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Second Appeals Nos. 58 and 59 of 1964, decided on 2nd October 1967.

S. 13 (6)‑Order for deposit of arrears and current rent, mistakenly made "subject to landlord's affixing proper court fee on application" for ejectment‑Application in fact properly stamped when it was originally submitted under S. 10, Karachi Rent Restric tion Act (VIII of 1953)‑‑Contention that order for deposit of arrears and current rent was not operative till such court fee war affixed repelled‑Order was operative also by virtue of S. 18, Court Fees Act (VII of 1870) and S. 149, Civil Procedure Code (V of 1908).

, S. 13 (6)‑.‑Words "before issues are framed"‑Issues framed in the first instance under S. 10, Karachi Rent Restriction Act (VIII of 1953) whim order for deposit of rent was also made‑Such order subsequently set aside its appeal and case remanded‑Second order for deposit of arrears and current rent made after extension of West Pakistan Urban Rent Restriction Ordinance (VI of 1959) to Karachi‑Order, held, not ineffective merely because issue's had already been framed under the Karachi Act‑[Ali Muhammad v. Jamal Din P L D 1956 Lah. 934 ref.].

S. 3 subsection (3) as subsequently Inserted ‑ Intended to validate proceedings taken by Rent Con troller‑Such validation means (1) that Rent Controller should be legally allowed to continue as such, and (2) that proceedings taken by Rent Controller should be deemed to have taken place under the newly extended Ordinance.

M. M. Mahmoodi for Appellant.

A.K Lakhani for Respondent.

Date of hearing: 2nd October 1967.

These two appeals have been preferred against ‑one order of a learned Additional District Judge, Karachi, dated the 29th of January 1964, by which he dismissed two appeals bearing Nos. 471 and 472 of 1963.

2. Mr. Mahmoodi has given 'the background of facts as follows:

There is a plot of land, bearing No. 10/2/3‑R. B. 7‑J Rambagh Quarters, Karachi, of which there were three occupants. One of them was Habibullah, who occupied a but and paid rent at the rate of Rs. 7.j7 p.m., another Sirajuddin who occupied a shop and paid rent at the rate of Rs. 32, and the third Dawood who occupied a shop. The landlord, who is the respondent in these two appeals, made applications under section 10 of the Karachi Rent Restriction Act, 1953 on the 13th of July 1962, for the ejectment of these three tenants on two grounds. One of them was that he required the premises for reconstructing the superstructure and the other that he needed the premises for his bona fide personal use. The number of the application against Dawood was R. C. 425 of 1962, against Sirajuddin was R. C. 428 of 1962 and against Habibulah was R. C. 451 of 1962. They were consolidated to be heard together on the 4th of September, 1962. On the 22nd of September 1962, an order was made that the tenants, should "pay" the arrears as well as the current rent to the landlord, end issues on the pleadings of the parties were framed. Thereafter, evidence produced by the landlord was recorded on the 7th of October 1962. On the 31st of December 1962 applications were made on behalf of the landlord to get the defence of the tenants struck off for failure to comply with the order. The applications were accepted. We are not concerned with the case against Dawood. Sirajuddin and Habibullah went in appeal against the orders of their ejectment. Their appeals bearing Nos. 24 and 25 of 1963 were heard by the District Judge, and accepted on the 22nd of May 1963, on the ground that the order of the Rent Controller, directing payment of the arrears and current rent to the landlord, was illegal. The cases were remanded to the Rent Controller for decision on merits.

3. The Rent Controller issued notices to the two tenant, for the 26th of July 1963, and adjourned the cases for evidence of the parties to the 9th of August 1963.

4. On the last‑mentioned date, the Rent Controller ordered the tenants to deposit the Arrears as well as current rent, but it was mentioned in the order that it was subject to the payment of proper Court‑fees by the landlord. The relevant part of the order has been reproduced in paragraph 9 of the memos. of these appeals as follows:

"9‑8‑63. Parties present.

The opponents Dawood, Noor Muhammad, Haji Serajuddin and Habibullah are ordered to deposit Rs. 149.87, Rs. 352 and Rs. 80.45 respectively as arrears of rent till August 1963 and continue dep5siting the current monthly rents at the rate of Rs. 13.62, Rs. 32 and Rs. 7.37 respectively before the 5th of each month till the decision of the case. This is subject to the applicant's affixing proper Court‑fee on the application. Issues have already been framed. The case is fitfed for evidence C/F 8‑10‑63."

The above order would show that the cases were adjourned for evidence to the 8th of October 1963, on which date time for paying Court‑fees was extended to the 2nd of November 1963. Before the last mentioned date and on the 9th of October 1963, toe landlord,, who was the applicant, paid the Court‑fees.

5. On the 2nd of November 1963, evidence of the tenants was recorded, and applications were made on behalf of the landlord requesting the Rent Controller to strike off the defences of the tenants on the ground that they had failed to comply with the order of the 9th of August 1963, in respect of depositing the arrears and current rent.

6. On the 13th of November 1963, the Rent Controller announced his judgment striking off the defences of the tenants. The tenants preferred appeals which were heard by an Additional District Judge, Karachi, and dismissed on the 29th of January 1964, by one order. These second appeals have been preferred against that order.

7. Mr. M. M. Mahmoodi, learned counsel for the appel lants; has advanced three arguments is support of these appeals. They are:

(a) that the order of the Rent Controller to deposit the arrears and current rent was subject to the landlord affixing proper Court‑fees on the ejectment applications, which condition was not fulfilled by the landlord until the 9th of October 1963; therefore the orders were not operative until that date ;

(b) that orders for depositing arrears and current rent are ,required, in terms of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, to be made before issues are framed. In this case the order was made after the issues had been framed, for the issues were framed on the 29th of September 1962, but the order for payment of rent having been set aside was made again for depositing rent on the 9th of August 1963 ;

(c) that the Rent Controller had no jurisdiction to hear the ejectment applications because they were originally made under the Karachi Rent Restriction Act, 1958, and the proceeding had commenced under that Act. They were pending at the time of the extension of the West Pakistan Urban Rent Restric tion Ordinance, 1959, to Karachi and could not be tried under the newly, extended Ordinance.

I shall examine the above contentions one by one.

8. The order of the Rent Controller directing the tenants to deposit the arrears and current rent does contain the following sentence:

"This is subject to the applicants affixing proper Court‑fee on the application."

It is also correct that proper Court‑fees was not affixed until the 9th of October 1963. Additionally, according to Mr. Mahmoodi, Habibullah bad sent two money orders‑one on the 6th of August 1963, for Rs. 73.75 and the other on the 2nd of October 1963, for Rs. 88.50. These amounts were in full discharge of the duet against him as' on those dates. Sirajuddin sent three money, orders‑one on the 29th of May 1963, fur Rs. 224, another on the 4th of August 1963, for Rs. 320 and the third on the 3rd of September 1963, for Rs. 85. These payments were also in full discharge of the liabilities as on those dates. In this view of the matter, Mr. Mahmoodi urged that the appellants should not be considered to have committed default.

9. Mr. Lakhani has met the above argument by pointing out firstly that the payment of Court‑fees within the time allowed by the Court validates the proceedings as if Court‑fees was correctly paid from the; beginning. In support of this contention he has relied on section 28 of the Court‑fees Act and section 149 of the Code of Civil Procedure. These sections are as follows:

"Section 28 of the Court Fees Act.--No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.

But, if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and, on such document being. stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance."

"Section 149, Civil Procedure Code.‑Where the whole or any, part of any fee prescribed for any document by the law for the time being in force relating to Court‑fees has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court‑fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."

In view of the above provisions, Mr. Lakhani contended F1abi that in spite of the fact that court‑fees was paid on the Moh 9th of October 1963, the order of the Rent Controller made on Shay the 9th of August 1963, must be considered to be valid and opera‑ ‑ rive from the date on which it was made. Secondly, counsel Qad contended that it was wrong to interpret the order of the Rent Controller directing the deposit of the arrears and current rent as inoperative until the affixation of proper Court‑fees because this was not the intention, of the Rent Controller, and neither the tenants nor the landlord took it in that sense. The tenants sent the money orders purporting to parry out the order before the Court‑fees was affixed. Not only this, when the landlord applied for striking off the defences of the tenants, they did not take the stand that the order being conditional, was not operative. After their defences were struck off; they went in appeal, and there too they did not take this stand. This point has been, for the first time, raised in these appeals. It does not, according to counsel, represent the correct meaning of the order as intended by the Rent Controller or understood by the parties. Thirdly, Mr. Lakhani has argued that non‑payment of Court‑fees was a matter which could have resulted in the dismissal of the applications for ejectment of the tenants, and if the proper Court‑fees was affixed within .the originally allowed time or the extended time, then the applications were not to be dismissed. In these cases they were not dismissed on the ground of non‑payment of proper Court‑fees. Consequently counsel argued, it is incorrect to raise the contention that although the main applica tions could remain on the file of the Court and be heard and decided as valid applications; yet the interlocutory orders were to be considered as affected by non‑payment of Court‑fees within the originally prescribed time.

10. Mr. Lakhani argued fourthly that the applications made by the landlord had proper Court‑fees on them when they were, made in 1962, because at that time the Karachi Rent Restriction Act of 1953 was in force and at that time only eight annas Court‑fees was pa) able on them. It was on the entension to Karachi of the West Pakistan Urban Rent Restriction Ordinance, 1959, on the 1st of July 1963, that the view was taken that Court‑fees was payable on ejectment applications as if they were ejectment suits. This view was later on found to be incorrect, and demands for payment of enhanced Court‑fees were discon tinued. This happened in 1964. In this view of the matter, the order of the Rent Controller demanding Court‑fees on the ejectment applications as if they were ejectment suits was without a sound legal basis. In other words, the condition about the payment of Court‑fee was the result of a misconception of law and cannot lead to the consequences to which good law could lead.

11. In conclusion of the above discussion I do noel find myself in a position to accept the first contention of Mr.Mahmoodi.

12. The second contention, I am afraid, is not such as may prevail in these proceedings. It is true that the second order of the Rent Controller directing the arrears as well as current rent to be deposited was made after issues had been framed, but the first order was not so made. That order was set aside because of a legal defect. In these circumstances the objection to the second order, on the ground that issues had already been framed, was made in disregard of ordinary consequences of appellate orders. Moreover, the condition that an order for depositing the arrears and current rent should be made "on the first date of hearing or as soon as possible after that date but before the issues are framed" is intended to make it certain that interruption in the payment of rent does' not take place. If issues are framed after giving the direction to deposit rent, then the consequence should not be to excuse tenants from depositing rent for ever. In this respect, reference may be made to Ali Muhammad v. Jamal Din (P L D 1966 Lah. 934) which has been cited by counsel for both sides. In spite of the word "shall" used in subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, an order to deposit rent made after framing issues is not ineffective.

13. The third contention of Mr. Mahmoodi is based on the interpretation 'of the amendment introduced by omitting sub‑clause (ii from clause (a) of subsection (2) of section 3 of the West Pakistan Urban Rent Restriction (Second Amendment) Ordinance, 1962. as well as the insertion of subsection (3) in that section. The complete provision is as follows:

"Amendment of section 3 of West Pakistan Ordinance XXVIII of 1962.‑--In the West Pakistan Urban Rent Restriction (Second Amendment) Ordinance, 1962, in section 3‑

(i) in subsection (2), in clause (a), sub‑clause (i) shall be omitted and shall be deemed always to have been so omitted'; and

(ii) after subsection (2) amended as aforesaid, the following new subsection shall be added and shall be deemed always to have been so added:

'(3) Notwithstanding anything contained in the said Ordi nance or in any decision of a Court, any person exercising the powers of a Controller under the, laid Act, immediately before the coming into force of this ordinance, shall continue to exercise such powers under the said Ordinance unless otherwise notified by the Provincial Government in the official Gazette, and any proceedings taken by such person under the provisions of the said Ordinance or any decision given by ouch person in such proceedings shall be deemed to have been proceedings or decision, as the case may be, of a Controller under the said Ordinance'."

Mr. Mahmoodi has argued that the cases which had been initiated under the Karachi Rent Restriction Act, 1953 and were pending at the time of the extension of the West Pakistan Urban Rent Restriction Ordinance, 1959 to Karachi, could be tried under the new law by virtue of sub‑clause (i) of clause (a) of subsection (2) of section 3 of that Ordinance. That provision has been omitted v' by clause (i) of the above provision and the omission has been made with retrospective effect; which, according‑to counsel, means that none of the cases which were instituted under the Karachi Rent Restriction Act, 1953, could be tried under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Counsel said that the introduction of subsection (3) by virtue of the above reproduced clause (ii), was effective only in so far as it validated the exercise of the powers of a Rent Controller by Mr. Nasir Ahmad, but had no effect to making the newly‑extended Ordinance applicable to the cases which were instituted under the Karachi Rent Restriction Act, 1953, and were pending at the time of the extension of the Ordinance.

14. An examination of the provision, which has been reproduced above, does show that sub‑clause (i) of clause (a) of subsection (2) by which the newly‑extended Ordinance was made applicable to pending cases was repealed, but it should be noted that subsection (3), which has been introduced, consists of two parts. The first one ends at the word Gazette. It is intended to validate the orders of Mr. Nasir Ahmad who was the Rent Controller before the West Pakistan Urban Rent Restriction Ordinance, 1959 was extended to Karachi and, had continued to exercise the powers of a Rent Controller after the extension of the new Ordinance. After the word Gazette begins the second part. It is intended to validate any proceedings taken by the Rent Controller. This validation takes place from two pints of view: firstly, from the point of view that Mr. Nasir Ahmad who was the Rent Controller before the newly extended Ordinance, should he legally allowed to continue to do so, and, secondly, from the point of view that the proceedings which he took were to be deemed to have taken place under the newly extended Ordnance. It was owing to this latter effect that sub‑clause (i) of clause (a) of subsection (2) of section 3 was repealed. It had become redundant. In this view of the matter, the third contention of Mr. Mahmoodi cannot be accepted as correct.

14. The overall conclusion of the above discussion is that these appeals fail; they are dismissed with costs.

A. H. Appeals dismissed.

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