IBRAHIM Versus MUHAMMAD HUSSAIN

1. MUHAMMAD GUL, J.‑ This petition for leave is from the order of the Lahore High Court dated 28‑1‑1975 purporting to be in second appeal under section 15 of the West Pakistan Rent Restriction Ordinance, 1959 (W. P. Ordinance VI of 1959) upholding the concurrent findings of the learned District Judge and the Rent Controller as to the existence of relationship of landlord and tenant between the parties hereto.

2. The petitioner and the respondent herein are transferees of two "half equal shares" in property bearing No. 821/5, Multan City under Settlement Scheme No. 1. P. T. Ds. have also been issued to them. On demarcation of the two portions by the Settlement Inspector carried out on an application made by the respondent, the petitioner was found to be in occupation of a portion of that half of the property which was trans ferred to the respondent, hereinafter called the portion in dispute. The report of the Settlement Inspector was upheld by the Settlement authori ties at various levels despite an objection, appeal and revision by the petitioner. The respondent then gave notice to the petitioner under section 30 of Act XXVIII of 1958 demanding rent from him for the portion in dispute. On the petitioner's failure to pay the rent, the respondent on 30‑9‑1965 applied under section 13 of Ordinance VI of 1959 for the ejectment of the petitioner from the portion in dispute. The petitioner denied the existence of relationship of landlord and tenant between the parties and therefore questioned the jurisdiction of the lent Controller to entertain the proceedings. The following issue was raised:‑

3. "Whether the relationship of landlord and tenant exists between the parties?"

4. After hearing the parties' evidence, the Rent Controller by order dated 31-10‑1966 found the issue to favour of the respondent. An appeal by the petitioner against the above finding was dismissed by the learned District Judge on 18‑5‑1967. Further appeal to the High Court was similarly dismissed by order dated 28‑1‑1975.

5. Reference has been made to these dates to underline the unfortunate tact that it has taken almost 10 years to bring the matter to this Court for its decision on a purely preliminary point, leaving the main contro versy about the liability of the respondent for ejectment to be determined in the fresh round of litigation between the parties. Fragmentary decisions of this character have been described by their Lordships of the Privy Council in Nanhelal v. Umrao Singh (A I R 1931 P C 33) "as most inconvenient (which) tend to delay administration of justice".

6. It appears from the order of the learned District Judge that objection was taken by the respondent against the competency of appeal against the order of the Rent Controller. The objection was overruled and the petitioner's appeal was dismissed on merits. In the second appeal there is nothing to show that the objection was taken and the appeal proceeded on the assumption that it lay against the finding regarding the existence of relationship of landlord and tenant. The appeal was, however, dismissed on merits.

7. The controversy whether or not any such appeal is competent must be taken to have been set at rest by this Court's judgment in Messrs Kandawala & Co. Ltd., Lahore v. Sh. Fayyaz‑ud‑Din and others (1). In that case too, the existence of relationship of tenant and landlord was denied by the tenant and the matter being put in and decided on a preli minary issue was ultimately brought to this Court. The case proceeded on the interpretation of section 15 (1) of the Ordinance prior to its amendment by W. P. Ordinance XXI of 1966. Section 15 (1) as originally enacted read:‑

8. "Government may by a general or special order, by notification, confer on such District Judges (and Additional District Judges) as it thinks fit, the powers of appellate authorities for the purposes of this Ordinance, in such area, or in such classes of cases, as may be specified in the order."

9. The notification issued under the section allowed appeals against the Rent Controller's orders made under sections 4, 10, 12 and 13 of the Ordinance. In the precedent case it was held that under the above provision no notification by the Government had been issued to the effect that an appeal would lie to the District Judge against a finding about the existence of relationship of landlord and tenant, and that therefore no separate appeal lay against any such finding. The argument that a decision on the issue went "to the root of the case" because it is on the basis of the existence of such relationship that proceedings for ejectment lay before the Rent Controller, was repelled. It was held that section 15 read with the relevant notification postulated (final) orders which the Rent Controller made under sections 4, 10, 12 and 13. It was pointed out that even in a civil suit, a decision, even if it goes "to the root of the case" was not always appealable, so that when a Civil Court decides the preliminary issue as to the existence of jurisdiction to entertain the suit, no separate appeal is competent against that finding.

10. Since the above judgment of this Court, subsection (1969 S C M R 721) of section 15 of the Ordinance has been replaced by the West Pakistan Ordinance VI of 1966 to read:‑

11. "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."

12. It is well settled principle that right of appeal is a creature of the statute and it is not to be assumed that there is right of appeal in every matter brought before a Court for its consideration. The right is expressly given by a statute or some authority equivalent to a statute such as a rule taking the force of a statute. Therefore, existence of right of appeal cannot be assumed on any a priori ground. This is in sharp contrast with the right to sue. A litigant has a general right to institute a suit of civil nature, independently of any statute, unless such general right is expressly or by necessary implication barred by a statute to the contrary Therefore, in respect of any order made in proceedings before the Rent Controller, right of appeal will have to be clearly established within the four corners of subsection (1) of section 15 of the Ordinance.

13. It is plain that subsection (1) of section 15 is restrictive in character and limits right of appeal against an order falling under section 4, 10, 12 or! 13 of the Ordinance. Therefore, when an appeal is sought against any order made by the Rent Controller, the question will always be, whether the order sought to be appeal against properly falls under any of the above sections. Section 4 concerns the determination of fair rent by the Rent Controller after enquiry, and in accordance with the principles laid down in the section. Section 10 empowers the Rent Controller to order restoration by the landlord of any amenities, conveniences etc. hitherto enjoyed by the tenant. Section 12 empowers the Rent Controller to allow a tenant to carry out necessary repairs at the expense of the landlord in the event of the latter's neglect so to do. Section 13 lays down with great particularity the circumstances under which tenant will be liable to ejectment. It would be idle to contend that as respects cases falling under any of the above four sections, subsection (1) of section 15 postulates appeal in relation to a matter which is not germane to the substance of the dispute, but which is merely incidental or collateral to the dispute and which has been disposed of by an interlocutory order. For instance, in any such case c objection may be taken against the territorial jurisdiction of the Rent Controller and a finding as to the existence of such jurisdiction, cannot on any discoverable principle be made a subject‑matter of appeal apart from appeal from the whole gamut of the dispute. On a parity of reasoning the same will be true of the interlocutory order in the instance case, which was made to dispose of a collateral matter in the case.

14. It will not be out of place to advert to the majority judgment in the case of Mohammad Amin v. Jamshed Ali (P L D 1963 Lah. 523) according to which, the Rent Controller's order provisionally fixing rate of current rent and the amount of arrears due under subsection (6) of section 13 is not appealable. The reason given was that "in the case of the fault . . . . . . the Controller has no option but to order that the defence of the tenant . . . . shall be struck off and the landlord put in possession." It is however, important to point out that that stage had not actually reached in the precedent case and the matter rested with the order provisionally fixing the current rent and the amount of arrears due, The majority, however, took the view that the order which bas to follow the default "as a necessary consequence . . . . . . . . . . being final order, under section 13 (6) is without shadow of doubt open to appeal . . . . . . . . ". Thus the majority view proceeded on assuming the existence of a notional situation which did not exist in fact. How can or on what principle can this be justified, if we may say so with due respect was left unexplained. Rather it appears to be the principle explained above. However, that may be, the majority view, appears to have become obsolete in view of the recent decision of this Court in the case of Abdul Ghafoor v. Ahmad Kunhi (P L D 1969 SC 424). In that case the provisions of section 13(6) of the Ordinance as amended by W. P. Ordnance XXX of 1960 came in for inter pretation, though in slightly different context. Section 13 (6) as amended reads:‑

15. "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 fifth 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 com pliance 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 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 approximate amount deposited by the tenant."

16. With reference to the above provision, it was observed in the precedent case:‑

17. "It will be seen that under the first part of subsection (6) of section 13, the Rent Controller while directing deposit of arrears and the monthly rent fixes the amounts in regard to both tentatively if there is a dispute. Under the second part which may either be at the stage when the default is committed and the question of striking off the defence arises or when the proceedings are disposed of he is finally to determine the amount of rent due. In doing so he not only determines the period for which rent is due but also the rate at which the rent is payable. He is then to direct that the amount so deter mined be paid to the landlord subject to the adjustment of the approximate amount deposited by the tenant. It is, there fore, evident that the order passed under the first part, merges in the order passed under the second part."

18. This brings into bold relief the provisional character of the order made under the first part of section 13 (6) which in the event of default need not necessarily result; in the striking off' the defence and order of ejectment. The possibility cannot be entirely excluded that the Rent Controller, upon the final determination under the second part of the clause, comes to the conclusion that the tenant was never in default. The provisional fixation of current rent and the amount of arrears, under the first part of the clause remains provisional and until it is followed by final determination or the culmination of the other contingency postulated in the clause namely striking off the tenant's defence and putting the landlord in possession, the order would not b appealable under section 15 (1) or else a provisional fixation of current rent or past arrears would per se be equated with the default and striking off the defence within the meaning of section 15 (1) of the Ordinance, for which, so far as can be seen, there is no warrant in law.

19. Accordingly, we are clearly of the view that no appeal lay in the instant case and the High Court and the Appellate Authority should have dismissed the petitioner`s appeal on that short ground, though there was no merit in it either.

20. For the foregoing reasons the petition is dismissed.

21. S. A. H. Petition dismissed.