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Civil Transfer Application No. 8 of 1986, decided on 6th December, 1986.

‑‑‑Ss. 2(b) & 4‑‑Rent Controller‑‑‑ Status and powers of‑‑Civil Judges empowered under law to function as Rent Controllers being only 'persona designata', could not be equated to exercise powers of civil Court and Code of Civil Procedure 1908 could not be invoked in toto in respect of proceedings before Rent Controller‑‑‑ Mere recording of evidence by Rent Controller or adopting procedure more or less like civil Court would not warrant conclusion that all necessary trappings of civil Court were involved in such proceedings.

P L D 1985 SC 459ref.

‑‑‑S. 24‑‑Sind Rented Premises Ordinance (XVII of 1979), S.4(3)‑ Transfer of rent cases‑‑Proper forum for‑‑Where specific provision was provided under self‑contained enactment for relief of transfer of cases, aggrieved party, held, would have to resort only to such remedy‑ Specific provision made under S.4(3) of Ordinance XVII of 1979 for transfer of rent case from one Rent Controller to another which authorised District Judge or Deputy Commissioner to transfer such case‑‑Remedies should be worked out as provided in S.4(3) of the Ordinance and S.24, C.P.C. could not be invoked in matter of transfer of rent cases.

‑‑‑S. 4(3)‑‑Transfer of rent case‑‑Ground for‑‑Mere fact that Rent Controller was friend of landlord, held, could not constitute valid ground for transfer of case.

P. M. Amer for Applicant.

Ismail Hameerani for Respondent.

This is a petition under section 24(1) of the Code of Civil Procedure.

The point involved herein is whether by invoking section 24(1) of the Code of Civil Procedure, a proceeding pending before the Rent Controller constituted under the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) can be transferred to another Controller. The opposition to this petition is denied on the claim that the Rent Controller constituted under Ordinance XVII of 1979 is 'persona designata' and that the Controller will not come within the expression 'other proceedings' as contemplated under section 24,(1), C.P.C. It is claimed that the Controller has close family relations with the family of Kazi Abdul Aziz as well as Kazi Muhammad Bachal, the landlord. It is further claimed that the order of the District Judge is quite illegal and unjust.

On the first point as to whether the Rent Controller is a Court or persona designata, Mr. Ismail Hameerani the learned counsel for the respondent relies upon the decision of the Hon'ble Supreme Court in the case of Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra and another P L D 1965 SC 459 wherein it was held that the Rent Controller acts in quasi judicial capacity and not as a Court.

The word 'Controller' is defined under section 2(b) of the Ordinance. 'Controller' means a Controller appointed under section 4 and includes a person working as Controller immediately before coming into force of the Ordinance. Subsection (1) of section 4 empowers the Government to appoint one or more Controllers in any district and if more than one Controller is appointed in the same district, Government shall define the local limits within which each of such Controller shall exercise jurisdiction. Subsection (3) of section 4 authorises the District Judge or Deputy Commissioner to transfer cases from one Controller to another within the district. By notification No. VIII(3)/SDJ/75, dated 13‑4‑1980 published in the Sind Government Gazette, Part 1, May 29, 1980 the District Judges in the province are authorised to transfer cases from one Controller to another Controller within their respective districts.

By notification No. VIII(3)/SDJ/75, dated 14‑10‑1980 all Senior Civil Judges in the province and Civil Judge, Badin and Joint Civil Judge, Shikarpur with not less than three years service as Civil Judge are to function or act as Controllers within their jurisdiction. The Ordinance itself has made self‑contained Act for transfer of proceedings by constituted authorities.

Therefore, to conclude on this point, when the Rent Controller is constituted by a notification and who incidentally happens to be Senior Civil Judge cannot be equated to exercise the powers of a civil Court. The Controllers do not function like a civil Court. The Code of Civil Procedure is not invoked in toto in respect of the proceedings conducted under the Ordinance. Merely because such Controllers record evidence or adopt a procedure more or less like a civil Court it cannot be held that all the necessary trappings of a civil Court are involved in such proceedings. This is relevant factor to ascertain the nature of powers exercised and necessarily lead to the conclusion that they are not Courts. In the light of what has been held in P L D 1985 SC 459,1 the Rent Controller under the Ordinance is only persona designata.

Under section 24(1), C.P. C. only in respect of matters which are pending in any Court subordinate to the High Court or District Court, the powers of withdrawal can be exercised. As held above they are not Courts, and as to what relief would be available for aggrieved parties for having the matters transferred. Ordinance XVII of 1979 itself had provided a specific remedy. Sub‑section (3) of section 4 of the Ordinance, empowers the District Judge or Deputy Commissioner to transfer proceedings. In pursuance of powers conferred by the provisions of subsection (3) of section 4 of the Ordinance, the Government by a notification, dated 13‑4‑1980 authorised the District Judges to transfer cases from one to another within the same jurisdiction. When a specific provision is provided under a self‑contained enactment enabling relief of transfer, the aggrieved party has to necessarily resort only to such a remedy and section 24, C.P.C. can have no application. Hence, in this case, when the petitioner herein has already moved for relief under section 4(3), he cannot file this petition under section 24, C.P.C.

Mr. Amer has submitted that there can be no inhibition in invoking the powers under section 24, C.P.C. because the Rent Controllers are only subordinate to the High Court and the powers can be concurrently exercised. I am of the view that such a concurrent exercise of powers exists but it deals with cases which would come within the scope of section 24, C . P. C . and not a case wherein the subordinate authorities are persona designata and in spite of orders passed under self‑contained enactment refusing transfer, the concurrent powers of the High Court are invoked. As provided earlier, when the power of transfer is provided only to a limited extent under a self‑contained enactment with limited remedies contemplated for aggrieved parties, they have to work out their rights only within the ambit of the enactment and be satisfied with whatever is contemplated .for them in such situations by the Legislature.

Since the petition itself is not maintainable, there is no need to go into the allegations made in the petition. Mr. Amer would not content without mentioning that in this case the transfer was asked for because the Rent Controller has close family relations with family of Kazi Abdul Aziz as well as the respondent. I do not think that the mere fact that the Judge or Controller is a friend would by itself warrant transfer of a case and this aspect was considered in the case of Mirza Akbar Ali C v. Mirza Iftikhar Ali and others P L D 1965 S C 50 wherein it was held that while invoking section 24, C.P. C. this aspect cannot constitute a valid ground for transfer of the case.

In the light of what has been considered above, when specific provision is made under section 4(3) of the Ordinance which itself contained enactment, remedies will have to be worked out as provided therein and when the notified authorities are only persona designata and not Courts, section 24, C.P. C. cannot be' invoked. Hence, this petition is dismissed.

The above are the reasons for a short order, dated 11‑11‑1986 passed by me after conclusion of the arguments.

H . B. T. /B‑2/ K Transfer application dismissed.

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