P L D 1961 (W (PLP)

S. A. MAHMOOD J.--‑This is an appeal under clause 10 of the .Letters Patent against the judgment of a learned Single Judge of this Court. The appeal arises out of the following facts. Bakhshi Mahmud Ali respondent is a landlord of the house in dispute situate on Mcleod Road, Lahore, which was on lease with Aurangzeb Khan appellant at a rent of Rs. 42 per month. The landlord filed an application under section 13 of the West Pakistan Rent Restriction Act, 1957 (hereinafter called the Act) for ejectment of the tenant on the ground that he had not paid rent for nine months from the 15th of March 1957 to the 14th of December 1957. In the course of the proceedings, the Con troller made an order on the 8th of January 1958, that the tenant should deposit a sum of Rs. 420, which was the alleged arrears of rent due from the tenant, by the 24th of March 1958, and should continue to deposit each month's rent in future by the 5th of the succeeding month. The Act expired on the 15th of January 1958, and the proceedings pending before the Controller came to an end. The application was consigned to the Record Room on the 31st of March 1958. On the 23rd of February 1959, the West Pakistan Urban Rent Restriction Ordinance, 1959, (hereinafter called the Ordinance) came into force, and the landlord made an application under section 22 of the Ordinance for the revival of the proceedings on the 17th of March 1959. This section provides that if as a result of the expiry of the Act an application had been consigned to the Record Room, it shall be restored on an application made within sixty days of the publication of the Ordinance and, on restoration, the proceedings shall start from the stage at which they were at the time of the consignment. A notice that an application under section 13 of the Ordinance had been made by the landlord was served on the tenant on the 7th of April 1959, to appear before the Controller on the 11th of May 1959 to defend it. He appeared before the Controller on that date, but no formal order of restoration of the former proceedings was ever made. 2. Owing to the expiry of the Act, which was temporary, the tenant had neither deposited Rs. 420, nor rent for any month upto and including April 1959. ' He has since been depositing the rent of each month for the succeeding months with the Con troller. 3. The landlord took up the position before the Controller that the tenant had defaulted in complying with the order of the Court to deposit a. sum of Rs. 420 and each month's rent by the 5th of succeeding month and his defence had, therefore, to be struck off. His plea was accepted by the Controller, as he came to the conclusion that under section 21 of the Ordinance all orders passed by the Controller under the Act were to be deemed to have been passed under the Ordinance and, therefore, the order of the Controller dated the 8th of January 1958, had to be considered as an order passed under the Ordinance, and as the Ordinance was promulgated on the 23rd of February 1959, and was to take effect from the date on which the Act lapsed, it was incumbent upon the tenant to make monthly deposit of rent, in the Court of the Controller before the 5th of every month and .not having deposited rent in Match, April and May he bad admittedly committed a default in complying with the order, and, therefore, ejectment, which was the penalty prescribed by low for default, had to follow. He ordered that the defence of the respondent be struck off and that he be ejected from the premises. He observed at the same time that there was substance in the contention of the counsel for the tenant that as there remained no Court of Rent Controller on the expiry of the Act, it was impossible for the tenant to deposit the arrears of rent, or monthly rent and that it was a hard case for the tenant. On appeal, the appellate authority reversed the decision of the Con troller holding that though on a strictly literal construction of the provision contained in clauses (a) and (b) of subsection (2) of section 21 of the Ordinance, it could be held that the tenant had defaulted in carrying out the order of the Controller, passed on the 8th of January 1958, it would be an unreasonable interpretation and would operate harshly, and that a reasonable interpretation of sections 21 and 22 of the Ordinance was that once the proceed ings were revived under the Ordinance, the parties concerned must be given adequate time and opportunity to comply with the previous orders passed under the Act, which have to be deemed to have been made under the Ordinance. He, therefore, held that there was no justification for striking off the defence of the tenant and directed that the Controller should give an opportu nity to the tenant to enable him to physically comply with the previous order, and if the order was not complied with, action under section 13 (6) of the Ordinance could be taken. Against this decision the landlord came up in appeal to the High Court. The learned Single Judge, who heard the appeal, came to the contrary conclusion and held, for reasons to be stated pre sently, that the order of the Controller dated 8th January 1958, could have been carried out and arrears of rent and monthly rent could have been deposited by the tenant in a Civil Court and as he had not done so, he had committed a default in obeying the order and under the law his defence had to be struck off. The ejectment of the tenant was ordered, and he has filed this appeal under clause 10 of the Letters Patent of this Court. 4. Learned counsellor the landlord respondent raised a preli minary objection that the appeal was not competent in view of subsection (4) of section 15 of the Ordinance, which provides that any party aggrieved by an order passed on appeal by the appellate authority, appointed by the Government under clause (a) of sub section (1), and if an appellate authority had not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller, may within thirty 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. It is argued that the decision of Nazeer Ahmad Mahmood, J., as a Judge of the High Court was final and no further appeal lay. The question for decision in this respect is what is meant by the decision of the High Court, which is to be final. Is it the decision of the learned Single Judge or of the Letters Patent Bench, which is to be treated as decision of the High Court ? In this connection, it should be remember ed that the present appeal is not an appeal under the Code of Civil Procedure, but is an appeal under clause 10 of the Letters Patent, and is not to be deemed to be a further appeal. An appeal under clause 10 of the Letters Patent of this Court is a special provi sion calculated to bring about the final determination of the matter by the High Court and the decision under clause 10 of the Letters Patent is to be deemed to be the decision of the High Court, which under the Ordinance is final. It has been so held in Sheikh Mahboob Alam v. Sheikh Mumtaz Ahmad (P L D 1960 Lah. 601). On a consideration of a number of authorities, it was observed therein as follows :‑ "An appeal under the Letters Patent, if it is to be termed as appeal, is an appeal of a special kind. If we reffer to the definition of appeal in any law dictionary, we will find that it is a determination by a superior Tribunal as to the correctness of the decision of an inferior Tribunal. In a Letters Patent Appeal, however, there is no superior or inferior Tribunal. . When the Single Judge decides the case it is decided by the High Court and when the Letters Patent Bench decides the case, it is still decided by the High Court. Perhaps it will be correct to say that there is a full and final decision by the High Court on an appeal only after a Letters Patent Appeal has been heard and decided by the Letters Patent Bench. Till the Letters Patent Bench gives its decision it may be said that the matte has not as yet been finally adjudicated upon by the High Court." Though that was a case dealing with section 39(2)of Arbitration Act, the observations are fully applicable to this case. The same view was taken in Sheikh Muzaffar Din v. Mst. Allah Vasai and others (P L D 1953 Lah. 284). In Hanuman Chamber of Commerce Ltd., Delhi v. Jassa Ram Hira Nand (A I R 1948 Lah. 64), it was held that a right of appeal had been conferred by clause 10, Letters Patent of this Court, and unless there was some provision of law which in express terms took away the right of appeal conferred on the litigant, he could not be deprived of it, and. that as it was a valuable substantive right conferred on a part, .it must be conclusively shown that the statute had taken away that right in express terms before a litigant could be deprived of the exercise of the right. For these reasons, we find no force in the preliminary objection, which is overruled. 5. In coming to the conclusion that it was possible for the tenant to comply with the order of the Controller dated the 8th of January 1958, the learned Single Judge relied on section 17 of the Act (which has been re‑enacted as section 17 in the Ordinance, which reads as follows :‑ "Every order made under section 10 or section 13, and every ordes passed on appeal under section‑ 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court." As this section provides that every order under section 13 shall be executed by a Civil Court as if it were a decree of a Civil Court it was held that the order regarding the deposit of arrears of rent and monthly rent had to be regarded as a decree, for which the executing Court would be a Civil Court, having jurisdiction in the area, that the words "every order" in section 17 made it clear that even an interlocutory order had to be treated as a decree executable by a Civil Court, and that as under Order XXI, rule 1, Civil Procedure Code, all moneys payable under a decree shall be paid into the Civil Court, it was its duty to execute the decree. It was also held that even though the Controller had ceased to exist, the deposit of arrears of rent and monthly rent could be made in the Court of Senior. Civil Judge, for Controllers were presiding officers of Civil Courts and could have executed orders of Controllers; and that the amounts could have been accepted and allowed to be deposited in a Civil Court, and that it was not the case of the respondent that he had made efforts to deposit the amounts as directed by the order, but had not succeeded. It was further held that when the application for restaration of the former proceedings was made, the Ordinance had been brought into effect from the date of the expiry of the Act, which not only continued and took under its protection proceedings taken and orders made under the Act, but also contained a provision identical with section 17 of the Act, and after the proceedings had been revived under section 22 of the Ordinance, all that the Con troller had to see was whether or not the tenant had deposited arrears of rent and monthly rent with the Civil Court ; and on finding that it had not been done, he had, under subsection (6) of section 13, to strike off the defence of the tenant, and to order that the landlord be put in possession. It' was further observed that it was not only under subsection (2) of section 21 that the order of the Controller, made under the Act, was to be deemed to have effect as‑an order made under the Ordinance, but also under section 1 (4) of the Ordinance, its provisions (other than subsection (5) of section 13 and section 19) were to be deemed to have taken effect on and from the date of the expiry of the Act, which meant that for all practical purposes the provisions of the Act relevant to the present case did not expire on the 15th of January 1958. But even. if it was to be assumed that during the interregnum between the expiry of the Act and the promul gation of the Ordinance, section 17 of the Act had expired, and consequently a Civil Court could not execute any order of the Controller made under section, 13 of the Act, it could not be said that the order of the Controller dated 8th January 1,958, could not be complied with as soon as the Ordinance was promulgat ed, as the disability, if any, regarding the making of the deposit disappeared with the coming into operation of the Ordinance. The same arguments were raised before us by the learned counsel for the respondent. 6. The Act was a temporary provision and it is a well established principle that a temporary Act on its expiry is deemed never to have existed except for transactions past and closed. Though section 17 of the Act provided that every order made under section 10 or 13 and every order passed on appeal under section 15 shall be executed by a Civil Court, having jurisdiction in the area, as if it were a decree of that Court, section 17 no longer existed to' give effect to an order made under the Act as a decree of a Civil Court, and the order made could not have been executed by a Civil Court. Section 17 of the) Act did not say that an order made under the Act was a decree of a Civil Court. It simply provided that the order shall be executed as if it is a decree, which is different from saying that it is a decree. This provision, in exactly similar terms, also existed in the Urban Pent Restriction Act, 1949 (XXIII of 1949) and an order for eject ment having been passed against the tenant under that Act, it was sought to be executed against him, though the Act had expired, and it was urged that it could be executed despite the expiry of the Act, as it operated as a decree of a Civil Court under section 17 of the Act. Kaikaus, J. in Siraj Din v. Ata Muhammad (P L D 1955 Lah. 563) repelled this contention and held that the authority of a Civil Court to execute the order existed only under section ‑17 of the Act, which expired with the Act, and consequently the order of ejectment could not be executed as a decree of a Civil Court. He has also pointed out other difficulties in executing such an order after the expiry of the Act namely that the Controller was not a Court and would not be in existence to authorise transfer of the order to a Court for execution. We respectfully agree with this view. Thus ‑there can be no' doubt that section 17 of the Act having ceased to exist, an order) made under the Act could not be executed or given effect to as a decree of a Civil Court. 7. But it should not be assumed and it is not correct to say that an interim order directing a tenant to deposit arrears D of rent or monthly rent by a certain date or dates was intended ‑by section 17 of the Act or is intended by the same provision in the Ordinance to be executed as a decree. It contemplates executable orders only and the order under consideration is not stitch an order. It has not the nature and character of a decree, which is a formal expression of an adjudication, which conclusively determines the rights of the parties with regard to the matters in controversy. A decree is executable and can be enforced by a Civil Court even against the will of the judgment debtor ; but the carrying out of the order of deposit of money is left to the will of the tenant and under the Act or the Ordinance the order is not to be executed ; and its non‑compliance leads to the only result that the defence of the tenant is struck off, but the law does not provide that a Court can enforce the order by making the tenant to pay. If the order was not obeyed, an order of ejectment under section 13(6) of the Act has to follow, and this can be executed as a decree of a Civil Court in view of section 17 of the Act. Therefore, section 17 is not intended to and does not cover the order under consideration, whereby the tenant was called upon to pay arrears of rent and monthly rent by certain dates. When section 17 of the Act provided (as does section 17 of the Ordinance) that any order made under sections 10, 13 and 15 shall be executed as a decree of a Civil Court, it meant and intended to include only final orders of ejectment made under section 13 by a Controller, or on appea under section 15 by the appellate authority, and an order under section 10 that a landlord shall restore the amenities enjoyed by the tenant, which had been cut off. Thus section 17 of the Act not only did not exist to give force to the relevant order as a decree of a Civil Court, but it was also not an order ‑which could be enforced as a decree, even if section 17 had been in force. The result which would have followed in case the Act existed is that a further order of ejectment of the tenant could be made, which could be executed. 8. The Controllers (who were to mean judicial officers appointed by the Provicinal Government to perform the functions of Controllers) were a creation of the Act, as they are of the Ordinance, and certain powers were assigned to them. By Notification No. 5490‑HG/57/20071, dated the 28th of August 1957 Senior Civil Judges and all First and Second Class Civil Judges were notified to perform the' functions of Controllers within their respective civil jurisdictions and they no doubt exercised dual functions and jurisdictions but in ‑two distinct capacities, but as Controllers they were not in fact Courts per se and as soon as the Act expired, they ceased to exist as Controllers and the proceedings taken before them ceased to be any pro ceedings in the eye of law. The' very orders made by them as Controllers were no longer valid and in force. Thus it is unthinkable that a Civil Court could continue to enforce their order and authorise deposit of rent and arrears of rent. It has been shown that the relevant order was not an executable order and it also ceased to exist. The Controllers appointed under the Act were no more and no authority was left to authorise the receipt or deposit of the arrears of 'rent and the monthly rent, and the tenant could not have deposited the amounts in the treasury even if he had wanted to. There is nothing on the record to show that the terant was not ready and willing to deposit the amounts. Thus the conclusion drawn by the learned Single Judge is clearly wrong that the amounts could have been deposited with the Senior Civil Judge or in a Civil Court, before the Ordinance came into force. 9. The Ordinance was published in the official Gazette on the 23rd of. ‑February 1959 and subsection (4) of section 1 of the Ordinance provides that subsection (5) of section 13 and section 19 shall come into force at once, and its remaining provisions shall be deemed to have taken effect on and from tire date of the expiry of the Act, so that certain provisions have been given retrospective effect. This section has been utilised by the learned Single Judge to hold and by the, learned counsel for the respondent to argue that the relevant order was in force all along, despite the expiry of the Act, and the tenant had defaulted in law, as he had not deposited rent by the due dates. This conclusion cannot reasonably be drawn, for there is no doubt that the Act did not exist since its expiry until the day the Ordinance was promulgated and there was no authority left to authorise deposit of rent by the tenant, and he did not default in obeying the order. Though by this provision certain provisions of the Ordinance were brought into force with retrospective effect from the date of the expiry of the Act, the result is not that the relevant order was. automatically brought into force thereby, because the case had been consigned to the record room on the 31st March 1958, after she expiry of the Act, and the proceedings were no longer pending, when the Ordinance came into force. It was necessary to restore it before an order made in the case could have any legal force. Subsection (1) of section 22 of the Ordinance which has provided for restoration of proceedings consigned to the record room, stayed or dismissed otherwise than on merits, is as follows:‑-- "22. Revival of certain proceedings:‑(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, if, as a result of the expiry of .the West Pakistan Urban Rent Restriction Act, 1957 (hereinafter called the said Act), an application or an appeal or revision filed under the provisions of the said Act; has, after the date of such expiry and before the date of publication of this Ordinance in the Official Gazette been dismissed otherwise than on merits, consigned to the record room or stayed, whether such dismissal, consignment or stay was with or without the consent .of the parties, it shall be restored on an application made in this behalf within sixty days of the said date by any party to the ` proceedings. On such restoration the proceedings shall start from the stage at which they were at the time of the aforesaid dismissal, consignment or stay " This provision governs the case, and in order to restore proceedings consigned to the record room, it was necessary to make an applica tion under this subsection within sixty days of the publication of the Ordinance in the Official Gazette, and on such application the former proceedings "shall be restored", and "on such restoration" the proceedings shall start from the stage at which they were at the time of the consignment,, stay or dismissal. If no such application was made within time, the former proceedings would be dead and non‑existent and could not have been restored. The provision relating to proceedings consigned to the record room, stayed or dismissed otherwise than on merits is 'different from the provision relating to proceedings, which were pending immediately before the commencement of the Ordinance, which are provided for in clause (b) of subsection (2) of section 21 of the Ordinance. It provides that all proceedings, which immediately before the commencement of the Ordinance were pending with any Controller or appellate authority under the West Pakistan Urban Rent Restriction Act, shall stand transferred to and be continued before the Controller or the appellate authority, as the case may be, appointed under the Ordinance, as if the same were instituted under the provisions of the Ordinance, and any order made in any such proceedings; as aforesaid shall for all purposes' have effect as an order made under the Ordinance. A comparison of the two provisions will show that the words "any order made in such proceedings, as aforesaid, shall for all purposes have effect as an order made under this Ordinance" are not to be found in subsection (1) of section 22 of the Ordinance, wherein the provision only is that "on such restoration the proceedings shall start" from the stage at which they were at the time of the aforesaid dismissal, consignment or stay. The position is thus clear that the Ordinance does not treat as in force orders made in proceedings which had been consigned to the record room: It cannot, therefore, be held that on the promalgation of the Ordinance the order dated the 8th January 1958 came into force either retrospectively or with immediate effect and non payment of the arrears of rent and monthly rent by the tenant amounted to a default on his part under subsection (6) of section 13 of the Ordinance clause (a) of subsection (2) of section 21 of the Ordinance relied upon by the learned counsel for the respondent no doubt provides that any order made by a Controller or a Rent Controller or any Court or appellate authority or revisional authority in any proceedings under any of the enactments repealed under subsection (1) of section 22 and notwithstanding their repeal and the expiry of the Vest Pakistan Urban Rent Restriction Act shall be deemed to have effect as an order made under the Ordinance, but this provision can have no application during the period that the former proceedings were consigned to the record room and were not in force. This provision is not more than a validating provision in respect of orders made in proceedings under the repealed enactments and the expired Act. 10. The former proceedings in this case had been consigned to the record room and though alt application under subsection (1 of section 22 of the Ordinance was made by the landlord, no order of restoration of the proceedings was ever made. It has, thbrefore, been urged that the former proceedings have not been restored so far. This contention must prevail. The Controller was bound under the Ordinance to restore the ' proceedings, but it is necessary in such cases to make formal orders of 'restoration so that the tenant is informed that orders in former proceedings have been revived and brought to life. The subsection directs that on the making of an application the proceedings shall be restored and that "on such restoration" the proceedings shall start from the stage at which they were at the time of consignment These words indicate that an order of restoration has to be made and then the proceedings start and go further. It is only on the restoration of the former proceedings that the orders made in the former proceedings are brought to existence and force, but no such order was ever made in this case. On a correct view the former proceedings have not so far been restored, and thus no question of default by the tenant arises. 11. There is another reason for holding that the tenant has not defaulted in obeying the relevant order. In a case which has been consigned to the record room, more than a making of an order of restoration is necessary for the tenant to be penalised for default in obeying the order. He must be informed that the former proceedings have been restored before he can be held to be in default. For the tenant to be in default it is necessary that he should be aware of the existence and operation of an order, which he has to obey. Default means conscious failure to obey an order. If an order of restoration has been made behind the back of a tenant and without his knowledge, he cannot be said to have defaulted in obeying it, for he was not aware of his obligation to obey it and could not be penalised for it. In the present case, the tenant was not even informed that an order of restoration had been made or even that an application under subsection (1) of section 22 of the Ordinance for restoration of the proceedings had been made. All that the notice served on him on the 7th of April 1959 stated was that an application under section 13 of the Ordinance had been made by the landlord against him and that he should appear before the Controller on the 11th of May 1959 to defend it. He would, in these circum stances, think that a fresh application for ejectment had been made against him and a fresh order for depositing rent would be made. In the circumstances, he was not even placed on guard to find out if an order of restoration had been made. Not having been informed either of the restoration of the former proceedings or even of the making of an application for restoration he cannot be considered to have been in default by his not depositing arrears of rent or monthly rent before the 5th of June 1959. 12. In view of what has been stated above, the order dated the 8th of January 1958 cannot be held to have been in force or operative after the expiry of the Act despite the promulgation of the Ordinance. In these circumstances, we hold that the tenant has not committed a default in obeying the order within the meaning of subsection (6) of section 13 of the Ordinance and his defence could not have been struck off. We, therefore, set aside the order of the learned Single Judge and remit the case to the Controller for proceeding with it in accordance with the law. The costs of this appeal shall be the cots in the cause, as finally determined. A. H.