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Second Appeal No. 484 of 1978, decided on 23rd October, 1983.

‑‑Ss. 13 (6) & 15‑Notification, dated 21st December, 1964‑West Pakistan Civil Courts Ordinance (II of 1962), Ss. 15 & 23 Tentative rent order passed by Additional District Judge functioning as Rent Controller in absence of Civil Judge Only Civil Judges having been appointed by Government as Rent Controllers. who were persona designer, Additional District Judge, held, could not act as Rent Controller‑Order of striking off defence of tenant as a result of non‑compliance of tentative rent order passed by such Additional District Judge set aside and case remanded to Rent Controller for passing fresh tentative rent order and for proceeding with matter in accordance with law.

Mst. Umda Begum and others v. Saad Saood Jan, C. S. P. and others P L D 1969 Lab. 306 rel.

Malik M. Saeed for Appellant.

Naimatullah Qureshi for Respondent.

Date of hearing : 23rd October, 1983.

This is a second appeal against the orders, dated 19th April, 1976 and dated 20th November, 1978, passed by the learned Joint Civil Judge and Rent Controller, Nawabshah, and the learned IInd Additional District Judge, Nawabshah respectively, in R. A. No. 12/72 and M. R. Appeal No. 21/76 respectively. The brief facts leading to the filing of the above second appeal are that the respondent filed the aforesaid rent application for ejectment inter alia on the ground of default. It seems that on 6th July, 1973 nobody was acting as the Senior Civil Judge at Nawabshah and his work was assigned by the District Judge, Nawabshah to IInd Addi tional District Judge, Nawabshah who on 6th June, 1973 passed a tentative rent order, which admittedly was not complied with. Subsequently, the respondent filed an application under section 13 (6) of the late Ordinance, which was allowed by the above order, dated 19th April, 1976 by the learned Joint Civil Judge and Rent Controller, Nawabshah. Against the above order the appellant filed Miscellaneous R. A. No. 21/76, but at the same time also filed a C. P. No. 367/76, challenging the tentative rent order on the ground that the same was not passed by a Civil Judge, and, therefore, it was without jurisdiction. The above writ petition was dismissed by a D. B. of this Court by a judgment dated 31st October, 1977 inter alia on the ground that the matter was pending before the trial Court and that this point can be agitated before the appellate Court. However, the appellate Court concurred with the finding of the learned Joint Civil Judge and Rent Controller, on the question of default and, therefore, maintained the order of ejectment,

'The appellant being aggrieved by the above two orders has filed the present Had Appeal.

2. (a) In support of the above second appeal, Mi. Malik Muhammad Saeed, learned counsel for the appellant has urged that since the tentative rent order passed by the learned Had Additional District Judge, Nawabshah on 6th July, 1973 was without jurisdiction, non‑compliance of the same could nut have entailed or warranted striking off the appellant's defence, and, therefore, both the Courts erred in not accepting the appellant's con tension on the question of jurisdiction.

(b) On the other hand Mr. Naimatullah Qureshi, learned counsel for the respondent has urged that in view of sections 23 read with section 15 of the West Pakistan Civil Courts Ordinance, 1962, the District Judge was competent to assign the work of a Senior Civil Judge to an Additional District Judge on account of the fact that there was no Civil Judge available in the District of Nawabshah and hence the above tentative rent order was not without jurisdiction.

3. In order to appreciate the respective contentions of the learned counsel for the parties, it may be pertinent to observe that section 2 (b) of the late W. P. U. R. R. Ordinance, 1959 (hereinafter referred to as the late Ordinance), defines Rent Controller as judicial officer, who is appointed by the Provincial Government to perform the functions of a Rent Controller under this Ordinance. In other words, the notified judicial officer was a persona designata. The Provincial Government by a notification, dated 21st December, 1964 appointed First Class Civil Judges as the Rent Controllers.

Mr. Malik Muhammad Saeed, has referred to the case of Mst. Umda Begum and another v. Saad Saood Jan C. S. P. and others (P L D 1962 Lab. 306) in which a D. B. of the erstwhile High Court of West Pakistan Lahore Bench, held that an Additional District Judge was not competent to exercise the jurisdiction of an appellate Court under the Provincial Government Noti fication, whereby District Judges were appointed as the appellate authority for the purpose of the late Ordinance. It may be advantageous to reproduce herein below para. 5 of the above judgment, which reads as follows .

"Para. 5. The order of Mr. Saad Saood Jan is also without jurisdic tion. The Governor of West Pakistan, in exercise of the powers conferred on him by section 15 (1) (a) of the Ordinance, had by 4 Notification No. H. G.‑10‑2/59, dated the 12th of March, 199, notified all the District Judges in the Province as the appellate authorities for the purposes of the Ordinance. A District Judge is, therefore, an appellate authority under the Ordinance not as a District Judge but by virtue of the Notification mentioned above. Additional District Judges have no jurisdiction in a matter arising out of the Ordinance. Nor can they in fact be given any powers under the Ordinance. Thus the order of Mr. Saad Saood Jan was without jurisdiction and, therefore, null and void."

The above case lends support to the contention of Mr. Malik Muhammad Saeed that a person notified under the Ordinance either as a Rent Controller or as an appellate authority can exercise jurisdiction and not any other person. '':

However, the contention of Mr. Naimatullah Qureshi, learned counsel for the respondent as pointed out hereinabove is that by virtue section 23 read with section 15 of the West Pakistan Civil Courts Ordi nance, 1962 (hereinafter referred to as the Ordinance) the IInd Additional District Judge in question was exercising the power of a Senior Civil Judge and, therefore, could exercise the jurisdiction of a Rent Con troller.

4. In order to appreciate the above contention, it may be advanta geous to reproduce herein below section 15 and section 23 of the Ordin ance, which read as follows :‑

"Sec. 15. Power to distribute business.‑Notwithstanding anything contained in the Code of Civil Procedure, 1908, every District Judge may by written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit

Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction.

"Sec. 23. Temporary vacancy of office Civil Judge.‑In the event of the death, suspension or temporary absence of any Civil Judge, the District Judge may empower any other Civil Judge of the district to perform the duties of the Judge of the vacated Civil Court, either at the place of such Court or of his own Court, but in every such case the registers and records of the two Courts shall be kept separately."

It may be observed that under section 15 of the Ordinance, every District Judge was authorised by an order in writing to assign the work among the Courts in such manner as he thinks fit provided no assignment of the work could have been made to any Court beyond the limits of its jurisdiction. It may further be noticed that under section 23 a District Judge was empowered in the event of the death, suspension or temporary absence of any Civil Judge to empower any other Civil Judge of the district to perform the duties of the Judge of the vacated Civil Court, either at the place of such Court or at his own Court, but in every such case the registers and records of the two Courts were to be kept separately.

5. In my view, the plain reading of the above two quoted sections indicates that a District Judge could not have placed the learned IInd Additional District Judge, Nawabshah in the position of the Rent Controller.

Apart from the fact that under above section 23 he could have assigned the work of a Civil Judge to another Civil Judge and not to an Additional District Judge, I am inclined to hold that under the above notification, dated 21st December, 1964 the Senior Civil Judges were appointed as the Rent Controller, who were persona designata, and, therefore, an Addi tional District Judge could not have acted as a Rent Controller. The above Lahore 1962 case on all fours is applicable to the instant case. I, therefore, allow the above appeal and set aside the two orders and remand the case to the learned Rent Controller concerned, who after passing a fresh to native rent older shall proceed with the matter in accordance with law.

In the circumstances of the case, there will be no order as to costs.

M.Y.H. Case remanded.

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