1994 PLP 1089 (CLC)

(c) inspecting the site; and (d) issuing commission for examination of witnesses or documents." The stand of Mr. Muneeb Ahmed Khan, in my opinion, is correct. No other provisions of the Code of Civil Procedure have been made applicable, except those mentioned above. As regards the submission of Mr. Badrudduja P Khan that these cross‑objections may be treated as appeal, it would suffice to say that these objections, if treated as appeal, the same would be barred by time, as, under section 21 of the Ordinance, appeal is required to be filed within thirty days from the date of order. He, however, submits that, under Order 41, Rule 22, C.P.C. objections could be filed within one month from the date of service on the respondent of the notice of the date fixed for hearing the appeal. I have already observed that the provisions of Order 41, Rule 22, C.P.C. in terms do not apply to the proceedings under the Ordinance. Now, taking up the last submission of Mr. Badrudduja Khan that he may be allowed to agitate the grounds taken by him in the cross‑objection at the time of hearing of the appeal. Mr. Muneeb Ahmad Khan submits that since the cross objections are not maintainable, and the respondent has not preferred any appeal, he cannot be allowed to agitate these grounds at the time of regular hearing. I think the stand of Mr. Muneeb Ahmad Khan is dot correct. There was no occasion for the respondent to prefer any appeal, for the order was in his favour. He had filed one application on three grounds and the same was allowed on two of them. I am further of the opinion that, although the provisions of Order 41, Rule 22, C.P.C. are not applicable in terms, but to the broad equitable principles contained in the Code of Civil Procedure can be applied. If any authority is needed, I may refer to the case of Messrs Bambino Ltd. v. M/s. Selmor International Ltd. and another (PLD 1983 Supreme Court 155) I may quote a passage from the order, appearing on pages 156 and 157, which was written by honourable Mr. Justice Zafar Hussain Mirza, and which also incorporates the submission made before me by Mr. Badrudduja Khan: "

5. In regard to the first contention, learned counsel referred us to the provisions of section 20 of the Sindh Rented Premises Ordinance, 1979 and submitted that since specified powers relating to summoning of witnesses compelling production of documents, inspecting the site and issuing commission for examination of witnesses, vesting in Civil Court under the Code of Civil Procedure, have been conferred upon the Controller and the Appellate Authority, it follows by necessary implication that the rest of the powers enjoined by a Civil Court were not available to these authorities under the repealed enactment i.e. Urban Rent Restriction Ordinance, 1959 (vide section 16) was identical and the settled view in this Court has been that although the Code of Civil Procedure was not applicable in terms of proceedings before the Rent Controller by its own force, the Rent Controller was free to follow the equitable principle contained in the Code of C.P. There is no reason, therefore, to take a different view so far as the provisions of the Sindh Rented Premises Ordinance are concerned, which governed the proceedings for execution of the Order in this case." Even otherwise, there are a number of decisions, wherein the respondent was permitted to support the order on grounds different from those on which the order was based, if the order under appeal was not sustainable on that ground. I may add that these observations will be applicable with equal force to proceedings in appeal before the appellate Court. I may cite those decisions, some of which were cited by Mr. Badrudduja Khan, as under:‑‑ (1) Muhammad Tufail v. Barkat Ali (PLD 1967 Kar. 151). (2) M/s. Yusuf & Co. v. Mst. Rasheeda Begum (PLD 1975 Karachi 684). (3) Shaikh Muhammad Ashraf v. Shaikh Muhammad Almas (PLD 1981 Lahore 52). (4) Ghulam Hussain Malik v. Ghulam Dastgir Khan (1983 CLC 1520). (5) Shafique‑ur Rahman v. Abdul Ghani (1986 CLC 2020). (6) Abdul Haq v. S. Basharat Ali (1985 CLC 1429). It may be useful if I quote a paragraph from the case of Sh. Muhammad Ashraf v. Sh. Muhammad Almas (supra). This judgment is by Aftab Hussain, J., and the relevant paragraph appears on page 58 of the report. It reads as follows:‑‑ "13 The appeal before the learned Additional District Judge was governed by the provisions of section 15 which admittedly does not require or provide for; any cross‑objections. It provides for an appeal by the aggrieved party against an order from which that party is aggrieved. Whatever be the number of grounds taken in the application for ejectment the intention of the landlord is to secure ejectment of the tenant. If, not writ standing the fact that some of the issues are decided against the landlord, or, the landlord according to the Rent Controller, otherwise proves some of the grounds and some of the issues covering the other grounds are decided in favour of the landlord, but the ultimate order of the Rent Controller is that of ejectment of the tenant, clearly he cannot be considered to be an aggrieved party for filing an appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance. In these circumstances there being no provision under section 15 about the filing of an appeal in the circumstances of the case by the landlord, the general principle of law that the landlord can support the ultimate order of ejectment on the grounds other than those which had been decided against him by the Rent Controller, will apply. In Muhammad Tufail v. Barkat Ali (PLD 1967 Kar. 151) it was held that in an appeal against the order of the Rent Controller the respondent was entitled to support the order of the Rent Controller on grounds different from the one on which the Controller had based his decision. This view was also taken by me in Muhammad Hussain v. Khateeb Ahmed, SA. No.150 of 1977. In the cases where the objection is that there should be a cross‑objection, what is necessary to find out is whether any cross‑objection or cross- appeal could have been filed by the respondent. However, cross- objections or cross‑appeals can be filed only in those cases where part of the ultimate order or decree is against the respondent. In that case it becomes necessary to file some appeal or cross‑objections. But if the entire order is in favour of the respondent and only some of the issues had been decided against him it is not possible for him to tile cross -objections or cross‑appeal. In that contingency, the principle of Order XLI, Rule 22, C.P.C. must apply that the respondent can support the ultimate order (of eviction of the tenant in the present cases) even on the grounds or issues which have been decided against him. This would, no doubt means that he will have to show to the appellate Court that the order of the Rent Controller on those issues or those grounds was absolutely incorrect and that it should be set aside by the appellate Court. (Mst. Jamila Begum v. Awam‑un‑Nass and others (PLD 1978 Lah.1375)." I may add that this judgment has been followed by Saleem Akhtar, J., in Ghulam Hussain Malik v. Ghulam Dastgir Khan (supra), and by Munawar Ali Khan, J. in Abdul Haq and another v. Sayed Basharat Ali (supra). It may also be useful if I quote a paragraph from the judgment of Qadeer-ud-din Ahmed, J., in Muhammad Tufail v. Barkat Ali (supra). It reads as follows:‑‑ "

5. The first and third contentions of counsel can be disposed of briefly. The third contention that the First Appellate Court Authority could not reject the appeal on ground different from the one which was taken before the Rent Controller, in the absence of an appeal by the respondent against that order of the Rent Controller, is not sound. The Rent Controller had dismissed the application of the appellant therefore, the order of the Rent Controller was in favour of the respondent. In these circumstances, the respondent could not go in appeal from that order. When the appellant preferred the First Appeal, the respondent could support the order of the Rent Controller on a different ground from the one on which the Rent Controller had given his decision. This is clear from Order XLI, Rule 22, C.P.C. The Appellate Authority was thus entitled to dismiss the appeal on the ground on which it has done so." It is settled principle that an appeal is continuation of proceedings. If an appeal is admitted, the whole case opens up for review and therefore if any ground taken by a party is rejected unduly, it will be open to the party aggrieved by the rejection to urge that ground before the appellate Court in support of the appeal or in support of the order, but in rent appeal he cannot seek eviction of the tenant on a ground different from one taken in the proceedings from which the appeal has arisen. Accordingly, I am of the opinion that the respondent is entitled to urge the ground which was taken by him before the Controller, if necessary. I may clarify that where a person does not get full relief, he cannot get the same from the appellate Court without filing cross‑appeal, but, in .rent proceedings, where an ejectment order has been passed, it cannot be said that he has not got full relief. Subject to the above observations, the cross‑objections are dismissed. M.BA./Q 88/K Order accordingly