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Civil Petitions for Special Leave to Appeal Nos. 217 to 220 of 1964, decided on 24th May 1965.
(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 6th May 1964, in First Appeal from Order No. 80 of 1963).
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--, Ss. 13 & 15‑Question of jurisdiction‑Decision of Controller on preliminary issue that relationship of landlord and tenant exist No appeal under S. 15 lies against such order‑Word "order" in S. 15‑Envisages only those orders which Controller is empowered by Ordinance to make and not any order.
There is no notification by the Government to, the effect that appeals will lie against a finding of relationship of landlora and tenant by the Rent Controller. Section 15 of the West Pakistan Rent Restriction Ordinance, 1959 envisages orders which the Rent Controller is empowered by the Ordinance. Even in a civil suit a decision which goes to the root of the matter is not always the subject‑matter of an appeal. When a civil Court decides a preliminary issue as to jurisdiction in, favour of the plaintiff no appeal lies against the finding. The mere fact that an issue as to jurisdiction has been decided cannot be a ground for granting a right of appeal when on the wording of the relevant provision it is not possible to do so.
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Art. 58 (3)‑Question of law involved but point raised found not arguable‑Leave refused.
M. B. Zaman, Advocate Supreme Court instructed by Muhammad Ashraf Israili, Attorney for Petitioners.
Nemo for Respondents.
Date of hearing : 24th May 1965.
This order will dispose of four petitions for special leave to appeal the point arising in which‑ is common and all of which relate to parts of property included in a waqf al‑al‑aulad created by Khan Bahadur Sheikh Muhammad Naqi. The petitioner was a tenant under the Mutawalli of the waqf in respect of 71‑The Mall, . Lahore, different portions of which property are the subject‑matter of these four petitions. Sheikh Muhammad Naqi had died in 1951. In 1957 ‑there was an aribitration relating to property which is the subject‑matter of the waqf between the descendants of Sheikh Muhammad Naqi. By an award which was made the rule of Court oat 22‑7‑1957 the property was divided amongst the descendants of Sheikh, Muhammad Naqi, and No. 71‑The Mall, Lahore, was divided into four portions. Notices were served on the petitioner by the different claimants under the award for payment in future to them of rent with respect to different portions of the property. For some time the petitioner made payments in accordance with the notice, but coming to know that the award was void and had no effect on the waqf, the petitioner refused to pay specific portions of the rent originally agreed upon for the whole building to different claimants, and took up the position that it was the mutawalli of the waqf who was entitled to the payment of the rent as a whole. He commenced deposit ing rent in the name of the mutawalli in the Court of the Rent Controller. On the ground that the petitioner had failed to pay rent the differant claimants under the award filed four separate applications for ejectment against the petitioner under the Rent Restrictions Act. The petitioner took the plea that the different claimants were not his landlords, his landlord being only the mutawalli of the waqf. At this a preliminary issue was framed in all the four cases as to whether the relationship of landlord and tenant existed between the parties. The issue was decided against the petitioner: The Rent Controller held that the relationship of landlord and tenant had come into existence by attornment, and that he had no jurisdiction to set aside the award. The petitioner filed four appeals against the orders of the Rent Controller against the finding on this issue before the District Judge. The District Judge held that no appeal lay to him and returned the appeals for presentation to the proper Court. The petitioner then filed four appeals against the order of the District Judge refusing to entertain the appeals and also filed four appeals direct against the order of the Rent Controllor to the High Court. The High Court has dismissed the appeals filed against the order of the Rent Controller on the ground that no appeal lies in such a case. The present four petitions for leave are directed against this order of the High Court. So far as second appeals against the order of the District Judge are concerned they arc still pending in the High Court.
The decision of the question raised depends upon an interpre tation of section 15 of the Rent Restriction Ordinance which runs:-
"15. Appeal.‑(1) (a) 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.
(b) Any party aggrieved by an order passed by the Controller may within thirty days from the date of such order prefer an appeal in writing to the appellate authority having jurisdic ‑tion.
(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal.
(3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller.
(4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (P L.D ,1963 Lah. 523), and if an appellate authority has not been appointed in respect of any area or class or cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be of the Controller, prefer an appeal in writing to the High Court and decision thereof shall be final.
(5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance."
Admittedly there is no notification by the Government to the effect that appeals will lie against a finding of relationship of landlord and tenant by the Rent Controller though this is really not material as will presently appear. The words used in section 15 are "an order", but learned counsel for the petitioner does not find it possible to contend that these words are to be interpret ed in their wide generality and he accepts that some qualification has to be added to these words for otherwise an order adjourning a case or summoning a witness would also be subject to appeal and learned counsel agrees that this could not be the intention. The High Court has in a Full Bench case reported as Muhammad Amin v. Jamshed All (P L.D ,1963 Lah. 523) held that "an order" in the section means any order which is covered by some provision in the Rent Restriction Ordinance. This appears prima facie to be a reasonable qualification to add to "an order". The section envisages orders which the Rent Controller is empowered by the Ordinance to make while learned counsel for the petitioner does not accept this interpretation he is unable to make a reason able suggestion as to any other limitation which can be placed on the words "any order". All that he has been able to contend is that an order which goes to the root of the case should also be appealable, but he is unable to explain how the words of section 15 are to be interpreted so as to achieve this result. Even in a civil suit a decision which goes to the root of the matter is not always the subject‑matter of an appeal. When a civil Court decides a preliminary issue as to jurisdiction in favour of the plaintiff no appeal lies against the finding; The mere fact that an issue as to jurisdiction has been decided cannot be a ground for granting a right of appeal when on the wording of the relevant provision it is not possible to do so.
We do not see why the petitioner should not have waited for the decision of the cases before he filed the appeals and we have questioned learned counsel for the petitioner why he did so, the reply of learned counsel is that the petitioner is apprehensive in spite of his having been strictly regular fn payment or deposit of rent that an order of ejectment may be made against hint if this question of landlord and tenant is not decided in his favour. It is stated on behalf of the petitioner that it has not made a default in the payment of rent for a single month for when 'it did not pay to the different claimants it deposited rent with the Rent Controller in the name of the Mutawalli. If the petitioner was continuously paying rent or depositing it, it will be a matter for the consideration of Court whether it can be penalised just because the legal position as to who was entitled to receive rent was riot clear.
Although a question of law was involved we are not granting leave as we do not think the interpretation put forward on behalf of the petitioner is arguable. These petitions are dismissed.
Petitions dismissed.
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