P L D 1971 Karachi 687 (PLP)

West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15(4) (read with West Pakistan Urban Rent Restriction (Amendment) Ordinance (XXI of 1966)]‑--Expression "if an appel late authority has not been appointed in respect of any area or class of cases" in S.15(4)‑--Meaning and object‑--Effect of amendment of Ordinance in 1966--‑Special jurisdiction of High Court as Court of first appeal available only against order of Controller covered by some provision fn Ordinance--‑Amendment made by amending Ordinance XXI‑--Confines right of appeal only to orders made by Controller under S. 4, 10, 12 or 13 and District Judge having jurisdiction over area has been named as the appel late authority‑--First appeal direct to High Court against order made by Controller‑Not competent. In a proceeding under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1951, a person applied to the Controller for being impleaded as a party. The Controller rejected the prayer. Against the order of the Controller an appeal was filed directly to the High Court on the footing that no appellate authority had been appointed in respect of the class of cases to which the impugned order related in terms of section 15(4) of the Ordinance. Held: No appeal lay against an order not being an order made by the Controller under section 4, 10, 12 or 13 of the West Pakistan Urban Rent Restriction Ordinance. Sub section (4) of section 15 of the Ordinance is complimentary to subsection (1) of the same section and not an enlargement of the right to appeal. Subsection (4) of section 15, visualises two distinct jurisdictions which the High Court may exercise in relation to orders passed under the provisions of the Ordinance, one as a Court of Second Appeal against the orders passed by the appellate authority and, if an appellate authority has not been appointed in respect of any area or class of cases, the order as the Court of First Appeal. The latter juris diction is obviously attracted only in those cases in which there is a presupposition that the right of appeal exists but on account of non‑appointment of the appellate authority the remedy has become unavailable. This special jurisdiction of the High Court as a Court of first appeal had meaning when under clause (b) of subsection (1) of section 15 of the Ordinance, as it stood prior to 11th May 1956, an appeal lay against "an order" passed by the Controller. All orders which appeared to have been passed is exercise of the powers expressly conferred by any of the provisions of Ordinance were originally appealable and it was thus necessary that pending the appointment of the appellate authority a machinery must be devised for entertaining such appeals. After, however, the Coming into force of the amend ing Ordinance XXI of 1966, the whole of subsection (1) of section 15, clause (b) whereof created the right of appeal, under went a drastic change. While clause (b) of the original subsection (1) made any order passed under the provisions of the Ordinance appealable, the amended subsection (1) confined the right of appeal to orders made by the Controller under section 4, 10, 12 or 13 of the Ordinance. A further significant departure was that under that amended subsection (1) the appellate authority was no longer left to be appointed by the Government but was named by the Ordinance as the District Judge having jurisdiction over the area where the building or rented land is situated. The effect of the amendment brought about by Ordinance XXI of 1966, clearly is that the right of first appeal was conceded only to orders passed by the Controller under four specific provisions of the Ordinance and to none else. The provisions of subsection (4) of section 15 were designed purely to cater to and subserve the scheme propounded in the original subsection (1) of section

15. The appellate jurisdiction of the High Court as the Court of first appeal was wholly to provide for a transient situation in which, while the right of appeal existed, the tribunal remained unnamed. With the amendment of law in 1966, the category of cases in which an appeal would lie came to be statutorily defined and there is nothing in the Ordinance as it now stands which may reasonably suggest that by not amending subsection (4) of section 15 the intention of the law‑makers was to extend the right of appeal to orders other than those passed under the stated sections. The failure to amend subsection (4) correspondingly with sub section (1) appears plainly to be an oversight since, as subsection (4) today stands, a second appeal to the High Court lies only against "an order passed in appeal by the appellate authority appointed by the Government under clause (a) of subsection (1) . . . . . ." Muhammad Amin v. Jamshed AU P L D 1963 Lah. 523 and Kandawala & Co. v. Sh. Rashid‑ud‑din 1969 S C M R 721 ref. ORDER MUHAMMAD ALI SAYEED, J.‑--This letters patent appeal is directed against the Judgment of his Lordship the Chief Justice dismissing , the appellants first appeal as' not being maintainable under law.

2. The appellant had applied to the Rent Controller for being joined as an opponent in the eviction proceedings instituted by the landlord against respondent No.

2. The case of the appellant was that the second respondent had vacated the premises in dispute in the year 1950 and eversince then the appellant had been in its occupation and possession. Since the landlord's claim to ownership of the premises was referable to a transfer from the Settlement Authorities, the argument was that the appellant had acquired statutory tenancy in respect thereto by virtue of his possession being prior to 20th December 1958, irrespective of the nature of its inception. The landlord, ft was alleged, had wilfully suppressed these facts and had mischievously brought his case only against the respondent No. 2 knowing fullwell that the latter was neither in possession nor was interested in defending the action.

3. The learned Rent Controller by his order dated 11‑1‑67, rejected the appellants motion to be joined as an opponent. Against the aforesaid order of the learned Controller, the appellant filed a direct appeal to the High Court on the footing that no appellate authority had been appointed in respect of the class of cases to which the impugned order related in terms of section 15(4) of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance). The appeal after admission to regular hearing, was eventually dismissed by his Lordship the Chief Justice who held that no appeal lay against an order not being an order made by the Controller under section 4, 10, 12 or 13 of the Ordinance. The view expressed by his Lordship is crystallised in the conclusion that subsection (4) of section 15 of the Ordinance was complimentary to sub section (1) of the same section and not an enlargement of the right to appeal.

4. Before proceeding to consider the contentions of the learned counsel it would perhaps be worthwhile to note the provisions of section 15(1) and 15(4) of the Ordinance as they originally stood and the change brought about by the Amending Ordinance No. XXI of 1966. Prior to 11th of May 1966, sub section (1) and subsection (4) of the Ordinance were in the following shape :‑ "15(1)(a) Government may by a general or special order, by Notification confer on such District Judges 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 jurisdiction. 15(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." On the 11th May 1966, the West Pakistan Urban Rent (Amendment) Ordinance No. XXI of amending Ordinance did not touch subsection (4) Ordinance but substituted the whole of subsection (1) following new subsection: "(1) Any party aggrieved by an order made by the Controller under section 4, section 10, section 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." Reverting now to subsection (4) of section 15, it would appear, that this subsection visualises two distinct jurisdictions which the High Court may exercise in relation to orders passed under the provisions of the Ordinance, one as a Court of Second Appeal against the orders passed by the appellate authority and, if an appellate authority has not been appointed in respect of any areas or class of cases, the order as the Court of First Appeal. The) latter jurisdiction is obviously attracted only in those cases in which there is a presupposition that the right of appeal exists but on account of non‑appointment of the appellate authority, the remedy has become unavailable. It seems fairly clear to us that this special jurisdiction of the High Court as a Court of first appeal had meaning when under clause (b) of subsection (1) of section 15 of the Ordinance, as it stood prior to 11th May 1966, an appeal lay against "an order" passed by the Controller. Following the Full Bench decision of the High Court at Lahore in Muhammad Amin v. Jamshed Ali (P L D 1963 Lah. 523) the Supreme Court has in the case of Kandawala & Co. v. Sh. Rashidudin (1969 S C M R 721), interpreted the words "an order" appearing in section 15(1)(b) as an order which is covered by some provision in the Rent Restriction Ordinance. Hence all orders which appeared to have been passed in exercise of the powers expressly conferred by any of the provisions of the Ordinance were originally appealable and it was thus necessary that pending the appointment of the appellate authority a machinery must be devised for entertaining such appeals. After, however, the coming into force of the amending Ordinance No. XXI of 1966, the whole of subsection (1) of section 15, clause (b) whereof created the right of appeal, underwent a drastic change. While clause (b) of the original made any order passed under the provisions of the appealable, the amended subsection (1) confined the appeal to orders made by the Controller under section or 13 of the Ordinance. A further significant departure was that under the amended subsection (1) the appellate authority was no longer left to be appointed by the Government but was named by the Ordinance as the District Judge having jurisdiction over the area where the building or rented land is situated. The effect of the amendment brought about by Ordinance No. XXI of 1966 clearly is that the right of first appeal was conceded only to orders passed by the Controller under four specific provisions of the Ordinance and to none else.

5. The question that would now seem to arise is whether the words "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 Controller, prefer an appeal in writing to the High Court . . . . ." could be construed as creating a right of appeal. While answering this question we would say that the provisions of subsection (4) of section 15 were designed purely to cater to and subserve the scheme propounded in the original subsection (1) of section

15. The appellate jurisdiction of the High Court as the Court of first appeal was wholly to provide for a transient situation in which, while the right of appeal existed, the tribunal remained unnamed. With the amendment of law in 1966, the category of cases in which an appeal would lie came to be statutorily defined and we see nothing in the Ordinance as it now stands which may reasonably suggest that by not amending subsection (4) of section 15 the intention of the law‑makers was to extend the right of appeal to orders other than those passed under the stated sections. Any other view in this respect would lead to an incongruous situation in that while the most crucial and far‑reaching orders passed by the Controller under sections 4, 10, 12 and 13 are appealable to the District Judge, the jurisdiction of the High Court as the first appellate Court, would extend only to inconsequential orders of little or no moment.

6. We would further permit ourselves to observe, although it is not strictly the function of Courts to focus attention on the lacunas in law‑making, that failure to amend subsection (4) correspondingly with subsection (1) appears plainly to be an oversight since, as subsection (4) today stands, a second appeal to the High Court lies only against "an order passed in appeal by the appellate authority appointed by the Government under clause (a) of subsection (1) . . . . . "

7. If the foregoing provisions were to be strictly interpreted the remedy by way of appeal would become illusive since under the amended subsection (1) there is no "appellate authority appointed by Government" nor does clause (a) of subsection (1) referred to above exist. It thus becomes all the more necessary that the provisions of subsection (4) of section 15 should be interpreted harmoniously and in conjunction with the amended subsection (1) so as to draw out the true intent of the law makers. In the view we have taken of the said provisions we do not find it possible to reach a conclusion different from that of the learned Chief Justice. This appeal has therefore to be dismissed in limine. K. B. A. Appeal dismissed.