P L D 1980 Supreme Court 9 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-This petition for leave to appeal arises out. of the acceptance by a learned Single Judge in the Lahore High Court, of a second appeal against order of remand passed by a learned Additional District Judge on an appeal under section 15(1) of the West Pakistan Urban Rent Restriction Ordinance, 1959.

2. The respondent (landlord) applied for the ejectment of the petitioner (tenant) from Shop No. 5 out of Property No. H/1176 to 1183, Lahore, on the ground of personal requirement. The respondent had averred that the petitioner was previously the tenant of his father Haji Abdur Rashid and that he had, after the death of his father, b.-come his (respondent's) tenant "due to the will executed in his name". In para. 2 of the eviction application, the respondent had in this behalf further asserted that after the death of his father the present petitioner "continued to pay the rent" to hint "as his landlord". The petitioner in his written statement, while accepting that he was the tenant of Haji Abdur Rashid, asserted that apart from the respondent the deceased bad left other heirs as well. He obliquely tried to deny the relationship of landlord and tenant and also asserted that Haji Abdur Rashid had agreed to sell the property in question to him and that his possession at the relevant time was in part performance of the alleged sale. In reply to para. 2 of the eviction application, the petitioner gave evasive and vague reply from which no doubt it could be ascertained that in view of certain settlement between the heirs of the deceased and the petitioner he had started paying rent but he bad not clarified whether the respondent was the recipient of the rent nor did he deny the assertion made in this behalf by the respondent in para. 2 of his application. On account of this, the learned Rent Controller recorded his better statement wherein, according to the findings of fact in the impugned orders, the petitioner had admitted the payment of rent to the respondent (and in his absence, to his representative who would come to collect the same). On this admission, the learned Controller passed an order for the deposit of rent under section -13(6) of the Ordinance. 3: The petitioner; instead of making the deposit of the rent in the name of the respondent-(the landlord, who had applied for his eviction)-deposited the same in the name of all the heirs of Haji Abdur Rashid. The learned Controller took note of this contravention of his order and struck off the defence of the petitioner on the ground that the deposits in question were not made in accordance with his order. On first appeal filed by the present petitioner, the learned Additional District Judge gave a finding of fact that the petitioner had, in his better statement, denied having made payment of rent to the respondent and that being so-(and further, as found, there was no admission regarding relationship of landlord and tenant) the case was remanded to the learned Controller for deciding this question. The respondent then filed second appeal being S. A. O. No. 476 of 1977 in the High Court. A learned Single Judge, after careful examination of the relevant proceedings/records of the learned Controller, did not agree with the learned Additional District Judge on the question of fact and held that the petitioner had made the admission relied upon by the learned Controller. While repelling some other arguments, the learned Judge set aside the remand order and restored the order of the learned Controller. This petition for leave to appeal has been filed against the judgment of the learned Single Judge.

4. Learned counsel for the petitioner has contended: that an order of remand passed under section 15(1)(3) of, the Ordinance was not appealable under section 15(4), thereof to the High Court with the result that the impugned order of the High Court in S. A. O. No. 476 of 1977 was without lawful authority-he has relied on Noor Din Khan v. Muhammad Siddique and others (Law Notes 1969 Lah) and Zardad Khan v. Haji Zareen Shah and another (P L D 1976 Pesh. 8), that the petitioner had made substantial compliance with the order of deposit made under section 13(6), by parting with the money-in this behalf, he has relied on Sh. Maqbool Ahmad v. Muhammad Akbar All (P L D 1978 Lah. 258), that the order for deposit of rent was bad in law because of denial by the petitioner of relationship of landlord and tenant, particularly when the petitioner had not accepted the ownership of the respondent on the basis of the alleged will ; and lastly, on account of part performance of an alleged agreement to sell with the father of the respondent, the petitioner was in possession of the property, not as a tenant.

5. Before dealing with the question of law as to the competency of the second appeal, it is necessary to deal with the findings of fact by the learned Controller which have been upheld by the learned Single Judge in the High Court. We have perused the photostat copy of the better statement made by the petitioner before the learned Controller. He had stated therein that the rent of the shop was Rs. 80, that he was paying the rent to the respondent (the controversial word "NA" has obviously been written above the line and prima facie appears to be an interpolation); and that as an alternative he used to pay the rent to representative of the respondent. The finding of the learned High Court that the word "NA" was the result of a subsequent interpolation finds support from several irrefutable circumstances. In the same statement, the petitioner after the controversial sentence stated , YA US KAY KISI ADMI KO AA KAR LAY GATA THA". The word "v-T" was used with reference to the respondent. Not only this in the order passed by the learned Controller who ha& recorded the statement on the same day-(the. figure 9 in the date also appears to be the result of disfiguring 7 so as to make it read 9)-it, is specifically recorded that the present petitioner had accepted the rate of rent as also the relationship of landlord and tenant -in his statement recorded `on that day'. A more important circumstance which belies the petitioner and supports the finding of the High Court is found in the other order of the learned Controller whereby the petitioner's defence was struck off. It appears that the interpolation was not made till then because in the said order it is recorded that the present petitioner made a statement on 10-7-74 admitting that he was paying the rent to the respondent (landlord). If the word ` US" would have been so visible as now, at the time when the learned Controller passed the said order, the affirmative nature of the statement of the petitioner would not have been so vividly noticed. The finding of fact by the learned Single Judge that the petitioner had made the admission in dispute is unexceptionable.

6. The foregoing discussion on factual position disposes of the contention raised by the learned counsel that the petitioner having denied the ownership and consequential relationship of landlord and tenant between the parties in his written statement, no order under section 13 (6) of the Ordinance could have been passed without the decision on that question. It is not denied that a tenant despite having made such a denial-specific or vague can change/clarify his position in his better statement. In this case, the position taken by the petitioner in his written statement was vague in some vital respects. He having clarified the same in his better statement, the reading and interpretation whereof the learned Controller and the learned Judge in the High Court is unexceptionable, we do not fixed any justification for upsetting the same. Same would apply to the argument of so-called part performance of the alleged agreement to sell between the petitioner and the respondent's father. Notwithstanding the same he, in his better statement, as held above, had accepted the relationship of landlord and tenant between himself and the respondent. There was no further need to put the questions raised in the written statement in issue, before the Rent Controller passed the order under section 13 (6) of the Ordinance.

7. We have not been impressed by the argument of the learned counsel that the petitioner had complied with the order of the learned Controller in a substantial manner by parting with the money. His reliance on the case of Sh. Maqbool Ahmad is misplaced, the same being distinguishable. In this case, there was intentional disobedience of the order pissed under section 13 (6) in a manner which was intended to harm the interest of the landlord. The deposit in the name of all the heirs was intended to create hurdles for the respondent in either case-whether he accepted it or refused the same. In the former case, it might have operated as estoppel against him in any litigation on question of ownership in the property. Moreover, he could not have withdrawn the money. And if he would have refused it, hr would have suffered financial loss. In any case, it cannot be denied that by joining others with the landlord, in the deposit, the petitioner reduced the amount, which as found by the learned Controller, tentatively, was due to the respondent as rent. The point of not depositing the amount in the specific name of the landlord who sues for ejectment and at whose instance and for whose benefit the order for deposit of rent is made, came up before this Court in Haji Allah Dltta v. Mst. Shahzadl Bilqis and another C. P. S. L: A. No. 303 of 1979 decided on 16-6-1979). In that case, the tenant just deposited the amount but not in the name of the landlord concerned and as a matter of fact did not show the name of any person for whom the amount was deposited. It was argued that such a deposit did not suffer from any infirmity and the Courts below were wrong in holding otherwise. The contention was not accepted and it was held that in the circumstances the tenant had defaulted in the payment of rent by not complying with the order of the Controller. The actual passage in that judgment, which is instructive on the subject in hand, reads as follows: "The learned counsel for the petitioner argued firstly that he had not defaulted in payment of rent; that he had been depositing the rent in the treasury and the only fault found with the same by the learned Rent Controller was that the name of respondent landladies was not mentioned in the cballan forms. The counsel attempted to argue that the petitioner had not mentioned the names of the landladies because the relevant form did not contain any column for that purpose. We have examined the Challan Form and find that this contention is not correct. The omission to mention the names of the persons on whose behalf the rent was being deposited appears to be deliberate and therefore the deposit of the money by the petitioner in the treasury cannot be regarded as lawful tender of the rent. The learned Courts below were, therefore, justified in holding that the petitioner had defaulted in payment of rent." Applying the same principle here too, the deposit of rent by the tenant in the names of large body of persons, namely, the heirs of Haji Abdur Rashid instead of the respondents who had been specifically accepted as his landlord as explained earlier, was deliberate and contumacious and the Courts below were justified in not endorsing the validity of such a deposit. The Ordinance, whereas it gives certain protections and privileges to tenants, also imposes certain obvious obligations on them which, it may- be stated,, is their bounden duty to strictly follow.

8. The only question which remains to be examined is whether an appeal is competent under section 15(4) of the Ordinance against an order of remand passed under section 150)(3) in exercise of first appellate jurisdiction. In the two cases of Noor Din Khan and Zardad Khan, cited by the learned counsel, it seems to have been inferred from the decisions in the cases of Kandawala & Co. Ltd. v. Sh. Rashid.ud-Din (1969SCMR721) and Ibrahim v. Muhammad Hussain (PLD 1975 SC457), that second appeal against remand orders passed in first appeal under section 15 of the Ordinance, is not competent, because the first appeal under section 15 of the Ordinance, is not competent, because the first appeal lies only against final orders passed under sections 4, 10, 12 and 13 of the Ordinance. The rulings of this Court have not been properly interpreted. It may be pointed out that no remand orders could be passed in terms of section 4, 10, 12 or 13 by a Controller, therefore, the rulings in this behalf on the scope of appeal were distinguishable in so far as the second appeal from orders passed on first appeals are concerned. That is a different subject and needed a separate treatment.

9. Subsection (4) of section 15 of the Ordinance reads as follows:- "(4) Any party aggrieved by an order passed ors appeal by the appellate authority appointed by the Government under clause (a) of subsection (1), and if an appellate authority has not been appointed in respect of any area or 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."

10. The second part of the above-quoted provision is not relevant for the present discussion. An appeal under the first part obviously would be from an order passed on appeal by the first appellate forum. The appeal under the first part of this provision would be filed by a party who is aggrieved by an appellate order. The orders (mentioned in subsection (1) of section 15 under sections 4, 10, 12, and 13 would undoubtedly be relevant when deciding the second appeal on merits but the order brought under challenge directly in the second appeal would be the one passed by the appellate forum. It is also clear from the language of the statute. We do agree that it would not be every and any order passed by the appellate forum in exercise of the first appellate jurisdiction which can be brought under challenge. A distinction would have to be made between orders passed "on appeal" and other orders including those passed in the appeal, in exercise of the appellate jurisdiction. But it cannot be denied that a remand order which takes the lis out of the ambit of the appellate forum and sends it to the lower forum for fresh adjudication, is an order passed on appeal. ' A useful discussion on this aspect of the matter can be found in Din Muhammad v. Hidayat Hussain (P L D 1.968 Lab. 207). In this case the remand order was passed on appeal, by the first appellate forum: The second appeal was thus competently entertained and adjudicated upon.

11. A learned Single Judge, in Mst. .Rah Bib! v. Mst. Hameeda Begum (P L D 1976 Kar. 811), did not agree with the contention raised before him that a second appeal would not be competent against an order of remand passed under section 15(3). We approve of the approach of the learned Judge in that case with the clarification that it would not be "any order", as held by the learned Judge in para. 10 of the judgment, which would be subject to further appeal in the High Court but only those orders which as explained above are passed "on appeal" as explained in the case of Din Muhammad, which would be subject to further appeal to the High Court. In the light of the foregoing discussion we, with respect, are unable to uphold the view taken in the Lahore and Peshawar cases of Noor Din Khan and Zardad Khan.

12. None of the arguments advanced by the learned 'counsel has succeeded. This petition is accordingly dismissed. S. A. H. Petition dismissed.