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Letters Patent Appeal No. 94 of 1968, decided on 25th February 1970.

, Ss. 13(6) & 15(4) read with Civil Procedure Code (V of 1908), S. 107(2)‑Power to strike off defence under S. 13(6) of Ordinance‑Penal and should be strictly construed‑Defence cannot be struck of unless default, one falling within express language used in that section‑Appellate authority ordering furnishing of security by tenant pending appeal‑Tenant failing to furnish security within prescribed time‑Held : failure to furnish security would not attract penalty prescribed by S. 13(6) of Ordinance so as to deprive appellant of his right of appeal.

A Single Judge of the High Court hearing a second appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 held that in an appeal against order of a Rent Controller the appellate authority acting under the Ordinance may ask for security pending appeal but on the failure of the appellant to furnish security, the appellate authority would not be competent to strike off defence under section 13(6) of the Ordinance and dismiss the appeal. Failure to furnish security, it was held, would only lead to vacation of any stay order granted by the appellate Court but the appeal itself would remain unaffected. This finding was assailed before a Division Bench in Letters Patent Appeal and it was urged that the finding of the Single Judge was in disregard of the provisions of section 107(2) of the Civil Procedure Code, 1908. On the question, therefore, whether failure to furnish security within the time prescribed by appellate authority attracted the penalty prescribed by section 13(6) of Ordinance VI of 1959.

Held : By reading the provisions of section 15(4) of the Ordinance and section 107, C. P. C., it is clear that in the context of rent proceedings, subsection (2) of section 107, Civil Procedure Code would not apply as the Ordinance being a special law would override the provisions of Civil Procedure Code if they are in conflict with each other and further if its application is excluded expressly or by necessary intendment. Seen in this context it appears that subsection (2) of section 107, Civil Procedure Code, in its application to the. Rent Appeals, is excluded both expressly and by necessary intendment for the reason that in spite of the amending Ordinance XXI of 1965 section 15 of the Ordinance was not amended so as to empower the Appellate Authority to strike off the defence of a tenant for his failure to furnish security. The other reason in support of this conclusion is that the provisions of the Ordinance, being penal in nature, would be strictly construed as held in judgments of this Court and unless the default of a tenant is covered by its express language his defence cannot be struck off by the Appellate Authority. The Appellate Authority would direct a tenant to furnish security if he makes an application for the stay of the eviction order of the Controller. This applica tion would be in the nature of an interlocutory application and in case it is allowed by the Appellate Authority the tenant will have to furnish security according to the peremptory requirement of the second proviso of section 15(5) of the Ordinance. In case the tenant fails to comply with the said order then the Appellate Authority would be obliged to vacate the stay order and dismiss the stay application. In this eventuality it would be open to the landlord to approach the Controller to seek the eviction of the tenant for his failure to deposit tentative rent in compliance with the order against which he had gone in appeal before the Appellate Authority. The result would be that the stay application would be dismissed but the appeal itself would remain unaffected and will have to be disposed of on merits. In case the appeal is finally allowed the decree of the Court below will have to be set aside and the appellant restored to the position which he occupied before the decree was executed against him during the pendency of the appellate proceedings. By not empowering the Appellate Authority to strike off the defence of a tenant, for his failure to furnish security, the Legislature intended not to deprive him of the right of appeal against the conviction order of the Controller. This omission on the part of the Legislature appears to be deliberate so as to prevent the Controller from abusing his jurisdiction under section 13(6) of the Ordinance by striking off the defence of a tenant summarily for his failure to deposit the tentative rent which may have been fixed at a wholly arbitrary rate.

Khair Muhammad Nizamani v. Abudl Quddus P L D 1964 Kar. 418 and Syed Ahsan All v. Jafar Ali and others P L' 'D 1965 Kar. 367 ref:

A. K. Niazy for Appellant.

Kaimuddin for Respondents.

Date of hearing : 25th February 1970.

----This is a certificated Letters Patent Appeal against the judgment of a learned Single Judge of this Court dated 4‑3‑1968 by which he dismissed the Second Appeal of the present appellant. The certificate granted by the learned Judge is for the consideration of the following question

The short question, that is, whether failure to furnish security within the time prescribed by the first appellate Court attracted the penalty prescribed by section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959.

In dealing with this question, the learned Judge was of the view that the provisions of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) would not be attracted to a case in which the tenant had failed to furnish security within the time prescribed by the Appellate Authority. For this conclusion the learned Judge took into consideration the provisions of section 15 of the Ordinance in which no mention is made of the power of the Appellate Authority to strike off the defence of a tenant if he fails to furnish security in compliance with its order. The learned Judge further relied upon two judgments of this Court (P L D 1964 Kar. 418 and P L D 1965 Kar. 367) in which it was held that the provisions of section 13 (6) of the Ordinance, being penal in nature, must be strictly construed and unless the default of the tenant fell within the express language of that section his defence was not liable to be struck off:

2. We have heard Mr. A. K. Niazi Advocate for the appellant and Mr. Naimuddin Advocate for the respondents. The grievance of Mr. Niazi is that this finding of the learned Single Judge is in disregard of section 107 (2), C. P. C., and consequently erroneous. In order to appreciate this contention section 107, C. P. C., and the explanation to section 15 (4) of the Ordinance by which that section is made applicable to the Rent Appeals, may be reproduced

"107.‑(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power‑

(a) to determine a case finally ;

(b) to remand a case ;

(c) to frame issues and refer them for trial ;

(d) to take additional evidence or to require such evidence to betaken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."

"15. Appeal.

(4) .

Explanation.‑An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 1C0 of the said Code if it is from an order of the appellate authority and the provisions of Part VI *(should read Part VII in view of P L D 1964 Kar. 546) and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings."

*(The words in the bracket are ours).

From the language of this provision it is clear that sec tion 167, C. P. C., being one of the sections appearing in Part VII of the Code, would apply to the proceedings in Rent Appeals but "with such modifications as the context may require". Now by looking at section 107, C. P. C., it is evident that so far as its clauses (a), (b), (c) and (d) are concerned they would apply to Rent Appeals as a matter of necessity in order to enable the Appellate Authority to effectively dispose of the proceedings. But the same does not appear to be the case in regard to the application of subsection (2) of that section. Our reasons for this conclusion are two fold ; in the first place this subsection deals with the power of the Appellate Authority, under the Civil Procedure Code, when seized of a case in appeal from the decree passed in suit, and in the second place it would only apply "with such modifications as the context may require" as envisaged by section 15 (4) of the Ordinance. By reading the provisions of section 15 (4) of the Ordinance and sec tion 107, C. P. C., we are of the view that in the context of rent proceedings, subsection (2) of section 107, Civil Procedure Code would not apply as the Ordinance being a special law would over‑ride the provisions of Civil Procedure Code if they are in conflict with each other and further if its application is excluded expressly or by necessary intendment. Seen in this context it appears to us that subsection (2) of section 107, Civil Procedure Code, in its application to the Rent Appeals, is excluded both expressly and by necessary intendment for the reason that in spite of the amending Ordinance XXI of 1965 section 15 of the Ordinance was not amended so as to empower the Appellate Authority to strike off the defence of a tenant for his failure to furnish security. The other reason in support of this conclusion is that the provisions of the Ordinance, being penal in nature, would be strictly construed as held in the above two judgments of this Court and unless the default of a tenant is covered by its express language his defence cannot be struck off by the Appellate Authority.

3. Mr. Niazi, the learned counsel however contended that this conclusion would lead to absurdity inasmuch as while the Controller is admittedly empowered to strike off the defence of a tenant, for his failure to deposit tentative rent, yet the Appellate Authority would be unable to do so if the tenant fails to furnish security. The contention is more specious than real. It is not denied that the only occasion when the Appellate Authority would direct a tenant to furnish security would be if he makes an application for the stay of the eviction order of the Controller. This application would be in the nature of an interlocutory application and in case it is allowed by the Appellate Authority the tenant will have to furnish security according to the peremptory requirement of the second proviso of section 15 (5) of the Ordinance. In case the tenant fails to comply with the said order then the Appellate Authority would be obliged to vacate the stay order and dismiss the stay application. In this eventuality it would be open to the landlord to approach the Controller to seek the eviction of the tenant for his failure to deposit tentative rent in compliance with the order against which he had gone in appeal before the Appellate Authority. In this view, obviously our conclusion would not lead to any conceivable absurdity as the landlord would have the right to seek the eviction of the tenant while the tenant would be entitled to prosecute his appeal on merits. Surely this conclusion is not unknown to the law as in appeals under the Civil Procedure Code the appellate Court may not stay the operation of the decree of the Court below even if an application is made for that purpose. The result would be that the stay application would be dismissed but the appeal itself would remain unaffected and will have to be disposed of on merits. In case the appeal is finally allowed the decree of the Court below will have to be set aside and the appellant restored to the position which he occupied before the decree was executed against him during the pendency of the appellate proceedings. We are, there fore, of the view that by not empowering the Appellate Authority to strike off the defence of a tenant, for his failure to furnish security, the Legislature intended not to deprive him of the right of appeal against the eviction order of the Controller. This omission on the part of the Legislature appears to us to be deliberate so as to prevent the Controller from abusing his jurisdiction under section 13 (6) of the Ordinance by striking off the defence of a tenant summarily for his failure to deposit the tentative rent which may have been fixed at a wholly arbitrary rate.

4. In view of this discussion we find no force in this appeal which is dismissed with costs.

K. B. A. Appeal dismissed.

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