P L D 1962 (W (PLP)

(2) Whether the application discloses any cause of action ? If not, what is its effect ? (3) Whether a notice of ejectment was necessary ? N it was, what is the effect of the failure of the applicant to give such a notice ?

3. These issues were decided against the tenant. He went in appeal to the District Judge, Campbellpur, who dismissed the appeal with the following observations under the first issue :- "The landlord did not, care to file along with the application, plan of the house as it stands and instead put in plan of the proposed construction. The necessary plan was later filed by her. All that has been said before me with regard to this issue, is that the ejectment application continues to refer to the plan originally filed by the landlord and that she has not taken any step so far to amend the application so as to refer to the plan filed later. Her counsel has stated at the Bar that the necessary amendment will be made soon after the file is sent back to the Controller on disposal of this appeal."

4. The tenant has come in appeal to this Court under subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Mr. Mvhammad Jafar, Advocate raised a preliminary objection on behalf of the respondent that the appeal which was made to the District Judge, Campbellpur, was incompetent as it was preferred from an interlocutory order by which the preliminary objections only were dismissed. The order did not fall within the purview of sections 4, 10, 12 and 13 of the Ordinance, whereas it was necessary, according? to counsel, for an appeal under subsection (1) of section 15 of? the Ordinance that the impunged order should have been within the purview of at least one of these sections. In support of this contention counsel has referred to Muhammad Baqa Ullah Khan v. Mian Muhammad Rashid (P L D 1961 Lah. 638), which is a decision by S. A. Mahmood, J. The learned Judge has set out the contentions that were raised before him as follows :- "Before me learned counsel for the appellant contends as follows :- (1) That subsection (3) of section 15 did not authorise the appellate authority to remand the case. The authority could keep the appeal pending with itself and could either hold further inquiry itself or through the Rent Controller, but could not remand the case. (2) That the appellate authority could either accept or reject the appeal, and since the appeal was accepted, the order of ejectment made against the tenant was not set aside, the application for ejectment stood disposed of, and a fresh application for ejectment under section 13 of the Ordinance should have been filed by the landlord and the previous application could not have been continued or proceeded with. (3) That as the appellate authority had ordered retrial and re-decision of the case it meant a fresh decision altogether from the beginning and not a continuation of the former proceedings." After deciding the third contention he has observed in paragraph 7 of this judgment as follows :- "The appellate authority came to the conclusion that no appeal lay against the order of the Rent Controller as the order did not fall within the purview of sections 4, 10, 12 and 13 of the Ordinance. The learned counsel for the appellant did not, in any way, challenge the correctness of this conclusion of the appellate authority. I am clearly of opinion that no appeal lay, and consequently, a further appeal by the tenant to this Court also did not lie. The appeal is, therefore, dismissed with costs."

5. The contention that an appeal was not competent against an order which did not fall within the mischief of sections 4, 10, 12 and 13 of the West Pakistan Urban Rent Restriction Ordinance was not included in the three contentions which were before the learned Judge for his decision, but the appellant's counsel unnecessarily conceded it, and the learned Judge agreed with him as well as the first appellate authority.

6. I do not have the benefit of knowing the reasons for which the learned Judge has taken this view, because no reasons have been given by him. With this handicap I shall try to explain why I respectfully differ from this view. The main reason is that it is not purported by the language of the law. The relevant provisions are as follows :,-- "Section 15 (1) (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." "Section 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 appel?late authority has not been appointed in respect of any area of 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." The wide scope of the words "an order" which occur in both provisions cannot be arbitrarily restricted, and I am not able to see any reason why the fixation of the fair rent under section 4, a direction to the landlord under section 10, or a direction to the tenant under section 12 or section 13 only, should be taken to fall within their meaning and all other decisions made under the Ordinance should be considered to be outside it. The consequence of this restriction will be that every order which the Controller is empowered to make affecting the property under) other provisions of the Ordinance will become final and will be beyond redress against an aggrieved party. For instance, the Controller is empowered under sections 5 and 9 to make decisions relating to the increase of rent, under section 8 to allow recovery of rent that was paid, and under section 11 to permit con?version of a residential building into a non-residential building. These are important powers the exercise of which does amount to making orders. An order made under any one of these sections comes within the ambit of section 15 if the language of this section is given its plain and natural meaning. I, therefore, overrule the preliminary objection.

7. Taking up the three issues, I should point out that Mr. Faqir Chand did not press the second issue, and that the first issue is not by its nature a preliminary issue. The respon?dent's application or any part of it could not have been disposed , of on this issue. The mistake can be corrected, but if she insists on it, and succeeds in obtaining a direction that she should be put in possession of a wrong building, she will herself suffer on account of it at the time of the execution of the direction.

8. The third issue has been supported by Mr. Faqir Chand on the basis of section 106 of the Transfer of Property Act. He has cited Ganga Singe and another v. Mst. Shib devi (33 P R 1898) ; Chuni Lai, s/o Mul Chand v. Chuni Lai, s/o Jaggu Mal (A I R 1923 Lah. 659) ; Wilcox v. Patal and others (A I R 1942 Rang. 30) ; Mst. Maryam v. Dost Muhammad and others (P L D 1958 Lah. 229) ; Gouribala Pal v. Kunjalal Saha (P L D 1960 Dacca 355) ; and Mst. Dilbar Jan v. Ghulam Muhammad Khan (P L D 1960 Pesh. 15) and the Interpretation of Statutes by Kazi Muhammad Ashraf, page 55, to lay as sound a foundation as he could, for his contention that the section has been and is in force as the general law, and that the subsequent special legislation namely, the West Pakistan Urban Rent Restriction Ordinance. 1959, which does not expressly repeal this law, should not be taken to have impliedly repealed it, He argued that the relationship of landlord and tenant is basically still governed by the agreement of the parties as is recognised by the Ordinance itself in section 13 (2) (i) as follows :? "(2) A landloard who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that (i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen says after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable." The Ordinance, counsel urged, is a supplementary legislation which has been enacted to provide additional safeguards only as has been pointed out in Mst. Dilbar Jan v. Ghulam Muhammad Khan, in the following words :?-- "This section (S. 13) places tenants under additional protections and those additional protections have been made available to the tenant even when the Civil Court finds that the protection contained in the terms of the lease are not of any assistance to the tenant."

9. I am aware that in many judgments which have been given on those Rent Restriction Acts, including the Sind Rent Restriction Act and the Karachi Rent Restriction Act, under which regular civil suits have to be instituted for evicting tenants, the view has been expressed that a notice to terminate the tenancy in terms of section 106 of the Transfer of Property Act is necessary ; but the scope of a regular civil suit is vastly different from the scope of the proceedings contemplated by section 13 of the Ordinance for obtaining a direction that the tenant should put the landlord in possession of a building, or a rented land, although the direction is enforcible by a Civil Court like its own decree under section 17 of the Ordinance. The Controller is empowered to give such a direction under section 13 of the Ordinance provided only that the requirements of the Ordinance are satisfied. There is no distinction in this respect between terminated and subsisting tenancies. Subsection (1) of section 13 provides "Section 13 (1).-A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree pass?ed before or after the commencement of this Ordinance, or other? wise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section." When the Controller acts under this section, he is not fettered by the provisions of those enactments, even if they constitute the general law, which are outside the purview of every provision of the Ordinance. I am, therefore, of the opinion that a notice to terminate the tenancy was not necessary for making an application under Section 13 of the Ordinance.

10. Before I conclude this judgment, I should like to add from my experience that in a majority of cases it is not condusive to the early disposal of a case by the first Court or Tribunal that preliminary objections should be decided before giving the decision on merits. It is not necessary to try toe issues of law first under Order XIV, rule 2, Civil Procedure Code, unless for a satis?factory reasoned opinion is formed that the case may be wholly or partially disposed of on them. It is unwise to take chances because this prolongs the proceedings.

11. In conclusion, I dismiss the appeal with costs. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.