Find a Lawyer

Reference in Second Appeal No. 96 of 1961, answered on 21st March 1963.

Appeal lies under S. 15 both from final and inter locutory order (e.g., order by Rent Controller fixing rate of rent to be paid as arrears under S. 13 (6) of Ordinance‑[Muhammad Baqa Ullah Khan v. Mian Muhammad Rashid P L D 1961 Lah. 638 and Faqir Chand v. Mst. Bibi Zulekha P L D 1962 Pesh. 1 ref.].

"Default" of tenant in paying rent by 5th of every month pending proceedings‑"Default" defined‑Depends on circumstances of each case‑(Controller not bound to strike off tenant's defence in every case)‑[Sh. Muhammad Nawaz and others v. Muhammad Azeem and others P L D 1961 Lah. 788 ref. And Dr. Ryas Dobash v. Muhammad lqbal P L D 1960 Lah. 1112 dissented from].

Ali Raza for Appellant.

Jamaluddin Ahmad for Respondent.

Date of hearing : 4th February 1963.

Mst. Shah Jahan filed an appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the order of the learned District Judge, Hyderabad dated the 31st July 1961. The appeal came for hearing before a Single Judge of this seat, who because of the importance of the questions raised and also because of difference of opinion on those points, has referred the following questions for decision to a Division Bench.

(1) Whether the learned District Judge was competent to entertain an appeal under section 15 (b) of the West Pakistan Urban Rent Restriction Ordinance 1959, from an order which was not final ;

(2) Whether the Rent Controller was bound under section 13 (6) of the West Pakistan Rent Restriction Ordinance 1959, to order the eviction of the tenant if he committed default in payment of rent under the orders of the Rent Con troller before the 5th day of any month.

I propose to dispose of these points separately.

2. In the case of Muhammad Baqa Ullah Khan v. Mian Muhammad Rashid (P L D 1961 Lah. 638) the Appellate Authority under section 15 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959, (hereinafter called the Ordinance) came to the conclusion that no appeal lay against the order of the Rent Controller as the order appealed against did not fall within the purview of sections 4, 10, 12 and 13 of the Ordinance. On an appeal from the order of the Appellate Authority the High Court affirmed the order mostly on the ground "that the learned counsel for the appellant did not in any way challenge the correctness of this conclusion of the Appellate Authority."

3. Qadeeruddin, J., in the case of Faqir Chand v. Mst. Bibi Zulekha (P L D 1962 Pesh. 1) came to the conclusion that the words "an order" in section 15 (4) cannot be restricted to the orders passed under sections 4, 10, 12 and 13 of the Ordinance but are wide enough to include orders passed under other provisions of the Ordinance such as sections 5, 8, 9 and 11. I have gone through these two decisions. They do not specifically decide the point under consideration. Before Qadeeruddin, J., the point urged by the learned Advocate for the appellant was that the order under appeal was against an interlocutory order and therefore no appeal lay. Qadeeruddin, J., did not specifically hold that an appeal under section 15 (4) of the Ordinance lay even from an interlocutory order, but as he rejected the contention of the learned Advocate for the appellant, I take it that he was of the opinion that an interlocutory order passed by the Rent Control ler was appealable under section 15 (4) of the Ordinance. I respectfully agree with the view and the reasons of Qadeeruddin, J., that the words "an order" occurring in sub‑clauses (1) (b) and (4) of section 15 of the Ordinance are wide enough to include orders passed under other provisions of the Act besides sections 4, 10, 12 and 13 of the Ordinance. The short question for decision now is whether an appeal would lie to the Appellate Authority under section 15 (1) (b) of the Act from an interlocutory order. There is no indication in section 15 (1) (b) to restrict the word order' so as to mean final order. On the other hand, there is an indication in section 15 of the Act that an appeal against an interlocutory order is permissible. The relevant provision in this connection is sub clause (2) of section 15 of the Act. It reads as under :‑

"On such appeal being preferred, the Appellate Authority may order stay of further proceedings in the matter pending deci sion of the appeal."

It is permissible, for instance, for a tenant who is aggrieved against the determination by the Rent Controller under section 13 (6) of the rate of rent to go in appeal to the Appellate Authority. In a case where the landlord has increased the rent many times more than was previously payable by the tenant and demands the rent at the increased rate with the result that rent falls in arrears, if the landlord has increased the rent, for instance, from Rs. 10 to Rs. 50 and the tenant has refused to pay and has fallen into arrears say, for one year, then in such a case if the Court were to determine the rent approximately at Rs. 40 per month it may still be too much for the tenant to pay. In case of default in making the payment, as ordered by the Rent Control ler, the tenant would be liable to be dispossessed from the premises. He would naturally like to file an appeal from the order and ask for stay of further proceedings in the matter pending decision of the appeal. An appeal against such an interlocutory order would, to my mind, be competent under section 15 (1) (b) of the Act. The only condition put on an appeal under section 15 of the Act is that it has to be heard and determined as an appeal from an original decree under section 96 of the Civil Procedure Code 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. This condition as to the determination of the appeal does not in any way restrict the scope of the order against which an appeal can be filed either to the Appellate Authority or to the High Court. An interlocutory order is as much an order as final order.

4. It may be urged that if the scope of the words "an order" under section 15 of the Act is not limited to a final order it may lead to frivolous appeals. Tenants are likely to run to the Appellate Authority against any and every order of the Rent Controller. If they do so they would do at their own cost. The appeals so filed would be determined according to the provisions of sections 96 and 100 of the Civil Procedure Code as the case may be.

5. I would hold that under section 15 an appeal would lie to the Appellate Authority from an order which is either interlocutory or final order. An appeal would lie to the High Court A from an order passed by the Appellate Authority against an interlocutory order as well as a final order.

6. So far as the second question is concerned, Changez, J., in the case of Dr. Ilyas Dobash v. Muhammad Iqbal (P L D 1960 Lah. 1112), held that the Controller has no power in case the tenant commits default in depositing the rent before the 5th of any month to extend the time. He was of the view that section 148 of the Civil Procedure Code could not apply to the provisions of the West Pakistan Urban Rent Restriction Ordinance. In this connec tion I would make a reference to a Division Bench case of this Court Sh. Muhammad Nawaz and others v. Muhammad Azeem and others (P L D 1961 Lah. 788). In that case Kayani, C. J., held that the Code of Civil Procedure applied to the proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959. The question however still is as to when a tenant can be said to have committed default within the meaning of section 13 (6) of the Ordinance. Section 13 (6) of the Ordinance lays down that if the tenant makes default in the compliance of such an order (in making the payment before the 5th of each month) then if he is the petitioner his application shall be dismissed summarily, and if he is the respondent his defence shall be struck off and the landlord put into possession of the property without any further proceedings in the case. The word default is of great significance. Default' is defined in Stroud's Judicial Dictionary as under :‑

"Default would seem to embrace every failure by the defen dant to perform his contract unless prevented by superior force over which he had no control, such as stress of weather."

I think the word default' has been used by the Legislature in the sense as defined above. It cannot be said that the word default' is redundant in subsection (6) of section 13 of the Ordinance. If the Legislature intended otherwise it would have been sufficient to say that if the tenant does not comply with such an order instead of saying if the tenant makes default. It would depend upon the circumstances of each case whether a tenant has committed default or not. A tenant who is coming to deposit the money on the 4th of the month meets with a serious accident with the result that he becomes unconscious and is taken to the hospital and regains his senses on the 6th cannot be said to have committed default. If the word default' is given the meaning of non‑compliance it is likely to lead to serious reper cussions. It would however not be easy for a tenant to prove default within the dictionary meaning.

7. I would hold that mere non‑compliance of the order under section 13 (6) to make the payment before the 5th of every month would not in every case amount to default; it would depend upon the circumstances of each case whether the payment has not been made because of some superior force over which the tenant had no control.

I agree.

K. B. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.