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Further Civil Appeals Nos. 102/67 and 148/96 of 1960, decided on 24th February 1965.

S. 13 (1)‑Eviction of tenant‑Suit by landlord against tenant for ejectment and recovery of rent‑‑Ordinance coming into force during pendency of suit‑Civil Court not competent to proceed with suit and pass decree for ejectment‑Decree passed in such circumstance‑Null and void.

Jumo Khan v. Rarnzani P L D 1959 Kar. 60; Zafar‑ul Ahsan v. The Republic of Pakistan P L D 1960 S C 113; Muhammad Daud v. Sher Bahadur Khan and another P L D 1963 Pesh. 217 and Mrs. Keays Byrne v. Obaidullah Khan P L D 1961 Lah. 256 ref.

Mst. Dilbar Jan v. Ghulam Muhammad Khan P L D 1960 Pesh. 15 not fol.

Khan Abdul Latif Khan for Appellant.

Pir Bakhsh Khan for Respondent No. 1.

Sh. Allah Bakhsh Khan for Respondent No. 2.

Dates of hearing: 12th and 15th February 1965.

The facts of the case giving rise to Further Appeal No. 102/67 of 1960‑Haji Ghulam Muhammad v. Mutiullah and Abdul Qayum and No. 148/96 of 1960‑Abdul Qayum v. Matiullah and Haji Ghulam Muhammad, as set out in the written statement of Abdul Qayum, briefly are that the house in dispute situate in Muslim Bazar, D. 1. Khan CAS, originally belonged to Gopi Chand, who was declared an insolvent and in the insolvency proceedings it was purchased icy M, Allah Bakhsh, who, on the basis of a registered sale deed dated the 30th of January 1934, is alleged to have sold it to Sahibzada Mir Ahmad of Zakori for the ostensible sum of Rs. 6,000 which amount was paid through cheque. Sahibzada Mir Ahmad of Zakori was away from D.I. Khan in connection with his business and thus his property was managed by M. Allah Bakhsh in his absence. On the death of Sahibzada Mir Ahmad of Zakori, a private partition took place among his sons and the suit house fell to the share of Haji Ghulam Muhammad son of Sahibzada Mir Ahmad.

2. M. Allah Bakhsh went on pilgrimage to Macca, where he is said to have died in 1950, Mutiullah respondent son of M. Allah Bakhsh claimed the house in suit as belonging to him, and, consequently, Abdul Qayum executed three rent deeds, i.e., rent deed dated the 15th of January 1951 (copy Exh. P. W. 6j1), another deed dated the 16th of February 1953 (copy Exh. P. W. 1) Exh. P. 3/3) regarding the suit house according to which he was to pay rent at the rate of Rs. 8 p.m. to him.

3. On the 18th of February 1956, Mutiullah instituted a suit, out of which these appeals have arisen, for the ejectment of Abdul Qayum, defendant‑appellant from the house and for the recovery of Rs. 120 as arrears of rent for 15 months at the rate of Rs. 8 p.m Abdul Qayum resisted the suit and stated that he was a tenant of Haji Ghulam Muhammad appellant, who was the owner of the disputed house and the rent deeds, mentioned above, were fraudulently got executed by Mutiullah in his favour and were, therefore, not binding.

4. Haji Ghulam Muhammad had already issued a notice on the 2nd of December 1955 (Copy Exh. D. A.) to Abdul Qayum through Sh. Siraj‑ud‑Din, Advocate, asking him to vacate the house and consequently, instituted Suit No. 34/1, on the 17th of March 1956, against Abdul Qayum for his ejectment. This suit was brought during the pendency of the suit of Mutiullah. On the 20th of March 1956, the suit brought by Haji Ghulam Muhammad against Abdul Qayum, which was registered at No. 341, was compromised, vide compromise deed (copy Exh. D. C.) and ejectment order was passed on the same date (copy Exh. D. D.). After the above‑mentioned proceedings, Haji Ghulam Muhammad applied for the execution of the decree and ejectment of Abdul Qayum. A warrant of delivery of possession (copy Exh. D. W. 4/1) was issued, possession was delivered, dakhalnama dated the 4th of April 1956, (copy Exh. D. W. 4/2) was submitted and execution application was filed in full satisfaction on the 4th of April 1956.

5. On the 23rd of June 1956, Haji Ghulam Muhammad was impleaded as defendant in the suit brought by Mutiuliah, who filed written statement claiming the house in suit to have fallen to his share by partition with the heirs of his father Sahibzada Mir Ahmad of Zakori, who had purchased it. Mutiullah filed replication and the learned Senior Civil Judge, who heard the suit, framed the following issues:‑

(1) Whether defendant No. 1 executed the rent deed in dispute in favour of the plaintiff

(2) In case issue No. 1 is proved whether the rent deed is fraudulent, ineffective and inadmissible in evidence

(3) What is the effect of the decree for possession obtained by defendant 2 upon the present suit

(4) Is the suit maintainable in the present form

(5) In case issues 1 and 2 are decided in favour of the plaintiff, whether any rents are due from defendant No. 1, if so, how much

(6) Is the suit properly valued

(7) Whether defendant 2 is the paramount owner of the property and defendant 1 having attorned to him and having been subsequently ejected defendant 1 is absolved from payment to the plaintiff and also cannot be ejected even if found in possession O. P. D. 2.

(8) Relief.

6. After recording the evidence produced by the parties, Captain Muhammad Daud Khan, learned Senior Civil Judge, D. 1. Khan, by his order dated the 10th of October 1959, dismissed the plaintiff's suit with costs. Mutiullah preferred an appeal, and the learned District Judge, D. I. Khan, by his order dated the 20th of February 1960, accepted the appeal, set aside the judgment and decree of the lower Court and granted a decree for ejectment against both the defendants with costs .and a decree for the recovery of Rs. 120, as rent against defendant No. 1, with costs.

7. Against the above‑mentioned order of the learned District Judge, Abdul Qayum and Haji Ghulam Muhammad have preferred separate further Appeals Nos. 148/96 of 1960 and 102/ 7 of 1960, and I propose to dispose of these appeals by this judgment, as they arise from the same transaction.

8. Learned counsel, appearing for Haji Ghulam Muhammad appellant, referred to para. 18 of the judgment of the learned District Judge, wherein he observed:‑

"I have intentionally refrained from discussing the merits of the plaintiff's title against defendant No. 2. If defendant No. 2 is so advised, he can bring a suit for possession against the plaintiff after complying with the present decree."

9. Learned counsel, appearing for the two appellants, raised an objection that the learned Senior Civil Judge and the learned District Judge had assumed jurisdiction and had heard the case, which was exclusively triable by the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). The first law on the rent restriction is contained in the N.‑W.F.P. House Rent Control Act, 1946, which was repealed and succeeded by the West Pakistan Urban Rent Restriction Act of 1956. Reference was also made to that Act of 1957, which provided that the N.‑W. F. P. Act was repealed and the West Pakistan Act of 1956, had expired. The Act of 1957, was followed by the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) i.e., the present Ordinance, which is now in force and it has come into force on the 23rd of February 1959. In all these Acts, section 13 relating to the eviction of tenants has been copied verbatim. For the interpretation of section 13 of the Rent Restriction Ordinance of 1959, learned counsel for the appellants, referred to Jumo Khan v. Ramzani (P L D 1959 Kar. 60) wherein it was held:‑

"The effect of the provision in the West Pakistan Rent Restriction Act barring the ejectment of a tenant even in the presence of a decree is that even in suits which were pending at the date when the West Pakistan Urban Rent Restriction Act came into force a decree for ejectment cannot be passed, although ordinarily an Act does not affect pending proceedings."

10. Learned counsel for the appellants also relied upon Zafar‑ul‑Ashan v. The Republic of Pakistan (P L D 1960 S C 113). It was held:‑

"If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute."

11. In Muhammad Daud v. Sher Bahadur Khan and another (P L D 1963 Pesh. 217), in which Mrs. Keays Byrne v. Obaidullah Khan (P L D 1961 Lah. 256) was followed, it was held that the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) excluded the jurisdiction of the civil Courts to try suits for ejectment of tenants on the grounds contained in section 13 of the Ordinance.

12. Relying upon the above‑mentioned authorities, learned counsel for the appellants contended that the learned Senior Civil Judge, D. I. Khan and the District Judge, D. 1. Khan had no jurisdiction to entertain the case, as it was an application brought by a landlord against his tenant for ejectment. A reference to the plaint and the lower Court file would show that the suit was by landlord against his tenant for his ejectment and recovery of rents. The learned Senior Civil Judge in para. 6 of his judgment observed:‑

"Before entering into discussion of the facts brought out in evidence, it may be pointed out that since the passing of the Rent Control Act of 1959, no civil Court has jurisdiction to try any suit between landlord and tenant for ejectment and rent under its section 13. It may be said that the Act will only apply when the tenancy is admitted by the other party, but for this we have to look into the definition of the word "landlord" given in Act No. VI of 1959, which puts it as any person for the time being entitled to receive rent in respect of any building . . . . . . As such, both the ejectment and determination of tenancy are within the exclusive jurisdiction of the Rent Controller and this Court has no jurisdiction to try the same."

The learned District Judge, however, did not deal with the point in appeal, as to whether he had the jurisdiction or not to entertain it.

13. The authorities, mentioned above, clearly bar the jurisdiction of the civil Courts. The West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was in force, when the District Judge accepted the appeal and passed the decree. This Ordinance ousted the jurisdiction of the civil Courts, which could not pass a decree for ejectment. Reference may be made to P L D 1961 Lah. 256 wherein it was held that a decree for ejectment passed by the civil Courts on 8‑5‑1956, could not have been so passed in view of the provisions of section I (4) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). The decree is nullity in law.

14. Learned counsel, appearing for the respondent, relied upon Mst. Dilbar Jan v. Ghulam Muhammad Khan (P L D 1960 Pesh. 15). It was held:‑

"There is no provision in the West Pakistan Rent Restriction Act, 1957, which ousts the jurisdiction of the civil Courts, and forbids them to entertain suits for ejectment. What section 13 of the West Pakistan Rent Restriction Act, 1957 demands is that a decree for ejectment passed by a civil Court after the commencement of the Act is not executable unless the decree‑holder by an application to the Rent Controller, proves that he is entitled to the possession of the property, besides the decree, on any of the grounds mentioned in subsections (2) and (3) of that section. This section places tenants under additional protections and these additional protections have been made available to the tenant even when the civil Court finds that the protection contained in the terms of the lease are not of any assistance to the tenant. But obviously the provision of section 13 does not constitute a bar against the institution of suits of civil nature in civil Courts. The language of the section contemplates the passing. of decrees by civil Courts after the passing of the Act and recognises the jurisdiction of the civil Courts to entertain ejectment suits."

This authority was, however, not followed by the Division Bench of the High Court of West Pakistan, Lahore, in a case reported as Mrs. Keays Byrns v. Obaidullah Khan and in the subsequent case reported as Muhammad Daud v. Sher Bahadur Khan and another, the Lahore Division Bench case P L D 1961 Lah. 256 was followed and the Peshawar case P L D 1960 Pesh. 15 was not followed.

15. From the facts, discussed above, it is obvious that the suit brought by Mutiullah against Abdul Qayum for ejectment from the house in suit was exclusively triable by the Rent Controller. I, therefore, accept these appeals set aside the judgment and decree of the lower Appellate Court and return; the plaint to the plaintiff to present it to the Court of proper jurisdiction.

K.B.A. Appeals accepted.

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