P L D 1965 (W (PLP)

(3) What is the effect of the decree for possession obtained by defendant 2 upon the present suit? (4) Is the suit maintainable in the present form? (5) In case issues 1 and 2 are decided in favour of the plaintiff, whether any rents are due from defendant No. 1, if so, how much? (6) Is the suit properly valued? (7) Whether defendant 2 is the paramount owner of the property and defendant 1 having attorned to him and having been subsequently ejected defendant 1 is absolved from payment to the plaintiff and also cannot be ejected even if found in possession? O. P. D. 2. (8) Relief.

6. After recording the evidence produced by the parties, Captain Muhammad Daud Khan, learned Senior Civil Judge, D.

1. Khan, by his order dated the 10th of October 1959, dismissed the plaintiff's suit with costs. Mutiullah preferred an appeal, and the learned District Judge, D. I. Khan, by his order dated the 20th of February 1960, accepted the appeal, set aside the judgment and decree of the lower Court and granted a decree for ejectment against both the defendants with costs .and a decree for the recovery of Rs. 120, as rent against defendant No. 1, with costs.

7. Against the above‑mentioned order of the learned District Judge, Abdul Qayum and Haji Ghulam Muhammad have preferred separate further Appeals Nos. 148/96 of 1960 and 102/ 7 of 1960, and I propose to dispose of these appeals by this judgment, as they arise from the same transaction.

8. Learned counsel, appearing for Haji Ghulam Muhammad appellant, referred to para. 18 of the judgment of the learned District Judge, wherein he observed:‑ "I have intentionally refrained from discussing the merits of the plaintiff's title against defendant No.

2. If defendant No. 2 is so advised, he can bring a suit for possession against the plaintiff after complying with the present decree."

9. Learned counsel, appearing for the two appellants, raised an objection that the learned Senior Civil Judge and the learned District Judge had assumed jurisdiction and had heard the case, which was exclusively triable by the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). The first law on the rent restriction is contained in the N.‑W.F.P. House Rent Control Act, 1946, which was repealed and succeeded by the West Pakistan Urban Rent Restriction Act of 1956. Reference was also made to that Act of 1957, which provided that the N.‑W. F. P. Act was repealed and the West Pakistan Act of 1956, had expired. The Act of 1957, was followed by the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) i.e., the present Ordinance, which is now in force and it has come into force on the 23rd of February 1959. In all these Acts, section 13 relating to the eviction of tenants has been copied verbatim. For the interpretation of section 13 of the Rent Restriction Ordinance of 1959, learned counsel for the appellants, referred to Jumo Khan v. Ramzani (P L D 1959 Kar. 60) wherein it was held:‑ "The effect of the provision in the West Pakistan Rent Restriction Act barring the ejectment of a tenant even in the presence of a decree is that even in suits which were pending at the date when the West Pakistan Urban Rent Restriction Act came into force a decree for ejectment cannot be passed, although ordinarily an Act does not affect pending proceedings."

10. Learned counsel for the appellants also relied upon Zafar‑ul‑Ashan v. The Republic of Pakistan (P L D 1960 S C 113). It was held:‑ "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute."

11. In Muhammad Daud v. Sher Bahadur Khan and another (P L D 1963 Pesh. 217), in which Mrs. Keays Byrne v. Obaidullah Khan (P L D 1961 Lah. 256) was followed, it was held that the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) excluded the jurisdiction of the civil Courts to try suits for ejectment of tenants on the grounds contained in section 13 of the Ordinance.

12. Relying upon the above‑mentioned authorities, learned counsel for the appellants contended that the learned Senior Civil Judge, D. I. Khan and the District Judge, D.

1. Khan had no jurisdiction to entertain the case, as it was an application brought by a landlord against his tenant for ejectment. A reference to the plaint and the lower Court file would show that the suit was by landlord against his tenant for his ejectment and recovery of rents. The learned Senior Civil Judge in para. 6 of his judgment observed:‑ "Before entering into discussion of the facts brought out in evidence, it may be pointed out that since the passing of the Rent Control Act of 1959, no civil Court has jurisdiction to try any suit between landlord and tenant for ejectment and rent under its section

13. It may be said that the Act will only apply when the tenancy is admitted by the other party, but for this we have to look into the definition of the word "landlord" given in Act No. VI of 1959, which puts it as any person for the time being entitled to receive rent in respect of any building . . . . . . As such, both the ejectment and determination of tenancy are within the exclusive jurisdiction of the Rent Controller and this Court has no jurisdiction to try the same." The learned District Judge, however, did not deal with the point in appeal, as to whether he had the jurisdiction or not to entertain it.

13. The authorities, mentioned above, clearly bar the jurisdiction of the civil Courts. The West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was in force, when the District Judge accepted the appeal and passed the decree. This Ordinance ousted the jurisdiction of the civil Courts, which could not pass a decree for ejectment. Reference may be made to P L D 1961 Lah. 256 wherein it was held that a decree for ejectment passed by the civil Courts on 8‑5‑1956, could not have been so passed in view of the provisions of section I (4) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). The decree is nullity in law.

14. Learned counsel, appearing for the respondent, relied upon Mst. Dilbar Jan v. Ghulam Muhammad Khan (P L D 1960 Pesh. 15). It was held:‑ "There is no provision in the West Pakistan Rent Restriction Act, 1957, which ousts the jurisdiction of the civil Courts, and forbids them to entertain suits for ejectment. What section 13 of the West Pakistan Rent Restriction Act, 1957 demands is that a decree for ejectment passed by a civil Court after the commencement of the Act is not executable unless the decree‑holder by an application to the Rent Controller, proves that he is entitled to the possession of the property, besides the decree, on any of the grounds mentioned in subsections (2) and (3) of that section. This section places tenants under additional protections and these 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. But obviously the provision of section 13 does not constitute a bar against the institution of suits of civil nature in civil Courts. The language of the section contemplates the passing. of decrees by civil Courts after the passing of the Act and recognises the jurisdiction of the civil Courts to entertain ejectment suits." This authority was, however, not followed by the Division Bench of the High Court of West Pakistan, Lahore, in a case reported as Mrs. Keays Byrns v. Obaidullah Khan and in the subsequent case reported as Muhammad Daud v. Sher Bahadur Khan and another, the Lahore Division Bench case P L D 1961 Lah. 256 was followed and the Peshawar case P L D 1960 Pesh. 15 was not followed.

15. From the facts, discussed above, it is obvious that the suit brought by Mutiullah against Abdul Qayum for ejectment from the house in suit was exclusively triable by the Rent Controller. I, therefore, accept these appeals set aside the judgment and decree of the lower Appellate Court and return; the plaint to the plaintiff to present it to the Court of proper jurisdiction. K.B.A. Appeals accepted.