MUHAMMAD ASHRAF Versus MUHAMMAD ANWAR

1. This rent appeal is meant to call in question the order of Additional District Judge, Peshawar dated 12-4-74 by which the appeal of appellant was dismissed against the order of Rent Controller allowing against him the eviction-application of respondent.

2. The case seems to have quite a chequered history. The first round of litigation between parties started in 1969 when respondent filed against appellant, his tenant of suit shop, an application in the Court of Controller for his ejectment on two grounds (1) of his default in paying rent for the period 19-8-1968 to 18-1-1969 and (2) that he needed the shop for his personal use. The record would show that appellant was proceeded against ex parte and consequently the application was allowed by Controller on 26-4-1969. But later the said order was set aside on an application of appellant. However, before he filed his written-statement the proceedings were compromised on 21-11-1969 and it was agreed that appellant would, in view of another premises described as baitak which respondent would give to him, vacate the suit shop. In this view, therefore, the eviction application of respondent was dismissed by Controller with no finding recorded in the order about his claim of arrears of rent. It is common ground between the parties, however, that the compromise in question was not taken to its logical conclusion, and that respondent did not hand over the possession of agreed baitak to appellant and therefore appellant continued to remain in possession of the shop. Notwithstanding this position, however, respondent filed against appellant another application in the Court of Controller on 20-7-1972 for his eviction from what he described `baitak' on two grounds, namely, (1) that appellant had defaulted in paying him rent for the period 19-2-1972 to I8-7-1972 and (2) that he required the premises for his personal use. In his written-statement appellant denied the case of respondent saying that the possession of baitak was not delivered to him in view of the parties compromise in the first round of litigation as also that he had paid all due rent but respondent did not issue him any receipt. The order of learned Controller would show that he held against respondent on the question of baitak, for he found that the possession of it had never been delivered by him to appellant. But even so be directed the eviction of appellant from suit shop holding that he had defaulted to pay rent of it to respondent. Against this order, appellant went in appeal before Additional District Judge who set aside the order of Controller and dismissed the application of respondent. It seems that respondent was not to be deterred in his endavour to see that appellant was evicted from suit shop. And therefore he instituted against him the third round of proceedings in the Court of Controller on 20-6-1973 for his eviction again on two grounds : (1) For his default in paying rent for the same period, namely, 19-2-1972 to 18-7-1972, respecting which his previous application had been dismissed, and (2) for personal use. In the written statement appellant denied the claim 'of respondent on grounds, amongst others, that in the previous proceedings he was found not 'to have defaulted in paying rent arid thus to reconsider the same question would be impermissible in view of the principles of res judicata. He further contended that the entire rent for the period 19-Z-1972 to 18-7-1972 had already been deposited by him in Court in the previous proceedings and so he was not defaulter. In his preliminary objections, however, he had alleged that he had been remitting to respondent through money orders advanced rent of about 6 months for January 1973 to June 1973 but he refused to accept it and consequently he filed before Controller an application for permission to deposit the said rent in Court and the said application was still pending for orders. The order of Controller dated 24-7-1973 would show that respondent had given up his claim in regard to arrears of rent. But even so appellant seems to have agreed to deposit in Court advance rent for the period 1-1-1973 to 31-8-1973 by 10-9-1973 and future rent by 15th of each month. It is not disputed that under this order he deposited the agreed advance rent on 3-9-1973. But in regard to the rent of September which was to be deposited by 15th October he defaulted and instead deposited it on 22-10-1973. In this view of the matter, therefore, respondent filed before Controller an application that the defence of appellant be struck off and he be put in possession of suit shop. But appellant denied the said allegation saying that the default was bona fide, for during the relevant period he had gone to Lahore leaving to his servant the amount of rent to deposit in Court. But on his return from Lahore, he discovered that the servant had run away with the money and was not traceable. The agreed position, however, is that appellant had, in the meantime, deposited in Court advanced rent for the whole year, But all the same Controller held him defaulter, consequently struck off his defence and directed that he would put respondent in possession of suit shop. Against this order, appellant went in appeal before Additional District Judge, but he failed. And hence this appeal.

3. The principal ground in this appeal is that the Courts below have overlooked the fact that appellant himself, had, although it was not the case of respondent volunteered to deposit the advanced rent for 1-1-1973 to 31-8-1973 and thus Rent Controller would have no jurisdiction to direct his eviction from suit shop. There seems to be force in this contention. However, before proceeding to discuss the reasons for which I am inclined to take this view, it would be proper to reproduce subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called Ordinance) which reads as under:

4. "(6) 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 fifteenth 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 directly without taking any further proceedings. The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord subject to adjustment of the appropriate amount deposited by the tenant."

5. It would be noticed that the subsection opens with the words "proceedings under this section". And by this we are obliged to go over to section 13 and reproduce from it the relevant provisions of subsection (1) and clause (i) of subsection (2) which read as under :-----

6. "(1) A tenant in possession of a building or rented land shall not be evicted in execution of a decree passed before or after the commence ment of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.

(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that-

(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable ;

7. Now the language of these provisions in altogether clear to admit of any doubt in regard to the intention of Legislature that a tenant is not to be harassed so long as he has paid his rent within time, and subjected to frivolous and wanton proceedings by his landlord. The crucial words in subsection (2), on which emphasis is required to be laid are "the tenant has not paid or tendered rent due by him". And this would, by necessary implication, show that the Legislature did not approve of a landlord to file before Controller an application for the recovery of advanced rent. It seems to me that by reading subsections (1) and (2) of section 13 together, one would be able to see the confines of jurisdiction of Controller, in that an application before him would be competent only if the claim of a landlord is for the recovery of "due rent" and not rent in advance. After all, the A Court of Controller is of limited jurisdiction. And thus the proceedings instituted in it must be shown to be covered by the provisions of Ordinance, of which it is admittedly the creature, failing which it would have no jurisdiction whatever. In a Full Bench judgment from the Lahore Seat of defunct West Pakistan High Court in the case of Akhtar Ali Parvez v. Altafur Rehman (P L D 1963 Lah. 390), this question seems to have been thoroughly dealt with by late Manzur Qadir, C. J. (as his Lordship then was). And I would like to reproduce from it paragraphs 12 and 13 which are as follows:

8. "12. It seems to me that a distinction exists between an issue as to the very existence of the authority to adjudicate, and those other issues which arise as between the parties and which are to be determined by the authority that has the power to resolve them. An issue concerning the very existence of the power to decide, is not an issue between the parties, though the existence of that power may be asserted by one party and denied by the other. It is, in reality, an issue between the 'Court itself and the party over whom he is asked to exercise power. The issue as to the rights or liabilities of the parties on the other hand affects only the parties and arise only as between them. They leave the Court unaffected. This point may be put in another way. Objections raised 'to' the proceedings must be distinguished from objections raised `in' the proceedings.

13. The opening words of section 13, subsection (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, are "In proceedings under this section". Whatever follows applies only to proceedings, which are under section 13. If they are not under section 13, nothing contained in subsection (6) is applicable to them. The fact that a party has chosen to institute proceedings under that section will not make those proceedings to be proceedings under that section unless they are lawfully covered by that section. If proceedings are erroneously instituted under a provision of the law, they would not be rightly described as being proceedings under that law. They can only properly be described as proceedings alleged or purporting to be under that law. In cases where the jurisdiction of the Courts has been ousted by Special laws, in respect of proceedings under those laws, the expressions "under this Act" "under this section" or "under this law" have received the same interpretation uniformly by practically all the Courts in this country. The provision contained in section (6), accordingly, seems to be attracted only when the proceedings in fact fell under section 13, and not when they only purport or are alleged to fall under that section. If, on whatever ground it may be, one of the parties to a proceeding under section 13 claims that those proceedings cannot validly be sustained or proceeded with under section 13, it will be incumbent upon the Rent Controller to decide that issue before he can exercise any of the powers mentioned in that section. The words "on the first date of hearing. . . and before issues are framed" are to be read alongwith the words "in proceedings under this section". The determination of the issue whether the proceedings are "under this section" in the context, must proceed the "framing of the issues". To appreciate the substance of this point, it will be helpful if the language of this subsection is simplified and shortened. The purport of subsection (6) may be summed up by saying that in proceedings under section 13, the procedure prescribed in subsection (6) is to be observed. When the question is whether the proceedings do or do not fall under section 13, could subsection (6) of that section mean that that issue itself must also be determined according to the procedure prescribed by that subsection."

9. A look at these two paragraphs would if, I may say with profound respect, reveal to any one the excellent juristic analysis by his Lordship of section 13 of Ordinance. And by applying them to the facts of this case the proceedings before Controller would, after respondent gave up his claim for "due rent" for the period 19-2-1972 to 18-7-1972, appear to be wholly incompetent. It would be recalled that appellant bad, in his written-statement, denied to be defaulter. And indeed there is nothing in the cansent order recorded by Controller on 24-7-1973 that he had, as a quid pro quo, agreed to pay advance rent to respondent after he (respondent) gave up his claim for the recovery of due rent. In this view, therefore, the application of respondent would be deemed to have become infructuous on 24-7-1973 with the result that all subsequent proceedings before Controller, including his impugned order, would be without jurisdiction.

10. Mr. Karimullah Khan Durrani, the learned counsel for respondent, however, laid stress on the default of appellant for not paying the rent of September within time. But he seems to forget that his client had, on his own volition, given up in the Court of Controller his claim for the recovery of due rent and thus rendered the proceedings infructuous. To put it somewhat differently, after respondent gave up his said claim in the Court of Controller on 24-7-1973, the latter very authority in law to adjudicate would, in view of the Full Bench judgment, cease to exist. And thereafter, there being nothing left in the field by way of "proceedings" subsection (6) of section 13 of Ordinance, would have no application whatever and the impugned order passed thereunder would be without jurisdiction. It is well-settled that if a Court has no jurisdiction, the same could not be conferred on it by the parties' consent, more so in a case of a Court of limited jurisdiction as of Controller under the Ordinance.

11. Apart from this position, I have not been able to agree with the finding of Courts below that appellant had defaulted to pay rent for the month of September 1973. "Defaulter" has, in view of quite a few reported judgments, been construed to mean wilful default or at any rate, which is accompanied by some negligence. Let us take the example of a tenant who, in order to deposit rent in the Court of Controller, meets with an accident on the way and is removed to hospital. However, when he is subsequently found not to have deposited rent, can it be said that he was "defaulter" ? On the contrary, if he would be able to establish that due to accident he was prevented from depositing rent in time obviously no Court would hold against him. How by taking into consideration the background of litigation between the parties, it is clear to me that respondent has been harassing appellant from time to time with all sorts of frivolous litigations. In the first application filed, by respondent against appellant in 1969, he had claimed the recovery of rent for the period 19-8-1968 to 18-1-1969. But he compromised the proceedings, in consequence gave up the claim and instead contended himself by agreeing to give to appellant the baitak and in exchange to recover from him the possession of suit shop. It is common ground between the parties that respondent repudiated this arrangement and yet bad the temerity to file against appellant another application for his eviction from baitak on the ground, amongst others, that he had defaulted in paying rent for the period 19-2-1972 to 18-7-1972. This application was, therefore rightly dismissed by learned Additional District Judge. But again he filed the present proceedings against appellant for his eviction on the same ground. The fact that in regard to his said claim, namely, the recovery of rent for the period 19-2-1972 to 18-7-1972, his eviction application had been earlier dismissed, the same issue in the present proceedings would be clearly res judicata. But aside from this, the overall conduct of appellant in all these proceedings was above board and even the explanation, offered by him about his default in not paying rent for September 1973 in time, seems to inspire confidence. In his written statement, in which he denied the claim of respondent for due rent, he bad alleged that he had been sending to latter even advanced rent for the period January 1973 to June 1973, through money orders, but he refused to receive it. Not only this but he seems to have deposited rent for that period in Court and alongwith his application, seeking the condonation of delay about the rent of September 1973, he also deposited advanced rent for the whole year. In these circumstances, the Courts below were evidently wrong to hold him defaulter especially in view of the persistent conduct of respondent which reveals nothing but his mala fides.

12. Mr. Karimullah Khan Durrani, the learned counsel next argued, relying on quite a few judgments, the discussion of which does not seem to be necessary, that notwithstanding the giving up of his claim of due rent, the application of his client would be still pending in regard to the eviction of of appellant on the ground that he needed it for his own residential purpose. There is no force in this contention. It is common ground between the parties that the suit shop was always treated as commercial premises and was let out to appellant as shop. In his application, however, respondent sought the eviction of appellant on the ground that the shop in question was a part of his house and required it now for his comfort. This being the nature of his claim, I am satisfied that his application in that respect was incompetent. A perusal of section 13 of Ordinance would show that in there commercial and residential premises have been dealt with separately. And in order to be able to seek recovery, a landlord must be able to prove that he required the premises to be used by him for the same purpose for which they had been let out and not vice versa. The only provision, which would have seemingly supported the case of respondent, would be found in clause (vi) of subsection (2) of section 13 of Ordinance, in which it is said that a landlord may make an application for the eviction of his tenant on the ground that he wishes to reconstruct a building on the site and has already obtained the necessary sanction of required authority for the said reconstruction. But it was not the case of respondent that he required the suit shop for any such purpose.

13. Mr. Durrani lastly argued that the eviction-application of his client as regards the above said ground, must be deemed to be still pending before Controller, as the impugned order was passed by him on another ground. And thus the case should be remanded to him for the decision of that question. I am afraid, the contention is more technical than real. Had there been any scope for taking evidence in this case in regard to the said allegation of respondent, I would have readily agreed with the learned counsel. But the position here is different. Assuming for a moment that respondent would be able to establish by evidence that the suit shop was initially a part of his house, even then his application on that account would be incompetent for in the previous rounds of litigation he had always treated the suit premises as shop as also that he had let them out to appellant as such premises. Section 13 of Ordinance does not admit the eviction of a tenant by any such stratagem. Arid this would suffice to repel the contention of learned counsel.

14. It seems to me that the Courts below have treated this case rather casually. They should have realised that the Ordinance was in the nature of public policy legislation, their own jurisdiction in a case of this nature was confined to a claim of recovery of "due rent" failing to prove which, or as in the case in hand in which respondent had given up his claim on that account, they would have no jurisdiction in the matter, and being Courts of limited jurisdiction could not assume jurisdiction because appellant had agreed to deposit in Court advanced rent. In the well-known judgment of B. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536), it has been laid down by their Lordships of the Supreme Court, in regard to the purport of section 30 of Displaced Persons (Compensation arid Rehabilitation) Act 1958, which appears to me to be a pari materia piece of legislation, teat Evans, who had admittedly accepted oral notice from his landlord to be the owner of suit house by transfer from Settlement Department, was nevertheless entitled to a registered notice (A. D.) as contemplated in that section. And thus his eviction by the Courts below, including by High Court, was set aside. In my view, there is no distinction in that case and the case in hand, for in there too the Rent Controller had directed the eviction of Evans on the ground of his default in paying rent on his own admission to have, instead of registered notice (A. D.) received oral notice from his landlord. Whereas in this case appellant had volunteered to deposit advanced rent, respecting which, however, Controller had no jurisdiction whatever. This case is therefore, covered by the High authority of Supreme Court. And on that account too, the impugned order would be without jurisdiction.

15. This appeal is, therefore, allowed as prayed. But under the circumstances, parties would bear their own costs.

16. S. Q. Appeal allowed.