1994 PLP 720 (MLD)

This judgment shall dispose of W.P. Nos. 4909 and 4910 of 1990.

2. An application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, was filed by Sh. Mahmood Akhtar, respondent No.3 herein, seeking the eviction of the petitioner from Shop No.P-63, Ward No.l, Mandar Street, Karkhana Bazar, Faisalabad, before the Rent Controller at Faisalabad, on the ground of default in payment of rent. Subsequently, another application was filed by respondent No.3 with respect to the same shop against the petitioner; this' time on the ground of personal need. Both these applications were consolidated by the Rent Controller on 15-3-1989. The petitioner came to this Court by filing W.P. 3391 of 1989, objecting to the consolidation of the two proceedings and also praying for the transfer of the case from Mr. M. 7-afar Iqbal, Rent Controller, Faisalabad, to another Rent Controller. While disposing of Constitutional petition, this court, with the consent of the parties, withdrew both the applications from the Rent Controller, Faisalabad, and entrusted to the SCJ/Rent Controller, Lahore, who after holding the trial, dismissed these applications on 4-11-1989.

3. Aggrieved by the orders of the Rent Controller in both the applications for eviction, respondent No.3 filed two appeals before the learned District Judge, Lahore, which were entrusted to an Additional District Judge, who accepted the same on 17-3-1990. The judgments of the learned Additional District Judge, dated. 17-3-1990 have been challenged by the petitioner by filing this Constitutional petition.

4. Learned counsel for the petitioner has placed reliance on section 15(1) of the Punjab Urban Rent Restriction Ordinance; 1959, to contend that the order passed by the Rent .Controller could only be appealed against to the District Judge having jurisdiction over the area where the building in question was situated, which in this case was District Judge, Faisalabad, and District Judge Lahore, had no jurisdiction to entertain or, decide the appeals filed by respondent no.3.

5. Learned counsel for respondent No.3, on the other hand, has canvassed that since the impugned order was passed by a Rent Controller at Lahore, it was appealable before the District Court at Lahore. It was also argued that as the objection to the lack of jurisdiction was not raised by the petitioner before the learned Additional District Judge, it cannot be allowed to be agitated for the first time before this Court.

6. Section 15(1) of the Ordinance, which provides for filing of appeal against orders passed by the Rent Controller,, reads as under: "Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may, within thirty days .of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated".

7. As is obvious from the above, an appeal against an order of the Rent Controller lies to the District Judge having jurisdiction over the area, where the building or rented land in dispute is situated. The territorial jurisdiction of the Court is determined by the location of the premises in dispute and not by the place of passing of the orders. This conclusion is further fortified by a ' comparison of section 15(1) of the Ordinance, 1959, with section 96 of the C.P.C., which provides for appeals in civil cases. Under that section, an appeal lies from a decree passed by a Court to the Court authorised to hear appeals from the decisions of such a Court.

8. In the present Ease, admittedly, the premises, with respect to which the ejectment petitions were instituted by respondent No.3, are located in Faisalabad and, therefore, irrespective of the fact that the orders had been passed by the Rent Controller at Lahore, the appeal should have been filed in the District Courts at Faisalabad. That being so, the impugned judgments clearly suffer from lack of jurisdiction and cannot be sustained.

9. As regards the contention of learned counsel for respondent No.3 that the petitioner cannot be allowed to challenge the assumption of jurisdiction of the learned Additional District Judge for the first time in filing this Constitutional petition, a reference may be made to the authority of the Supreme Court of Pakistan in Muhammad Afzal v. Board of Revenue, West Pakistan and another PLD 1967 SC 314, wherein it was ruled that "by mere submission, in the capacity of a respondent, to the authority of the Member, the petitioner could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the B Member's power to interfere with the order of Commissioner". In the present case, as the impugned judgments are totally without jurisdiction, it cannot be allowed to remain in field.

10. Learned counsel for the petitioner has pointed out that respondent No.3 was genuinely misled into filing the appeal before the learned District Judge, Lahore, by the fact that it was the Rent Controller who had passed the orders. 'There appears to be substance in this submission. In these C circumstances, it would be appropriate to direct the learned Additional District Judge, Lahore, before whom the appeals were pending, to return the memorandum of appeal to respondent No.3 for presenting the same before proper Court.

11. As regards the limitation, suffice it to say, the petitioner can apply to the appellate forum for -condonation of delay under sections 5 and 14 of the D Limitation Act, 1908. Such an application, if filed, shall be given due consideration by the Court concerned. With the above observations, the petitions are allowed, the impugned judgments of the learned Additional District 'Judge, Lahore, are declared to be without lawful authority and of no legal effect and he is directed to return the memorandums of appeals to respondent No.3 for presenting the same to proper Court. There shall be no order as to costs. AA./G-118/1 Petitions accepted,