1983 PLP 2206 (CLC)

This appeal is directed against the order dated 25th March, 1977 whereby the learned IV Additional District Judge, Hyderabad, dismissed the first appeal preferred from the order dated 30th April, 1975 of the VI Extra Joint Civil Judge and Rent Controller, Hyderabad. By the last mentioned order the appellants were directed to vacate the disputed premises and put the respondent Muhammad Umar in possession thereof. The facts of the case in brief are that the respondent Muhammad Umar who is the owner and landlord of the disputed premises known as Nisar‑o‑Niaz, bearing Survey No. 162 and situating in ward A, Hirabad, Hyderabad, filed ejectment application in the Court of Civil Judge and Rent Controller. Hyderabad, seeking ejectment of Qazi Shafi Muhammad, predecessor‑in‑interest of appellants, who has since died and appellant Habibullah who is also son of said Shafi Muhammad, from the said premises. The only ground taken by the respondent for eviction of the appellants was that they have made default in payment of rent for months of February, March and April, 1974. The application was opposed by the appellants on the ground that the deceased Qazi Shafi Muhammad, the predecessor‑in. interest of the appellants had fallen ill in the month of January, 1974, and had, therefore come to Karachi for treatment. Consequently the rent for the months of February and March, 1974, fell in arrears and the default was not wilful. The appellant Habibullah however offered rent for the month of April, 1974, to the respondent who refused to accept the same: He demanded higher rent or in the alternative required the appellants to vacate the premises. Thereafter, the amount of rent was sent to the respondent by money order but that too was refused by him. ‑ The learned Controller framed five issues which were all decided by him against the appellants. As stated above, appeal was preferred from' the order of the Controller but without any success. Mr. Ansar Hussain appearing on behalf of the appellants conceded that the present 'appeal is time‑barred, as it was not filed within the statutory period. However, his contention was that the order sought to be set aside being void order, the provisions of the law of the limitation were not attracted. In support of his arguments be pressed into service the authority reported as Faqir Muhammad v. Mulla Mahmood (P L D 1973 Quetta 1). In this case Agha Ali Hyder, J. (as he then was) observed :‑ "

8. The question, whether the provisions of sections 5 and 14 of the Limitation Act are applicable in proceedings under the Rent Restriction Ordinance, need not be examined at all, if it is found that the impugned order is without jurisdiction and void. This was the view taken in two Division Bench cases, namely. Hussain Bakhsh.and others v. Settlement Commissioner (P L D 1969 Lab. 1039) and Syed Mahmud Alam v. Syed Mehdi Hussain and others (P L D 1970 Lab. 6). It has been observed in the latter case, that an appellate authority can entertain and decide on merits even a time‑barred appeal against such orders. It, therefore remains to see whether the order is a nullity being without jurisdiction." As against the above authority the learned counsel for the respondent placed reliance on V. R. Mall v. S. H. Muhammad Sharif (2). It was held "Even otherwise it cannot be said that in case of void order the affected person is at liberty in all cases to choose his own time to get the same removed or set aside. It is true that void orders are nullity in the eye of law and must be ignored by a Court before whom they are brought it is for the Court to ignore or set aside an order which is nullity and not for the individual for themselves. But if a person presumes that an order is a nullity and ignores. the same he does so at if he comes to a Court he shall have to show that the right he is claiming and which was hit by that presumed void order is not lost due to any provisions of the Limitation Act." Despite the legal position stated in this authority, if arguments of the learned counsel for the appellants are accepted that for setting aside a void order it is not necessary to move the Court within certain time limit, the next point to be considered will be if the impugned order is void order and hence nullity in the eye of law. It is an admitted position that the appellants had committed default in payment of rent for the months of February, March and April, 1974. They were sought to be ejected on. the ground of the said default by the application filed on 22nd April. 1974. The learned counsel for the appellants argued that the application being manifestly premature, the learned Controller had no jurisdiction to entertain the same and the order passed by the Controller disposing the application was a nullity. Before going into the factual controversy as to whether the ejectment application was premature or not, it has to be seen what is void order and if the impugned order falls within the category of void orders. In this connection guidance is provided by the Supreme Court in the cases reported as Muhammed Sawaleh and another v. Messrs United Grain and Fodder Agencies (PLD1964SC97), Muhammad Ayub Khoro v. Pakistan and others (P L D 1960 S C 237) and Mansab Ali v. Amir and others (P L D 1971 S C 124). Taking up first the case of Muhammad Sawaleh it was held by the Supreme Court :‑ "Another order can under this section be attacked on three grounds and it is the assumption of the third ground that an exercise of jurisdiction may be illegal or irregular and yet the order passed may not be void and without jurisdiction. By merely showing, therefore, that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provision or principle of natural justice as would render the proceedings coram non judice." In another case of Muhammad Ayub Khoro following observations of the Supreme Court are relevant in this case :‑ "In order to find a correct answer to this question which may govern the present case, it is necessary to bear in mined the distinction between an incorrect decision and a void decision. A judgment is incorrect if it is wrong in law or fact ; it is void if it is pronounced by an incompetent Tribunal." In the third case of Mansab Ali it was held :‑ "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal, or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction." Testing the impugned order in the light of above authorities, I am of firm view that it is not a void order. It has emanated from the Special, Tribunal namely the Controller duly invested with the necessary jurisdiction to make such order. Even if it be held that the ejectment application was premature, that reason by itself would not render the order void. Or. that ground it may, at best, be declared as wrong or incorrect order. The ejectment application was based on the ground of default in payment of rent. The relationship of landlord and tenant between the parties was unchallenged. The proceedings were initiated in the Court of Controller, which is appropriate legal forum for such cases. Whether the application was premature within the meaning of the relevant law was a question of fact which could be decided by the Controller in his discretion after taking into account the evidence produced and the arguments advanced by both the parties. After being seized with the matter, the Controller would have to give his verdict on the disputed point. one way or the other. Surely the learned counsel for the appellants would not have found fault with the order if the Controller had dismissed the ejectment application holding it to be premature. If so, the order could not be dubbed as void if the issue was decided against the appellants. As pointed out above, it could at the most be considered as erroneous decision capable of being rectified in appeal. If the appellants felt aggrieved by the impugned decision, nothing stood in their way from filing timely appeal. Since they failed to do so, they only have to thank themselves. For above reasons 1 hold that appeal is time‑barred and hence note maintainable. Accordingly it is dismissed with no orders as to costs. M.Y.H. Appeal dismissed.