P L D 1972 Peshawar 136 (PLP)

3. The learned Advocate‑General argued, and his view was shared by Mr. Peer Bakhsh Khan, that since the order in this case was passed by the Controller under section 4 of the Ordinance it would not be executable as decree of the civil Court under section

17. He therefore urged that the appeal against that order would be governed by Article II of Schedule II of the Court Fees Act and not Article I of Schedule I under which ad valorem court‑fee is required to be paid on appeal against a decree or order having the force of a decree. To substantiate his contention the learned Advocate‑General took me through the various sections of the Ordinance which seemed to him to be relevant. The first relevant section of the Ordinance to which he referred is section 4 which deals with the determination of fair rent of rented land or building. . The requirement of this section is that the Controller, when an application is filed before him by a tenant or landlord of a building or rented land, has to fix the fair rent thereof after such enquiry as he thinks fit. The next relevant section is section 6 of the Ordinance, according to which a landlord is debarred to claim or receive any premium or other like sum in addition to fair rent, or any rent in excess of such fair rent; and any agreement for the payment of any sum in addition to rent or of rent in excess of fair rent shall be null and void. Sub‑clause (c) of this section provides that "any sum in excess of the fair rent paid in respect of any use or occupation of the building or rented land from the date of application for the fixation of fair rent shall be refunded to the person by whom it was paid or at the option of such person, otherwise adjusted." Section 8 of the Ordinance is the next section which provides that any sum, which before the date of publication of the Ordinance, has been paid by the tenant and which by reason of the provisions of the Ordinance is irrecoverable, such sum may, without any prejudice to any other method of recovery, be deducted by the tenant by whom it is paid, or by his legal representative, from any rent payable to the landlord or to his legal representative, provided that before such deduction the tenant makes an application to the Controller within six months of the publication of the Ordinance and obtains his approval. This section is followed by section 10 by which the landlord is enjoined not to interfere with the amenities of the tenanted premises, save for effecting repairs. However if the landlord has contravened this requirement then under subsection (2) of this section the tenant has been given the right to make an application to the Controller for undoing the wrong, and if the Controller, after hearing the landlord, is satisfied that the contravention in question has taken place he shall direct the landlord to undo the contravention and to restore the amenities. Section 12 is the next section of the Ordinance which directs that if the landlord fails to effect necessary repairs to the tenanted premises the tenant might make an application to the Controller for that purpose and if it is granted he might authorise the tenant to carry out the repairs and to deduct the costs from the rent payable to the landlord. The next section which follows is section 12‑A of the Ordinance. This section obliges the tenant, in case he is directed by a local authority, to carry out specified repairs to the premises and then to deduct the costs from the rent payable by him to the landlord, provided he gets the accounts certified by the local authority. Section 13 is the next section which deals with the eviction of a tenant by a landlord on specified grounds mentioned therein,, provided the landlord makes an application to the Controller fn that behalf and proves his case under one or more sub‑clauses of that section. The next section is section 15 in which the right of appeal is provided from the order of the Controller to the District Judge and from the order of the District Judge to the High Court. The relevant provisions of this section, which have a decisive bearing upon the facts of this case, may be reproduced:‑ "Section

15. Appeal.‑(1) Any party aggrieved by an order made by the Controller under section 4, section 10, sec tion 12, or section 13, may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated. (1‑A) On such appeal being preferred, the District Judge may himself hear it or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated. (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 Appellate Authority and the provisions of Part VII and of the First Schedule to the said Code relating to appeals shall, with such modification as the context may require, apply to such proceedings. (5) .. The last section of the Ordinance which is relevant is section

17. It reads:‑ "Every order made under section 10 or section 13, and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court"

4. It would be seen that the right of appeal provided to an aggrieved person under subsection (1) of section 15 of the Ordinance is only against those orders which the Controller or the Appellate Authority has passed under sections 4, 10, 12 or section

13. But when we go to section 17 it provides that "every order made under section 10 or 13, and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court". Now the language of this section, when examined in the context of subsection (1) of section 15 of the Ordinance, is seemingly ambiguous for on the one hand it does not take into account the orders made under sections 4 and 12, and yet on the other it says that "every order passed on appeal under section 15 shall be executed by a civil Court as if it were a decree of that Court. The question, therefore, is as to what is the real scope of section 17 of the Ordinance? In other words, does this section mean that orders passed under section 10 or 13 only would be executable as a decree of the civil Court, or all orders passed under section 15 would be so executed despite the fact that it makes no mention of the orders passed under sections 4 and 12 of the Ordinance.

5. The learned Advocate‑General argued that notwith standing the language used in section 17 "and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if, it were a decree of that Court", the real object of the section seems to be that only those orders of the Controller or the orders passed on appeal would be deemed to be a decree of the civil Court, and executable as such, which have been passed under section 10 or 13 of the Ordinance. He, therefore, contended that this section, which according to him has been inartistically worded, should be so construed that instead of the existing words" and every order passed on appeal under section 15 shall be executed by a civil Court . . . . . as if, it were a decree of that Court" appearing therein, it should read "and every order passed on appeal under section 10 or 13 shall be executed by a civil Court . . . . . as if it were a decree of that Court".

6. There seems to be a considerable force in this contention. Now by looking at the scheme of various sections mentioned above, it is clear that in case he is granted relief by the Controller or the Appellate Authority under sections 4, 8, 12 and 12‑A of the Ordinance, a tenant is empowered by these very sections to recompense himself, without the intervention of the Court, by deducting the various amounts from the rent payable by him to the landlord. In other words since the Legislature Itself has invested him with the necessary power to help himself with the fruit of the order passed in his favour, under any one of these sections, it would follow that section 17 could not have been intended to mean that any such order was deemed to be executable by a civil Court as if it were a decree of that Court. This in my view can be the only interpretation of this section because if it is construed in any other manner the inevitable result would lead to absurdity. After all why would a tenant invoke in aid the machinery of the Court with a view to recompense himself with the fruit of the order passed in his favour under sections 4, 8, 12 and 12‑A of the Ordinance, when by these very sections the Legislature has invested him with all the necessary power, without the intervention of the Court.

7. However a question might arise as to how would a landlord, in case his application under section 4 has been granted by the Controller, recover from a recalcitrant tenant the enhanced rent of the premises, short of invoking the jurisdiction of the Court under section 17 of the Ordinance? But this apprehension may not detain us because once the rent of the premises has been fixed the tenant would be obliged to pay his landlord at that rate failing which he would be liable to ejectment under section 13 of the Ordinance.

8. The inevitable conclusion of this discussion is that orders passed by the Controller, or on appeal under sections 4 and 12 of the Ordinance, were not intended to be having the force of decree within the meaning of section 17 of the Ordinance and consequently an appeal against these orders would fall under B Article 11 of Schedule II of the Court Fees Act (which prescribes the payment of fixed court‑fee) and not under Article I of Schedule 1, which envisages payment of ad valorem court‑fee on a decree or an order having the force of a decree. In support of this conclusion it would suffice to quote the following passage from page 813 of the Full Bench judgment of Dacca High Court Messrs Mumtaz Malik v. The Taxing Officer (Registrar), High Court Dacca (P L D 1969 Dacca 803). "The upshot of all the above discussion is that ad valorem court‑fee is payable under Article 1 of Schedule I on a memo randum of appeal (including an appeal envisaged in section 8 of the Court Fees Act) when the appeal is from a decree or an order having the force of a decree but fixed court‑fee is payable on a memorandum of appeal under Article 11 of Schedule II when the appeal is not from a decree or an order having the force of a decree."

9. The result of this discussion therefore is that the learned Additional District Judge was in error to rely upon the above judgment of the Karachi Bench of the former West Pakistan High Court for in that case the order passed by the Controller was under section 13 of the Ordinance which in view of section 17 was executable as a decree of the civil Court having jurisdiction in the area as if it were a decree of that Court. The impugned order is accordingly set aside, but since the respondent in this case has not contested the proceedings there would be no order as to costs. K. B. A. Petition accepted.