P L D 1967 Karachi 136 (PLP)

QADEERUDDIN AHMED J.‑This is a second appeal which is directed against the judgment of an Additional District. Judge, Karachi, dated the 15th of October 1962, by which he upheld the judgment of the trial Court dated 31st of January 1962. By that judgment the original Court had decreed the suit of the respon dent.

2. The facts which form the background of this appeal are that Rashid Ahmed was the owner of a wooden cabin which was rented to Nabi Ahmed. During the Martial Law days cabins were being removed from footpaths; therefore, Nabi Ahmed's cabin was in the danger of being removed from the footpath and of becoming unusable by him for his business. That cabin was, therefore allowed by Rashid Ahmed to be placed in a premises, which has been described as a shop. Subsequently, Nabi Ahmed took himself to be tenant of that shop and made an application before the Rent Controller for fixation of its fair rent. That application was resisted by Rashid Ahmed, and it appeared that the controversy was as to whether Rashid Ahmed had allowed the cabin to be placed in the shop with the intention of creating a tenancy of the shop in favour of Nabi Ahmed or not Rashid Ahmed made an application offering that the case be decided on a special Oath of Nabi Ahmed. A copy of that application is not on this record, but it is conceded that objection was taken to the oath on behalf of Nabi Ahmed, and, therefore, the application was rejected. Thereafter, Nabi Ahmed agreed to take the oath, which was duly administered and a record of it was made by the Rent Controller vide his order dated the 4th of March 1959, as follows :- "Parties and their advocates present. The opponent' advocate moved an application for special oath for deciding the case, but the applicant's advocate objects to it. Evidence of the opponent's witnesses recorded who (he) closes his evidence. At this stage the applicant showed his willing ness to take special oath. He took special oath and said that t "the cabin was given to him Lot for 2 or 3 days but perma nently on rent". Case is adjourned for applicant's evidence on 26‑3‑59 at 11‑30 A. M." On the 26th of March 1959, the statement of Nabi Ahmed, applicant, was recorded. The reason for doing. so was that Nabi Ahmed's application was for fixation of fair rent and, therefore, if he was a tenant, fair rent had to be fixed. Therefore, the Rent Controller decided the application of Nabi Ahmed vide his order dated the 27th of June 1.959. As to the existence of tenancy between the parties, his relevant observations are as follows:‑ "The opponent's Advocate moved an application for a special oath for deciding the point of tenancy, but the applicant's Advocate objected to it, and the evidence of the opponent's witness Sannu was recorded. At this stage, the applicant showed his willingness to take the special oath and the opponent agreed to it. He took the special oath and stated that the cabin was given to him not for two or three days but permanently on rent." Further : "After taking the special oath, it is a decided fact that the applicant is a tenant of the disputed premises." The Rent Controller fixed the lair rent to be Rs. 7 per month,

3. The landlord, Rashid Ahmed, was not satisfied with this order; therefore, he went in revision which was accepted by the learned Chief Judge Karachi 'mall Causes Court, vide his order, dated the 22nd, of December, 1959. A summary of his views can be given in his own words as follows: "Let us now examine and see whether this Nabi Ahmed was admitted as a licensee or as a tenant as contended by him. I feel that he was not given this shop on rent as stated by the parties. Nabi Ahmed has not examined any evidence to show that he was taken as tenant of the applicant. There is only an uncorroborated word of this opponent Nabi Ahmed on the record to this effect. I feel that the Rent Controller has erred in appreciating the evidence while determining this application. On carefully examining the evidence and the attending circumstances of the case, I feel that the applicant has a strong case to succeed. In the result I allow the application and set aside the order of the Rent Controller.

4. There is nothing in the order of the learned Chief Judge to indicate that he took into consideration as to what was the effect of the word of Nabi Ahmed which had come on record not only as a witness but on a special oath. In this connection, it is to be noted that on my request Haji Motiur‑Rahman has produced a copy of the grounds of revision which contain the following two paragraphs relating to that oath : "

4. That the lower Court has also erred in giving weight to the application of Special Oath because when the application was moved the opponent refused to take special oath and the lower Court thereafter rightly rejected the application. When the application had already been rejected there is no point in allowing the opponent to avail of it at a later stage, when evidence of the applicant's witnesses had been recorded. The application lost its value after its rejection and there was no fresh request on the point, therefore the finding of the lower court is liable to be set aside.

5. That the intermixing of the hire of the wooden cabin into tenancy of a separate repair shop without any direct evidence of a contract of tenancy of the new shop is wholly unwarranted."

5. The contentions raised in the above two paragraphs were that the special oath could not be administered to Nabi Ahmed because the application made by Rashid Ahmed had once been rejected and that there was an "intermixing of the hire of the wooden cabin into tenancy of a separate repair shop without any direct evidence of a contract of tenancy", which according to the landlord, Rashid Ahmed, was not proper, correct or warranted.

6. The above contentions, however, did not amount to saying that the special oath, which was taken by Nabi Ahmed, did not, in the circumstances and context, establish tenancy of the shop in favour of Nabi Ahmed. The fact that a special oath had been administered was not denied in the memo of the revision application, nor was it denied that the tenancy of the shop had been made dependent on the premises being found to have been permanently given to Nabi Ahmed to place the cabin in it.

7. The omission of the learned Chief Judge, Karachi Small Causes Court to make any reference to the special oath and to consider the effect of that oath in terms of section 11 of the Oaths Act resulted in the dissatisfaction of Nabi Ahmed with that order. He, therefore, filed a suit bearing No. 134 of 1960 for a declaration that the order of the Chief Judge, Karachi Small Causes Court was illegal, ultra vires, null and void and for an injunction restraining Rashid Ahmed from evicting him from the shop. The suit was resisted by Rashid Ahmed, and the follow ing six issues were framed by the learned trial Court on the pleadings of the parties :‑ (1) Whether there was any contract of tenancy of shop No. 3/375 between the parties? (2) Whether the occupation of the shop in dispute by the plaintiff was illegal and unlawful? (3) Whether the plaintiff was bound to run his business in the cabin at the place where it was kept by the defendant? (4) Whether the order of the Chief Judge, Small Causes Court passed under the provisions of the Karachi Rent Restric tions Act can be challenged in a Civil Court? (5) Whether the order dated 22‑12‑1959 of Chief Judge, Small Causes Court, Karachi (Exh. A/2) is illegal, ultra vires and without jurisdiction? "

6. To what reliefs, if any, are the plaintiffs entitled ?" Issue No. 4 was treated as a preliminary issue and was decided by the trial Court in favour of the plaintiff. The result of that decision was that the suit was held to be maintainable and further proceedings bad to he taken. This was subsequently done, and the suit was decreed, as mentioned above, by the trial Court on the 31st January, 1962. The trial Court held in his final order that the decisions of issues Nos. 4 and 5 were not open to reconsideration because issue No. 4 had been decided as a preliminary issue and issue No. 5 was decided incidentally.

8. The landlord, Rashid Ahmed, therefore, went in first appeal, which was rejected, as stated above, by an Additional District Judge, Karachi, by his order dated the 15th October 1962. He held that the decisions of both issues were res judicata between the parties and were not open to reconsideration. Rashid Ahmed has, therefore, come in second appeal to this Court.

9. It is clear that issue No. 5 was not tried by the original Court as a preliminary issue though observations with regard to it have been made while deciding issue No. 4 which was the preliminary issue. In these circumstances, Mr. A. M. Lakhani, counsel for the respondent, has conceded that the decision of issue No. 5 was not binding on the original court at the time of the decision of the case, nor was it res judicate between the parties at the time of the decision of the first appeal. As to the decision of issue No. 4, Mr. Lakhani's stand was that it was duly considered by the trial Court and disposed of ; therefore, the trial Court could not tare a different view at the time of the decision of the whole suit from the view that was taken at the time of the decision of the preliminary issue. Haji Motiur Rahman did not take an exception to this point of view, but he joined issue with Mr. Lakhani when Mr. Lakhani contended that issue No. 4 was res judicata before the first appellate Court also: It is difficult to understand as to how the first appellate Court has come to the decision that issue No. 4 was res judicata before him. The issue was decided as a preliminary one by the trial Court and an appeal has been preferred against the final judgment of that Court which was to be disposed of by the first appellate Court. All the views that were expressed by the trial Court in the final judgment were thus open to review by the first appellate Court and could not be res judicata unless it was contended that the decision of the preliminary issue having been made earlier than the final decision of the suit, an appeal against it had become barred by time ; but this contention was not raised. Moreover, it could be raised only if the view taken was that Rashid Ahmed could prefer an appeal against the decision of the preliminary issue alone and could not prefer an appeal against it along with the rest of the decisions of the case. There is a provision in section 97, C. P. C., according to which a preli minary decree cannot be questioned after the final decree has been given, but there is nothing in the Civil Procedure Code which makes an appeal against the decision of a preliminary issue along with the decision of the whole appeal as barred by law. Moreover, in this case, as pointed out by Haji Motiur Rahman, the decision of issue No. 4 was not even appealable. In this connection, I may mention that the enactment of section 97, C. P. C. creates an exception against the institution of appeals from preliminary decrees after final decrees are passed. The absence of such a prohibition against appeals from the decisions of preliminary issues is an indication of the implied law that such appeals are not barred by the C. P. C. The following commentary by Chitaley and Rao on section 97, C. P. C. in the 7th edition of their book is instructive. "This section is new. Under the old Code objections to the preliminary decree could be raised in the appeal against the final decree. This was felt to be unreasonable as, thereby, a party was permitted to wait till proceedings were carried on to a final stage and large costs were incurred, and then, after the final decree, raise objections which could have been taken at an earlier stage." Further:‑ "But the bar under this section does not apply to an interlocutory order (between the preliminary decree and final decree) not amounting to a supplementary preliminary decree." There is a reference to Banwari Lal and others v. Shaikh Shukrullah and others (A I R 1940 Pat. 204), in the footnote of the commentary. It was held in that judgment that an order given to the Commissioner directing him to credit a certain amount of money to the account of the plaintiff was appealable at the time of the appeal from the whole case.

10. In the above view of the law, an appeal from the decision of issue No. 4 as a preliminary issue was not barred at the time of the appeal that was preferred by Rashid Ahmed from the final judgment. This being so, that decision was open to appeal and there was no reason for the first appellate Court to come to the conclusion that it was barred by res judicata. The situation which emerges from this conclusion is that issues Nos. 4 and 5 ought to have been decided‑ by the first appellate Court. Issue No. 4, relates to the maintainability of the suit, and issue No. 5 embodies the main point of the suit itself, namely whether the order of the learned Chief Judge of the Karachi Small Causes Court passed in exercise of his revisional jurisdiction was ultra vires of his powers and without jurisdiction. Counsel for the parties have addressed lengthy arguments on these issues. The consideration and main aspects involved in them are more or less inseparable, therefore, I would proceed to decide them together.

11. Mr. A. K. Lakhani has contended that the case bad been disposed of by the Rent Controller on a special oath and that under section 11 of the Oaths Act, 1873, a statement made on that oath was "conclusive proof of the matter". Instead of recognising that it was final and was so recognised by the Rent Controller, the learned Chief Judge, Karachi Small Causes Court has proceeded during the revisional proceedings to decide the question of tenancy as if there was no statement on special oath and as if, in spite of the special oath tenancy had to be proved by the evidence. This manner of dealing with the case was adopted not for any reason set out in the order, bat appears to have been the result of disregard of the law and the special oath, which was contrary to the powers that could be legally exercised by him inasmuch as the learned Judge has failed to take that aspect of the case, which was conclusive under law, into consideration, and has proceeded without assigning any reason for doing so as if the statement on special oath and the law relating to it did not exist. He has thus either exceeded his jurisdiction or acted without jurisdiction. If his order is in excess of jurisdiction or without jurisdiction, then it is without any authority, and can be questioned, according to counsel, by filing a civil suit.

12. Haji Motiur Rahman has met the above stand of Mr. Lakhani by pointing out that under the Karachi Rent Restrictions Act, 1953, as it was in force at the time of the order, there was the following section in it "

17. Subject to the provisions of subsection (2) of section 15 an order made by the Central Government under subsection (1) or subsection (2) of that section, an order of the Controller shall be final and shall not be called in question in any Court." The reference to the Central Government in the above provision was, in reality, to the Chief Judge, Karachi Small Causes Court, who exercised ‑the Revisional Authority on behalf of the Central Government in terms of section 15 of that Act. As the Chief Judge. Karachi Small Causes Court has given his order under subsection (2) of section 15 of the Act, it has become final according to Haji Motiur Rahman, and could not be questioned in any Court. The order cannot be challenged as without jurisdiction, according to counsel, because the Chief Judge, Small Causes Court, bad the revisional powers, which is not denied by either side, and because any mistake or even blunder committed by him wile exercising that power would not take away his jurisdiction, or would make his order is excess of his jurisdiction unless it would be shown that his order was outside the scope of his authority. This proposition of law was supported by him by referring to the observations of the Supreme Court made in the case of M. U. Ispahani Ltd. v. Muhammad Sultan (P L D 1961 S C 76) as follows :‑‑ "That the decision of the Tribunal acting within the scope of its authority will not be without jurisdiction merely because it is erroneous as not a questionable proposition, but it appears clear to us that Chief Judge (whose authority is the same as that of the Rent Controller) was not acting within the scope of his authority." Counsel, therefore, contended that an error, or even a blunder committed by the Chief Judge could not make his order ques tionable by a suit unless it was shown that his order was not within the scope of his powers.

13. The only manner in which it could be argued on behalf of the respondent that the order was not within the scope of the authority of the Chief Judge, Karachi Small Causes Court may be by showing that it was founded on a consideration which was not within the scheme of the Rent Restrictions Act because their Lordships of the Supreme Court have observed in the said judgment as follows:‑. "He (the Chief Judge, Karachi Small Causes Court) should have stopped there. But he went on to consider the effect of the ejectment on the business of the tenant. It is plain that the effect of the ejectment on the business of the tenant is not a consideration within the scheme of the Rent Restriction Act and in referring to it and to the fact that the tenant was a refugee and his ejectment would mean one more case for the Rehabilitation Department the Chief Judge was travelling beyond the scope of the law under which he purported to act." In this case, the statement which was made on Special Oath was not that there was tenancy between the parties with respect to the shop in dispute but that the cabin was given to the tenant, Nabi Ahmed, not for two or three days but permanently on rent. There is nothing in the order of the Rent Controller, or in the proceedings, to disclose as to how an inference was drawn from this statement that tenancy was existing between the parties with respect to the shop. It is true that the Rent Controller has held that, owing to the special oath, it was a decided fact that Nabi Ahmed was a tenant of the shop, but the process of reasoning is undisclosed and is sin obscure that if that conclusion of the Rent Controller was disregarded by, the Chief Judge, Karachi Small Causes Court, as irrelevant or as of no value, then the necessary conclusion will not be that the Chief Judge acted without jurisdiction or in excess of jurisdiction. If he has made the mistake of not explaining as to why .the statement made on special oath was irrelevant and of no value, then the omission is not, according to counsel, enough to make the judgment the subject of attack in a civil suit in contravention of section 17 of the Karachi Rent Restrictions Act, 1953 as it was at the time of the order.

14. I understand the anxiety of Mr. Lakhani's client when he instituted the suit from which this appeal has arisen, to question the judgment of the Chief Judge, Small Causes Court, because he and the landlord as well as the Rent Controller appear to have been in no doubt at the time at which the statement on special oath was made that it concluded the matter in so far as the establishment of tenancy in the shop was concerned, but the record is not at all clear that this impression of the parties and of the learned Rent Controller was justified. The learned Chief Judge too has completely left out of consideration the statement that was made on special oath, and it appears from his order that no reference to it was made during the arguments which were addressed to him because there is no allegation from any side that he omitted to take into consideration the contentions that were raised before him. Even in these proceedings he has not been blamed for having failed to listen to the arguments that were addressed to him or to refer to them in his judgment. His omission, therefore, to refer to that statement can be justified by the fact that the statement looked to be irrelevant and there was no explanation as to its relevancy to the premises. It may be possible to find fault with the judgment inasmuch as the irrelevancy of the statement has not been disclosed which amounts to a blunder. But even a blunder would not make the order in excess of jurisdiction or without jurisdiction. Admit tedly, if the order was only wrong and not in excess of jurisdiction or without jurisdiction, then however grave the mistake might be, it was not open to reconsideration in a civil suit.

15. Taking the above view of the situation. I accept this appeal, set aside the judgments of the learned Additional District Judge, Karachi, dated the 15th of October, 1962, and of the trial Judge, dated the 25th August 1960, and the 31st of January 1962, and dismiss the suit of the present respondent as not maintainable under law. The parties should bear their own costs. S.Q. Appeal dismissed.