut out.

13. The present case has obviously proceeded on the premises that the defendant was the plaintiffs' tenants, although the defen dant very vigorously denied that assumption. For purposes of the determination of jurisdiction what need to be considered are the averments in the plaint See A I R 1942 Lah.

217. On the basis of the averments made in the plaint in the present case I feel that the Civil Courts should have declined jurisdiction. If the plaintiffs now revert to the Rent Controller for their relief, the preliminary point that the Rent Controller will have to determine before framing issues in the case in order to assume jurisdiction is whether or not the relationship of landlord and tenant exists between the parties. In the circumstances, mentioned above I am constrained to quash the judgments of the two Courts below, as having been passed without jurisdiction. I do not wish to advert to the other matters arising in the appeal as it might prejudice any proceedings that the plaintiffs may wish to take for the eviction of the defen dant from the house m dispute before the Rent Controller or for the establishment of their title and right of possession in the ordinary Civil Courts. As the appeal has been decided on a law point on which there was a conflict of decisions I leave the parties to bear their own costs throughout. K. B. A. Appeal accepted.