1969L3 (PLP)

WAHIDUDDIN AHMED, C. J.‑This is a Letters Patent Appeal from the judgment dated the 28th of October 1965, of a learned Single Judge of this Court in S. A. O. No. 1 38 of 1964, whereby the appeal filed by the appellant was dismissed with costs.

2. The facts giving rise to this appeal are that the premises in dispute, known as Mumtaz Mahal Hotel, situate in Shah Alam Market, Lahore, were leased out to respondent Sh. Inayat Ullah by Mst. Mumtaz Begum appellant on the 25th of February 1956, for a period of five years, on a monthly rent of Rs. 1,300.00 per mensem. On the 27th of March 1961, the landlady‑appellant moved an application for the eviction of the respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereafter described as the Ordinance) inter alia, on the grounds:‑ (i) that the respondent had committed default in the payment of rent, (ii) that the property in dispute was required for her personal use, (iii) that the respondent had damaged the property, (iv) that the respondent had removed the show‑cases and converted them into petty shops and had sublet them without the permission of the landlady‑appellant, and (v) that the respondent had made structural changes in the property in dispute.

3. The allegation about the default in the payment of rent was given up during the hearing of the ejectment application. The other allegations were denied by the respondent. The learned Rent Controller dismissed the application by his order dated the l6th of February 1963, finding all the points against the appellant. The matter was then taken up before the learned Additional District Judge, Lahore, in Miscellaneous Civil Appeal No. 15 of 1963, which was dismissed on the 27th of February 1964. The landlady‑appellant then preferred a second appeal to this Court which, as already stated, was dismissed by a learned Single Judge on the 28th of October 1965. The learned Single Judge, after reviewing below, upheld their findings on all the points. He came to the conclusion that neither the respondent removed the show‑cases nor any part of the building was put to a use other than the one for which it was originally leased out. He also came to the conclusion that neither any structural changes had been carried out in the leased building nor was any portion of it sublet to anybody. As to the damage to the property, it was held that there was no proof of such damage. On the question whether the respondent was guilty of such acts as were nuisance to the occupants of neighbour ing buildings, the finding was that no evidence was led on this point, with the result that this allegation was not pressed before him. He considered at length the question whether the premises in dispute were required by the appellant for use, in good faith, by her son and came to the conclusion that it was proved on the record that Mazharul Haq (A. W. 2), son of the appellant, for whose use the property in dispute was required, was already running business of hotel‑keeping in a building known as Delhi Muslim Hotel, Anarkali, Lahore. It was held, therefore, that the property in dispute was not required bona fide by the landlady appellant for the use of her son. On these findings, the learned Single Judge dismissed the appeal with costs.

4. Aggrieved by the judgment of the learned Single Judge, the appellant preferred the present Letters Patent Appeal before us. S. A. Mahmood, J., as he then was, and Shaukat Ali, J., on 27th of April 1966, admitted this appeal only to consider the question whether Mr. Zafar Ahsan Mahmud who dealt with the case `as Rent Controller, Lahore, was competent to record judgment as such Rent Controller after his transfer from Lahore to Sheikhupura, as Administrative Civil Judge there. Dr. Nasim Hassan Shah, learned counsel for the appellant, at the very outset, sought permission to argue in this appeal points arising out of findings of fact, but after going through the admitting note, referred to above, we are satisfied that the appeal was admitted only to consider the competency of Mr. Zafar Ahsan Mahmud to record judgment as a Rent Controller after his transfer from Lahore to Sheikhupura, and, in these circumstances, it is not open to the counsel for the appellant to argue the matter on the other points involved in this appeal, which in our view are pure questions of fact, concurred in by all the authorities below. In view, therefore, of the decision of the Supreme Court in Muhammad Ikhlas v. Muhammad Ismail (PLD 1963 SC 466) in which it was held that the second appeal to the High Court under section 15 of the Ordinance is governed by sections 100 and 101 of the Code of Civil Procedure and that the findings of fact arrived at by the Controller and affirmed on appeal by the District Judge cannot be disturbed in second appeal by the High Court, we are not inclined to consider these points afresh in our jurisdiction vested in us under clause 10 of the Letters Patent.

5. The sole question, therefore, for consideration in this s appeal is whether the order of the Rent Controller dated the 16th of February 1963, was without jurisdiction inasmuch as he had been transferred from Lahore to Sheikhupura on the 22nd of December 1962, and the judgment was delivered on 16th of February 1963. It will be noticed in this connection that the arguments in the ejectment application before the learned Rent Controller were concluded on the 21st of November 1962, and the case was fixed by him for orders on the 30th of November 1962. Before, however, the judgment could be announced, the appellant moved an application for the transfer of the case from the Court of Mr. Zafar Ahsan Mahmud to any Court of competent jurisdiction before the District Judge, Lahore. The transfer application, registered in the Court of the District Judge as T. A. No. 223 of 1962, was dismissed by the District Judge on the 20th of December 1962. The appellant, therefore, moved Civil Miscellaneous Petition No. 6011 of 1962, again for the transfer of the case from the Court of Mr. Zafar Ahsan Mahmud. Mushtaq Husain, J. on the 20th of December, 1962, called for a report from the trial Court and directed the Rent Controller not to announce the orders in the ejectment application till the decision of the civil miscellaneous petition by the High Court. It appears that Mr. Zafar Ahsan Mahmud, the learned Rent Controller was transferred, under orders of the High Court, from Lahore to Sheikhupura on the 22nd of December 1962. The learned Officer, on the 22nd of December 1962, recorded an order in that the judgment in the case was ready for announcement but that he could not announce it on account of a prohibitory order received from the High Court. He, therefore, recorded a direction that since he had been transferred, the file of the case may be brought to the notice of the District Judge for necessary orders. He further remarked that he was taking the written judgment along with him and in case he was directed to deliver the judgment, the file might be sent to him so that he could complete the judgment and announced it in accordance with law. He directed the office that parties be informed about the directions of the District Judge in this behalf. The Civil Miscellaneous petition came up for hearing before Mushtaq Husain, J. on 15th of January 1963, and on the statement of the learned counsel for the appellant that since the learned Rent Controller had been transferred, the petition had become infructuous, the Civil Miscellaneous petition was dismissed as withdrawn.

6. It appears that on 16th of February 1963, the learned Rent Controller, who, since the 22nd of December 1962, had been discharging the duties of the Administrative Civil Judge, Sheikhupura, by letter No. 100 dated the 16th of February 1963, forward his judgment for announcement to the District Judge, Lahore, with the following remarks :‑ "I have completed the judgment in this case under your kind order. The judgment under sealed cover is being submitted herewith which may kindly be made over to any Rent Controller at Lahore for announcement of the orders." It was in these circumstances that the judgment in Ejectment Application No. 1401/2 of 1961 was announced by Mr. M. G. Cheema, then Rent Controller, Lahore, on the 18th of February 1963, in the presence of the counsel for the parties. It is with this background that the contention of the learned counsel for the appellant has to be considered.

7. Dr. Nasim Hassan Shah, learned counsel for the appellant, has contended that "Controller" has been defined in section 2 (b) of the Ordinance as under :‑ "`Controller' means a judicial officer who is appointed by the Provincial Government to perform the functions of a Controller under this Ordinance." He urged that the Governor of West Pakistan, in pursuance of the above provision of Law, appointed that following officers to perform the function of Controller under the Ordinance in the urban areas within the limits of their respective civil jurisdic tion: (1) All first and second class Civil Judges and Subordinate Judges in West Pakistan except Quetta and Kalat Divisions. (2) All Senior subordinate Judges and Subordinate Judges in Quetta Divisions. (3) All Civil Judges in Kalat Division. The learned counsel contended that as long as Mr. Zaffar Ahsan Mahmud was posted as a Civil Judge at Lahore, he could exercise jurisdiction in respect of the properties situated within his jurisdic tion and as soon as he was transferred from Lahore, he ceased to have any jurisdiction over the areas within his jurisdiction at Lahore. Consequently, the judgment that he has delivered when he had no jurisdiction over the urban area of Lahore is a nullity at law. It was urged before us that the Rent Controller cannot be placed on the same footing as the Civil Judges, because the former category of officers are appointed to perform certain specific function and as soon as their jurisdiction over a particular area ceases, they cannot pass any order in respect of the property in the area over which they have ceased to have jurisdiction. In support of his contention, the learned counsel for the appellant placed reliance on a decision of the Supreme Court in Khadim Vohyuddin v. Rehmat Ali and another (P L D 1965 S C 459) wherein it was held that though some of the functions of the Controller are judicial in character, yet he is not required to act judicially in discharging, many of his functions, and it was difficult to hold that the Controller while performing his function under the Ordinance acts as a Court. At the most he acts in a quasi‑judicial capacity. On the basis of this decision of the Supreme Court, it was contended that a Rent Controller is a persona designata and does not act in his ordinary civil jurisdic tion as a Presiding Officer of a Court and, therefore, the rules made by the High Court, permitting announcement of judgment by a successor Presiding Officer in a case where his predecessor has been transferred, has no application. In the alternative, it was I contended that even in the case of a judicial officer, where a judgment is written by a Judge after he has ceased to be a judicial officer, it is not valid. In support of this contention, reliance was placed on another decision of the Supreme Court in Qazi Mehar Din v. Mst. Murad Begum and others (P L D 1964 S C 446). In that case, Syed Ghulam Murtaza Shah, a learned Judge of the High Court at Baghdad‑ul‑Jadid pronounced a judgment which had been written and signed by him after he had handed overcharge and bad taken up his assignment as a Minister in the Government of former Bahawalpur State. An objection was raised in the High Court that that judgment was not valid judicial pronouncement. On these facts, their Lordships of the Supreme Court held that a judgment written by a Judge who has become functus officio after being relieved of his office was a nullity in the eye of law.

8. Before discussing the point raised before us it is necessary to dispose of a preliminary objection raised on behalf of the respondent that this question cannot be agitated in the Letters Patent Appeal because the appellant had not pressed this point before the learned Single Judge. It may be pointed out that such an objection was raised in Ground No. 9 before the first appellate authority and this point is covered in second appeal filed by the appellant by Ground No.

7. There is, however, no discussion on this point in the judgment of the first appellate authority. So far as the second appeal in the High Court is concerned. Mr. Abdul Majid Khan, learned counsel for the appellant, who appeared before the learned Single Judge, admitted before us that this point was not argued before the learned Single. Judge by his senior counsel, Sheikh Bashir Ahmad. In these circumstances, it is quite clear that the appellant had abandoned this point in the second appeal out of which this Letters Patent Appeal has arisen. Dr. Nasim Hassan Shah has referred us to a decision of the Supreme Court in Haji Abdullah Khan v. Nisar Muhammad Khan and others (P L D 1965 S C 690) in which it was held that a ques tion of law can be raised at any stage. This case is distinguishable because there the point of law was sought to be urged before the High Court but it was not entertained on the ground that to allow a question of law or fact to be raised in appeal for the first time would clearly prejudice the other party and thus defeat the ends of justice. It was in that contest that their Lordships held that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whether law becomes applicable on the admitted or proved facts, law has to be given effect to whether or not it has been relied upon by a party. It is a well‑established rule of law that an appellate Court is not bound to decide a point which, although taken in the grounds of appeal, has not been urged at the hearing of the appeal. This view was expressed by the Privy Council in Bashwa Nath Singh v. Jugal Kishore and others (AIR 1923 P C 90) in Hans Raj v. Karam Chand (A I R 1933 Lah. 570) and Karim Fakhsh v. Qadir Bakhsh (A I R 1950 Lah. 126) it was held that where a Judge mentions specifically certain points which were argued before him and the judgment is silent on other points taken in the memorandum of appeal it can safely be presumed that such points have been abandoned. In the present case, there is an admission of the counsel for the appellant, Mr. Abdul Majid Khan, that this point was not argued before the learned Single Judge. There can, therefore, be no doubt that the point under consideration having not been urged would be considered in law to have been abandoned. The question, moreover, raised before us is a mixed question of law and fact. We are, therefore, not inclined to entertain the objection about the jurisdiction of the Rent Controller to pronounce the judgment in the present Letters Patent Appeal before us. This appeal, therefore, merits dismissal on this short ground alone.

9. On merits too, we find no force in the contention raised before us. The case in which a judicial officer has ceased to hold office stands on a different footing than the one in which the objection or irregularity is confined to the territorial jurisdiction of a judicial officer. This distinction was clearly noticed by their Lordships of the Supreme Court in Qazi Mehar Din v. Mst. Murad Begum and others, already cited. In this connection, S, A. Rahman, J., as he then was, observed as under:‑ "The cases, therefore, in which judgment written by a person after transfer or on leave, were held to be valid, would, not be sufficient authority for the view that a judgment written by a Judge who bad ceased to hold his office would also be immune from exception. Such a view has potentialities of great mischief and if by reasonable construction of the statutory provision it could be avoided, the result would most probably be in conformity with the intention of the Legislature. I am, therefore, disposed to think that the narrower construction of Order XX, rule 2, C. P. C. should be adopted and it should be held that a Judge who has become functus officio, after being relieved of his office, should not be allowed to have anything to do with the judicial work of the Court over which he previously presided." This, however, is not the position in the present case, Here, Mr. Zafar Ahsan Mahmud, Civil Judge, Lahore, was transferred from Lahore to Sheikhupura. In his latter capacity also he is an officer subordinate to the High Court, and therefore, the rules made for the guidance of the judicial officers framed by the High Court would be applicable on the facts of the present case. Mr. Hakam Qureshi, learned counsel for the respondent, has referred us to Chapter 11‑A of Volume I of the Rules and orders of the High Court. Rule 6 of this Chapter provides as under:‑ "Every District Judge or Sub‑Judge on proceeding on leave or transfer, must, before malting over the charge, sign a certificate that he has written judgments in all cases in which he has heard arguments. Should an Officer be forced to lay down his charge suddenly, he shall, nevertheless, write the judgments in such cases, and send them for pronouncement to his successor." It is, no doubt true that according to the view taken by their Lordships of the Supreme Court the Rent Controller was a quasi-judicial authority, but, at the same time, he is appointed as Rent Controller because he holds the office of a Civil Judge in this province. Even though under the Ordinance no rules or procedure has been laid down for the conduct of the cases by a Rent Controller, but it will be too much to say that the Civil Judge who are appointed as Rent Controllers are not bound by the instructions issued by the High Court so far as the question of v writing judgments and drawing up of decrees in civil cases are concerned. It seems to us that these rules are binding on the Civil Judges, whether they act as Rent Controllers or otherwise. Since in the present case the learned Rent Controller has complied with the above‑mentioned rule, it cannot be said that the order pronounced by him later on after his transfer to Sheikhupura is a utility in the eye of law or has no validity.

10. There is another aspect of the case which also goes to show that the learned Rent Controller in the present case has acted in accordance with law. It will be noticed that under section 15‑A of the Ordinance, the appellate authority, of its own motion, may at any stage withdraw an application pending with a Controller subordinate to it and transfer the same for disposal to another Controller subordinates to it and competent to try and dispose of the same. The letter under which the learned Rent Controller forwarded his judgment for pronouncement at Lahore clearly shows that the learned District Judge, Lahore, who is also the District Judge of Sheikhupura, according to Chapter 20, Vol. I of the High Court Rules and Orders, had, directed him to complete the judgment and to forward it for pronouncement at Lahore. It was, therefore, a clear case in which the learned appellate authority, who was the District Judge, Lahore, had exercised his power under section 15‑A of the Ordinance and had transferred the case pending before Mr. Zafar Ahsan Mahmud to Sheikhupura for completing the judgment and for forwarding it to Lahore for pronouncement. In these circumstances we are satisfied that the learned Rent Controller committed no illegality what soever and his judgment is perfectly valid one, not a nullity in the eye of law.

11. It further appears to us that in cases where the validity of an order is challenged on the ground of territorial jurisdiction, such an objection, even though it may prevail, is merely an irregularity and is no ground to set aside such an order.

12. In the result, in the light of the above discussion, we are satisfied that the appeal has no merit. It accordingly stands dismissed with costs. A. E. Appeal dismissed.