P L D 1975 Karachi 66 (PLP)

The facts leading to this second appeal are that on 25‑3‑1969 respondent landlord filed an application under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance (hereinafter called the Ordinance) for eviction of the appellant‑tenant for his failure to pay the agreed rent. On 18‑11‑1971 the learned Rent Controller passed an interim order under section 13(6) of the Ordinance directing the appellant to deposit arrears and future rent at the rate of Rs. 225 p.m. The appellant filed an appeal against this order which was allowed and the case was remanded to the Rent Controller. On remand, the learned Rent Controller by his order dated 18‑1‑1973 maintained his previous order and directed the appellant‑tenant to deposit rent at ,the same rate of Rs. 225 p.m. Against this order the appellant again went in appeal. Along with the appeal, the appellant also filed an application for stay of the operation of the order passed the Rent Controller. The learned Additional District Judge admitted the appeal to regular bearing but dismissed the stay application and directed the appellant to comply with the order made by the Rent Controller. The appellant, however, did not deposit any rent. Consequently, the respondent‑landlord filed an application under section 13(6) of the Ordinance before the Additional District Judge for striking off the defence of the appellant. It may be mentioned here that previous to the filing of the application before the Additional District Judge, the respondent had filed similar application before the learned Refit Controller for striking off the defence of the appellant for his failure to deposit any rent in terms of the interim order .which was pending disposal. The appellant did not file objections to the application but contested the application mainly on the ground that the appellate authority was not empowered to pass any order under section 13(6) fixing the tentative rent as this very question was pending before him in the appeal and therefore, could not strike off the defence of the appellant. The Additional District Judge, however, by his order dated 8‑5‑1973 allowed the application filed by the landlord and struck off the defence of the tenant and ordered him to hand over the possession of the premises to the landlord. In the very order the learned Additional District Judge also held that since the appellant's defence had been struck off the main appeal pending disposal before him had become infructuous and accordingly dismissed the appeal without hearing it. Indeed, both the learned counsel admitted that the main appeal was not heard on merits by the learned Additional District Judge and this is also apparent from the impugned judgment itself. Being aggrieved by the judgment striking off the defence of the appellant under section 13(6) of the Ordinance and dismissing the main appeal without hearing it, the appellant has filed this second appeal. Mr. Hafiz Abdul Baqi, the learned counsel for the appellant, raised the following contentions in support of his appeal : ‑ (1) that the learned Rent Controller bad earlier, on 18‑11‑1971 passed an interim order under section 13(6) of the Ordinance directing the tenant to deposit tentative rent. This order was appealed against but no stay was granted by the learned Additional District Judge, with the result that it held the field and was in operation and so long it was in force the learned Additional District Judge could not himself, in the appeal against this order, make another interim order under section 13(6) of the Ordinance. Consequently, the learned Additional District Judge had acted illegally in striking off the defence of the appellant which power, in the circumstances of this case, lay exclu sively with the Rent Controller ; (2) that under section 15 (2) of the Ordinance, the power of appellate authority, while considering the application for stay of the interim order passed by the Rent Controller, was confined only to the making of an order for furnishing security instead of depositing the rent in cash. Therefore, when the appellate authority refused to grant stay, the result, at worst, was that the application filed by the appellant for stay of the order of the Rent Controller stood dismissed. The order of the appellate authority however, could not be treated as a fresh rent order under section 13(6) made by the learned Additional District Judge so that the letter could not legally strike off the defence of the appellant ; (3) that, admittedly, the landlord had filed an application for striking off the defence of the tenant before the Rent Controller which was pending disposal. The appellate authority by striking off the defence of the tenant, during the pendency of the above application, had usurped the jurisdiction of the Rent Controller which was not permissible in law; (4) that the appeal having been admitted to regular hearing, the learned Additional District Judge was not competent to dismiss the appeal, without bearing it on the merits as required by section 15(3) of the Ordinance. As such, the appeal filed by the tenant should be deemed to be pending before the appellate authority and has to be heard. In support of the above contentions, he referred to the following cases :‑ P L D 1965 Lah. 179, P L D 1.969 S C 424 at p. 429, P L D 1971 Kar. 468 and P L D 1973 Kar.

228. Mr. Rehan Farooqui, the learned counsel for the respondent opposing the appeal, in reply, first contended that appeal having been admitted, the learned Additional District Judge as an appellate authority had the same powers as exercised by the Rent Controller and, therefore, could legally pass an order under section 13(6) and in the event of non‑compliance with it, it could strike off the defence of the appellant‑tenant. In support of his contention, he referred to Order XLI, rule 33 and section 107(2) of the C. P. C. which provisions, according to the learned counsel, were applicable to the appeals before the learned Additional District Judge acting as first appellate authority under the Ordinance in view of explanation appended to subsection (4) of section 15 of the Ordinance. In support, the learned counsel placed reliance on the following cases :‑ P L D 1965 Lah 179, P L D 1969 Kar. 546, P L D 1973 Kar. 228 P L D 1974 Kar. 10, P L D 1969 S C

424. The learned counsel next contended, that the appellant having admitted the default in complying with the order under section 13(6) passed by the Rent Controller as well as the Additional District Judge, it mattered not if the appellate authority struck off the defence instead of the Rent Controller as the record and proceedings were pending before the Additional District Judge and, therefore, even if the landlord had made the application before the Rent Controller or pressed his earlier application before him, he the Rent Controller, could not have decided the application as the record of the case was not before him. The question for consideration is whether the learned Additional District Judge acted legally in, firstly, striking off the defence of the appellant under section 13(6) of the Ordinance, and, secondly, in dismissing the main appeal without hearing the appellant on the ground that it had become infructuous after striking off the defence of the appellant. Answer to the question would depend whether the learned Additional District Judge, acting as an appellate authority, could itself legally pass an interim rent order under section 13(6) of the Ordinance in the appeal filed against the interim order of rent passed by the Rent Controller under section 13(6) while it was in operation. While considering the nature of the rent order under section 13(6) of the Ordinance, their Lordships of the Supreme Court held in P L D 1971 S C 766 as under :- "The order passed by the Rent Controller under section 13(6) directing payment of arrears and future rent at a certain rate is of interim nature and remains operative till final order is made by the Rent Controller in the pending proceedings for ejectment. The Rent Controller is yet to make a final order in those proceedings. Hence his first order remains in force." In the instant case, also, the learned Rent Controller had passed an interim order under section 13(6) directing the appellant to deposit the arrears and,, future rent at the fixed rate. This order was appealed against. The appeal was admitted but stay of operation of the order was refused by the learned Additional District Judge. Thereafter, no final order had been passed by the Rent Controller either under the latter part of section 13(6) or under section 13(8) of the Ordinance nor was the main application for eviction disposed of, so that the Rent Controller wash fully seized of the case and the initial order passed by him held the field and was in force. Since the order passed by the learned Rent Controller was already in force, the question of appellate authority itself passing an order under section 13(6) of the Ordinance simply did not arise. Conse quently, if the appellant committed default in depositing the rent, he com mitted breach of the order of the Rent Controller so that it was the Rent Controller who could strike off the defence of the appellant, and not the learned Additional District Judge who had only to decide the appeal filed against the interim order of rent. Reference may be made here with advantage to the case reported as Abdul Ghafoor v. Ahmed Kunhi (P L D 1969 S C 424). Their Lordships of the Supreme Court while explaining the nature of the order passed under section 13(6) observed at page 429 as under :‑ "The order contemplated by the first part of section 13(6) is of an interim or interlocutory nature and cannot be said to remain effective after the final determination of the proceedings in which it is made. It is worthy of note that the penalties provided under subsection (6) of section 13 for non‑compliance of an order passed thereunder are that if the tenant is the petitioner his application is dismissed and 'if he is the respondent then his defence is struck off and in either case the landlord is put into possession of the property without taking any further proceedings in the case. Such an order in my view can only be passed by the original Court." Similar view was taken by a Division Bench of the erstwhile High Court of West Pakistan in the case reported as Abdul Shakoor v. Kay Khusru Bahman Ardeshiar (P L D 1970 Kar. 599). The following observations appearing at page 602 of this case may be reproduced as under :‑ "By reading the provisions of section 15(4) of the Ordinance and section 107, Cr. P. C. we are of the view that in the context of rent proceedings subsection (2) of section 107, Civil Procedure Code would not apply as the Ordinance being a special law would override the provisions of Civil Procedure Code if they are in conflict with each other and further if its application is excluded expressly or by necessary intendment. Seen in this context it appears to us that sub section (2) of section 107, Civil Procedure Code, in its application to the Rent Appeals, is excluded both expressly and by necessary intend ment for the reason that in spite of amending Ordinance XXI of 1965 section 15 of the ordinance was not amended so as to empower the Appellate Authority to strike off the defence of a tenant for his failure to furnish security. The other reason in support of this conclusion is that the provisions of the Ordinance, being penal in nature would be strictly construed as held in the above two judgments of this Court and unless the default of a tenant is covered by its express language his defence cannot be struck off by the Appellate Authority." The above D. B. case was followed by learned Single Judge of this Court (as he then was) in the case reported as B. M. Rashid v. Mrs. Razia Abbas Ahmed (P L D 1971 Kar. 468) relevant part whereof may be reproduced as under :‑ "It is that quite obvious that the scheme of the two provisos to sub section (2) of section 15 of the Ordinance exclude by necessary impli cation the power of the first appellate authority to pass itself an order for deposit of rent of the nature contemplated in section 13(6) while the Controller continues to be seized of the main case." Mr. Zaheer has, however, referred to a D. B. case reported as Roshan Din v. S. M. Badruddin (P L D 1969 Kar. 546) wherein another Division Bench of the same Court took the view that the appellate Court had the same powers as possessed by the Rent Controller in view of section 107(2) and Order XLI, rule 33 of Civil Procedure Code made applicable to the proceedings before the appellate authority by the explanation to section 13(4) of the Ordinance so that it could pass au order under section 13(6) and, in the event of non‑compliance, it could strike off the defence of a tenant. This decision was followed with. approval by a Single Judge of this Court in two cases reported as P L D 1973 Kar. 228 and P L D 1974 Kar. 10 and the contrary view taken in P L D 1970 Kar. 599 and P L D 1971 Kar. 468, quoted earlier, was. disapproved. Since the learned Single Judge has heavily relied upon Roshan Din v. S. M. Badruddin in disapproving P L D 1970 Kar. 599, and P L D 1971 Kar. 468, it becomes necessary to examine this case in some detail. In Roshan Din's case the landlord filed application for ejectment of the: tenant. During the proceedings, the Rent Controller passed an order under section 13(6)directing the tenant to deposit arrears and future rent at the rate tentatively fixed. Thereafter, the Rent Controller dismissed the main eviction application. The landlord went in appeal against the order of the Rent Controller. Before the appellate authority, the appellant‑landlord made an application under section 13(6) of the Ordinance for striking off the defence of the tenant on the ground that the tenant had failed to pay the rent for certain months during the appeal in breach of the order pissed by the Rent Controller. This application was allowed by the appellate authority and the defence of the tenant was struck off. The appellant‑tenant filed. second appeal before the High Court where two main contentions were raised by the appellant. The first contention was that the order passed by the Rent Controller under section 13(6) of the Ordinance directing the tenant to deposit the rent was an interlocutory order which stood exhausted and terminated after the disposal of the main application and, thereafter, it was not open to the appellate authority to strike off the defence of the tenant on the basis of the interlocutory order made by the Rent Controller without itself passing a fresh order under section 13(6). In examining this contention, my brother Noorul Arfin, J. made exhaustive survey of the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 and analogous pro visions of the Civil Procedure Code and the case‑law on the point and came to the conclusion that the order for deposit of rent tinder section 13(6) of the Ordinance made by the Rent Controller was of an interim nature which became exhausted or merged with the passing of the final order either under second part of section 13(6) or under section 13(8) of the Ordinance and did not survive the termination of the proceedings before the Rent Con troller either when the tenant's defence was struck off or when the main eviction application was disposed of, either way, by the Rent Controller. Consequently, the order for deposit of rent made by the Rent Controller could not be invoked during the appellate proceedings under the Ordinance to strike off the defence unless the appellate authority itself made a fresh order for deposit of rent under section 13(6) of the Ordinance. As to the competency of the first appellate authority to make an order under section 13(6) of the Ordinance, my learned brother Nooral Arfin, J., referring to the cases (a) Fakhar v. Government of Pakistan (PLD1964SC520), (b) Province of East Pakistan v. Muhammad Hussain Mia (PLD1965SCI) and (c) Muhammad Hussain v. Miraj Din and another (P L D 1965 Lah. 179), came to the conclusion that provisions relating to appeals contained in Order XLI, rule 33 and section 107, subsection (2) of the C. P. C. were equally applicable to the proceedings before the District Judge or the Additional District Judge, acting as first appellate authority under the Ordinance, in view of the explanation to section 15(4) of the Ordinance. Consequently, the first appellate authority was empowered to make any order which the Rent Controller himself could make. The above case no doubt supports the contention raised by Mr. Rehan Farooqui. I have, however, to point out with respect, that in the Supreme Court case reported as Hamayun Zulfiqar Ismail v. Hamida Saadat Ali (1968 S C M R 828) which has not been noticed by the Division Bench which decided Roshan Din's case, their Lordships have taken a different view of the appli cation of the provisions of Civil Procedure Code to the proceedings before the appellate authority in first appeal under section 15(3) of the Ordinance. In this Supreme Court case, the appeal had been filed under section 15(3) of the Ordinance before the District Judge, Lahore who as an appellate authority under the Ordinance, dismissed the appeal in limine under Order XLI, rule 11, C. P. C. From this, a second appeal was taken to the High Court where it was urged that the District Judge had no jurisdiction under section 15(3) of the Ordinance to dismiss the appeal in limine. The High Court repelled the contention and dismissed the appeal. Leave to appeal under the Letters Patent having been refused, petition was filed in the Supreme Court. One of the grounds on which leave was granted was to consider whether the High Court was right in holding that the District Judge was competent to dismiss the appeal in limine under Order XLI, rule 11 of the C. P. C. Their Lordships in deciding this question in appeal held as under :‑ "As regards the first question, it has to be pointed out that subsection (3) of section 15 of the Rent Restriction Ordinance provides as follows :‑ "The appellate authority shall decide the appeal after sending for the record of the case from the Controller, and after giving the parties an opportunity, of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller." The subsection (4) of the said section provides for a further appeal to the High Court and an explanation appended to the said subsection states that an appeal under subsection (4) shall be disposed of by the High Court as an appeal from an original decree under section 96, C. P. C. if it is from an order of the Controller and as an appellate order under section 100 of the said Code if it is from an order of the appellate authority. This explanation does not, of course, apply to an appeal under subsection (3) of section 15 but in our view furnishes a guide for determining the scope of the appeal under subsection (3) itself. Since the provisions of the Code of Civil Procedure have not been made applicable to an appeal under subsection (3) as has been done in the case of an appeal to the High Court under subsection (4), ,, there appears to be substance in the contention advanced on behalf of the appellants that subsection (3) of section 15 is a complete Code of Procedure in itself for the purpose of an appeal under that sub section. We cannot, therefore, approve of what the learned District Judge has done in the present case. In our view there had been no proper disposal of the appeal by the District Judge." In view of the above observations of their Lordships of the Supreme Court, the view taken in the cases reported as Roshan Din v. S. M. Badruddin followed in P L D 1973 Kar. 228 and P L D 1974 Kar. 10 to the effect that provisions of the Order XLI, rule 33 and section 107 of the C. P. C. are applicable to the proceedings in first appeals under the Ordinance by virtue of explanation appended to section 15(4) of the Ordinance and, therefore, the first appellate authority could pass the same order as the Rent Con troller is, and I say so with utmost respect, not free from difficulty and, being a decision per incuriam of the Supreme Court case referred to above, is not binding on me, whereas the decision of the Supreme Court is indeed binding on me. Reference may here be appropriately made to the case of Young v. Bristol Aeroplane Co. Ltd. ((1944) 1 K B 718) quoted in P L D 1974 Kar. 10, wherein Lord Greene M. R. observed at page 729 as under :‑ "Two classes of decisions per incuriam fall outside the scope of our inquiry, namely, those where the Court has acted in ignorance of a previous decision of its own or of a Court of co‑ordinance jurisdic tion which covers the case from it‑in such a case a subsequent Court must decide which of the two decisions it ought to follow and these where it has acted in ignorance of a decision of the House of Lords which cover the point. In such a case subsequent Court is bound by the decision of the House of Lords." In my view, the above Supreme Court case and the case of Abdul Ghafoor v. Ahmed Kunhi also support the view taken in P L D 1970 Kar. 599 and P L D 1971 Kar.

468. In any case, it will be noticed that in Roshan Din's case the appeal had been filed before the Additional District Judge after the proceedings before the Rent Controller had come to an end with the decision of the main application for eviction of the tenant. It could, therefore, be said, that the Rent Controller having become functus officio, the appellate authority was there after the only forum left that it could pass a fresh order and could strike off the defence of the tenant if its order was not complied with. In the instant case, however, the proceedings were very much pending before the Rent Controller and he was fully seized of the case. He had neither passed any order striking off the defence of the tenant or decided the main eviction application nor passed final order under the second part of section 13(6) or under section 13(8) of the Ordinance so that the interim order of rent under section 13(6) of the Ordinance passed by the Rent Controller was in force and operative. The appellate authority having declined to grant stay of this interim order, had, therefter, only to decide the appeal after giving the parties opportunity of being heard under section 15(3) of the, Ordinance. If in the meantime, the appellant failed to deposit rent in terms' of the interim order passed by the Rent Controller, he committed breach of the order of the Rent Controller for which it was the Rent Controller who had to be moved for striking off the defence of the appellant. The argument of the learned counsel for the respondent that default having been admitted, it mattered not whether the Rent Controller or the appellate authority was moved for striking off the defence, though attractive, is not sound for the reasons that when an order of a Court or authority is violated while it is still seized of the case, it is that Court or authority that has to be moved first and not the appellate Court or authority, as it will amount to usurpation of the jurisdiction of the first Court and will also deprive the affected party of a right of appeal. Still another reason which makes the ratio of the Rashan Din's case inapplicable to the facts of the case before me is that, no order under section 13(6), as such, was in fact passed by the learned Additional District Judge in the instant case. The order that was passed by the learned Addi tional District Judge was on the application filed by the appellant‑tenant for staying the operation of the interim order passed by the Rent Controller which he dismissed and doing so observed that "the appellant should comply with the order of the Rent Controller". The above direction by the learned Additional District Judge would clearly show that no fresh order as envisaged by section 13(6) of the Ordinance was passed by him. Since no such order was passed, either suo motu or on the application of the respondent‑landlord, the learned Additional District Judge could not strike off the defence of the appellant for the breach of the order that it did not pass. Yet another very important aspect of this case which needs to be considered is, that the appellate authority having admitted the appeal was duty‑bound to decide the appeal in accordance with the law. Section 15(3) of the Ordinance requires the appellate authority to hear and decide the appeal after sending for the record of the case from the Rent Controller and after giving the parties an opportunity of being heard. For support, reference may again be made to 1968 S C M R

828. In the instant case, admittedly, the appellate authority admittedly dismissed the appeal on a date other than the date fixed for hearing as is shown by the record of the case and that too without hearing the appellant. In this view of the matter, it cannot be sail that the appeal filed by the appellant was decided according to law. For the aforesaid reasons, I have formed the view that the learned Additional District Judge acted illegally in striking off the defence of the appellant and in dismissing the main appeal without even hearing the appellant and the impugned order passed by the learned Additional District Judge cannot be sustained and is set aside. The appeal under section 15(3) filed by the appellant before the first appellate authority shall be heard and decided on merits. It will, however, be open to the respondent to persue the application filed by him and admittedly pending before the Rent Con troller which shall be decided on merits according to law by the Rent Controller. Appeal is accordingly allowed with no order as to costs. K. B. A. Appeal accepted.