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Regular Second Appeal No. 147 of 1964, decided on 17th February 1965.
S. 15 read with Civil Procedure Code (V of 1908), O. XLI, r. 1 and High Court Rules and Orders (Lahore), Vol. V, Ch. 1, r. 6 (b)‑Omission to file certified copy of lower Court's Order with memo. of appeal‑Not fatal.
Molu Mal v. Sri Ram A I R 1921 Lah. 73; Muhammad Din v. Zeb‑un‑Nisa A I R 1922 Lah. 390; Mst. Rajan v. Kurria A I R 1923 Lah. 95 and Lakhmi Das v. Mehar Chand A I R 1923 Lah. 144 ref.
S. 15(4)‑Finding of fact‑Not disturbed in second appeal‑Civil Procedure Code (V of 1908), S. 100.
S. 14 read with West Pakistan Urban Rent Restriction (Second Amendment) Ordinance (XXXVIII of 1962), S. 3 (2) (b)‑Order passed by Rent Controller under Karachi Rent Restriction Act, 1953 cannot be reviewed by him after promulgation of West Pakistan Urban Rent Restriction (Second Amendment) Ordinance, 1962.
S. 13 and Civil Procedure Code (V of 1908), S. 151 Whether Rent Controller has inherent power to correct defective order passed by him (quaere).
Paramasivam Pillai v. Periyanayagathammal 32 A C 527; Muhammad Ramzan v. Mst. Khadija Sultan A I R 1938 Lah. 472; Mohanlal v. Khushalibai A I R 1937 Sind 101 and Yusuf Abdullabhoy No. 1 A I R 1930 Bom. 294 ref.
S. 13 (6)‑Expression "before the fifth day of each month"‑"Month" refers to calendar month and not to month of tenancy‑Provision of S. 13 (6) penal in nature‑Order of Controller in respect of ,future rent not in strict compliance with language of S. 13 (6)‑Tenant cannot be penalised for not complying with such defective order‑Controller ordering deposit of monthly rent "before the 20th of each month"‑Order erroneous Tenant's eviction for not complying with such defective order Held not justified.
Ahsan Ali v. Jafar Ali P L D 1964 Kar. 418 ref.
Salahuddin for Appellant.
Shaikh Muhammad Sadiq for Respondent.
Date of hearing: 17th February 1965.
This is a second appeal by the tenant in which the judgment of an Additional District Judge, Karachi, dated the 20th of April 1964, is questioned. By that judgment, the learned Judge has dismissed the first appeal of the present appellant and upheld the judgment of the Rent Controller, dated the 27th of November 1963. The Rent Controller had held as follows:‑--
"On 9‑8‑1963 the opponent (the present appellant tenant) was ordered to deposit Rs. 2,912.80 as arrears of rent till the 15th August 1963, before the 5th September 1963 and to continue depositing the current rent at the rate of Rs. 125.00 per month before the 20th of each month till the decision of the case. The tenant has admitted in his objections filed (by him) that he has failed to deposit the arrears of rent before the 5th September and also the current rent before the 20th of each month. His defence is struck off and he is ordered to put the applicant (respondent landlord) into the possession of the premises within fifteen days of the pronouncement of this order."
The appellant who is the tenant, therefore, went in first appeal, which was dismissed as mentioned above.
2. The appellate order shows that one of the contentions raised before the Appellate Authority was that the order dated the 9th of August 1963, in which it was held the law had not been complied with, was not a good order because it was made by the Controller himself in exercise of the power of review. The facts which form the background of the order become clear if a reference is made to the following two paragraphs of the judgment of the First Appellate Court:‑--
"Written statement was filed and the Rent Controller passed the first order on 27‑3‑1963 directing the appellant to pay Rs. 2,287.80 as arrears of rent and electricity till 15‑3‑1963 in two equal instalments payable before 5th May 1963, provided monthly rent of Rs. 125 is deposited on due date.
On 9‑8‑1963 the Controller reviewed his own order dated 27‑3‑1963 which reads as under:‑----
Parties present. My previous order dated 27th March 1963, was not in conformity with the wordings of the ordinance, therefore, was not proper. I hold that the opponent had not made any default. However, for future the opponent is ordered to deposit Rs. 2,912.80 as arrears of rent till 15th August 1963, before 5th September 1963 and continue depositing the current monthly rent at the rate of Rs. 125 p.m. before the 20th of each month till the decision of the case. The applicant will only be allowed to withdraw the amount after he affixes proper court‑fee on the application. The two cheques already filed by the opponent may be returned. Fixed for framing of issues."
The above observations indicate that the First Appellate Court was aware that the order of the 9th of August 1963, was made by the Rent Controller while reviewing his previous order of the 27th of March 1963, but this objection to it has been disposed of by him as follows :‑
"There has been no appeal against the order of the Rent Controller dated 27‑3‑1963 or 9‑8‑1963, by which for future the opponent was ordered to deposit Rs. 2,912.80 as arrears of rent . . . . ."
As to the non‑compliance of the order of the 9th of August 1963, the First Appellate Court has held that:
"There is no explanation as to why (the appellant) did not deposit it (the amount) on or before 4‑9‑63."
He further came to the conclusion that the explanation of the appellant that he had paid a part of the amount which he had to deposit by sending it to the Electric Supply Corporation was in defiance of the Rent Controller's order. Further on he has said
"There is also default in the payment of the current rent which was to be paid before the 20th of September 1963."
The above conclusions of the First Appellate Court have bee questioned by counsel for the appellant, but he has conceded that there were (no) excuses for not complying with the order of the 9th of August 1963 which could be accepted by the Firs Appellate Court as sufficient and valid, but realising that default had been committed in depositing the arrears of rent and the current rent, ordered under subsection (6) of section 1 of the West Pakistan Urban Rent Restriction Ordinance, 195 as extended to Karachi, counsel took his stand on the plea that the order of toe 9th of August 1963 made by toe Rent Controller was without jurisdiction and a nullity; therefore, it was immaterial whether an appeal against it had been preferred by the appellant or not. This contention of counsel raises the question as to whether in these circumstances the Rent Controller could review his order or not.
3. Before disposing of the above question, I should mention that Mr. Shaikh Muhammad Sadiq raised a preliminary objection to the maintainability of this appeal by pointing out that the appellant had not submitted a certified copy of the order of the Rent Controller along with the memorandum of appeal. The omission, according to counsel, was fatal, in view of Order XLI, rule 1, C. P. C. read with rule 6 (b) of Chapter I of Volume V of the Rules and Orders of the High Court of Judicature at Lahore. In support of this proposition counsel has referred to the cases of Molu Mal v. Sri Ram (A I R 1921 Lah. 73), Muhammad Din v. Zeb‑un‑Nisa (A I R 1922 Lah. 390), Mst. Rajan v. Kurria (A I R 1923 Lah. 95) and Lakhmi Das v. Mehar Chand (A I R 1923 Lah. 95). But it is clear from the provisions themselves that the omission can be condoned by the Court. In the circumstances of this case, I am inclined to condone it; thus the preliminary objection fails.
4. Before discussing the legal objection to the validity of the order of the Rent Controller, dated the 9th of August 1963, I may mention that counsel for the appellant had elaborately discussed the excuses which were put forward on behalf of the appellant for not strictly complying with the terms of the order. According to counsel, a part of the arrears of rent which was to be deposited in Court was paid off by sending it to the Electricity Company towards the payment of electricity charges and that a part of it had been sent before the order to the respondent by money order; therefore, those two amounts were deducted from the arrears, with the result that the amount of the arrears was not deposited in time. As to the deposit of the current rent in accordance with the order of the ‑ Rent Controller counsel has explained that two months' rent was deposited together with the Rent Controller. The excuses having been rejected as unsatisfactory by the First Appellate Court, I am not prepared to reopen that question. It is primarily a question of fact as B to whether the excuses which were put forward by the appellant were satisfactory or not. I would, therefore, take it that the order of the Rent Controller, dated the 9th of August 1963, has not been satisfactorily and fully complied with by the appellant.
5. If compliance of the order was the main point for consideration, then the appeal would not have been worthy of serious consideration; but the contention which counsel has raised about the legality of the order of the 9th of August 1963, calls for examination of the question as to whether the non compliance of the order should result in attracting the penalty of eviction or not.
6. There is no doubt that, on the 9th of August 1963, the Rent Controller had no power to review his own order because the Karachi Rent Restriction Act of 1953 had been substituted by the West Pakistan Urban Rent Restriction Ordinance of 1959 on the 1st of July 1963, vide a Notification issued , in terms of subsection (2) of section 1 of the West Pakistan Urban Rent Restriction (Second Amendment) Ordinance of 1962. The Ordinance which was extended to Karachi, did not contain a provision corresponding to section 14 of the Karachi Rent Restriction Act, 1953, with the result that the power to review of the Rent Controller was taken away and a new provision was made in substitution of it by clause (b) of subsection (2) of section 3 of the West Pakistan Urban Rent Restriction (Second Amendment) Ordinance of 1962, which is as follows:
"(b) every petition for review under section 14, which immediately before the commencement of this Ordinance was pending with the Controller, shall be consigned to the record room and the petitioner may, within thirty days from the commencement of this Ordinance, prefer an appeal under the provisions of the said Ordinance, as if the order sought to be reviewed had been passed under the provisions of the said Ordinance;".
The above provision indicates that the action taken by the Legislature was two‑pronged: Firstly, the power of review was taken away; secondly an alternative remedy was provided for the pending review applications. There is thus no doubt that the law did not contemplate that the Rent Controller should exercise the power of review as he had been doing previously in terms of the Karachi Rent Restriction Act of 1953.
7. But the above legal situation has been met by Mr. Sheikh Muhammad Sadiq by arguing that the Code of Civil Procedure applies to the proceedings which are taken before the Rent Controller because they are of civil nature; therefore, the Rent Controller has the inherent powers which are conferred on him by section 151, C. P. C., and that in exercise of those powers he is entitled to correct his omissions and mistakes, particularly those which are found on the face of the record; therefore, irrespective of whether the powers conferred by section 14 of the Karachi Rent Restriction Act, 1953, had been taken away or not, the inherent powers were exercisable by him and as such, he could at least correct obvious mistakes. Counsel elaborated this point by referring to the order of the Rent Controller, which has been reproduced in the above quotation from the order of the First Appellate Court, and emphasised that the previous order of the Rent Controller, dated the 27th of March 1963, was treated by the Rent Controller as defective; therefore, the Rent Controller had excused its breaches which the tenant had committed. Counsel has emphasised these words:
"My previous order dated 27th March 1963, was not in conformity with the wordings of the Ordinance and, therefore, was not proper. I hold that the opponent has not made any default."
The decision of the Rent Controller in the above observation holding that there was no default was the consequence, according to counsel, of the Rent Controller's views that his previous order was not in conformity with the wordings of the Ordinance. The Ordinance made it necessary, in terms of subsection (6) of section 13 of it, that the Rent Controller should order the tenant "to deposit (rent due) regularly till the final decision of the case before the 5th day of each month". It is clear that he had to order the deposit of rent and to direct that it was to be done before the fifth day of each month; but in the order which he made on the 27th of March 1963, he had directed the tenant to pay Rs. 2,287.80 as arrears of rent and made it a condition that the "monthly rent of Rs. 125.00 is deposited on due date. The word "pay" and the words "due date" were used, according to counsel, in complete forgetfulness of the provisions of subsection (6) of section 13 of the Ordinance. This was a mistake which was patent on the face of the record and, therefore, could be corrected by the Rent Controller. He has, therefore, corrected it by making a new order in substitution, on the 9th of August 1963.
8. In support of the proposition that a Court has inherent power to correct mistakes, counsel has referred to Paramasivam Pillai v. Periyanayagathammal (32 A C 527), Muhammad Ramzan v. Mst. Khadija Sultan (A I R 1931 Lah. 472), Mohanlal v. Khushalibai (A I R 1937 Sind 101) and Yusuf Abdullahboy No. 1 (A I R 1930 Bom. 294). Additionally counsel has referred to passages from the commentary of Mulla on section 151 of the C. P. C. and the commentary of Iyer on the same provision, and argued that if the power of the Rent Controller to correct obvious and patent errors is not recognised, then as a judicial or a quasi -judicial officer his work will become extremely arduous and sometimes impracticable.
9. The above point of view of counsel does impress me generally as sound, but it is unnecessary to decide it, because there is one more difficulty in the way of counsel which. I believe, he cannot overcome owing to the very stand on which he has supported the Rent Controller. The difficulty is that even the order which the Rent Controller made on the 9th of August 1963, suffers from the mistake of not strictly and fully complying with the provisions of subsection (6) of section 13 because he has ordered that the current monthly rent be deposited at the rate of Rs. 125.00 "before the 20th of each month." The order that the current rent be deposited before the 20th of each month is not in accordance with the language of subsection (6) of section 13. Counsel tried to get over this objection by arguing that the relevant words of subsection (6), namely:
" . shall direct the tenant to . . . . deposit regularly till the final decision of the case, before the fifth day of each month, the monthly rent due from him . . . . ."
Do not refer to the calendar month but to the month of tenancy. This interpetation is inconsistent with the meaning of the word "month" as given in the General Clauses Act, but counsel contended in spite of it tenancy does not always begin from the 1st of the month; therefore, a direction to deposit current rent before the 5th of each month would mean that the margin granted to the tenant for depositing rent would be of five days in those cases in which tenancy begins from the 1st of each month and a much longer period in those cases in which the tenancy begins from say the middle of a month. It may be so; but it is not necessary to emphasise the difference that may be occur (sic) in the margin of time to the tenants for depositing rent because the more important aspect of it is that the Rent Controller should be able to make uniform orders without going into the question as to when the tenancy began, and before framing the issues, as contemplated by subsection (6) of section 13 of the West, Pakistan Urban Rent Restriction Ordinance of 1958. As I do not agree with counsel that the words: "the fifth day of each month" refer to the fifth day of the tenancy month, I conclude F that the direction of the Rent Controller given on the 9th of August 1963, to the appellant to deposit rent monthly before the 20th of each month is erroneous and in disregard of the language of the subsection.
10. Coming to the above conclusion, the next question which arises for consideration is as to what is the effect of this defect of the Rent Controller's order dated the 9th of August 1963. The reply is provided by a judgment of a Division Bench of this Court in Ahsan Ali v. Jaffar Ali (P L D 1964 Kar. 418). Their Lordships have pointed out in it that they were taking the same view which they had taken earlier in another appeal which was that
"if orders in respect of the arrears and future rents are note passed in strict conformity with its (section 13 (6)) provisions, the tenant is not liable to be evicted for not complying with defective order."
The above view has been taken because the provisions of section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance are of a penal nature.
11. Mr. Shaikh Muhammad Sadiq has at this stage pointed out that the above finding shows that that part of the Rent Controller's order is invalid which refers to the deposit of the current rent, but not necessarily the other part of it which relates to the deposit of arrears of rent. In these circumstances, counsel says, it is a question for consideration as to whether the view taken by the Division Bench should prevail in this case or not. I may mention in this connection that the manner in which counsel suggests the observations of the Division Bench should be taken to apply to the facts of this case, has some merits, but the defect does taint the whole order. Moreover, the excuses which were put forward by the appellant before the Rent Controller for not complying with the order have been rejected and they are not open to review in this Court. Therefore, the appellant can only get the benefit of the legal stand which has been taken on his behalf, irrespective of whatever could be said in support of the excuses. The legal position which arises is of such a nature that it induced the Rent Controller to correct his previous order but in spite of his attempt to correct his first order, he has blundered in making the second order. Therefore, considering the penal character of the order and in view of the judgment of the Division Bench I would not attempt to draw the fine distinction suggested by counsel for the respondent. I feel that, the correct, just and equitable view to be taken in this appeal is to accept it.
12. I would, therefore, set aside the order of the learned Additional District Judge dated the 24th of April 1964, and the orders of the Rent Controller dated the 27th of November 1963, and the 9th of August 1963, as well as the 27th of March 1963. The Rent Controller will now make a fresh order for depositing the arrears of rent, if any, and the current rent strictly in accordance with the provisions of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Parties to bear their own costs.
K. B. A. Appeal accepted.
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