P L D 1988 Peshawar 60 (PLP)

ABDUL KARIM KHAN KUNDI, J‑‑This writ petition arises in the background of facts that vide Case No.32 of 1982 Mst. Shahnaz Tariq, herein respondent No.3, sought the ejectment of Mst. Malka Wazir, herein petitioner, from house No.3 Bashir Lane, Peshawar Cantt in the Court of Rent Controller, herein respondent No.2, on grounds of using the property for a purpose other than that for which it was let; having committed acts which are likely to materially impair the value and utility of the building; the acts and conduct of the tenant to be a nuisance to the occupiers of the building in the neighbourhood and intention of the landlady to demolish the building for constructing a new building on the site. Later on an application was moved for amendment of the ejectment petition on 10‑3‑1985 to add the ground of requirement of the building in good faith for landlady's own occupation, which was allowed on payment of costs in the sum of Rs.100. The costs were deposited in Court and also received by tenant under protest. However, the tenant filed Appeal No. RC‑116/ A of 1985 in the Court of Additional District Judge, Peshawar herein respondent No.1 as against the order of amendment in the ejectment petition who dismissed his appeal under observations that section 24 of the Cantonment Rent Restrictions Act, 1963, hereinafter referred to as the Cantonment Act, has since been amended by Ordinance No. IX of 1985, coming into force w.e.f. 31stJanuary, 1985, where under no interim order was appealable and that the forum of appeals as against final orders was also prescribed in the High Court and not the District Court. As a resort the tenant invoked the constitutional jurisdiction of this Court in the writ petition mainly on ground that Ordinance No. IX of 1985 affecting amendment of substantive character in section 24 of the Cantonment Act limiting the scope of appeal to final orders only was to be given a prospective effect and since herein the lis had commended earlier in time than the amending Ordinance 1985, his case was, therefore, to be governed by old law providing for a right of appeal in case of interim and final orders of the Rent Controller, party feeling aggrieved thereby, A further ground. was agitated that in case the learned Additional District Judge was to hold that under the amended law his Court was not the forum of appeal. He was under obligation to return the memo of appeal for presentation before a proper forum and not that he was to dismiss the appeal on merits which act on his part was without lawful authority and apt to be declared to be of no legal effect with direction to follow for the return of the memo of appeal presentation before the proper forum, also moreso, when the petitioner had still the period of limitation to file his appeal as extended by the amending Ordinance from 15 days to one month.

2. We heard Mr. N.M.A. Khan, Advocate, learned counsel for the petitioner at great length and also heard Mr. Muhammad Tariq, Advocate, learner) counsel for respondent No.3. At the very outset we posed to the learned counsel for the petitioner that assuming not conceding that unamended section 24 of the Act was applicable to his case, a question would still arise if the impugned interim order allowing amendment of the ejectment petition passed by the Rent Controller was appealable. In the context the learned counsel for the writ petitioner wanted to draw a line of distinction between the original provisions of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Rent Ordinance, and the corresponding original provisions of section 24 of the Cantonment Act and that in the former statute a right of appeal has been provided against certain specified orders made by the Controller, ones under sections 4, 10, 12 and 13 while in the latter statute a right of appeal has been provided to a party aggrieved by an order (not specified) passed by the Controller which ,per his contention included all final and interim orders of which a party felt aggrieved.

3. The original provisions of subsection (1) of section 15 of the Rent Ordinance vested a right of appeal in a party aggrieved by an order made by the Controller under sections 4, 10, 12, or section 13 before a District Judge. Subsection (4) thereof conferred a further right of appeal to the High Court when a party was aggrieved by an order passed on appeal by the, appellate authority. The said provision of law also at the same time conferred a first right of appeal to the High Court where the appellate authority had not been appointed and a party felt aggrieved by an order of the Controller. Explanation to subsection (4), provided that an appeal thereunder shall be heard and determined as an appeal from an original decree under section 96, C. P. C. if it is an appeal from an order of the Controller and shall be heard and determined as appeal under section 103, C.P. C. if it is an appeal from an order of the appellate authority. Correspondingly the original provisions of subsection (2) of section 24 of the Cantonment Act vested a right of appeal in a party aggrieved by an order passed by the Controller to the appellate authority while subsection (3) thereof provided for the hearing and determination of such appeal as an appeal from original decree under section 96, C.P.C. and the provision of Part VII and Order XLI of the first schedule to the Code of Civil Procedure were made applicable to such appeals. To elucidate the point section 96, C.P.C. providing for appeal from original decrees and section 2 (2) detailing the definition of the decree are reproduced below:‑ "

96. Appeal from original decree.‑(1) Save where otherwise expressly provided n the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with consent of parties. S.2(2) 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the 'parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI, but shall not include:‑ (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.‑‑A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

4. It appears that under the unamended provisions of section 15 of the Rent Ordinance, an order passed under the specific provisions of the said Ordinance, such as an order under section 4 determining fair rent, an order under section 10 directing the landlord not to interfere with the emenities enjoyed by a tenant, an order under section 12 authorising the tenant to make necessary, repairs in case of the failure of the, landlord and an order under section 13 for the eviction of the tenant had been made appealable irrespective of the nature and substance of the order to be a decree or an order amounting to a decree. However, in case of orders other than those specified hereinabove, an appeal could lie only from such orders which are formal expression of an adjudication and the Court conclusively determines the rights of the parties with regard to all or any of the matters in controversy and in nutshell such orders must amount to decrees to be appealable under section 96, C.P.C. Subsection (3) of section 24 of the Cantonment Act was enacted on the pattern of the explanation to subsection (4) of section 15 of the Rent Ordinance where under the High Court was to hear a second appeal from the order of the appellate authority as an appeal under section 103, C.P.C. while in case of first appeal in the absence of the appellate authority the High Court has to hear the appeal as an appeal from an original decree under section 96, C.P.C. and in which case it must be an appeal from, an order which is a formal expression of adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy and such order must be an order at par with a decree. So, in case of the Cantonment Act subsection (3) has to govern the right of appeal conferred under subsection (2) and the appellate Court has to hear the first appeal as an appeal from an original decree under section 96, C. P. C. and as such an order passed by Controller under the Cantonment Act must be a order qualified to be a decree as to be a formal expression of adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the proceedings between the parties that such order will be appealable. There has thus emerged a position that in fact the unamended provisions of section 15 of the Rent Ordinance have been found more liberal in providing for appeals against orders of the Controller passed under sections 4, 10, 12 and 13 irrespective of the fact whether the order was qualified to be a decree or not but on the other hand the Cantonment Act had not specified any such orders under its certain provisions to be appealable and, as such, only those orders amounting to decrees shall be appealable to be heard and determined as appeals from original decrees under section 96, C.P.C.

5. In support of the view reference may be advantageously made to "Allah Ditta and others v. Muhammad Hussain and others' (P L D 1965 (W.P.) Lahore 29). When words "an order'' employed in the unamended provisions o. subsection (4) of section 15 of the Rent Ordinance were interpreted in the context of explanation added thereto that such orders must be formal expression of adjudication and the Controller must thereby conclusively determine the rights of the parties with regard to all or any of the matters in controversy in short meaning thereby, that such orders must amount to decrees to be appealable and that every routine order e.g. an order adjourning the hearing of the case, summoning of witnesses, production of documents, framing of issues etc would not be appealable.

6. It appears that in the amendment effected in section 24 of the Cantonment Act by Ordinance No. IX of 1985 forum of appeal has been changed from District Court to High Court and has only provided for a first and final appeal against an order of final adjudication while interim orders have been taken out of the purview of appeal. We feel that the said amendment has not made any substantive change vis‑a‑vis the right of first appeal as against the order of Controller excluding the interim orders from the purview of appeal since under the unamended provisions too only orders amounting to decrees were made appealable and not that every routine order, for example, an order of adjournment, summoning of witnesses, production of documents, framing of issues, amendment of pleadings etc. etc. ‑were appealable thereunder.

7. Last we take up the impugned order of the Rent Controller having allowed the amendment of the ejectment petition on payment of costs since paid as to add the ground of requirement of the building in good faith for landlady's own occupation. The said order does not seemingly suffer from any infirmity not to be put at naught in the constitutional jurisdiction of this Court. There cannot be taker any cudgel to the proposition that Rent Controller is duly empowered to allow amendment in the ejectment petition in his discretion at any stage of the proceedings original or appellate. Now once a matter lies within the discretion of a Tribunal and it has exercised its discretion in favour of a party High Court would decline to interfere in constitutional jurisdiction, where discretion exercised is not arbitrary or capricious. On the additional ground of personal requirement, there could be brought fresh ejectment petition with involvement of no question of limitation. In case such amendment has been allowed by the Controller to avoid multiplicity of litigation, there cannot be taken any exception to the order in appeal, although as already discussed an appeal against such order was not competent under the unamended provisions of section 24 of the Cantonment Act and moreso no question of the exercise of writ Jurisdiction shall arise when found that the Controller has rightly exercised the discretion vested in him in allowing the amendment of the ejectment petition.

8. In view of the aforegoing discussion we have found no merit in this writ petition and we ‑accordingly order its dismissal with costs and fix the counsel's fee as Rs.2,

000. A.A./588/P Petition dismissed