P L D 1975 Lahore 841 (PLP)

A petition for ejectment of the appellant from Shop No. 3/118 situated in Qila Sohba Singh, Tehsil Narowal, District Sialkot, was filed by the respondent on the 5th March 1965, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. By Notification No. SO‑1‑(BD) 37[64‑(Sialkot)] published in Extraordinary Issue of the Gazette of West Pakistan, dated the 30th December 1965 (at page 6183), the Governor of West Pakistan declared a area of Qila Sobha Singh as rural. By the same notifi cation electoral units 763 to 765, 949 and 950 were constituted into a Union Council. The West Pakistan Urban Rent Restriction Ordinance, 1959, is appli cable only to the Urban areas vide its section

1. The appellant filed an applica tion on the 16th April 1967, that in view of this notification the area in which the property was situated, having been declared as a rural area, the above Ordinance ceased to be in force in that area and the matter was no longer within the jurisdiction of the Rent Controller. This plea found favour with the learned Rent Controller who dismissed the respondent's application on the 7th May 1966. The respondent filed an appeal which was allowed by Mr. Abdul Ghafoor Khan Lodhi, District Judge, Sialkot, on the 19th November 1966.

2. Hence this appeal.

3. The learned District Judge relied upon E. M. Dean v. Mir Zaman P L D 1960 Kar. 962, in which it was observed that the nature of the suit is to be determined as and when it is instituted in the first instance and the question of jurisdiction has primarily to be determined from the averments in the plaint. It was further observed that no subsequent change in the character of the suit or its final assumption as a result of change in legislation will affect the question of jurisdiction unless change in the legislation also expressly or by necessary intent changes the forum of original jurisdiction for the suit. The learned District Judge held that the order by which the locality ceased to be urban and became a rural area did not take away the jurisdiction of the Rent Controller in pending cases.

4. Although it is not very clear from the judgment of the learned District Judge but if appears that be was mainly influenced by the principle of repeal as provided in section 4 of the West Pakistan General Clauses Act, 1956.

5. The learned counsel for the appellant contended that this principle had no application to the facts of the present case while the learned counsel for the respondent in his brief arguments relied upon E. M. Dean v. Mir Zaman.

6. Section 4 of the Code of Civil Procedure provides in its subsec tion (1) that "in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force." In view of this section, the law governing the relationship of landlord and tenant in regard to urban properties is the West Pakistan Urban Rent Restriction Ordinance, 1959. This Ordinance ousts specifically the jurisdiction of the civil Courts to deal with the matter described there. An application for ejectment of a tenant is com petent before the Rent Controller only which is not a Court. The procedure before the Rent Controller is not governed by the Code of Civil Proce dure except to the extent provided in the Ordinance although the Rent Controller may seek guidance from that procedure.

7. It is clear from the provision of section 1 that this Ordinance is applicable only to properties situated within an urban area. The statute will, therefore, apply to a property only for so long as it is situated in an urban area. The moment the property is declared as a part of the rural area, section 4 of the Civil Procedure Code as well as the above Ordinance will cease to apply and the jurisdiction of the Rent Controller vis‑a‑vis such property will terminate. On no principle of law the Rent Controller cant continue to exercise jurisdiction over cases about such property pending before him.

8. The principle of repeal of a statute as provided in section 4 of the West Pakistan General Clauses Act envisages a case where the statute itself is repealed. The above notification does not repeal this statute. It does not strike off the statute from the statute book. It remains operative and in force in all the areas which are urban in character. In a case under Pre. emption Act Bishen Singh v. Ginda Singh and others 10PR1913 it was held that the effect of a Notification by the Local Government under section 7(2) of the Punjab Pre‑emption Act is that the right of pre‑emption ceases to exist in the notified area immediately on the publication of the notification, and that consequently a pre‑emptor loses his right to pre‑emption on such date, even during the pendency of a suit for pre‑emption, and his suit must be dismissed. It was further held that the rulings cited deal with section 4 of the Punjab General Clauses Act of 1898, which deals with repeal of Acts and does not touch the question of notifications. This case was approved by their Lordships of the Supreme Court in Mst. Bibi fan and others v. Miss R. A. Monny PLD1961SC69, where it was held that a notification affecting the right of pre‑emption in respect of a sale that took place prior to the date of notification, took away the right of pre‑emption where decree had not been passed. By issuance of a notification the right of pre‑emption was lost. In Messrs Bhikusa v. Sangamner A. T. B. K. Union A I R 1960 Bom. 299, it was held that the granting of an exemption to certain areas from the operation of the Act by issuing a notification is not, and cannot be, equivalent to a repeal of the Act. In Parma Nand v. Kalyan Dass and another A I R 1959 Pb. 610 previous Acts ceased to apply to the displaced persons coming from the territories now comprised in Act XXV of 1959. It was held that this does not amount to a total repeal and the provisions of section 6 of the General Clauses Act could not possibly be attracted to the case. In Salhu Singh v. District Board, Gurdaspur A I R 1962 Pb. 204, it was held that whenever section 3 of the East Punjab Urban Rent Restric tion Act (111 of 1949) under which power is delegated to State Government to exempt particular building or class of buildings from the operation of the Act is exercised, the building or class of buildings exempted ceased to be governed by the Act and would be governed by the general law. This saved the Legislative power and the exercise of power of exemption does not amount to exercise of the power of repeal. Repeal implies obliteration. of the statute, while exemption merely implies suspension of the statute for the time being. The statute remains on the statute book, a result which is unknown to repeal except for things suffered or done thereunder. While applying the principle of repeal the Courts must always be cogni zant of the principle that but for the provisions of section 4 of the West Pakistan General Clauses Act repealed a statute would be deemed as having never existed. Clearly, this cannot be said of a statute which remains a part of the statute book.

9. The notification merely affects certain properties one of which is the subject‑matter of the application for ejectment. A Division Bench of the Calcutta High Court held in Jyotish Prokas v. Bagla Kanta A I R 1922 Cal. 274 that the doctrine that the state of things existing at the time of the institution of the suit is sufficient to determine the jurisdiction has no application where they question is one of jurisdiction over the subject‑matter. Such jurisdiction must exist throughout the proceedings. It was held that for the validity of a judgment in a suit, the jurisdiction over subject‑matter must exist through out the proceedings as well at the time of its institution as at the time of its disposal. This conclusion was arrived at after considering a number of cases as is clear from the following extract :‑ "An illustration is furnished by the decision in Vajechand v. Nandram (1907) 31 Bom.

535. There a suit for the possession of a house was instituted in the Court of a Mamlatdar who had jurisdiction at the date of the commencement of the litigation to entertain the suit under the Mamlatdars Courts Act, 1876. After the trial had closed and before judgment could be delivered, the Act was replaced by the Mamlatdars Courts Act, 1906, which restricted the jurisdiction of the Mamlatdar to lands or premises used for agriculture. The Mamlat dar, notwithstanding this, delivered judgment. It was ruled that the judgment was without jurisdiction as the Mamlatdar had lost jurisdiction before it was pronounced. Reliance was placed in support of this conclusion upon the decision in R. v. Denton (I 852) 18 R B 761=17 Jur. 553=118 E R

287. We are not unmindful that the construction placed on the Mamlatdars Courts Act, 1906, by the decision of Vajechand v. Nandaram (1907) 31 Bom. 535 =9 Bom. L R 1028 was not followed in Nana v. Sheku (1908) 32 Bom. 337=10 Bom. L R 330 where Jenkins, C. J., declined to attribute to the new statute a retrospective operation. That, however, does not touch the present question ; on the other hand, the decision empha sises the view that, if the Court were taken to have lost its jurisdic tion during the pendency of the proceeding, the Court could not pronounce a decision therein. Such result is by no means unknown to law ; for the decision in R. v. Denton (1852) 18 R B 761=17 Jur. 553=118 E R 287, belongs to the same category as the cases of Millar's case (1764) 1 W B 1=96 E )Z 259, R. v. London Justices (1764) 3 Burr. 1456=97 E R 924, Charrington v. Metharingham (1837) 2 M&W,128=5DowIPC464=6LJNSEx. 86=1 Jur. 104=152 E R 740 and R. v. Mawgan (1838) 8 A & E 496=3 N & P 502=7 L J M C 98=112E R

927. A similar view was adopted by the Supreme Court of the United States in Yeaton v. U. S. (1809) 5 Cranch 278=3 Law E 101 which was followed in Hunt v. Jennings (1839) 5 Blockford (Ind.) 195=33 A M Dec. 465 as authority for the proposition that when the Court loses its jurisdiction during the pendency of a trial, it can no longer proceed to judgment. The same view was maintained after elaborate discussion by the Supreme Court of New York in Butler v. Palmer (1842) 1 Hill 324, and was affirmed in Stephenson v. Doe (1847) 8 Blockford (Ind.) 508 =46 A M Dec.

489. The principle enunciated by the Supreme Court of the United States in Yeaton v. U. S. (1809) 5 Cranch 278=3 Law E 101 has since been repeatedly applied in that Court ; Hamilton Bank v. Dudley (1829) 2 Peter 492=7 Law E 496, Gats v. Osborn (1869) 9 Wallace 567 ‑ 19 Law E

748. Baltimore Rly. Co. v. Granet (1878) 98 U S 25, Henrix v. U. S. (1911) 219 U S 79, Hallowell v. Commons (1916) 239 U S

506. We see no reason to doubt the correctness of the view that a Court may lose its jurisdiction during the pendency of a proceeding, and that in such an event, if it proceeds to pronounce judgment such judgment must be regarded as void because made without jurisdiction ; Weils on Jurisdiction, Ss. 73‑81 ; Works on Jurisdiction, S. 24 ; Brown on Jurisdiction, S. 25. "

10. Some assistance may also be obtained from Chauskha v. Abdul Ropkha 1 L R 17 Bom.

162. In this case, a Sirdar against whom a decree was passed in the Court of the Political Agent having died. the decree‑holder applied for execution against his heirs. The Political Agent rejected the applica tion, that he had no jurisdiction over the heirs who were not Sirdars. The decree‑bolder then applied for execution but that application was dismissed. It was held that since the jurisdiction of the Political Agent to execute the decree had ceased by reason of the change of status of the heirs the civil Court had jurisdiction.

11. Similarly the principle laid down in the authority relied upon by the learned District Judge does not render any benefit to the respondent. In fact this authority goes against the contention of his counsel. In that case, during the pendency of a suit in the civil Court for ejectment of tenant and recovery of arrears of rent from him, in the West Pakistan Urban Rent Restriction Ordinance, 1959, was promulgated. The learned Civil Judge omitted the relief relating to ejectment and granted a decree to the plaintiff for a sum of Rs. 160 as against Rs. 480 claimed by him. The plaintiff lodged an appeal with the District Judge praying for the full rent of Rs.

480. The defendant took up an objection there that the suit before the Civil Judge, by omission of the relief of ejectment became a suit cogniz able by the Small Cause Court. The District Judge overruled this conten tion and passed a decree for full amount claimed by the plaintiff. This decree was maintained in revision. While dealing with the point raised by the defendant before the High Court, the observations already reproduced were made. However, while dealing with the question of propriety of omission of the relief of ejectment, it was observed :‑ "The suit in the present case had proceeded in the trial Court as one for ejectment and recovery of rent, falling under the ordinary juris diction of the Court and was rightly disposed of as such; the Court holding in relation to the relief for ejectment that it had lost the powers to go into that question in view of the enforcement of the West Pakistan Urban Rent Restriction Ordinance." The word rightly has been underlined* by me to bring into focus the view of the High Court on the effect of enforcement of that Ordinance since that statute prevailed a decree of the civil Court notwithstanding and thus affected pending suits also. It is an established proposition that jurisdiction can be conferred or continued by a statute. Neither the parties nor Courts of Law are competent to confer jurisdiction. The finding of the learned District Judge amounts to conferment of a jurisdiction upon the Rent Controller which is no more vested in him.

12. There is no vested right in a landlord to be dealt with by a Rent Controller or to his case being disposed of summarily. The ouster of jurisdiction, therefore, cannot be said to affect any vested right of the respondent. In fact, the Ordinance has been promulgated for the benefit of tenants and not the landlords. It curtails the right of the landlord to eject his tenant and provides that an ejectment can be ordered only on certain grounds. For this reason also it cannot be said that any vested right of the landlord‑respondent has been affected by the notification.

13. In view‑of these principles and authorities, it will be clear that the principle of repeal will not apply. On the other hand, the Rent Controller could continue with the proceedings only if he had any jurisdiction left which he did not have.

14. I, therefore, allow this appeal, set aside the order of the learned District Judge and restore the, order of the learned Rent Controller. There will be no order as to costs. K. B. A. Appeal accepted.