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Letters Patent Appeal No. 1 of 1959, decided on 4th March 1959.

[Muzaffar Din v. Allah Jowai P L D 1953 Lah. 284 ; Hanuman Chamber of Commerce v. Jassa Ram A I R 1948 Lah. 64 ref ; Radhakrishnamurthy v. Ethirajulu Chetty & Co. A I R 1945 Mad. 184 considered.]

‑Ordinance, permanent statute‑S. 13 (I) takes away, jurisdiction of Civil Courts to pass decree for ejectment of tenant after date of enforcement of Ordinance, i.e., 15th of January, 1958 [the date when West Pakistan Urban Rent Restriction Act (IX of 1957) ceased to operate]‑Decree so passed, a nullity‑Interpretation of statutes-- Change in law pending appeal‑New law may be applied in deciding appeal.

The Rent Restriction Ordinance; 1959 is a permanent statute and the question of its expiry does not arise at all. In view of the permanent character of the Rent Restriction Ordinance, the jurisdiction of the Civil Court to try a suit for the ejectment of a tenant has been ousted and no Civil Court is entitled to pass a decree for the ejectment of a tenant after enforcement of the Ordinance.

The West Pakistan Urban Rent Restriction Act, 1957, ceased to operate on the 15th of January 1958. By virtue of sub. section (4) of section 1 of the Rent Restriction Ordinance, 1959 the provisions of the Ordinance shall be deemed to have taken effect on and from the 15th of January 1958.

Subsection (1) of section 13 and subsection (5) of section 15 of the Ordinance of 1959 indicate that the scheme of the Ordinance envisages complete ouster of the jurisdiction of the Civil Court in matters relating to ejectment of tenants. The only course left open to the landlord for the ejectment of his tenant is to apply to the Controller under the provisions of the Orainance. In view of the mandatory provisions of the Ordinance, the Civil Courts have no jurisdiction to try any suit for ejectment of a tenant.

The Rent Restriction Ordinance of 1959, although described as an Ordinance, cannot be said to be a temporary statute. It has been promulgated in pursuance of the Presidential Proclama tion of the 7th day of October, 1958. There is no indication in it that it is to continue only for a limited period. While dealing with this Ordinance the Articles of the late Constitution according to which Ordinances made under the provisions of that Constitution used to lapse after the expiry of the prescribed period should be disregarded.

Therefore a decree for ejectment passed by a Civil Court on 8‑5‑1958 could not have been so passed in view of the provisions of section 1 (4) of the Ordinance of 1959. The decree is a nullity in law.

Firm Kirpa Ram‑Dhani Ram v. Chint Ram A I R 1947 Lah.301 ref.

Chint Ram v. Firm Kirpa Ram A I R 1946 Lah. 20 and Mst. Nawab Bibi v. Miss Watson P L D 1957 Lah. 37 distinguished.

As the appeal from the decree was pending, the decree was not final. An appeal is by way of re‑hearing the original proceedings and the Appellate Court can make such order as the trial Judge could have made if the case had been heard by him at the date of the hearing of the appeal. The High Court was, therefore, entitled to apply the provision of the Rent Restriction Ordinance of 1959 to the facts of the case. Applying the new law of 1959 the decree for ejectment could not be allowed to stand, and was consequently set aside.

Mukerjee v. Mst. Ramratan A I R 1936 P C 49 ; Lachmeshwar v. Keshwar I:al A I R 1941 F C 5 and State v. Dosso P L D 1958 S C (Pak.) 533 ref.

M. Anwar for Appellant.

Saeed Akhtar for Respondent.

Dates of hearing : 3rd and 4th March 1959.

‑This is a Letters Patent Appeal against the decision of a learned Single Judge of this Court, dated the 26th November 1958, whereby the decree passed by the Senior Civil Judge, Rawalpindi, was affirmed. The material facts of the case giving rise to this appeal are as follows : The premises known as Lockwood Hotel situated at Murree were owned by Messrs Kirpa Ram & Sons. The appellant was a tenant under them. This property was taken in exchange by Obaid Ullah Khan respondent. In March 1956, the Deputy Rehabilitation Commissioner, Rawalpindi, informed the appellant that‑ the property had been declared non‑evacuee in favour of the res pondent and that she should pay the rent to him. Consequently, on the 11th of April 1956, the appellant executed a rent‑deed in favour of the respondent and agreed to pay Rs. 10,000 as rent for the reason, and promised to vacate the premises by the 30th of November 1956. On the 17th November 1956, the respondent wrote a letter to the appellant to give possession of the premises, but on the 17th of December 1956, the appellant's counsel, Mr. Mahmud Ahmad Minto, informed the respondent that the" appellant was not prepared to vacate the premises. The respondent then made an application under section 13 of the Punjab Ordinance No. XIX of 1956 for ejectment of the appellant. This application was dismissed on the 20th of April 1957. A few days later, the parties referred their dispute to the arbitration of Ch. Feroze‑ud‑Din Advocate, for the respondent, and Mr. Mahmud Ahmad Minto, Advocate for the appellant. They executed an agreement for the purpose on the 22nd of April 1957. The two arbitrators gave their award by which the appellant was directed to vacate the hotel on or before the 30th November 1957, and to pay the sum of Rs. 10,000 for the season of 1957 and another sum of Rs. 6,000 as arrears of rent for the year 1955. Both the parties accepted the award and in token thereof put their signatures on it.

2. On the 27th of April 1957, the respondent made an application under section 14 of the Arbitration Act, in the Court of the Senior Civil Judge, Rawalpindi, praying that the arbitration may be directed to hand over the award to him and that the award may be made the rule of the Court. Several objections were raised by the appellant against the legality of the agreement of reference to the arbitration and against the award. The learned Senior Civil Judge rejected all the objections and made the award a rule of the Court and passed a decree for the eject ment of the appellant from Lockwood Hotel Murree and for the recovery of Rs. 6,000 against her. It appears that the respondent had admitted the receipt of Rs. 10,000 as rent pertaining to the year 1957. Against the decision of the Senior Civil Judge, the appellant came up in appeal before this Court. The appeal was heard by Wabeed‑ud‑Din Ahmed, J. sitting in Single Bench. The learned Judge dismissed the appeal with costs. From this decision the present appeal has been preferred under Clause 10 of the Letters Patent.

3. A preliminary objection has been raised by the learned counsel for the respondent that in view of the provisions of subsection (2) of 'section 39 of the Arbitration Act, the Letters Patent Appeal, which is in the nature of second appeal, is not competent. Subsection (2) of section 39 reads as follows :‑

"No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to his Majesty in Council."

In support of his contention, the learned counsel has placed reliance on Radhakrishnamurthy v. Ethirajulu Chetty & Co. (A I R 1945 Mad. 184), where the learned Judges of the Madras High Court held that the Letters Patent Appeal did not lie from an order passed in an appeal under section 39 of the Arbitration Act. This ruling was, however, dissented from by a Division Bench of the Lahore High Court, consisting of Abdul Rashid, C. J. and Mahajan, J. in Hanuman Chamber of Commerce v. Jassa Ram (A I R 1948 Lah.64). In that case, a similar objection was raised and it was held that subsection (2) of section 39 of the Arbitration Act referred to appeals, a right to which was conferred by sections 100, 109 and 110, Civil Procedure Code, and did not take away the right of appeal conferred by Clause 10 of the Letters Patent of the Lahore High Court either expressly or by necessary implication. An authori tative exposition of the law on the subject is to be found in another Division Bench judgment of the Lahore High Court in the case of Muzaffar Din v. Allah Jowai (P L D 1953 Lah.284). In this case, the learned Judges reviewed the entire case‑law on the subject and also referred to the Madras ruling. They held subsection (2) of section 39 of the Arbitration Act did not destroy the right of a litigant to appeal under the Letters Patent and observed as follows:‑

"There are no express words to that effect in the subsection and we would be reluctant to hold that the existing right had been taken away, unless there was no escape from that con clusion, on the basis of the language employed by the Legislature. A Letters Patent Appeal is not really an appeal in the strict sense. It may be more aptly described as an internal arrangement of the Court for reviewing its own decision given in the first instance by one member of the Court. The firs as well as the second decision remains a decision of the Court. If the a expression second appeal' in subsection (2) of section 39 A is interpreted as meaning an appeal from an inferior Court to a superior Court, the whole difficulty would vanish. There seems to be no pressing consideration militating against such an interpretation."

We have carefully considered this aspect of the case and we find ourselves in complete accord with the views expressed in the decisions of the Lahore High Court. We accordingly over rule the preliminary objection.

4. At the very outset, the learned counsel for the appellant has submitted that he does not wish to press any of the points raised in the grounds of appeal. He has, however, contended that the West Pakistan Urban Rent Restriction Ordinance No. VI of 1959 has come into force during the pendency of this appeal and consequently the decree for the ejectment of the appellant has become infructuous and inoperative. He has accordingly prayed that the decree in so far as it relates to the ejectment of the appellant may be set aside.

5. In order to appreciate the point involved it is desirable to set forth the relevant provisions of the new Ordinance. The West Pakistan Urban Rent Restriction Ordinance, Ordinance No. VI of 1959, (hereinafter referred to as Rent Restriction Ordinance) was published in the Gazette of West Pakistan on the 23rd of February 1959. Subsection (4) of section 1 of the Ordinance provides as follows

"Subsection (5) of section 13 and section 19 shall come into force at once and the remaining provisions of this Ordinance shall be deemed to have taken effect on and from the date of expiry of the West Pakistan Urban Rent Restriction Act, 1957."

The West Pakistan Urban Rent Restriction Act IX of 1957 referred to in this subsection was made by the President on the 6th of July 1957. The President, by a Proclamation ‑ dated the 21st of March, 1957, issued under Article 193 of the late Constitution, as modified by the subsequent Proclamation dated the 29th of March 1957, had assumed to himself as President of Pakistan, all functions of the Government of the Province of West Pakistan and all powers vested in or exercisable by the Governor of that Province and had declared that the 'powers of the Legislature of the said Province should be exercisable by or under the authority of Parliament. And the Parliament, m pursuance of the aforesaid authority, had enacted the Vest Pakistan Provincial Legislature (Delegation of Powers) Act, 1957. It was by virtue of this Act that the President had made the West Pakistan Urban Rent Restriction Act, 1957. The aforesaid Proclamations, however, were revoked by the President on the 15th of July 1957. Under 'clause (4) of Article 193 of the late Constitution, the Act made by the President ceased to have effect on the expiration to six. months after the Proclamation ceased to operate. Consequently, the West Pakistan Urban Rent Restriction Act, 1957, ceased to operate on the 15th of January 1958. By virtue of subsection (4) of section 1 of the Rent Restriction Ordinance, the provisions of the Ordinance, therefore. shall be deemed to have taken effect on and from the 15th of January 1958. Subsection (1) of section 13 of the Ordinance reads as follows :‑

"A tenant in possession of a building or, rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after termination of the tenancy, except in accordance with the provisions of this section."

Subsections (2) and (3) of section 13, enumerate the grounds on the basis of which a landlord may seek to evict his tenant by applying to the Controller or may apply to the Controller for an order directing the tenant to put the landlord in possession. Section 15 provides for preferring an appeal against the order of the Controller or of the Appellate authority. Subsection (5) of section 15 lays down that "no order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance."

6. It will thus be seen that the scheme of the Ordinance envisages complete ouster of the jurisdiction of the Civil Court in matters relating to ejectment of tenants.. Subsection (2) of section 13 clearly lays down that a tenant in possession of a building or rented land shall not be evicted except in accordance with the provisions of this section. It is, therefore, clear that the D only course left open to the landlord for the ejectment of his tenant is to apply to the Controller under the provisions of the Ordinance. In view of the mandatory provisions of the Ordinance; we are of the opinion that the Civil Courts have no jurisdiction to try any suit for ejectment of a tenant. Section 9 of the Code of Civil Procedure provides a key to the solution of the question whether a suit is triable by a Civil Court or not. It lays down that a Civil Court has jurisdiction to try all suits of a civil nature unless its jurisdiction is either expressly or impliedly barred. It is true that there is no express bar in the Rent Restriction Ordinance, but there can be little doubt that by implication the ouster of the jurisdiction of the Civil Court is as complete as can be imagined. A similar point arose in Chint Ram v. Firm Kirpa Ram (A I R 1946 Lah. 20). The facts of that case were that Chint Ram had filed a suit on the 24th of July 1943, for the ejectment of the defendant Firm from the shops situate in Tarn Taran market. The Punjab Urban Rent Restriction Act, 1941 was made applicable to Tarn Taran on the 19th of August 1943. The plaint was accordingly amended and the plaintiff stated that he required the shops in dispute for his own use and occupation. The trial Court dismissed the plaintiff's suit on the ground that the shops in dispute were not required by the plaintiff for his own use and occupation and that in view of the provisions of section 10 of the Punjab Urban Rent Restriction Act, 1941, the plaintiff could not be granted decree for ejectment. These findings were affirmed on appeal by the Senior Subordinate Judge. On second appeal, Abdur Rahman, J. held that section 10 of that Act provided that

no order for the recovery of the possession of any premises could lie made so long .as certain conditions were not complied with. He further held that a decree for possession was obviously different from an order for recovery of possession and that section 10 was no bar to the passing of a decree for ejectment. In the course of the judgment, the learned Judge observed as follows :‑

"I might add that even if I were of opinion that the word Border' was used by the Legislature so as to cover a decree, all‑ that the Courts could have done was not to pass a decree in favour of the plaintiff until the Act had spent itself either by the expiry of the time mentioned in section 1 of the Act or otherwise. But there was no justification for dismissing the suit. It should have been kept pending."

At another place he observed

"The contention that the Court could not pass an infructuous decree was met by the reply that the plaintiff might, even if he was not found entitled to execute it, keep the decree with him and might execute it whenever he was authorised to do so and the fact that he would be unable to execute a decree cannot be taken to mean that the Court in passing such a decree would be doing an infructuous act. There is considerable force in this reply and even if I had not agreed with the learned counsel for the appellant that section 10, Punjab Urban Rent Restriction Act, did not apply to the present case, I would have had no difficulty in allowing the appeal and passing a decree in favour of the plaintiff although he might not have been able to execute it. The plaintiff's right to have the decree could not be denied simply because the Legislature had in its wisdom ordered that certain decrees should not be executed for a certain period of time."

The learned Judge accordingly passed a decree for ejectment. Against this decision, Firm Kirp Rama‑Dhani Ram filed an appeal under the Letters Patent, which was heard by Abdul Rashid, C.J. and Mahajan, J. The learned Chief Justice with whom Mahajan, J. agreed accepted the appeal and observed

"Any order which is to be made after the coming into force of this Act must be consistent with the provisions of this Act though the right to sue had accrued before the Act came. into ‑force. I am, therefore, of the opinion that the word order' in section 10 of the Act covers both the decree for ejectment and orders made during execution proceedings removing the defendant from the premises in dispute."

This case is reported as Firm Kirpa Ram‑Dhani Ram v. Chint Ram (A I R 1947 Lah. 301). It will be seen that Abdur Rahman, J. was clearly of the opinion that if section 10 of the Act covered a decree then all that the Civil Court could have done was not to pass a decree until the Act had expired and should have kept the suit pending. Obviously, he was of . this opinion because he was dealing with a temporary piece of Legislation. We are inclined to think that if the Act had been a permanent Act, the learned Judge would have held that no decree for ejectment could be passed in favour of the plaintiffs.

This point also came up for consideration before our brother Kaikaus, J. in Mst. Nawab Bibi v. Miss Watson (P L D 1957 Lah. 37). This was a case in which the suit filed by Mst. Nawab Bibi for the ejectment of the defendant had been decreed. On appeal by the. defendant the learned Additional District Judge had framed certain issues and had remanded the case for a fresh decision. Against the order of remand, Mst. Nawab Bibi had come up in second appeal before the Lahore Higlr Court. The appeal was heard by Kaikaus, J. A preliminary objection was raised on behalf of the defendant that in view of the provisions of the Urban Rent Restriction Ordinance XIX of 1956 which had been promulgated during the pendency of the appeal in the High Court, the suit for ejectment could not be proceeded with. Section 13 (1) of that Ordinance is on all fours with section 13 of the Rent Restriction Ordinance of 1959 quoted above. The learned Judge held that the jurisdiction of the Civil Court in entertaining a suit for ejectment was not ousted. In this connection, he observed as follows :‑

"Learned counsel for the respondent says the suit is infructuous as it will not enable the plaintiff to eject the defendant. It is incorrect to say that it is infructuous. If the Ordinance lapses, the decree will be executed. Ordinance lapses even in the ordinary course (unless ratified by Legislature), but in this case even the Acts which are passed are temporary statutes which expire and after expiry are deemed never to have existed except for transactions past and closed. So a decree for ejectment once passed can always be executed the moment this legislation expires. In fact, we should say that the only effect of the Urban Rent Restriction Acts (which are temporary statutes) is to suspend the execution of the decrees, not to destroy or invalidate them. Another reason why the suit is not infructuous is that at least the question of existence of the relationship of landlord and tenant is determined. Henceforth only compliance with the conditions mentioned in section ,13 remains.

In this case also, the learned Judge was dealing with the provisions of an Ordinance which was of a temporary character.

7. The Rent Restriction Ordinance of 1959, although described as an Ordinance, cannot be said to be a temporary statute. It has been promulgated in pursuance of the Presidential Proclamation of the 7th day of October 1958. There is no indication in it that it is to continue only for a limited period.

While dealing with this Ordinance, we cannot allow ourselves to be influenced by the Articles of the late Constitution according to which Ordinance made under the provisions of that Constitution . used to lapse after the expiry of the prescribed period. We are, therefore, of the opinion that the Rent Restriction Ordinance, 1959 is a permanent statute and the question of its expiry does no arise at all. In view of the permanent character of the Rent Restriction Ordinance, we hold that the jurisdiction of the Civil Court for trying a suit for the ejectment of a tenant has been ousted and no Civil Court is entitled to pass a decree for the ejectment of a tenant after the enforcement of this Ordinance.

8. The question that .now remains to be determined is whether the decree for ejectment in the present case should be set aside in view of the change in law. This decree was passed on the 8th of May 1958. The provisions of the Rent Restriction Ordinance are to be deemed to have taken effect from the 15th of January 1958. Therefore, an the view which we have taken about the ouster of the jurisdiction of the Civil Court and as regards the passing of the decree for ejectment, the decree for ejectment of the appellant could not have been passed by the Senior Civil Judge and is, therefore, a nullity in the eye of law. We have not bee able to find any authority and none has been cited on behalf of the respondent to show that we cannot apply the provisions of the new‑ Ordinance, which has been promulgated during the pendency of this appeal, to the facts of the case in hand. There is, however, authority for the view that the provisions of the new law can be applied in such circumstances. In mukerjee v. Mst. Ramratan (AIR 1936 PC 49), their Lordships of the Privy Council applied the provisions of the new Act which had been passed pending the appeal to his Majesty in Council. Similarly, m Lachmeshwar v. Keshwar Lal (AIR 1941 FC 5), it was held that the Federal Court was entitled to take into account legislative changes since the decision under appeal was given. In the case of State v. Dosso (P L D 1958 S C (Pak.) 533), the learned Chief Justice of Pakistan, while dealing with the pending applications for writs or writs which had already been issued but which were either subjudice before the Supreme Court or required enforcement, applied clause (7) of Article 2 of the Laws Continuance in Force Order and observed as follows :‑‑

"Analysed, this provision means that, excepting the writs issued by the Supreme Court after the Proclamation and before the promulgation of the order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that any one or more of the laws mentioned in Article IV or any other right kept alive by the new Order had been contravened. And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of Article II, or any other provision of the new Order that is to say, the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the ‑ proceedings which require the enforcement of that writ. The abatement must, therefore, be held to govern all those writs which were the subject‑matter of appeal before the Supreme Court either on certificate or by special leave. No judgment order or writ of a High Court can be considered to be fin4l when either that Court has certified the case to be a fit one for appeal and proceedings for appeal have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ. I am, therefore, of the view that the writs issued by the High Court in these cases are not final writs, and that all proceedings in connection with such writs, including the original applications in the High Court, have abated."

In the light of these rulings, we have arrived at the con clusion that as the appeal is pending before us the decree passed by the Senior Civil Judge is not yet final. An appeal is by way of re‑hearing the original proceedings and the Appellate Court can make such order as the trial Judge could have made if the case had been heard by him at the date of the hearing of the appeal. We have, therefore, no hesitation in holding that we are entitled G to apply the provision of the Rent Restriction Ordinance to the facts of the present case. Applying the new law, we are of the opinion that the decree for the ejectment of the appellant cannot be allowed to stand.

9. For the reasons stated above, we accept this appeal to the extent of setting aside the decree passed by the Senior Civil Judge in respect of the ejectment of the appellant from Lockwood Hotel. The remaining part of the decree relating to the recovery of Rs. 6,000 from the appellant is, however, maintained. As the appellant has only partially succeeded, and that too because of the change in law during the pendency of this appeal, we direct that she should pay the costs of this appeal to the respondent.

A, H.

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