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Civil Appeal No. 66 of 1978, decided on 16th December, 1985.

(Against the judgment and order, dated 15‑5‑1978 of the Lahore High Court, Lahore, in S. A. O. No. 241 of 1978).

‑‑‑ Art. 185(3) ‑West 'Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 & 15‑ Appeal‑Arrears of rent‑Surety for Leave to appeal granted to tenant and his surety to examine question of law whether arrears of rent could be calculated and recovered by Rent Controller (as directed by High Court) and was it not necessary that it should have been recovered by a separate civil suit.

‑‑ Art, 185‑Appeal to Supreme Court---‑Principle of finality attaching to proceeding‑‑‑Order subject‑matter of appeal was subject‑matter of another appeal filed in Supreme Court and leave to appeal was refused Order so passed, held, attained finality as between parties to litigation and could not be agitated in second round of litigation irrespective of tire fact whether appellant had earlier agitated against it or not‑Such order, in either case, became final qua appellant and could not be challenged afresh.

‑‑ Ss. 13(6), 15(2) & 17 ‑Civil Procedure Code (V of 1908), S. 107(2)‑Appellate Authority including High Court, in second appeal, has a power to pass for first time an order under S. 13(6) for deposit of rent or for furnishing security for same‑Duty of Rent Controller to work, out finally rent due and pass appropriate orders in that respect.

Appellate authority, including the High Court in second appeal, has a power to pass for the first time an order under section 13(6) of the Ordinance for the deposit of rent or for furnishing security for the‑same.

Section 107(2), C. P. C. necessarily makes powers of the appellate Court co‑extensive with that of the Rent Controller and as a Rent Controller can pass an order under section 13(6) so could the High Court while seized of the second appeal. Additionally, it could ask for security instead of getting the rent deposited in cash as provided in second proviso to section 15(2) of the Ordinance. It is the duty of the Rent Controller to work out finally the rent due and to pass appropriate orders in respect thereof. Reading the provisions of section 13(6) of the Ordinance with section 15 and section 17 thereof it follows that proceedings undertaken by Rent Controller under orders of High Court for determining the rent due against the tenant is within the provisions of the law made in this respect.

Mah Gul and another v. Nazar Abbas alias Muhammad Akram etc. C. P. S. L. A. No. 272 of 1978 and Syed Akhlaque Hussain v. Habib Ismail Bajwa 1974 S C M R 504 quoted.

Syed Munir Hussain, Advocate Supreme Court instructed. by S. Wajid Hussain, Advocate‑on‑Record (absent) for Appellants.

M. Bilal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on Record for Respondents.

Ghulam Dastgir for Respondent No. 7.

Respondent No. 12 : Ex parse.

Date of hearing : 16th December, 1985.

Abdul Majid, a tenant and Ghulam Rasul hi surety for the payment of arrears of rent, were granted leave to appeal.4 to examine the question of law whether the arrears of rent could be calculated and recovered by the Rent Controller as directed by the High Court and was it not necessary that it should be recovered by a separate civil suit.

Abdul Majid, the appellant happened to be a tenant of the 'respondents of a commercial property comprising two shops and a house over an area measuring 4 Marlas and 211 sq. ft. situate in Col Bazar Bazazan, Lyallpur (Faisalabad) at a monthly rent of Rs. 80. This was the position in 1960. By a registered deed, dated 24‑1‑1961 a new lease was‑ executed between them where under the appellant No. 1 was to demolish the old building and construct a new one consisting of 14 to 16 shops at a cost of Rs. 22,000 and to start paying rent to the respondent at the rate of Rs. 666.50 from the date of completion of those 14 to 16 shops. He was also permitted to sublet any of the shops so constructed provided the sub‑tenant executed the lease deed in favour of the landlords. The tenancy agreement was to last for five years after the shops were construc ted. Thereafter, the tenant was to vacate the premises without any compensation for having constructed 'it. He was free to lease out those shops at the rent that he pleased except for the stipulation that the sub‑lease would be executed in favour. of the landlords. In 1965 the landlords moved an application under section 13 of the Rent Restriction. Ordinance (hereinafter referred to as the Ordinance) claiming that the completion of the fourteen shops had taken place in May, 1961 and that the appellant No. 1 had not paid any rent. The rent was claimed from aim for the period January 1961 to May 1961 at the previous rate of Rs. 80 per month and from June 1961 to January, 1965 at rate of R.s.666.50 per month. It was also contended that he had sublet the premises by making major unauthorised alterations in it to Habib Bank without getting the lease‑deed executed in his name.

This application for ejectment filed by the landlords was contested and the following two issues were framed by the Rent Controller‑

"(1) Whether the relationship of landlord and tenant exists between the petitioners and the respondent No. 1 according to the lease‑deed executed by the petitioners and respondent No. 1 on 24‑1‑1961 O. P. P.

(2) If Issue No. 1 is not proved whether the 'relationship of landlord and tenant between the petitioners and respondent No. 1 which existed before the execution of the lease‑deed subsists. O. P. P."

After recording evidence and fully discussing it, the trial Court held that the relationship of the landlord and tenant existed, that there was the failure to pay the rent, that the property had been altered and unauthorisedly sublet. On these grounds the appellant No. 1 was held liable to ejectment and an order of his ejectment was passed.

An appeal was filed before the Additional District Judge which too was dismissed and the findings of the Controller were maintained.

A second, appeal was then filed by the appellant No. 1. At the time of its admission the prayer made by the appellant for a status quo order came up for consideration after notice to the landlords and the following order was passed on 28‑5‑1969‑--

After hearing the learned counsel for the respondents Nos. 1 to 12, 1 think the interest of justice will be served if the status quo order issued by this Court on the lath of December 1968, is allowed to accordingly. I order accordingly. The appellant should however furnish security to the satisfaction of the learned Rent Controller that in case of the dismissal of this appeal, he shall vacate the premises in dispute. A security should also be taken that in the similar event the appellant shall pay the arrears of rent, if any found to be due, to the respondents in accordance with law."

The second appeal was finally dismissed with costs on 6‑12‑1972 and an observation was made with regard to the interim order passed and its implemention in the following words‑

"An order of status quo was passed in this appeal on 13th December. 1908 by this Court subject to notice to the respondents. The owner respondents opposed this order and on 2oth May, 1969 the following order was passed :‑

After hearing the learned counsel .for the respondents Nos. 1 to 12, I think the interest of justice will be served if the statuts quo order issued by this Court on the 13th of December, 1968, is allowed to continue. I order accordingly. The appellant should, however, furnish security to the satisfaction of the learned Rent Controller that in case of the dismissal of this Appeal, he shall vacate the premises in dispute. A security should also be taken that in the similar event the appellant shall pay the arrears of rent, if any found to be due, to the respondents in accordance with law.

I am told that in compliance with this the appellant has submitted security for a sum of Rs. 75,000. The amount due as arrears of rent will, the, before, be worked out by the Rent Controller and will be recovered from the surety in terms of the security deed and paid to the owner‑respondents."

A petition for leave to appeal (C. P. S. L. A No. 243 of 1973) was filed to this Court in which an interim order with regard to the possession of the appellant was passed but he was required to furnish security in the sum of rupees seventy five thousand for the performance of the decree which he did. Ultimately leave to appeal was refused on 4‑6‑1976.

In this background of litigation, the Rent Controller adjudged on 16‑1‑1976 a sum of Rs. 94,051 due as arrears of rent from the appellant and directed its recovery from him and the surety. An appeal was filed. The District Judge remanded it for re‑calculation on 4‑10‑1976. The Rent Controller again held both the appellant No. I the tenant and the surety liable on 5‑12‑1977 and adjudged the liability at Rs. 1,50,000. On appeal once again the Additional District Judge remanded the proceedings maintaining the finding that the appellant and the surety were liable but the remand was for re‑calculating the rate of rent and the period for which it was due. Against this a second appeal was filed in the High Court which was dismissed in limine. The High Court took the view as reproduced hereunder :‑-------

"It is clear from the facts given above that his Lordship of the Supreme Court had maintained the order of this Court directing the recovery from the sureties in terms of the security deed on the arrears of rent due against appellant No. 1. In these circumstances the objection of learned counsel that this was not within the jurisdic tion of the Rent Controller or the executing Court to recover this amount is not correct. Section 17 of the West Pakistan Urban Rent Restriction Ordinance makes every order passed in appeal under section 15 executable by a civil Court as if it were a decree of :his Court. It is beyond any shadow of doubt that an order of furnishing of security whether by the High Court in an appeal grader section 15 or by the Supreme Court in a Constitutional appeal, is an order passed under that section and is consequently executable against the tenant as well as the surity under section 17 of the Act. Section 15(5) of the Ordinance specifically authorises the appellate Court to direct that instead of the rent being deposited or being paid in cash, security of its satisfaction of the amount of the rent shall be furnished by the tenant. Though a proviso, it is an independent provision since the first part of this subsection to which it is added as a proviso only provides that no order passed by the Controller, the appellate authority or the High Court under the provisions of the Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under the Ordinance. The above proviso is not, therefore, subordinate to what is stated in the first portion of this subsection nor on any principle of interpretation can it be entirely subordinate to the first proviso which states that no stay order shall be made in respect of the payment of deposit of rent determined by the Controller. There may be cases where an order of the Rent Controller for deposit of rent is, before the appellate authority or High Court. In such cases the appellate Court may pass an order under the second proviso. But there may be cases where the appellate Court itself finds a case made out for passing an order of payment or deposit of rent. In that case also, the High Court may pass an order of furnishing of security under the second proviso. Section 15(5) will apply to both types of cases. I, therefore, agree with the learned Additional District Judge that the order of the High Court was covered by section 15(5) of the Ordinance."

The learned counsel for the appellant contended that the provision with regard to appeals, as it then existed arid was contained in section 15 of the Ordinance, particularly explanation added to section 15(4), made order XLI, rule 5, C. P. C. applicable to the proceedings and the appellate Court could certainly ask for security for the performance of the order or decree of the Court against whose order the appeal was preferred. According to him powers conferred by Order XLI, rule 5, C. .P. C. left no scope for determining the mesne profits or arrears of rent and for making provision for its recovery. In so far as the order of the High Court asking for security for arrears of rent is concerned it went beyond scope of powers of the appellate Court and could not be sustained and implemented at the conclusion of the proceedings. The appellant could justifiably object to the jurisdictional aspect of that order and succeed.

Another argument of the learned counsel for the appellant is that in view of the specific provision existing in the form of second proviso to section 15(2) of the Ordinance with regard to the powers of the appellate Court with respect to the furnishing of security for the rent any other principle became inapplicable. The second proviso could be invoked only when the Rent Controller had passed an order for depositing the rent in cash. The appellate Court could, if such an order had been passed by the Rent Controller, direct that instead of rent being deposited or paid in cash security to its satisfaction for the amount of the rent shall be furnished by the tenant. The appellate Court could not in the absence of an order of the Rent Controller .directing deposit of rent in cash pass even an order with regard to the furnishing of security for the rent due.

Finally, it was contended that the orders executable were those specified under section 17 of the Ordinance and it was specified therein that orders made under section 10 or section 13 and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. As the order of the High Court did not fall within the purview of section 15 of the Ordinance it was not executable under section 17 of the Ordinance.

There is a principle of finality attaching to every proceedings: The order of which a grievance is now made by the appellant was the subject matter of an appeal filed in this Court (C. P. S. L. A. No. 243 of 1973). Leave to appeal was refused to the appellant. The order which now the appellant is impugning attained finality as between the parties to the litigation. The appellant could not in the second round agitate against that order irrespective of the fact whether he had earlier agitated against it or not. In either case that order became final qua him and be could not challenge it afresh.

As regards the powers of the appellate Court not only in the Civil Petition for Leave to Appeal filed by the appellant but in other cases coming up to this Court the view has been taken that the appellate authority, including the High Court in second appeal, has a power to pass for the first time an order under section 13(6) of the Ordinance for the deposit of rent or for furnishing security for the same. The order of this Court in Mah Gul and another v. Nazar Abbas alias Muhammad Akram etc. (C. P. S. L. A. No. 272 of 1978) in similar circumstances is am instance.

The appeal provision relied upon by the learned counsel for the appellant (explanation to section 15(4) ) sustains such a view. The explanation provided as follows:‑

"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 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI 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 reference to Part VI is actually a reference to Part VII of the C. P. C. Part VII contains section 107, subsection (2) whereof provides that‑,

"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."

This, necessarily makes powers of the appellate Court co‑extensive with that of the Rent Controller and as a Rent Controller can pass an orders under section 13(6) so could the High Court while seized of the second D appeal. Additionally, it could ask for security instead of getting the rent deposited in cash as provided in second proviso to section 15(2) of the Ordinance. It is the duty of the Rent Controller as held by this Court in Syed Akhlaque Hussain v. Habib Ismail Bajwa (1974 SCMR 504), to work out finally the rent due and to pass appropriate orders in respect thereof. Reading the provisions of section 13(6) of the Ordinance with section 15 and section 17 thereof it fol4ows that the proceedings undertaken for determining the rent due against the appellant is within the provisions of the law made in this respect. None of the grounds taken up by the learned counsel for the appellant is tenable and the appeal is dismissed with costs.

M. B. A. Appeal dismissed.

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