1998 PLP 1879 (CLC)

Date of hearing: 14th May, 1998. Sh. Muhammad Azhar respondent in this Transfer Application has filed an application against Jamshed Ali petitioner for his ejectment from Shop No.413, Chowk Bazar, Multan. Mr. Muhammad Yahya Kulachi, Rent Controller/Civil Judge 1st Class, Multan passed the order under section 13(6) of the Urban Rent Restriction Ordinance, 1959 and holding that the same was not complied with, the defence was struck off and the ejectment order was passed. Jamshed Ali petitioner (tenant) filed an appeal which was accepted and the matter was remanded for disposal afresh in accordance with law.

2. Jamshed Ali tenant petitioner filed an application for transfer of the ejectment petition before the learned District Judge/Appellate Authority, Multan from the Court of Mr. Muhammad Yahya Kulachi, Rent Controller, Multan on the ground that he had lost the faith in the working of the said learned Rent Controller, Multan. The petition was resisted and was dismissed. Jamshed Ali petitioner‑tenant has filed this petition before this Court under section 15‑A of the Urban Rent Restriction Ordinance, 1959 for the transfer of the ejectment petition from the Court of Mr. Muhammad Yahya Kulachi, Rent Controller, Multan on the grounds that the landlord has told in the area that the order would be passed in his favour and that attitude of the learned Rent Controller was not proper towards him. This petition has been resisted by Sh. Muhammad Azhar respondent (landlord).

3. I hove heard the learned counsel for the parties and have gone through the file before me.

4. During the arguments learned counsel for Sh. Muhammad Azhar respondent (landlord) has raised the preliminary objection that under section 15‑A(b) the High Court has been made competent to transfer an appeal from the Court of the Appellate Authority and that an ejectment petition cannot be transferred by the High Court from the Court of the Rent Controller. In this regard he referred to section 15‑A(a) according to which the Appellate Authority i.e., the District Judge has been made competent to transfer the matters pending before the Rent Controller to another Rent Controller. He maintained that even under sections 24 and 151 of the Civil Procedure Code and even under Article 203 of the Constitution of the Islamic Republic of Pakistan the powers cannot be exercised by this Court as the aforesaid sections 24 and 151 of the Civil Procedure Code are not applicable to the proceedings before the Rent Controller and that Article 203 of the Constitution, 1973 is not applicable because the Rent Controller under the said Ordinance is simply a persona designata and not a Court. On the contrary learned counsel for the petitioner (tenant) laid the emphasis that the High Court has the vast powers including the Constitutional jurisdiction as well as the supervisory jurisdiction on the subordinate Courts and in case a party has no faith in the working of a Presiding Officer subordinate to the High Court the transfer application can be accepted and the matter can be transferred. He added that sections 24 and 151 of the Civil Procedure Code can also be invoked by the High Court. According to him section 15‑A of the Ordinance is all helpful to the petitioner.

5. For the sake of the proper appreciation of the dispute and disposal of the matter in hand it would be convenient to reproduce as under section 15‑A of the Urban Rent Restriction Ordinance, 1959:‑‑‑ " 15‑A. On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its or motion without such notice: (a) The Appellate Authority may at any stage withdraw any application pending with a Controller subordinate to it and transfer the same for disposal to any other Controller subordinate to it and competent to try or dispose of the same; (b) the High Court may at any stage withdraw any appeal pending with any appellate authority and transfer the same for disposal to any other Appellate Authority subordinate to it and competent to dispose of the same."

6. It is proper to express that section 15‑A was inserted in the Urban Rent Restriction Ordinance, 1959 by the West Pakistan Ordinance XXXII of 1962. A perusal of the aforesaid section 15‑A of the said Ordinance has made out that the first subsection deals with cases pending before a Rent Controller and the Appellate Authority i.e., the District Judge has been empowered to withdraw them and transfer them for disposal to any other Rent Controller subordinate to it. The second subsection has empowered the High Court to withdraw any appeal pending before any Appellate Authority and transfer the same for disposal to any other Appellate Authority subordinate to it. In the instant matter the ejectment petition is pending before the Rent Controller. Under the aforesaid subsection (a) of section 15‑A only the Appellate Authority can transfer the petition to another Rent Controller. Under subsection (b) of section 15‑A the High Court has been empowered to withdraw the appeals from the Appellate Authority and to transfer the same to the other Appellate Authority. In whole of the Scheme of Rent Restriction Ordinance, 1959; the Rent Controller, the Appellate Authority and the High Court have been incorporated and referred to separately with the separate legal entity with the conferment of the powers to be exercised by each of them. It means that the Appellate Authority has the separate status from the High Court and, thus, the interpretation mentioned above shall have to be followed while disposing of the transfer application in hand. As such I hold that the High Court is not competent to transfer the matters pending before the Rent Controller and it is only the Appellate Authority of the Rent Controller which can withdraw and transfer the matters therefrom. Only the appeals can be withdrawn and transferred by the High Court from the Appellate Authority.

7. With respect to the attraction of sections 24 and 151 of the Civil ; Procedure Code referred to by the learned counsel for the petitioner, section 4(1) of the Civil Procedure Code is applicable according to which nothing in the Civil Procedure Code shall be deemed to limit or otherwise effect any special or local law or any special form of procedure prescribed by any other law for the time being in force. Keeping in view the legal position that the Urban Rent Restriction Ordinance, 1959 is a local law and under section 15(4) of the Ordinance sections 96 and 100 of the Civil Procedure Code have been made applicable to the proceedings under it; further powers under the provisions of the Civil Procedure Code for summoning and enforcing the attendance of witnesses and compelling the production of evidence are conferred upon the Rent Controller or the Appellate Authority under section 16 of the Ordinance and according to section 17 of the Ordinance the orders passed under sections 10, 13 and 15 are to be executed by the Civil Court, only specific sections of the Civil Procedure Code have been made applicable with respect to the proceedings under the Rent Restriction Ordinance, 1959. Keeping in view section 4(1) of the Civil Procedure Code and the aforesaid sections 15, 16 and 17 of the Urban Rent Restriction Ordinance, it can safely be held that the provisions of sections 24 and 151 of the Civil Procedure Code are not applicable thereof.

8. With respect to the applicability of Article 203 of the Constitution, 1973 suffice it to express that the Rent Controller functions under the Rent Restriction Ordinance, 1959 as a persona designata and not a Court and, thus, the High Court has not the supervisory jurisdiction in such matters.

9. My view is that the wisdom behind the insertion of section 15‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959 is to mitigate and minimise the chances of protracted pendency of the matters before the Rent Controller and the matters before the Appellate Authority especially when before the Rent Controller all the provisions of the Civil Procedure Code except enumerated above have not been made applicable. It is a sort of check on the litigants desirous of prolonging the disputes brought under the Rent Restriction Ordinance, 1959.

10. Consequently, I hold that the proceedings pending before the Rent Controller cannot be withdrawn and transferred to any other Rent Controller by the High Court as desired and required by Jamshaid Ali petitioner (tenant). Consequently, I dismiss this Transfer Application. No order as to costs. H.B.T./J‑43/L Transfer application dismissed.