MUHAMMAD DAUD Versus ABBAS ALI

This is a tenant's appeal which has been filed to challenge the order of Sardar Muhammad Amir Akbar Khan, Distt. Judge, Lyallpur dated the 12th December 1972, dismissing the appellant's appeal against the order of ejectment passed against him by Mr. Muhammad Ajmal Khan, Rent Controller. Lyallpur, on the 28th October 1971.

2. The impugned order has been passed on the ground that the appeal is barred by limitation as the certified copy of the order of the learned Rent Controller appealed against was not filed within the period of limitation.

3. As stated above, the order of the learned Rent Controller was passed on the 28th October 1971. This order was passed ex paste against the appellant as he did not appear in spite of service which was treated as sufficient by the learned Rent Controller. The appellant filed the memorandum of appeal before the learned Distt. Judge on the 13th December 1971. The Clerk of Court reported that the copy of the order appealed against was not placed on the record and it may be ordered to be filed. The same day the case was put up before the learned Appellate Court who passed the following order :----

"Counsel for the appellant present. Send for record for 17-1-1972. Notice to the other party for that date. The execution of ejectment order is stayed till the decision of the appeal."

No order was passed directing the appellant to file the certified copy of the impugned order. On the 17th January 1972. the case was adjourned as neither the record had been received nor the respondent was served. The parties were however present on the next date i.e. 17-2-1972 and the record had also been received by that date. The appeal was, therefore, fixed for arguments on the 19th May 1972. Arguments were heard on that date and the case was adjourned for orders to the 10th June 1972. The appeal -could not be decided on the 10th June 1972, as the learned appellate Court dad been busy with some other work. It was fixed for the 4th July 1972. On that date again it was adjourned for arguments and orders to the 2nd September 1972. This date was later on changed to the 28th September 1972, .On which date the case was again adjourned to the 30th September 1972.

4. On the 30th September 1972, the case came up for hearing before Sardar Amir Akbar Khan, District Judge, Lyallpur, who had taken over the charge of the District before that date. It appears that an objection was .now taken to the competence of the appeal by the learned counsel for the respondent and for this reason the statement of the appellant was recorded. He stated that the copy of the order received by him by post was lying at his house and the copy of the order which he had received personally from the Copying Agency had been filed by him with the appeal. Arguments were then heard and the case was adjourned to the 12th of December 1972, for orders, on which date the appeal was dismissed.

5. A copy of the order of the learned Rent Controller is on the record 4 the appellate Court and it is obvious from it that the application for certified copy was submitted by the appellant on the 27th December 1971. and this copy was completed on the 12th January 1972. It appears that this copy was filed in the Court on the 19th April 1972.

6. It was contended before the learned appellate Court that the appellant obtained knowledge of the ex parte order on the 11th December 1971. It was, therefore, held that even if the period of limitation is deemed to start from the time of knowledge of the impugned order of the learned Rent Controller and the period spent in obtaining the copy is also computed, still the copy was filed at a very late stage long after the expiry of the period of limitation; and there was no explanation why the certified copy was not filed within the period of limitation.

7. The learned counsel for the appellant contended that there is no provision in section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, requiring the appellant to file certified copy along with the memorandum of appeal and the appeal could not, therefore, have been dismissed on the ground of being barred by limitation. He argued that only Order XLT, rule 1, C. 1'. C. provides that the copy of the decree appealed against shall be filed with the memorandum of appeal, but this provision is not applicable to an appeal under section 15(2) of the above Ordinance which is a complete Code by itself in regard to procedure about appeal.

8. The learned counsel for the respondent, on the other hand, relied upon Order XLT, rule 1, C. P. C. and argued that this provision is applicable by virtue of explanation to section 15(4) of the above Ordinance and section 141 of the Code of Civil Procedure and non-filing of the certified copy of the impugned order is fatal to the appeal. He relied upon A I R 1929 Lab.

191. He also relied upon A I R 1929 Lab. 771 in which the word "copy" in Order XLI, rule 1, C. P. C. has been interpreted to mean a certified copy. He also raised a preliminary objection to the present appeal on the ground that it was filed only with a court-fee of Rs.

18. He,, however, withdrew this objection when his attention was drawn to the fact that a further court-fee of Rs. 50 was paid by the appellant on the 19th December 1972, within the period of limitation.

9. Section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, reads as follows :-

"(1) Any party aggrieved by an order made by the Controller under section 4, section 10, section 12, or section 13, 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.

(1-A) On such appeal being preferred, the District Judge may himself hear it or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land, in relation, to which the order is passed, is situated.

(1-B) The District Judge may recall an appeal made over by him to an. Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection (1-A); provided that the District Judge shall not: so recall or make over an appeal which is part-heard.

(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal;

Provided that no stay order shall be made in respect of the payment or deposit of rent determined by the Controller;

Provided further that the Appellate Court may direct that instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the rent shall be furnished by the tenant.

(3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller, and after giving the parties am opportunity of being heard and, if necessary, after making such further, inquiry as it thinks fit either personally or through the Controller.

(4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) subsection (1) and if an appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Con troller may, within 30 days from the date of the order of the appellate authority or, as the case may be of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final.

Explanation----An appeal under the subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modification as the context may, require, apply to such proceedings.

(5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance"

10. Subsections (1) and (3) of this section enact the following substan tive and procedural provisions :----

(a) An appeal shall lie against only those orders of the Rent Controller which have been passed under section 4, section 10, section 12, or section 13 of the Ordinance.

(b) The period of limitation for the appeal is 30 days from the date of such order.

(c) The appeal shall be preferred to the District Judge.

(d) The appeal shall be in writing.

(e) The appellate authority shall send for the record of the case from the Rent Controller.

(f ) Before deciding the appeal, an opportunity of being herd shall be given to the parties.

(g) If necessary, the appellate Court may make such further inquiry as it may deem fit either personally or through the Controller.

Subsections (1-A) and (1-B) empower the District Judge to hear the appeal himself or to refer it for disposal to an Additional District Judge or recall the appeal made over by him to an Additional District Judge and either hear it himself or to refer it for disposal to another Additional District Judge. This power is subject only to the limitation that the District Judge shall not make over an appeal which is part-heard. Subsection (21 authorises the appellate Court to stay further proceedings. This pourer has also been made subject to limitation that an order in respect of payment or deposit of rent cannot be stayed but may be substituted by an order of furnishing security by the tenant.

11. It will be noticed that this section provides not only for the limitation or the forum of an appeal but also the procedure of filing appeal and of its hearing and disposal including the power of transferring the same or withdrawing the same and power of issuing stay order. The memorandum of appeal is required to be in writing. Before deciding the appeal it is incumbent upon the Court to send for the record of the Rent Controller and to give the parties an opportunity of being heard. The appellate Court is empowered to record additional evidence or to remit the case for report to the Controller for making a further inquiry.

12. Broadly speaking, these provisions are analogous to the provisions of Order XLI, C. P. C. but are also distinct in some respects. One of the point of distinction is that Order XLI, rule 1, C. P. C. not only provides for forum of the appeal and the manner of presenting it but also lays down that the memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it was founded. Section 15(1) on the other hand, only deals with the forum of the appeal and the forum in which it is to preferred. It does not say that the memorandum shall be accompanied by any other document.

13. Subsection (4) of section 15 in its explanation applies the provisions of the Civil Procedure Code regarding appeal; before the High Court. It will be clear that the Legislature made a distinction in respect to applicability of the C. P. C. between the High Court and the lower appellate Court. Initially this distinction appears to have been created for the reason that the appellate authority under section 15 of the Ordinance was only a persona designata. By the West Pakistan Urban Rent Restriction (Amend ment) Ordinance XXI of 1906, however, the forum of appeal became the District Judge who acts in his ordinary judicial capacity as the Presiding Officer of a principal Court in the District and not as a persons designata. No change was made in the procedure and the distinction between the High Court and the appellate Court in regard to applicability of C. P. C. was maintained.

14. The question of applicability of the Civil Procedure Code to proceeding of an appeal before the appellate authority came up before the Supreme Court in Humayun Zulfiqar Ismail v. Hamida Saadat Ali (1968 S C M R 828) In that case the appeal filed before the District Judge was dismissed in limine under Order XLI, rule 11, C. P. C. In second appeal before the High Court it wag urged that the District Judge had no jurisdiction to dismiss the appeal in limine under subsection (3) of section 15 of the Ordinance. The High Court disagreed with this. This finding was reversed by the Supreme Court. It was held that "since the provisions of the Code of Civil Procedure have not been made applicable to an appeal under subsection (3) as has been done in the case of an appeal to the High Court under subsection (4), there appears to be substance in the contention that subsection (3) of section 15 is a complete Code of Procedure in itself for the purposes of an appeal under that subsection."

15. It was argued that in view of the explanation to subsection (a) the appeal before the District Judge was an appeal from the original decree under section 96, C. P. C. Their Lordships, however, repelled this contention and observed :---

"This explanation does not, of course, apply to an appeal under subsection (3) of section 15 but in our view furnishes a guide for determining the scope of the appeal under subsection (3) itself. Generally in an appeal from an original decree, the appeal is both on facts and on law but in an appeal from an appellate decree or order the appeal is on grounds of law only. In an original appeal or what is snore commonly called a firs; appeal the first appellate Court is the final Court of facts."

16. In the above case, the order of the appellate authority was passed before the enforcement of the Amendment Ordinance of 1956. The procedural provisions in case of an appeal before the District Judge being the same the question for determination is whether the provisions of the Civil Procedure Code have become now applicable after the original appeal has been made competent before a principal Court of District which is otherwise governed in procedural matters by the Code of Civil Procedure.

17. The learned counsel for the respondent urged that, except as regards specific procedural provisions of section 15 to the contrary, the procedure of appeals as provided in the Civil Procedure Code would be applicable by virtue of section 141 of that Code. This argument, however, is untenable in law for the reason that section 141 applies the procedure provided in Code in regard to the suits to original proceedings in the nature of snits and not to appeal. It is possible that where the procedure provided by the Code is made applicable to original proceedings by virtue, of section 141, C. P'. C. the procedure of that Code may also apply in appeals against those proceeding can the principle that the appeal is in continuation of the suit. This principle will not however, apply to the present case where the original proceedings are initiated before a persona destgnata to whom section 141 is not applicable.

18. The answer to the question is provided by section 4, C. P. C. which enact as under :---

"(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in subsection (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a land-holder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."

The West Pakistan Urban Rent Restriction Ordinance is a special law. It applies the provisions of the Code only to some specified matters. In subsection (2) of section 8, the expression "legal representative" has been assigned the same meaning as in the Code of Civil Procedure. Sub section (4) of section 15 makes the provisions of Part VI and of the First Schedule of the Code of Civil Procedure applicable to appeals before the High Court. Section 16 provides that an Appellate Authority or a Controller shall have the game powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908, Under section 17, every order under section 10 or 13, and every order passed in appeal under section 15 is executable by the civil Court as if it were a decree of that Court. The intention of the Legislature is, therefore, clear that wherever it has been considered necessary to apply the procedure of C. P. C. specific provisions have been made in the Ordinance itself. The Ordinance is mostly silent about the procedure to be adopted by the Rent Controller. But there can be no two opinions on the question that the Rent Controller is left free to adopt any procedure he likes, though in practice he invokes the principles and provisions of the Civil Procedure Code to his aid. The) intention of the Legislature to the effect that only those provisions of C. P. C.1 will apply to cases covered by the Ordinance which have been specifically applied, is made clear by the explanation to subsection (4) of section 15 which provides that provisions of C. P. C. relating to appeals will apply to the High Court. It may be noted that even if these provisions had not been there in section 15(4), there can be no doubt that by virtue of section 117, C P. C. the provisions of the Code would be applicable to the High Court an appeal filed before it under the provisions of the West Pakistan Urban Rent Restriction Ordinance. But the legislature intended to specifically lay down in what case the procedure provided by the Civil Procedure Cod would be applicable. I would, therefore, hold that notwithstanding tile amendment of 1966 conferring the power of hearing original appeals on a Court, the provisions of section 15(1), (1-A), (1-B), (2) and (3) furnish a complete Code for the procedure to be followed in appeals by the District Judge The intention of the Legislature is also made clear from the provision that after receiving the appeal the appellate Court shall send for the record before deciding it. This provision is different from the provisions of Order XLI rule 11. C. P. C. which leave it to the discretion of the appellate Court to send for the record "if it thinks fit to do so." The reason for vesting the Courts with this discretion is obvious. Under the Civil Procedure Code, unless dispensed with, it is incumbent upon the appellant to file copy of the impugned order. In many cases the filing of the copy may obviate the necessity of calling for the record. It can, therefore, be safely inferred that the essentiality of calling for the record has been emphasised in subsection (3) for the reason that there is no provision requiring the appellant to file the copy of the impugned order.

There is no warrant, therefore, for holding that an appeal filed without a certified copy of the order challenged in appeal, would be invalid. Consequently, the non-filing of the certified copy cannot affect the question of limitation.

19. This does not, however, mean that if the appellant files a certified copy along with the appeal, while computing the period of limitation of 30 days prescribed for the appeal, he would not be entitled to exclude time requisite for obtaining a copy of the order of the Rent Controller. The provisions of section 12 of the Limitation Act would apply in such a case. As held in Jijibhoy N. Surly v. T. S. Chettyar (A I R 1928 P C 103) the time is to be computed in accordance with section 12 even if the copy of the impugned order is not necessary to be obtained or filed. A contrary view was taken by a Full Bench of the Lahore High Court in Jogdhian v. Hussain (A I R 1935 Lah.328). Another Full Bench of the Lahore High Court in Punjab Co-operative Bank Ltd., Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. and others (A I R 1941 Lah. 257) dissented from the view taken by the earlier Full Bench in 1935 for the reason that the Privy Council Authority was not noticed in that case. It was further held that the statutory rules framed by the High Court under clause 27 of the Letters Patent are a 'special law' within the meaning of section 29 of the Limitation Act and by virtue of section 12 of that Act the time requisite for obtaining the copy is to be excluded from the period of limitation for a Letters Patent Appeal. The view held by the Full Bench in Jogdhian v. Hussain was also taken in the following cases :----

(1) Ghulam Hussain Shah v. Ghulam Muhammad P L D 1966 B J 11 ;

(2) Abdul Karim v. Shaikh Muhammad P L D 1966 B J 14 ; and

(3) Taj Din v. R. B. Alvi P L D 1963 Lah. 335.

But it appears that the Full Bench case of Punjab Co-operative Bank Ltd, [whore v. Official Liquidators, Punjab Cotton Press Co., Ltd. and others was not brought to the notice of their Lordships who were deciding these cases. The view taken by the High Court of West Pakistan was dissented from in Karachi Municipal Corporation v. Kartmi & Co. (P L D 1967 Kar. 537) on the ground that the Full Bench case decision in the Punjab Co-operative Bank case was not considered.

20. It will be clear from the above narration of the facts that an objection was taken by the office to the failure of the appellant to file the certified copy of impugned order and it was suggested that the appellant may be directed to file the same. The learned District Judge did not act upon this suggestions on the other hand he ordered for the record to be sent for and for notice to be issued to the respondent. Even the arguments on merits were heard by the learned District Judge but on account of his engagement, he could not write or announce the order. The objection on which the appeal has been decided was not taken at that stage. But was taken before a successor Judge later on when arguments were heard again. These circumstances show that the learned District Judge who was originally -seized of this case had impliedly condoned the non-filing of the impugned order and had decided to dispense with it. There was an application for permission to file the appeal without a certified copy. In substance this is an application for dispensing with the copy of the judgment. The action of the learned District Judge, in admitting the case to a regular hearing, calling for the record and issuing notice to the respondent in spite of the t report that the copy of the order had not been fled, proves beyond any shadow of doubt that on the first date of hearing, he was either of the opinion that it was not necessary to file a copy of the impugned order or that the filing of the copy should be dispensed with. This particular question could not, therefore, be reopened by the learned District Judge. It was held in Agent G. I. P. Rly. Co. v. Radha Kisan Jaikisan (A I R 1926 Nag. 57) that where an appeal is admitted without copy of the judgment the order admitting the appeal will be taken to amount to an order dispensing with such copy.

21. I, therefore, allow this appeal; set aside the order of the learned appellate Court and remand the case to the learned District Judge, Lyallpur, for deciding the appeal on merits.

S. A.H. Appeal allowed.