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First Rent Appeals Nos. 178 and 594 of 1980, decided on 23rd August 1981.

----O. XLI, r. 5‑Order of stay passed by appellate Court‑Held, operates from date when made or date of communication to Court and not from date of service on party concerned‑Order passed in ignorance or due to lack of knowledge of stay order‑To be ignored and cannot be executed being a nullity in eye of law. (Injunction].

Karam Ali and others v. Raja and others P L D 1949 Lah. 100 ; Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar P L D 1974 S C 509 ; Messrs Hakimuddin Harmusji & Sons v. Messrs Ghafoor Textile Mills P L D 1978 Kar. 152 ; Persumal and others v. Government of Pakistan and others P L D 1960 Kar. 690 ; Mst. Umda Begum and another v. Saad Saood Jan C. S. P. and others P L D 1962 Lah. 306 ; Syed Nazir Ahmad v. Syed Muhammad Saeed and another P L D 1955 Lah. 34 and Muhammad Ayub Khuhro v. Pakistan, through the Ministry of Interior, Government of Pakistan and 2 others P L D 1960 S C (Pak.) 237 ref.

‑‑‑‑ S. 21m‑Appeal against interim order‑Does not lie under S. 21.

Mian Manzar Bashir and others v. M. A. Asghar do Co. P L D 1978 S C 185 ref.

Z. U. Ahmad for Appellant,

M. Zahoorul Haq for Respondent.

Date of hearing: 23rd August 1981.

The First Rent Appeal No. 178 of 1981 is directed against the order dated 30‑1‑1980, passed by the Controller in Rent Case No. 3205 of 1979, declaring the appellant/opponent ex parse.

2. The facts giving rise to this appeal briefly stated are as follows :‑

3. On 30‑1‑1980 the Controller declared the proceedings under section 15 of Sind Rented Premises Ordinance, 1979, against the appellant ex parte. On 22‑2‑1980, the appellant applied for setting aside the order dated 30‑8‑1980. However, on 1‑3‑1980 the appellant filed this appeal even before the applica tion for setting aside the ex parte order could be heard. The appeal was admitted to regular hearing on 5‑3‑1980 and ad interim stay was granted. However, on 10‑3‑1980 the Controller passed the final order granting eviction of the appellant. This fact was brought to the notice of the appellant on 10‑5‑1980 as it would appear from the order passed by Mr. Justice S. A. Nusrat. Thereafter the appellant applied for certified copy of the order and on 4‑6‑1980 .filed another appeal being the First Rent Appeal No. 594 of 1980. .

4. I have heard Mr. Z. U. Ahmad Advocate for the appellant and Mr. M. Zahoorul Haq Advocate for the respondent in both the appeals.

5. So far as First Rent Appeal No. 594 of 1980 is concerned it is urged by Z. U. Ahmad that the order dated 10‑3‑1980 was a nullity as the same was passed in disregard of the interim stay order dated 5‑3‑1980.

6. The learned counsel for the respondent however submitted that the order passed on 5‑3‑1980 was not communicated to the lower Court till 10‑3‑1980 when the final order was passed by the Controller nor was any notice of the order dated 5‑3‑1980 communicated to the respondent. He therefore, contended that the order of stay will operate from the date it was served or communicated to the Court or the respondent. This proposition of the learned counsel for the respondent is not correct for an order of stay) operates from the time it is made. If any authority is‑needed reference may be had to a Full Bench judgment of Lahore High Court in Karam All and, others v. Raja and others (P L D 1949 Lah.100) wherein Muhammad Munir the then Actg. C. J. after reviewing the case‑law at pages 112 and 113 of the report observed as follows

"I respectfully agree with these cases where the distinction between a stay order simpliciter and an injunction of prohibitory order has been brought out. A prohibitory order or injunction restrains a party from doing something and is necessarily addressed to the person whose act is intended to be restrained. Such order is not, therefore, effective unless it is communicated. But an order under Rule 5 is not an injunction or a prohibitory order in that sense but orders in the proceedings, which give rise to a changed legal position the moment it is made. As pointed out by Woodroffe and Mookerjee JJ in Uukwn Chand Boid v. Kamalanand Singh (I L R 33 Cal. 927) the question of communication of an order arises only in these cases where absence of the knowledge of that order is under the substantive law a defence to any action proposed to be taken on the ground of dis obedience of that order. But no question of disobedience of an order arises in cases under rule 5 because that rule relates to the respective powers of the Appellate Court and the lower Court and unlike rule 2(3) of Order XXXIX has nothing to do with the disobedience of any order. It may be that the Executing Court being not apprised of the order of the Appellate Court feels itself justified to proceed in execution, but that would not make the proceedings taken by that Court good if by an anterior order of the Appellate Court, not com municated, its jurisdiction had been taken away. The question whether the Executing Court should or should not proceed with execution when no stay order by the Appellate Court has been received by it is wholly different from and should not be confounded with the question whether its jurisdiction to proceed with execution has or has not, as matter of law, been taken away. Naturally the Court will proceed until it is apprised of the stay order and will require the party, resisting execution on the ground that a stay order by the Appellate Court has been made, to produce that order, but this does not mean that the proceedings taken by it in ignorance of the stay order must be held to be with jurisdiction if as a matter of fact the stay order had been made though it was not communicated to it."

7. It is worthwhile to mention that the Supreme Court in Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar (P L D 1974 S C 509) has ruled that view expressed in the aforementioned case is in accord with the law and needs no re examination.

8. I may also refer to a recent judgment of this Court in Messrs Hakim. uddin Harmusji & Sons v. Messrs Ghafoor Textile Mills (P L D 1978 Kar. 152) wherein bringing out the distinction between an injunction and stay order it was observed by the learned Single Judge as follows :‑

"The nature and incidents of an order of stay as understood in our judicial system is that it is addressed and binds a subordinate Court or Tribunal. Whereas an injunction is essentially directed against and enjoins a party to the proceeding from doing or from omitting to do certain acts. The former binds the subordinate Court or Tribunal from pro ceeding further in a pending proceeding or from executing an order passed by itself. In the latter case the effect of injunction is to bind the parties. This essential distinction has assumed great importance in relation to the operation of the two types of orders. The judicial consensus holds that an order of stay taken effect immediately on being passed even if it is not brought to the notice of the subordinate Court or tribunal, whereas an injunction order becomes operative upon being served on the party against which it is directed."

9. Further the question that arises for consideration is that what is the effect of the order passed on 10‑3‑1980. In this regard it is submitted by Mr. Z. U. Ahmad that the order is a nullity and reliance is placed on Persumal and others v. Government of Pakistan and others (P L D 1960 Kar. 690) and Mst. Umda Begum and another v. Saad Saood Jan, C. S. P. and others (P L D 1962 Lab. 306).

In the first mentioned case a Full Bench of this Court was pleased to observe at page 695 of the report as follows

"The legal proposition does not admit of any doubt that an order passed by an inferior Court during the subsistence of an order made by a superior Court is an absolute nullity."

Reliance was placed by the learned Judges on Syed Nazir Ahmad v. Syed Muhammad Saeed and another (P L D 1955 Lab. 34) and Karam Ali and others v. Raja and others.

In Mst. Umda Begum's case which was incidentally a rent case, it was observed as follows

"The effect of a stay order passed by the Appellate Court under Order XLI, rule 5 of the Code of Civil Procedure is that the jurisdiction of the lower Court to deal further with the matter ceases and any order passed by the lower Court, while the stay order is in force, is without jurisdiction. In our opinion, the order of the appellate authority dated the 21st of November 1961, was validly in force and the order of the Rent Controller reviving the ejectment proceedings was without jurisdiction and as such a nullity in the eye of law."

10. It is however, contended by Mr. M. Zahoorul Haq that appeal No. 594 of 1980 is barred by time as the impugned order was passed on 10‑3‑1980 but the appeal was presented on 4‑6‑1980. No doubt the appeal was filed beyond the time prescribed in section 21 of the Sind Rented Premises Ordinance, 1979 but apart from the fact that the knowledge of the passing of the order dated 10‑3‑1980 was acquired by the appellant on 10‑3‑1980 in the proceedings in F. R. A. No. 178 of 1980, the order passed on 10‑3‑1980 does not legally exists. In support of this proposition I may here refer to the following passage from Persumal and others v. Government of Pakistan and others

"8. It seems to us that the orders of the Deputy Custodian in each case, on which the orders of the Custodian under reference proceeded, were a complete nullity and non‑existent in the eyes of law. The Custodian, while dealing with them, could not put any life into them to give them a legal existence. An order, which is void ab initio, cannot be quashed any more than it can be upheld, because a thing which have never existed is not capable even of destruction"

11. Reference may also be made to the judgment of the Supreme Court in the case of Muhammad Ayub Khuhro v. Pakistan through the Ministry of Interior, Government of Pakistan and 2 others (P L D 1960 S C 237) wherein it was ruled by the Supreme Court that "the proceedings which are void ab initio, are not capable of any confirmation, because nothing is brought into life by a void order which may be confirmed by a confirmatory order".

12. Therefore, the contention of Mr. M. Zahoorul Haq that the appeal against it barred by time is of no consequence because that order date 10‑3‑1980 has to be ignored and cannot be executed being a nullity in the eye of law.

13. So far the Appeal No. 178 of 1980 challenging the order dated 30‑1‑1980 is concerned, it is admittedly against an interim order and not against a final order and therefore, no appeal would lie under section 21. of the Sind Rented Premises Ordinance against such an order. This proposition is now fairly conceded by Mr. Ahmad in view of the judgment of the Supreme Court in Mian Manzar Bashir and others v. M. A. Asghar & Co. (PLD1978SC185).

Therefore, this appeal must fail and accordingly dismissed.

In the circumstances of the case the parties are left to bear their own costs in both the appeals.

Now the record of Rent Case No. 3205 of 1979 will be sent back to the Controller to proceed in accordance with law.

S. Q. Appeal dismissed.