P L D 1969 Lahore 563 (PLP)

6. In S. A. O. No. 351 of 1967, the appellant applied for the ejectment of Mr. Shamim Ahmad Mirza and Ch. Khalid Mahmood, who were in joint occupation of certain premises leased to them by the appellant, on the ground of non‑payment of Tent. The learned Rent Controller vide order dated 13‑4‑1964, determined approximate rent to be paid by the tenants by a specified date. There were successive appeals by the parties, but ultimately the order of the Rent Controller was upheld by this Court and the case was then remitted to the Rent Controller for further proceedings. In the meantime the tenants defaulted in the payment of approximate rent and by order dated 25‑7‑1966, their defence was struck off by the learned Rent Controller who also ordered their ejectment. On 26‑8‑1966, the appellant applied under section 13(6) (as amended) for the determination of rent ‑due from the tenants from the date their defence was struck off to the date on which the landlord was actually put in possession of the demised premises. This application was rejected by the Rent Controller on 7‑11‑1966 for the reasons already stated. The first appeal of the appellant was similarly dismissed by the learned Additional District Judge.

7. In S. A. O. No. 352 of 1967, in March 1964, the appellant and two others (respondents 2 and 3 to the appeal) applied for the ejectment of Mr. Manzur Mehdi from the premises demised to him on the ground of non‑payment of rent. The Rent Controller vide his order dated 1‑6‑1964 determined the approximate rent payable by the tenant and ordered its payment, and the current rent by specified dates which not being paid, the Rent Controller in the absence of the tenant struck off his defence vide order dated 9‑7‑1964, and ordered his ejectment. The tenant filed an append before the learned Additional District Judge which .was dismissed. On second appeal to this Court by a consent order, the case was sent back to the Additional District Judge for re‑hearing of the first appeal by the tenant, which, however, was ultimately withdrawn by him. On an application made in that behalf by the appellant‑landlord, the Rent Controller by order dated 14‑11‑1964 found that Rs. 3,450.00 were payable by the tenant to the landlords. This order was ex parte, no notice being issued to the tenant, apparently because his defence had been struck off. The appellant then applied to the executing Court for the recovery of the amount by execution of the above order, but the executing Court by order dated 17‑10‑1966 dismissed the application for execution on the ground that the Rent Controller's order dated 14‑11‑1964 was a nullity being without jurisdiction. The appellant's first appeal was dismissed by the learned Additional District Judge vide order dated 29‑7‑1967.

8. In S. A. O. No. 353 of 1967, the appellant and two others applied in March 1964, for the ejectment of Mr. Mahmud ul‑Haq Thanvi from the demised premises for non‑payment of ‑rent. The Rent Controller vide order dated 25‑5‑1964 fixed approximate rent and directed the tenant to deposit the same and the current rent by specified dates, which not being made, the defence of the tenant was struck off and his ejectment was ordered on 25‑6‑1964 by the Rent Controller. On a subsequent application moved in that behalf by the appellant, the learned. Rent Controller by his order dated 24‑7‑1964, without any notice7 to the tenant found that Rs. 1,900.00 were due as arrears of rent by the tenant to the landlords. On 17‑10‑1966, an application for the execution of that order was dismissed by the executing Court on the ground that the order of the Rent Controller determining total rent payable by the tenant after his ejectment was a nullity. An appeal by the landlord has likewise been dismissed by the Additional District Judge vide order dated, 29‑7-1966.

9. The appellant, who is a barrister‑at‑law and who argued his case with forensic ability, contended in the first instance that in all proceedings under section 13 of the Ordinance, the Rent Controller is under a statutory obligation under subsection (6) ibid to determine the rent payable by the tenant. It was urged that this was implied in the opening sentence of‑ the subsection; which is mandatory in terms which requires the Rent Controller to direct the tenant to deposit "all rent due from him." Sub section (6) as originally enacted read as follows :‑ "In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the, rent due from him and also to deposit regularly till the final: decision of the case, before the 5th day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of' such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case." The argument was that the opening sentence imposed upon the: Rent Controller a duty to "direct the tenant to deposit all rent due from him . . . .". It was urged that by implication, this provision imposed an obligation upon the Rent Controller to determine the entire rent due which was a matter ancillary to the direction to the tenant. According to the appellants any other interpretation would rob the provision of its true meaning and' content.

10. In further support of his proposition, the appellant also strongly relied upon the amendment to subsection (6) of section 13 of the Ordinance vide section 5 of the West Pakistan Urban Rent Restriction (Amendment) Ordinance, 1960 (West Pakistan Ordinance XXX of 1960), by which, what he described as, "a new paragraph" was inserted in subsection. Section S of the amending Ordinance for the relevant purpose reads: "Amendment of section 13 of West Pakistan Ordinance VI of 1959.‑In section 13 of the said Ordinance'‑ (a) . . . . . . . . (b) In subsection (6) the following shall be added at the end, namely :‑ `The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord subject to adjustment of approximate amount deposited by the tenant'." That the above provision is in mandatory terms beyond any doubt. The appellant's argument however went much further. It was stressed that the words "shall finally determine the amount of rent from the tenant" imposed an absolute duty upon the Rent Controller to finally determine the rent due by the tenant, in all cases coming before him under section 13 of the Ordinance. According to the appellant, the amendment was an independent enacting provision and must, therefore, be given full effect. It was also suggested that the amending provision was remedial and therefore, should be construed liberally so as to advance the remedy. Therefore, it was urged with considerable earnestness that in two cases, leading to S. A. O. Nos. 352 and 353 of 1967, orders passed by the Rent Controller on 14‑11‑1964 and 24‑7‑1964 respectively finally determining the liability of the tenants concerned were perfectly within his jurisdiction, notwith standing the fait that the tenant's defence was struck off. Regarding the other two cases leading to S. A. O. Nos. 350 and 351 of 1967, it was urged that the refusal of the Rent Controller to finally determine the sum due by the tenants concerned on the ground that their defence being struck off, he had become functus officio, amounted to a refusal to perform what was his plain duty under the amending provision.

11. It appears necessary to point out at this stage that the latter part of the applicant's argument proceeded on a somewhat mistaken premises arising out of inaccurate reproduction of section 5 of West Pakistan Ordinance XXX of 1960 in the body of the parent Ordinance in the treatises on the West Pakistan Rent Restriction Ordinance by Raja Muhammad Muzaffar (1965) Edn. and by Mr. Farani 1968 Edn., wherein the amendment has been inserted as separate paragraph to the subsection (6) of section 13, as if it were an independent enacting provision. This was obviously a mistake. It is plain from the amending provision viz. section 5 of the West Pakistan Ordinance XXX of 1960, set out above, that the amendment were to be inserted "at the end" of the existing provision, so that the amending and existing provision should read as one integrated provision and not as a separate paragraph. In other words the amendment is not to operate as independent provision distinct from the original provision of subsection (6) as suggested by the appellant. Had the intention been that the amending provision should read as a separate paragraph, the Legislature should have provided so in express language instead of using the phraseology, it did in the amending provision. Therefore, the subsection (6) along with its amendment must be construed as one integrated provision and the latter was not intended to be an independent enacting clause to create a general jurisdiction in the Rent Controller to decide all disputes about the recovery of rent between the land lord and tenant, independent of the proceeding provisions of the subsection.

12. For a proper construction of subsection (6) of section 13 of the Ordinance as amended, it would be advantageous in my opinion, to refer to the preamble of the Ordinance. The appellant, however, argued that the preamble cannot possibly abridge or qualify the meaning of substantive provision particularly where there is no embiguity about it. It is well established principle that preamble sheds useful light as to what a statute is intended to achieve or remedy. It is true that the preamble cannot control, restrict, extend or otherwise add to or detract from a substantive provision of the statute, where it is expressed in cleat unambiguous language. But there is weighty judicial authority in which preamble has been referred to with advantage as an aid to the construction of the main provisions o statutes. According to monograph 544 of Halsbury's Laws o England, 3rd Edn., Vol. 36 at p. 370, preamble has long been accepted, at any rate, since the middle of the 19th Century "as a legitimate aid to construction". Besides the authorities set out at the foot of the above monograph (see also Powell v. Kempton Park Raecco ((1897) 2 Q B 242), Monhar Lal v. Emperor (A I R 1943 Lah. 1) and Finch v. Finch (A I R 1943 Lah. 260). These are only few among a long array of authorities bearing on the point. In all these cases the broad principle was accepted that preamble is the key to a statute and affords a clue to its scope, particularly where the words construed by themselves are fairly capable of more than one construction. In these cases the appellant on the one hand laid great stress on the generality of the amending provision requiring the Rent Controller to "finally determine the amount of rent due from the tenant" and contended that it admitted of no doubt so as to warrant a reference to the preamble by way of aid for its proper construc tion. Mr. Iftikhar Ahmad, Advocate who addressed the main arguments on behalf of the answering respondents, on the other hand, contended with equal .emphasis that amendment to sub-section (6) of section 13 of the Ordinance was not intended to .create a fresh jurisdiction in the Rent Controller for the recovery of rent by the landlord from the tenant, but was designed to remedy a lacuna namely to enable the Rent Controller to finally determine the amount of rent due from the tenant only in those cases in which he deposited the approximate rent under a direction by the Rent Controller under subsection (6) as originally enacted. These two variant interpretations which appear equally plausible amply justify reference to preamble as an aid to the interpretation of the subsection.

13. West Pakistan Ordinance VI of 1959, according to its preamble was enacted "in public interest to restrict the increase of rent of certain premises within . . . . urban areas and eviction of tenants therefrom . . . . ". Thus it is quite apparent that recovery of rent due from the tenant was not the main objective the Legislature had in view. This is a matter which normally falls for determination by civil Court. Section 13 of the Ordinance is headed as "Ejectment of tenant". It sets out with great particularity the circumstances in which tenant is liable to be ejected from tenanted premises. Ex facie the whole object underlying subsection (6) ibid in so far as it requires the tenant to deposit all rent due or the current rent seems to be to obviate the possibility of vexatious or frivolous proceedings by tenant whether he is the applicant or the respondent before the Rent Controller. It was also recently observed by their Lordships of the Supreme Court in Ashfaq‑ur‑Rahman v. Chaudhry Muhammad Afzal (P L D 1968 S C 230) that recovery of rent was not the primary object underlying section 13 (6) of the Ordinance. The main question that fell for determination in the precedent case was whether it was competent to Rent Controller to direct a tenant under section 13 (6) of the Ordinance, to deposit arrears of rent due for the period beyond three years, for the recovery of which a suit was barred by limitation? In the High Court, a Full Bench, by a majority, answered the question in the affirmation. On appeal by the tenant, their Lordships of the Supreme Court however, came to a contrary conclusion. It was in this context, that their Lordships observed that recovery of rent is not the primary object of the proceedings under section 13 of the Ordinance. It is important to bear in mind that the above observation was made after amendment of section 13 (6) of the Ordinance, upon which the appellant relied so strongly in support of his appeals. The principle enunciated to the precedent case in my opinion, clearly militates against the wide interpretation convassed by the appellant. I am not oblivious to the difference in facts in the precedent case and the facts in these appeals nevertheless the principle enunciated in the precedent case offers useful guidance to the legislative intendment underlying section 13 (6) of the Ordinance.

14. In these facts that the provisions of section 13 (6) are mandatory does not provide an answer to the first question posed in the beginning of the judgment. The subsection is a composite provision plainly designed to meet a variety of situations that might conceivably arise in the proceedings between a landlord and a tenant under section 13 (6) of the Ordinance as amended. On its analysis it provides for the following :‑ (i) A direction by the Rent Controller on the first hearing or as soon as may be, thereafter, requiring the tenant to deposit arrears of rent, (if any) and the current rent by the specified dates. (ii) In the event of any dispute about the arrears due or the rate of rent, an approximate determination of the same by the Rent Controller and a direction requiring the tenant to deposit he same by the specified date. (iii) Summary dismissal of the tenant's application or striking off his defence owing to his default in compliance with the direction in (i) or (ii) as the case may be, and the further order by the Rent Controller requiring the tenant to put the landlord in possession of premises "without further proceedings . . . . .". (iv) Final determination by the Rent Controller of the amount of the rent due from the tenant with a direction to pay, the same to the landlord; subject to the adjustment of approximate rent deposited by the tenant. But as pointed out already, the main purpose of the proceedings under section 13 of the Ordinance is ejectment of a tenant on any of the grounds set out therein. The above requirements of sub section (6) ibid concern matters which are wholly incidental or-ancillary to main proceedings under section 13 of the Ordinance to prevent any frivolous or vexatious proceedings by the tenant. It is possible to conceive of a case in which a tenant on the first hearing consents to his ejectment. In such an event, the possibility of any of the above order or direction under- subsection (6) it entirely eliminated. This sufficiently demonstrate the ancillary character of the above requirements.

15. To revert to the appellant's argument it is impossible to, read in the opening sentence of the subsection (6) of section 13 of the Ordinance an implied obligation upon the Rent. Controller to determine the amount of rent due by the tenant. The reasons for such a conclusion are two‑fold. Firstly, reading the opening sentence of subsection in juxtaposition with that immediately follows it and which requires the Rent Controller to determine the amount approximately in the event of the dispute between the parties with regard thereto, there can be no manner of doubt, that the opening sentence covers a case in which there is no dispute as to amount of rent due by the tenant to the landlord. That being so, there can be no room for the argument that the Rent Controller is under a duty, muchless, an absolute duty under the opening sentence 4f the subsection to determine the amount of rent due by the tenant. Any such interpretation will be wholly incongruent with the provision empowering the Rent Controller to determine approximate, amount of rent. Secondly, any such interpretation would render the amendment to the subsection by the 1964 Ordinance ostiose. It must be presumed that at the time of promulgating Ordi nance XXX of 1960, the Legislature was fully aware of the existing law and its true interpretation. If the appellants interpretation of the opening sentence as imposing by implication, a duty upon the Rent Controller to finally determine the amount of rent due by the tenant, be accepted then the amendment of 1960 would become wholly redundant. To get over the obvious difficulty, appellant described the amendment as designed to, remove a possible doubt as to the true meaning of the existing provision. But section 5 of the 1960 Ordinance is not declaratory in terms ; it makes a substantive provision 4n the premise that this was non‑existent heretofore.

16. I, therefore, agree with Mr. Iftikhar Ahmad learned counsel for the answering respondents that section 13 (6) was amended by section 5 of the 1960 Ordinance to remedy what be called, a lacuna or an anomaly in the original enactment which Becomes obvious if we refer to its provisions prior to its amend ment in 1960. As pointed out already, the subsection as originally enacted, inter alla, empowered the Rent Controller to determine approximately the amount of rent due by the tenant and the current rent in case there was a dispute between the parties with regard thereto and require the tenant to deposit the same. Subsection (8) ibid, made the rent so deposited payable to the landlord at the conclusion of the proceedings or even earlier, as the case may be. But there was no provision to enable the Rent Controller to finally determine the amount of rent due by the tenant if he had deposited rent pursuant to a direction by the Rent Controller, which created a somewhat anomalous situation. For on the one hand, the Rent Controller, was required under subsection (8) to pay to the landlord rent deposited by the tenant, including the approximate rent, he had no power to grant relief to the tenant if pursuant to his direction the approximate rent deposited by the tenant exceeded amount of the lawful rent due by him. Likewise the Rent Controller had no power to require the tenant to make up the deficiency, if the approximate rent deposited by him fell short of the proper rent due. Thus the parties were left to have these anomalies resolved by proceedings in suit, in civil Court which entailed multiplicity of proceedings in two different forms. Accordingly, the Legislature by section 5 of West Pakistan Ordinance XXX of 1960 amended section 13(6) of the parent statute to enable the Rent Controller to make adjustments in the approximate rent deposited by the tenant by finally determining the rent due from him. Thus it will be seen that the amendment was intended to avail only in a case where the tenant has deposited the approximate rent pursuant to a direction by the Rent Controller. Obviously, there can be no occasion for final determination of amount of rent due from the tenant, where there is no dispute between the parties with regard thereto. Similarly there can be no occasion for the final determination when the tenant has defaulted in the deposit of approximate rent, and has thereby suffered the penalty of having his defence struck off, and putting the landlord into possession of the property "without any further proceedings in the case". These words are significant and cannot be interpreted upon any hypothesis other than this that in the event of default by tenant to deposit rent as directed by the Rent Controller, the proceedings before the Rent Controller, are terminated. This would exclude any determination by the Rent Controller with regard to the rent due by the tenant after his defence is struck off; else such determination will be "further proceedings" which the statute expressly forbids.

17. There is yet another way of looking at the matter. It is cardinal rule of interpretation of statutes that in all cases of doubtful significance the Legislature must be presumed to have intended what appears to be "most in accordance with con venience reason, justice and legal principles" (cf: Maxwell on Interpretation of Statutes, 1962 Edition, page 183). Thus whenever the language employed by the Legislature admits of two construc tions and if construed in one way would lead to an obvious injustice, the Court should act upon the view that such a result could not have been intended, unless that interpretation is manifested in express words. This principle can, in my opinion, be aptly invoked in the cases in hand. There can be no gain saying the fact that provisions of section 13(6) of the Ordinance by and large are penal. It, inter alia, requires the tenant to deposit approximate rent as directed by the Rent Controller, despite any valid objection he might have against such direction and in the event of his failure to do so, to suffer the penalty of his defence being struck off. To say that the subsection by it amendment in 1960 empowered the Rent Controller to "final determine" the amount of rent due from the tenant even after his defence had been struck off would be nugatory to recognised principles of justice and equity and therefore, presumably not intended by the Legislature. Moreover, as rightly pointed out by Mr. Iftikhar Ahmad, the expression "Finally determine" connotes a determination on merits after hearing both the parties. In the cases in hand, the defence of the answering respondents being struck off they were excluded altogether from any further participation in the proceeding before the Rent Controller. Indeed this is what happened in these two cases leading S. A. O. Nos. 352 and 353 of 1967. The Rent Controller after striking off the defence of the answering respondents in these two cases purported to proceed to finally determine their liability for the amount of rent due by them without any notice to them apparently because their defence had been struck off. This is repugnant to all cannons of justice and fair play, which Courts of justice cannot possibly countenance, unless legislative intent is manifested by clear, unambiguous language. It is axiomatic that law favours adjudication on merits after hearing both parties and any departure from this principle must be founded on clear statutory provisions. It is impossible to believe that the Legis lature intended any such extraordinary result by the amendment: of 1960.

18. For the foregoing reasons, I return a negative answer to the first question posed in the beginning. The result is, that on the facts of those cases, the final determination of the amount of rent payable by the answering respondents falls within jurisdiction of Civil Court of general jurisdiction, the Rent Controller, having become functus officio after striking of their defence under section 13 (6) of the Ordinance.

19. The second question arising in S. A. O. 352 and 353 of 1967 need not detain us long. Because of the negative answer -returned to the first question, the two orders dated 14‑11‑64. and 24‑7‑64 purporting to hold the answering respondents in these two appeals liable to pay Rs. 3,450 and 1,900 to the landlord respectively by way of arrears of rent are wholly devoid of jurisdiction, and therefore corum non judice and nullities. There is abundant judicial authority in support of the proposition that the executing Court can refuse to execute the decree on the ground that it was passed by the Court having no jurisdiction. See for instance Abdul Ghani v. Anjuman‑i‑Imdad Qarza Bahami, Chak No. 127 R. B. (A I R 1942 Lah. 237), Syed Mehboob Husain Shah and another v. Anjuman Imdad Qarza Chak No. 353 Jhang Branch (A I R 1942 Lah. 129), Official Receiver, Lyallpur v. Abdul Ghani (A I R 1940 Lah. 280), Gora Chan Holder and another v. Prafulla Kumar Roy and another (A I R 1925 Cal. 907) and Sadashive Mohadeo Withekar v. Muhammad Yaqub, Muhammad Saidullah (A I R 1943 Bom. 404). The same view was taken by the Indian Supreme Court in Hira Lal Patni v. Sri Kalinath (A I R 1962 S C 199). Accordingly, I answer the second question posed in the beginning in the affirmative.

20. As a result, all the four appeals fail and are dismissed. However, I leave the parties to bear their own costs.

21. The first question canvassed in these appeals raises a question of general importance as to interpretation of statute upon which no direct authoritative precedent has been cited I, therefore, certify these cases fit for further appeals in this Court under clause 10 of Letters Patent but on the first question only. A. E. Appeals dismissed.