ZARDAD KHAN Versus HAJI ZARIN SHAH

1. This second rent appeal, filed under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance), is meant to call in question the order of appellate authority dated 12‑9-1973 by which the appeal of respondent against the order of Rent Controller was allowed and the case remanded to him for disposal on merit.

2. Briefly stated, the facts, which would be relevant for the disposal of this appeal, are that Evacuee Property No. 225‑A situated in Hukam Chand Street, Bannu City was, in lieu of permanent transfer deed, transferred to one Akhtar Ali Khan by the Settlement Department. In 1965, Akhtar Ali Khan sold the said house to appellant through a registered sale‑deed. Upon becoming the owner of the house in question, the appellant served on respondent, who was in occupation of the house as tenant, notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 calling upon him to attorn to him as his tenant. But respondent did not oblige him. The appellant, therefore, filed against respondent in the Court of Rent Controller, Bannu an application for his eviction from the suit house for non‑payment of rent. In his written‑statement, respondent not only denied the claim of appellant but contended that the suit house was evacuee‑trust‑property, that it belonged to Evacuee Trust Board and he was a tenant of it paying regular rent. He also took the plea that the application of appellant was bad for non-joinder of parties. Upon the pleading of parties, therefore, the learned Rent Controller framed in the proceedings the following three preliminary issues:‑

(1) Whether the relationship of landlord and tenant exists between the parties?

(2) Whether this Court has the jurisdiction to entertain the petition?

(3) Whether the petition is bad for non‑joinder of necessary parties?

3. In support of their respective pleas, the parties examined themselves and also produced witnesses from the Department who, in turn, placed on the record of the case documentary evidence. In view of the evidence thus produced before him, the learned Rent Controller answered all these issues in negative and dismissed the application with costs. Being aggrieved, respondent went in appeal to the appellate‑authority (District Judge, Bannu) who, disagreeing with the findings of the learned Rent Controller, set aside his judgment and remanded the case to him for disposal on merit.

4. Mr. Abdul Aziz Khan, the learned counsel for appellant raised a preliminary objection to the maintainability of this appeal. He argued that the impugned order of the appellate authority in this case is not an order passed under section 4 or section 6 or section 12 or section 13 of the Ordinance and therefore this appeal would not lie and the Court would have no jurisdiction to deal with it. In support of his contention, he relied on subsection (1) of section 15 of the Ordinance which reads as follows:‑

5. "Appeal.-- ‑(I) Any party aggrieved by an order made by the Controller under section 4, section 10, section 12 or section 13, may, within 30 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.

6. The learned counsel has in support of his argument, also relied on two judgments, one in tile case of Noor Din Khan v. Mohammad Siddique and others (Law Notes 1969 Lah. 1) and another in the case Messrs Kandawala & Co. Ltd., Lahore v. Sh. Fayyaz‑ud‑Din and others (1969 S C M R 721), both of which would appear to support him. However, since the judgment of Lahore High Court has followed the principle laid down in the judgment of Supreme Court of Pakistan, it would suffice to take note of the facts of this latter judgment. In that case the tenant had, in his written‑statement, denied that he was the tenant of petitioner. But the Rent Controller held against him. Being aggrieved, the tenant went in appeal to the Court of District Judge who, however, reached the conclusion that the impugned order of Rent Controller was not appealable under section 15 of the Ordinance. And consequently directed that the memorandum of appeal would be returned to the tenant for presentation to proper Court. Against this order, the tenant went in appeal to the High Court grieving that the District Judge had declined to exercise jurisdiction in the matter. But the High Court, agreeing with the view taken by learned District Judge, dismissed his appeal. As a last resort, the tenant filed in the Supreme Court of Pakistan petition for special leave to appeal. But his petition was dismissed with these observations:‑

7. "Admittedly, there is no notification by the Government to the effect that appeal will lie against the finding of relationship of landlord and tenant by the Rent Controller though this is really not material as will presently appear. The words used in section 15 are "an order" but learned counsel for the petitioner does not find it possible to contend that these words are to be interpreted in their wide generality and he accepts that some qualification has to be added to these words for otherwise an order adjourning a case or summoning a witness would also be subject to appeal and learned counsel agrees that this could not be the intention. The High Court has in a Full Bench case reported as Mohammad Amin v. Jamshid All P L D 1963 Lah. 523 held that "an order" in the section means any order, which is covered by some provision in the Rent Restriction Ordinance. This appears prima facie to be a reasonable qualification to add to "an order". The section envisages orders which the Rent Controller is empowered by the Ordinance to make while learned counsel for the petitioner does not accept this interpretation he is unable to make a reasonable suggestion as to any other limitation which can be placed on the words "any order". All that he has been able to contend is that an order which goes to the root of tire case should also be appealable, but he is unable to explain how the words of section 15 are to be interpreted so as to achieve this result. Even in a civil suit a decision, which goes to the root of the matter, is not always the subject‑matter of an appeal. When a civil Court decides a preliminary issue as to jurisdiction in favour of the plaintiff, no appeal lies against the finding. The mere fact that an issue as to jurisdiction has been decided cannot be a ground for granting a right of appeal when on the wording of the relevant provision it is not possible to do so.

8. The learned counsel for appellant very candidly conceded that in view of this dictum of Supreme Court, it would be difficult for him to meet the challenges of learned counsel for respondent. He, however, argued that since this appeal would be incompetent under section 15 of the Ordinance, the learned appellate authority must also be held to have had no jurisdiction to decide the appeal of respondent. In am afraid this contention, which no doubt appears to be attractive, has no force in it. It is true that the learned appellate authority had decided the appeal before it under section 15 of the Ordinance. But the learned counsel for appellant forgets that the appeal of respondent in that case was not directed against the preliminary finding of Rent Controller in the sense as if the Controller was still seized of the matter for final decision. In point of fact he, after answering the three preliminary issues against respondent dismissed his eviction application. And in this sense the order passed by him was evidently a final order against which an appeal would, under section 15 of the Ordinance lie to the appellate authority.

9. In so far as this appeal is concerned, it is directed not against the final order of appellate authority. All that the appellate authority has, in the impugned order, held is that there existed between the parties the relationship of landlord and tenant. And consequently remanded the case to the learned Rent Controller for disposal on merit. Considering therefore, that the extent of jurisdiction of appellate authority, under section 15 of the Ordinance, would be the same as that of Controller, its impugned finding would be in the nature of preliminary finding and covered by the above judgment of Supreme Court of Pakistan.

10. I am, therefore, of the view that this Court has no jurisdiction to entertain this appeal. Therefore, the memorandum of appeal would be returned to the appellant. But in view of the peculiar circumstances of this case, parties would bear their own costs.

11. S. A. H.

12. Memo of appeal returned.