P L D 1961 (W (PLP)

House No. 7, Pir Makki Street, Ravi Road, Lahore, was leased to Sardar Ataullah by its landlord Mian Muhammad Rashid respondent at Rs. 42‑8‑0 per month. After Sardar Ataullah died, Mian Muhammad Rashid filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) for ejectment of Muhammad Baqaullah Khan, son and Mst. Atia Begum, widow of Sardar Ataullah Khan on the grounds that they as tenants had committed a default in payment of rents since December 1958 and that they were using the property in a manner which was likely to impair its value and utility. These allegations were denied by the tenants. The Rent Controller provisionally determined Rs. 225 as arrears of runts and called upon the tenants to deposit the amount by the 2nd of July 1y:,

9. He also directed them to deposit subsequent monthly rent by 5th of every month till the final decision of the case. The Rent Controller framed the following issues :‑ (1) Whether the respondents paid or tendered the rent on due dates up to 31st May 1959 ? (2) Whether the respondents are using the property in a manner to impair its value and diminish its utility? (3) Relief. The case was fixed for petitioner's evidence on 'the 1st of September 1959 and for respondent's evidence on the 2nd of September 1959. On the 1st of September 1959, before the evidence of the landlord was recorded, his learned counsel brought it to the notice of the Rent Controller by an application that the tenants had committed a default in obeying the order of the Court to deposit rent by the 5th of each month and prayed that their ejectment should be ordered under subsection (6) of section 13 of the Ordinance. All the same, the landlord's witnesses were examined on that day on the two issues framed already. On the following day Muhammad Baqaullah put in a reply to the landlord's application. It was to the effect that the monthly rent had not been deposited in the belief that rent had to be paid dasti to the landlord in Court, and that he' was willing to pay Rs. 127‑8‑0 to the landlord forthwith. This meant that the tenant had clearly committed defaults in not having deposited three months' rent as directed by the Rent Controller. The Rent Controller did not make any order under section 1 3 (6) of the Ordinance, though he was bound to strike off the defence of the tenant and to put the landlord into possession without taking further proceedings in the case. He recorded the tenant's evidence, and heard arguments of the parties on the 9th of September 1959. In his final order, dated the 23rd of September 1959, he found both the issues in favour of the tenant, but ordered ejectment of the tenant on the ground that he had made default in depositing monthly rents of June, July and August 1959. Muhammad Baqaullah appealed against this order to the appellate authority. It was urged in appeal on behalf of the tenant that the Rent Controller ought to have framed an issue whether there was a default by the tenant in obeying the order of the Rent Controller, when the Rent Controller had not taken action under section 13 (6) of the Ordinance and had proceeded to record evidence of the parties on the issues already framed. The appellate authority thinking that it was expedient in the interest of justice that the Rent Controller should have framed an additional issue whether the tenant had made a default the payment of rent pertaining to June, July and August 1959, set aside the order of the Rent Controller, dated the 23rd of September 1959, and remanded the case to the Rent Controller for retrial and redecision after framing an issue with regard to the default. When the case went back to the Rent Controller, he framed the following additional issue on the 6th of February 1960 :‑‑ "Whether the respondents had made a default in respect of the rent for the months of June July and August 1959, and what is its effect on the present proceedings ?"

2. On the‑ 10th of January 1960, Muhammad Baqaullah tenant made an application under section 151 of Civil Procedure Code, praying that the case should be tried de novo as the whole case had been remanded for redecision and retrial. The contention was that the case should start afresh and the parties had to lead evidence afresh on all the issues. This application was dimissed and against it the tenant went in appeal to the appellate authority, who dismissed the appeal. He held not only that the order of the Rent Controller was appropriate but also that no appeal lay against the order, as it did not fall within the purview of section 4, 10, 12, or 13, of the Ordinance. . Against this decision the tenant has come up in second appeal to this Court.

3. Before me learned counsel for the appellant contends as follows:‑ (1) That subsection (3). of section 15 did not authorise the appellate authority to remand the case. The authority could keep the appeal pending with itself and could either hold further inquiry itself or through the Rent Controller, bent could not remand the case. (2) That the appellate authority could either accept or reject the appeal, and since the appeal was accepted, the order of ejectment made against the tenant was set aside, the application for ejectment stood disposed of, and a fresh application for? ejectment under section 13 of the Ordinance should have been, filed by the landlord and the previous application could not have, been continued or proceeded with. (3) That as the appellate authority had ordered retrial and redecision of the case it meant a fresh decision altogether from the beginning and not a Continuation of the former proceedings.

4. With regard to the first contention it is true that the West Pakistan Urban Rent Restriction Ordinance does not specifically provide for remand of a case on appeal, but by A reason of section 141 of the Code of Civil Procedure the provisions of the Civil Procedure Code are clearly applicable. It provides that' the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings e in any Court of civil jurisdiction. I respectfully agree with the view taken by Shabir Ahmad, J. in Muhammad Azeem and others v. Muhammad Nawaz and others (P L D 1961 Lah. 137), that the proceedings before the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959, are proceedings of a civil nature and as such section 141 of the Civil Procedure Code, which is com?prehensive, can be invoked for regulating the procedure with regard to the trial of applications presented to the Rent Controller under the Ordinance. Similarly, the provision of the Civil Procedure Code relating to remand could be availed of by the c Appellate authority in this case. The power to remand a case on appeal is a necessary incidence of appellate jurisdiction. I, there fore, find no force in this contention.

5. The second contention has equally no force. The Appellate authority no doubt set aside the order of ejectment made against the tenant, but did not dismiss the application for ejectment. The authority merely directed that a fresh o issue be drawn up and the case decided afresh. Therefore, the application duly filed by the landlord under section 13 of the Ordinance remained undisposed of and could be proceeded with. No fresh application under section 13 of the Ordinance need have been filed in this case.

6. The third contention is misconceived and difficult to under?stand The two issues, originally framed by the Rent Controller were decided in favour of the tenants and their decision was not upset by the Appellate authority. In these circumstances, it cannot be understood why the appellant should have applied to the Rent Controller to ask the parties to lead evidence thereon E afresh and thus to reopen their decision. The obvious inference to be drawn is that the prayer was made by the appellant merely for the purposes of delaying the disposal of the ejectment application.

7. The Appellate authority came to the conclusion that no appeal lay against the order of the Rent Controller as the order did not fall' within the purview of sections 4, 10, 12 and 13 of the Ordinance. The learned counsel for .the appellant did not, in any way, challenge the correctness of this conclusion of the appellate authority. I am clearly of opinion that no appeal lay, and consequently a further appeal by the tenant to this Court also did not lie. The appeal is therefore, dismissed with costs. '

8. Before parting with this case, I would like to make some observations about the orders made by the Rent Controller and the appellate authority, which have tended to delay the disposal of the case. Subsection (6) of section 13 of the West Pakistani Urban Rent Restriction Ordinance enacts that when a tenant commits a default in obeying an order made by the Con?troller to deposit monthly rent by the 5th of every month, his defence shall be struck off and the landlord put into possession of the property, without taking any further proceedings in the case. The Rent Controller instead of proceeding with the case should have proceeded to decide the question of default and to forthwith make the consequent order of ejectment under subsection (6) of section 13 of the Ordinance against the tenant. This was not done by him, but when he had ultimately decided that the tenant had committed default in obeying the order made under the subsection why was the framing of an issue relating to default and remand of the case to decide the issue necessary? The tenant in his reply put in on 2nd September 1954 had virtually admitted that he had not deposited three months' rent. This was clear from his offer to pay Rs. 127‑8‑0 to the landlord in person. His statement in the application that he did not know that he had to deposit monthly rent by the 5th of each month was no more than a futile excuse which could not be accepted by any reasonable authority. When a tenant had clearly committed default (and there were no less than three defaults) in complying with the order of the Controller. The appellate authority should not have interfered with the order of ejectment made in accordance with the provisions of subsection (6) of section 13 of the Ordinance on the highly technical ground that an issue should have been framed, for the order of ejectment was a necessary consequence of the proved default under the law.

9. The Rent Controllers should bear in mind that proceed?ings to decide whether there has been default by the tenant in G obeying the order should not be unduly prolonged. The question whether the tenant has committed a default or not ought to be decided as soon as possible. For this purpose the statement of the tenant can be recorded or he can be called upon to produce receipts showing that the amount due has been deposited and the order duly obeyed. When default is proved, the law enjoins the making of an order of ejectment and putting the landlord in possession, and the provisions should not be nullify by the Rent Controller by delaying the making of the ordt4, or by the appellate authority by setting aside or staying the orders except on grounds affecting jurisdiction or legality of the order or on proof that there was no default by the tenant. K. M. A.????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.