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Civil Revision No. 209 of 1959 decided on 25th May, 1960.

S. 42 proviso‑Not applicable where further relief could 8e granted by another Court only, or where such relief is not open at time declaratory decree is passed‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959).

The plaintiff filed a suit for a mere declaration that they were the owners of the house described in the plaint and that the defendant was their tenant. Relying on the proviso to section 42 of the Specific Relief Act, 1877 the defendant contended that the suit as framed was not maintainable, it was urged that by virtue of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 the Rent Controller was the only authority competent' to order the eviction of a tenant and as the Rent Controller is not bound by the finding of a Civil Court, the declaration prayed for could not be granted because such a dec laration, even if it were granted, would be infructuous.

Held, that although the proviso to section 42 of the Specific Relief Act, 1877, enacts that if a plaintiff does not seek a further relief than mere declaration of title which is open to him, the relief for declaration is not to be granted, yet the proviso cannot and does not mean that even if a further relief can be granted by another Court only, or the further relief is not open at the time when the decree is passed, the suit for a mere declara tion is to be dismissed on the ground that further relief had not been asked for. There is nothing in the West Pakistan Urban Rent Restriction Ordinance, 1959, which either expressly or by necessary implication excludes the jurisdiction of the Civil Court to adjudicate on the question whether the relation ship of landlord or tenant exists between the parties, and it could not, therefore, be said that the suit as framed by the plaintiff in the case could not be entertained when the Rent Controller had given no finding on the question of whether the relationship of landlord and tenant existed between the plaintiff and the defendant. In a subsequent application filed under the West Pakistan Urban Rent Restriction Ordinance, 1959 if the Rent Controller be inclined to accept the finding of a Civil Court as to the existence or otherwise of the ,said relationship, he is not precluded from doing so. It cannot, therefore, be said that a declaratory decree granted by a Civil Court would be ineffective or infructuous. If, before the decision of the suit, the Rent Controller himself were to give a finding on the question at issue, the position would of course be different, but there is no obligation on the Civil Court to anticipate such a difficulty.

Mst. Raji v. Mst. Zainab P L D 1958 Lab. 203 ; Abdus Sattar v. Hamida Bibi P L D 1950 Lah. 370 and Noor Jehan Begum v. Eugene Tiscenko A I R 1942 Cal. 325 distinguished.

Mian Bakhsh v. Ilam Din P L D 1950 Lah. 414 ref.

S. 9‑Provision of Statute ousting jurisdiction of Civil Courts‑Must be strictly construed.

A provision of law which seeks to take away the juris diction of Civil Courts must be construed strictly, and the ousting of jurisdiction of the Civil Courts is not to be inferred until and unless the words used in the statute make it clear that the intention was to take the jurisdiction away.

Mian Bakhsh v. Ilam Din P L D 1950 Lah. 414 ref.

A. A. K. Lodhi and Faiz Muhammad Bhatti for Petitioner

Qazi Muhammad Yusaf for Respondents.

Dates of hearing : 24th and 25th May, 1960.

The facts leading up to this revision petition are that Haji Muhammad Latif and others filed a suit against Mian Abdul Latif for a declaration that they are the owners of the house described in paragraph 14 of the plaint and that the defendant is their tenant. The defendant, relying on the proviso to section 42 of the Specific Relief Act, contended that the suit is not maintainable, in its present form, and also challenged the valuation for, the purposes of Court‑fee and jurisdiction.

2. The following preliminary issues were framed :‑---

(1) Whether the suit as at present framed is not maintain able (O. D).

(2) Whether the value of the suit for the purposes of Court‑fee and jurisdiction is correct (O. P).

On issue No. 1 the reply of the plaintiff‑respondent to the objection of the defendant is that by virtue of the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) the only authority competent to order the eviction of the defendant from the premises in dispute is the Rent Controller, and that consequently the only relief that can be granted by a Civil Court is the declaration for which hd' prayed. This argument was accepted by the learned Civil Judge, who decided the issue in favour of the plaintiff‑respon dents.

3. Issue No. 2 was decided against the plaintiffs, who were allowed to amend their plaint accordingly on payment of Rs. 10 as costs.

4. Against the above order of the learned Civil Judge, which is dated the 25th of July 1959, the defendant has come up to this Court in revision.

5. The clause of section 115 of the Civil Procedure Code claimed by the petitioner to be applicable to the case is clause (a), his contention being that in granting a declaration in the circumstances of the present case the learned Civil Judge, acted without jurisdiction. More specifically, he argues that as the grant of a declaration is a discretionary relief, and the Rent Controller is not bound by the finding of a Civil Court, a declaration should not have been granted. In support of this con tention reliance is placed on Mst. Raji v. Mst. Zainab (P L D 1958 Lah. 203), in which it vas held that where a declaration, even if granted, will be entirely infructuous, the discretion should not be exercised in favour of the plaintiffs. The same case later came up on appeal before the Supreme Court of Pakistan and the learned Judges held that on the facts the jurisdiction of the Civil Court is barred.

6. The facts of the present case are entirely different from those of the case referred to above. In the latter the Rehabilita tion Authorities had the power to ignore the decree of a Civil Court and any order passed by such authorities contrary to a declaratory decree of the kind under consideration would be im mune from attack in a judicial proceeding. It was held that if such questions were allowed to be agitated in the Civil Courts it would amount to an encroachment on the special and exclusive jurisdiction vested in the Rehabilitation Authorities. The present case stands on an entirely different footing. An exami nation of the Provisions of the West Pakistan Urban Rent Rest riction Ordinance, 1959, shows that it is assumed throughout that the relationship of landlord and tenant exists between the parties concerned. It is nowhere laid down which authority is to decide the question of whether the relationship of landlord and tenant does in fact subsist.

7. Reliance is placed by the petitioner on Abdus Sattar v. Hamida Bibi (P L D 1950 Lah, 370), in which a Full Bench held‑--

"Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such tribunal is dependent upon the existence of certain facts or circumstances, ‑it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seizen of that matter have in fact arisen."

With the greatest respect, I entirely agree with this principle, but the question for decision is what application it has to the facts of the present case. In this connection it is to be borne in mind that upto the time of the filing of the present suit, the Rent Controller had given no finding on the question of whether the relationship of landlord and tenant existed between the plaintiffs and the defendant. It appears clear that if the Rent Collector is inclined to accept the finding of a Civil Court as to the existence or otherwise of the said relationship, he is not precluded from doing so. It cannot there fore, be said that a declaratory decree granted by the Civil Court would be ineffective or infructuous. If, before the decision of the suit, the Rent Controller himself were to give a finding on the question at issue, the position would of course be different, but there is no obligation on the Civil Court to anticipate such a difficulty.

8. Reference may also be made to Mian Bakhsh v. Ilam Din (P L D 1950 Lah. 414). in which it was held to be well settled that a provision of law which seeks to take away the jurisdiction of civil Courts must be construed strictly, and that the ousting of jurisdiction of the Civil Courts is not to be inferred until and unless the words used in the statute make it clear that the intention was to take the juris diction away.

9. To sum up on this point, I am of the opinion that there is nothing in the West Pakistan Urban Rent Restriction Ordinance, 1959, which, either expressly or by necessary impli cation, excludes the jurisdiction of the Civil Courts to adjudicate on the question of whether the relationship of landlord and tenant exists between the parties, and it cannot, therefore, be said that in entertaining the preset suit, the learned Civil Judge exercised a jurisdiction not vested in him by law.

10. Coming next to the argument that a suit for mere decla ration does not lie, the plaintiffs being out, of possession of the property in dispute, the essential fact is that in view of the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, it is not open to a Civil Court to grant the consequential relief of possession. The question whether, in such circumstances, a declaratory decree can be granted has been discussed by Shabir Ahmad J. in Mian Bakhsh's care above referred to, and he held‑

"No doubt the proviso to section 42 of the Specific Relic" Act, 1877, enacts that if a plaintiff does not seek a further relief than a mere declaration of title which is open to him the relief for declaration is not to be granted, but the proviso D cannot and does not mean that even if a further relief can be granted by another Court only, or the further relief is not open at the time when the decree is passed, the suit for a mere declaration is to be dismissed on the ground that further relief had not been asked for."

With the greatest respect, I agree with the above principle and hold that in the circumstances of this case the plaintiffs were not precluded from suing for a mere declaration.

11. The petitioner places reliance on Noor Jehan Begum v. Eugene Tiscenko (A I R 1942 Cal. 325) in which it is laid down that the power of a Court to grant a declaration is discretionary and will be used with caution, and that where the declaration, even if given, would not end the dispute between the parties, it should not be granted. Again, with great respect, I fully agree, but I am unable to hold that‑in allowing the present suit to proceed the learned Civil Judge has wrongly exercised his discretion. It is true that the declaration sought by the plaintiffs, even if granted, would not put an end to the dispute between the parties in the sense that the plaintiffs would still have to approach the Rent Controller for the eviction of the defendant, but the declaration if granted, would, subject to its adoption by the Rent Controller, settle the preliminary question of whether the relationship of landlord and tenant exists between the parties. It would, therefore, not be by any means ineffective.

12. For the above reasons I hold that the petition is without force. It is accordingly dismissed, but as the question involved is not free from difficulty I leave the parties to bear their own costs of the petition.

K. B. A Petition dismissed.

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