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Second Appeal from Order No. 57 of 1962, decided on 23rd April 1963.

One order disposing of two separate matters‑Party, aggrieved in both matters, filing single appeal challenging findings of lower Court in both matters ‑Omission to file separate appeals, in circumstance, held, only technical in nature.

Appellate authority not competent to hear appeal in respect of orders other than those passed by Rent Controller under Ss. 4, 10, 12 & 13 --West Pakistan Government Notification No. HG‑10‑2/59.

‑Words "other cause of alike nature"‑Meaning and scope‑Court having no jurisdiction in matter all the same entertaining it and deciding it on merits-- Decision subsequently found by appellate Court to be without jurisdiction‑Party in whose favour earlier decision had been given entitled to benefit of section if other conditions laid down therein satisfied.

Mathura Singh v. Bhawani Singh and others I L R 22 All, 248 ref.

Marginal heading‑Word uses in substantive provision of enactment not so clear or unambiguous-- Reference to marginal heading, to discover true meaning, permis sible.

‑Various provisions not to be interpreted so as to render some of them nugatory unless such result inescapable from clear language used therein.

Word "sum" in S. 8‑Meaning includes excess rent paid by tenant‑Tenant, however, not entitled to recover excess rent already paid before fixation of fair rent‑Excess rent so paid does not become "irrecoverable" by virtue of S. 6, retrospectively‑Claiming or receiving by landlord or tanant of rent in excess of fair rent‑Prohibited only after fixation of fair rent.

Krishan Lall Malhotra v. Muhammad Sadiq P L D 1955 Lah. 288 rel.

Sh. Abdul Mannan for Appellants.

Nemat Khan for Respondent.

Dates of hearing : 12th and 13th March 1963.

This is a second appeal by the two landlords, Haji Ghulam Muhammad and Muhammad Afzal, under subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance (No. VI) of 1959, (hereinafter referred to as the Ordinance), and is directed against the order dated the 1st of February 1962, passed by Mr. Jamil Asghar, District Judge, Lahore, acting as appellate Authority under the Ordinance, by which he has disposed of two appeals, namely, Nos. 485 and 488 of 1960.

2. Briefly the facts are that respondent, Ali Siraj, as tenant of the house in dispute, filed an application under section 4 of the Ordinance on the 16th of March 1959, for fixation of fair rent. As a counterblast, the two appellant‑landlords filed an application under section 43 of the Ordinance on the 27th of April 1959, for the ejectment of the respondent on the ground that he had failed to pay rent from 21st April 1958 to 23rd April 1959. Both these applications were decided by Mr. Shaft‑ur‑Rahman, Rent Controller, Lahore on the 11th of July 1959. He fixed the fair rent of the premises at Rs. 15 per mensem, instead of Rs. 25 per mensem which was being charged by the appellants. At the same time, he also granted the appellants' application under section 13 and directed the ejectment of the respondent. On the 22nd of October 1959, the respondent Ali Siraj filed another application, purporting to be under section 8 of the Ordinance, for the recovery of the excess rent paid by him to the landlords. He also filed an appeal before the District Judge, as appellate Authority under the Ordinance, against the order of ejectment, but failed. He then came up in second appeal to the High Court. That appeal was accepted by my learned brother Muhammad Yaqub Ali, J. on the 30th of May 1960, observing that "the issue whe ther the appellant (the tenant Ali Siraj) has made a default in payment of monthly rent or not will depend on the decision of the application moved by the appellant for refund of excess amount of rent against the respondent currently pending in the Court of the Senior Civil Judge, Lahore . . . . . The order in appeal is, therefore, set aside and the case remitted to the Court of the Senior Civil Judge as Rent Controller, Lahore, for redetermining issue No. 1 in the light of his decision as to whether there has been excess payment by the appellant to the respondent for which he can claim refund." It may be stated here that the appellant‑landlords did not file any appeal against the order of the Rent Controller dated the 11th of July 1959, fixing the fair rent of the house at Rs. 15 per mensem.

3. The appellants' application under section 13 of the Ordinance, as remitted by this Court, as well as the respondent's application under section 8 of the Ordinance for refund of the excess rent paid by him over and above the fair rent fixed by the Rent Controller, were consolidated for hearing by Mr. Ishaque Rahim Bakhsh, Senior Civil Judge, Lahore, acting as Rent Controller, and were disposed of by his order dated the 31st of October 1960. He came to the conclusion that the tenant was not entitled to the recovery of the excess rent paid by him in the past and, on that view, he dismissed the respondent s application under section 8 of the Ordinance. As a necessary corollary, he accepted the appellant‑landlord's application under section 13 of the Ordinance, holding that the respondent had defaulted in the payment of the rent. He directed that the respondent Ali Siraj should restore vacant possession of the house within two months of the order.

4. The respondent Ali Siraj instituted two appeals in the Court of the District Judge, as appellate Authority under the Ordinance, against the order of the Rent Controller dated the 31st of October 1960. As already stated, both these appeals (namely, Nos. 485 and 488 of 1960) have been disposed of by the learned District Judge by one order dated the 1st of February 1962. The learned District Judge has accepted both the appeals of the respondent, holding that the respondent is entitled to the refund of the excess rent at the rate of Rs. 10 per mensem paid by him from the 1st of January 1950, up to the 21st of April 1958, amounting to Rs. 997. He has further observed that the rent due from the respondent from the 21st of April 1958, to the 21st of January 1962, at the rate‑ of Rs. 15 per mensem, amounts to Rs. 675 only, and can be adjusted against the excess rent amounting to Rs. 997 already paid by him:

5. A preliminary objection has been raised by Mr. Nemat Khan, the learned counsel for the respondent Ali Siraj, that the order of the District Judge having disposed of two appeals, the appellants should have filed two separate appeals, if it were their intention to challenge the appellate order of the District Judge in both the matters, namely, one relating to the appellants' application under section 13 of the Ordinance and the second relating to the respondent's application under section 8 of the Ordinance. It was submitted on behalf of the appellants that as there was only one order of the District Judge covering both the applications, they were misled into thinking that one appeal would suffice, although it was their intention to challenge the findings of the District Judge in both the matters. It seems to me that the explanation is plausible and I would, therefore, proceed on the basis that the appellants are challenging not only the dismissal of their own application under section 13 of the Ordinance but also the acceptance of the respondent's applica tion under section 8 thereof. The omission to file separate appeals in respect of each matter is of a technical nature and need not stand in the way of the appellants.

6. The first contention raised in this appeal by the learned counsel for the appellants is that the learned District Judge was not competent to hear an appeal against the dismissal of the respondent's application under section 8 of the Ordinance, for the reason that this section is not included in Notification No. HG‑10‑2/59, dated the 12th of March 1959, issued by the Provincial Governor conferring appellate powers on District Judges. This contention is correct, for the Notification in ques tion confers appellate powers on all the District Judges in West Pakistan only in respect of orders passed by the Rent Controllers under sections 4, 10, 12 and 13 of the Ordinance. Under sub section (4) of section 15 of the Ordinance, appeals in respect of other orders passed by the Rent Controllers lie in the High Court. It is, therefore, clear that the learned District Judge had no jurisdiction to hear the respondent's appeal against the dismissal by the Rent Controller of his application under section 8 of the Ordinance. The appellate order of the District Judge being with out jurisdiction, the result is that the dismissal order passed by the Rent Controller in respect of the respondent's application under section 8 of the Ordinance still subsists.

7. Mr. Nemat Khan, the learned counsel for the respondent, submitted that as the District Judge had no jurisdiction to hear an appeal against the order of the Rent Controller passed under section 8 of the Ordinance, the respondent's appeal in that behalf, namely, No. 485 of 1960 filed in the District Court, may be treated as an appeal filed in the High Court and delay may be condoned by the application of the principles embodied in section 14 of the Limitation Act. This prayer was opposed by Mr. Abdul Mannan, the learned counsel for the appellants before me, by contending that section 14 of the Limitation Act can be invoked only where the first Court had not entertained a suit or appeal, due to defect of jurisdiction or other causes of a like nature, but in the present case the learned District Judge had proceeded to decide the respondent's appeal on merits and there was no refusal on his part to entertain the same for want of jurisdiction. In support of this contention Mr. Abdul Mannan relied upon Mathura Singh v. Bhawani Singh and others (I L R 22 All. 248).

8. In the case relied upon by Mr. Abdul Mannan, it was no doubt argued before their Lordships of the Full Bench that the Legislature intended to give the plaintiff relief where some cause such as defect of jurisdiction prevented the Court in limine from considering the case on its merits, but no direct decision was given on this point. It was, however, observed that: "The principle is, broadly speaking, the protection against the bar of limitation of a man honestly doing his best to get his case tried on the merits, but failing through the Court being unable to give him such a trial. That is the principle; and I think it is clearly applicable, not only to cases in which a man brings his suit in the wrong Court, that is, a Court having no jurisdiction to entertain it but also where he brings his suit in the right Court, but is nevertheless prevented from getting a trial on the merits by something, which, though not a defect of jurisdiction, is analogous to that defect." These observations were followed by a lengthy discussion of the meaning and scope of the words "other cause of alike nature". It seems to me that the learned counsel for the appellants has overlooked the fact that where a Court which has no jurisdiction in a matter proceeds to entertain it and decides it on merits, the result nevertheless is that, in law, the matter still remains undecided, and any decision given by such a Court without jurisdiction is a nullity. The mere fact, there fore, that the learned District Judge proceeded to decide the respondent's Appeal No. 485 of 1960 directed against the Rent Controller's order under section 8 of the Ordinance, does not mean that the appeal has been decided on merits. I have already accepted the contention of Mr. Abdul Mannan that the order passed by the Rent Controller under section 8 of the Ordinance still subsists for the reasons that the appellate order of the learned District Judge was without jurisdiction. That being so, it is clear that the respondent was prevented from having his appeal decided on merits for the reason that the Court in which he presented the appeal suffered for want of jurisdiction. It seems to me, therefore, that if the other conditions laid down by section 14 of the Limitation Act, are satisfied in this case, the respondent shall be entitled to the benefit of that section.

9. It is clear that the appeal filed by the respondent in the District Court was founded upon the same cause of action as he now wishes to agitate in this Court, and was presented in good faith in the District Court, along with the respondent's other Appeal No. 488 of 1960, both having arisen out of a consolidated order passed by the Rent Controller. I consider, therefore, that this is a case falling within the purview of section 14 of the Limitation Act and the delay that has taken place in presenting the respondent's appeal against the Rent Controller's order under section 8 of the Ordinance should be condoned. The result is that I would treat respondent's Appeal No. 485 of 1960 filed in the District Court as having been filed in this Court within time. In other words, the present judgment will now deal firstly with the appellants' appeal against the order of the District Judge dismissing their application under section 13 of the Ordinance for the ejectment of the respondent, and secondly with the respondent's appeal against the order of the Rent Controller dismissing the respondent's application under section 8 of the Ordinance. For the purposes of the record of this Court, the respondent shall present a copy of the Appeal No. 485 of 1960 filed in the District Court and that appeal shall be numbered by the office and shall be treated as having been decided by this order.

10. As the fate of the landlords application under section 13 of the Ordinance for the ejectment of the respondent‑tenant depends upon the order which is made on the tenant's application under section 8 of the Ordinance, I shall first take up the respondent‑tenant's appeal against the order of the Rent Con troller dismissing that application. The learned Rent Controller has come, to the conclusion that section 8 of the Ordinance uses the word "sum" only, which is to be distinguished from the excess rent which is specifically mentioned as such in section 8 of the Ordinance, with the result that under section 8 a tenant can claim refund or recovery of only any "sum" which has been made irrecoverable by this Ordinance, but not of any excess rent which the tenant may have paid over and above the fair rent determined by the Rent Controller. The learned District Judge, on the other hand, while dealing with this question, observed that there was no justification for restricting the meaning of the word "sum" used in section 8 of the Ordinance so as to exclude from its purview the excess rent paid by the tenant before the fixation of the fair rent. .

11 The provisions of the Ordnance which are relevant in the present context, are sections 6, 7 and 8, which may be re produced here for facility of reference :‑

"6. Landlord not to claim anything in excess of fair rent. (1) Save as provided in section 5, when the Controller has fixed the fair rent of a building or rented land under section 4‑-

(a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent, or any rent in excess of such fair rent ; but the landlord may stipulate for and receive in advance an amount not exceeding one month's rent ;

(b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void.

(2) Nothing fn this section shall apply to the recovery of any rent which became due before the 1st of January 1950."

"7. Fine or premium not to be charged for grant, renewal or continuance of tenancy.‑(1) No landlord shall, in considera tion of the grant, renewal or continuance of a tenancy of any building or rented land, require the payment of any fine, premium or any other like sum in addition to the rent.

(2) Nothing in this section shall apply to any payment under any subsisting agreement entered into before the 1st day of January 1950."

"8. Rent which should not have been paid may be recovered. (1) Where any sum has, before the date of publication of this Ordinance, been paid by the tenant, which sum is by reason of the provisions of this Ordinance irrecoverable, such sum may, without prejudice to any other method of recovery, be deducted by the tenant by whom it was paid, or by his legal representative, from any rent payable by him to such landlord or to his legal representative:

Provided that the tenant before making such deduction obtains the approval of the Controller by an application made to him within six months of the said date.

Explanation.‑In computing the said period of six months, the time spent after the date of the payment, in the proceed ings for determination of fair rent, shall be excluded.

(2) In this section the expression legal representative' has the same meaning as in the Code of Civil Procedure 1908, and includes, in the case of joint family property, the joint family of which the deceased person was a member."

12. We may first take up the question of the meaning to be assigned to the word "sum" as used in section 8. The marginal heading of this section is significant, namely, "rent which should not have been paid may be recovered". It is true that where the language used in the section itself is clear and unambiguous, the marginal heading cannot be referred to, to give different meaning to the substantive provision as enacted by the Legislature, but where the meaning is not so clear or unambiguous, it would be permissible to refer to the marginal heading to discover the true meaning. Now, sections 6 and 7 mention certain sums as well as excess rent which become irre coverable by the landlord in the situations mentioned in those two sections, and section 8 lays down a procedure for recovery by the tenant of such sums. If the word "sum" as used in section 8 is interpreted in a narrow sense so as to exclude the excess rent paid by a tenant over and above the fair rent determined by a Rent Controller, then the provisions of section 6 shall become nugatory. It is a well‑established principle of the construction of statutes that the various provisions of a statute should not be so interpreted as to render some of them nugatory, unless that result is inescapable from the clear language used therein. In the ordinary dictionary sense, the word "sum" means "total amount resulting from addition of items, brief expression that includes but does not specify details". It seems to me that the word "sum" employed in sections 6, 7 and 8 of the Ordinance is to be interpreted in the ordinary dictionary sense, keeping in view the context in which it is used, and not in any technical sense. Thus, in sections 6 and 7, the word is used to denote sums or items other than excess rent; but as section 8 is the only section laying down a procedure for the recovery of excess rent and other items, the word "sum" used in this section is to be taken as including all items which have been made irre coverable by reason of the provisions of the Ordinance. It is clear, therefore, that an application for the recovery of excess rent would lie under section 8. In other words, the view taken by the learned Rent Controller that the word "sum" as used in section 8 excludes excess rent paid by a tenant, is not correct.

13. In the view that I have taken regarding the scope of section 8 of the Ordinance, I am fortified by a judgment of the Division Bench in Krishan Lall Malhotra v. Muhammad Sadiq (P L D 1955 Lah. 288). That was a case for the recovery of excess rent which had been actually paid by the tenant before the fixation of fair rent. Although the claim of the tenant was dismissed on other grounds, the judgment, however, proceeded on the clear assumption that the word "sum" used in section 8 of the Punjab Urban Rent Restriction Act, 1947, included the excess rent paid over and above the fair rent. This judgment also throws light on the next question which arises in the present case, namely, whether the excess rent paid before the fixation of the fair rent by the Rent Controller can be recovered by a tenant or not. The following observations appearing on the judgment delivered by Akhlaque Husain, J., on page 291 of the report, are relevant and may be reproduced with advantage. His Lordship was dealing with sections 6 and 8 of the Rent Restriction Act of 1947, which are practically identical with the corresponding sections of the present Ordinance with which we are concerned, the differences that exist being immaterial in the present context. This is what his Lordship said:

"Clause (a) of first subsection [of section 6] prohibits claiming or receiving in addition to fair rent' any premium, or (2) other like sum, or (3) any sum by way of rent in excess of the fair rent. The prohibition to receive any such sums makes them irrecoverable' by the landlord. But the prohibition comes into play and the sums become irrecoverable orgy when the Controller has fixed the fair rent'. There is no bar to the landlord receiving these sums before the fixing of the fair rent and, therefore, before that even they are recoverable.

The sums which become due at any time before the fixing of the fair rent but remain unpaid until thereafter become irrecoverable, because the section forbids the landlord from claiming' or receiving', after fair rent is fixed, any of the three sums specified in clause (a) irrespective of the fact whether they fall due before or after the crucial event, namely, the fixation of fair rent. The test laid down is the claiming and receiving and not the becoming due."

14. I am in respectful agreement with the view expressed by Akhlaque Husain, J., namely, that the only excess rent which is irrecoverable under the provisions of section 6 is that rent which remains unpaid after the fixation of fair rent, because it is only after such fixation that the disability is imposed on the landlord by section 6 to claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent. To put it differently, any rent in excess of the fair rent, which has already been paid by the tenant before the fixation of the fair rent, does not become irrecoverable retrospec tively by reason of the provisions of section 6, as at the time it was paid, according to the terms of the tenancy between the parties, it was not irrecoverable by reason of any of the provi sions of the Ordinance. The claiming or receiving by the landlord of any rent in excess of the fair rent is prohibited only after the fixation of the fair rent.

15. In the present case, the fair rent was fixed by the Rent Controller for the first time on the 11th of July 1959, at Rs. 15 p.m., and, therefore, any rent over and above the fair rent, which stood unpaid by the tenant on that day has become irrecoverable by the landlord, but the tenant could not claim the recovery of any rent over and above the fair rent which he had already paid prior to the 11th of July 1959. According to the calculations given by the Rent Controller, the tenant had already paid the rent of the house in dispute from 1st August 1950 to 21st March 1958, at the rate of Rs. 45 p.m., i.e., an excess of Rs. 30 p.m. and from 21st March 1958 to 21st April 1958, at the rate of Rs. 25 p.m. i.e., an excess of Rs. 10 only. But as this rent had been paid by the tenant before the fixation of the fair rent, i.e., the 11th of July 1959, he cannot claim the recovery of the excess amount paid by him over and above the fair rent determined by the Rent Controller, as at the time this rent was paid, there was no bar operating against the landlords from claiming or receiving any rent in excess of the fair rent, that bar having come into existence only from the 11th of July 1959, when the fair rent was fixed by the Rent Controller.' However, with regard to rent which is due from the respondent‑tenant from 21st April 1958, onwards, and which has not yet been paid by him, the bar contained in section 6 of the Ordinance comes into play, with the result that the landlords can neither claim nor receive rent for this period in excess of the fair rent.

16. It follows, therefore, that there being no previous excess rent which could be deducted by the tenant against the future rent due, the tenant must be held to have committed a default in the payment of rent from 21st April 1958, to the date of the landlords' application under section 13 of the Ordinance, namely, the 27th of April 1959. That being the case, the tenant was liable to ejectment under that section for this reason.

17. For the reasons given above, the application of the tenant under section 8 of the Ordinance for the recovery of excess rent paid by him up to 21st April 1958, stands dismissed, whereas the application of the landlords under section 13 of the Ordinance for the ejectment of the respondent‑tenant, succeeds. The respondent‑tenant Ali Siraj is directed to restore vacant possession of the premises to the landlords within two months from the date of this order. In view of the legal questions involved, the parties are left to bear their own costs. In the result, S. A. O. No. 57 of 1962, filed by the landlords is accepted, while the appeal filed by the tenant is dismissed.

K. B. A.

Appeal accepted.

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