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Second Appeal from Order No. 234 of 1962, decided on 4th April 1963.
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----(To Full Bench;‑Question not framed by referring Judge, so that Full Bench may be in a position to hear and decide "all questions".
S. 13 (6)‑Deposit of arrears of rent etc., by tenant may not be ordered where tenant objects to jurisdiction of Rent Controller, such objection being based on non‑existence of relationship of landlord and tenant‑Question of jurisdiction to be decided first‑Whether an adjournment would be given for deciding such question depends upon facts of each case‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑Unsigned notice to tenant‑Effect. [P L D 1961 Lah. 601 and P L D 1962 Quetta 67 approved ; P L D 1960 Lah. 1112 and P L D 1961 B J 88 con sidered.]
The question arising out of the Reference to Full Bench was whether, where there is a denial by the alleged tenant of the relationship of landlord and tenant, it is incumbent upon the Rent Controller to decide first the question of the existence or non‑existence of that relationship, and only then to order the tenant to deposit arrears of rent etc., if the preliminary question is decided against him.
The answer to the above question may be spelt out of the following extracts from the judgment of Manzur Qadir, C. J:‑
A distinction exists between an issue as to the very existence of the authority to adjudicate, and those other issues which arise as between the parties and which are to be determined by the authority that has the power to resolve them. An issue concerning the very existence of the power to decide, is not an issue between the parties, though ‑the existence of that power may be asserted by one party and denied by the other. It is, in reality, an issue between the Court itself and the party over whom the Court is asked to exercise power. The issues as to the rights or liabilities of the parties, on the other hand, affect only the parties and arise only as between them. They leave the Court unaffected. This point may be put in another way. Objections raised to' the proceedings must be distinguished from objections raised 'in' the proceedings.
The provision contained in subsection (6) of section 13, West Pakistan Urban Rent Restriction Ordinance, 1959 accordingly, seems to be attracted only when the proceedings in fact fall under section 13, and not when they only purport or are alleged to fall under that section. If, on whatever ground it may be, one of the parties to a proceeding under section 13 claims that those proceedings cannot validly be sustained or proceeded with under section 13, it will be incumbent upon the Rent Controller to decide that issue before he can exercise any of the powers mentioned in that section. The words "on the first date of hearing . . . . and before issues are framed" are to be read along with the words "in proceedings under this section". The determination of the issue whether the proceedings are "under this section", in the context, must precede the "framing of the issues".
The purport of subsection (6) may be summed up by saying that in proceedings under section 13, the procedure prescribed in subsection (6) is to be observed. When the question is whether the proceedings do or do not fall under section 13, could sub section (6) of that section mean that that issue itself must also be determined according to the procedure prescribed by that subsection.
When an objection is taken to the jurisdiction of the Tribunal, that objection must be treated as a preliminary objection and must be resolved before taking any further action. That, however, does not mean that once an objection to jurisdiction is taken, an adjournment in the case must automati cally follow. An adjournment in the case is necessitated only when the question raised is one that can be determined by that Tribunal and requires materials which are not before the Tribunal and to bring which time is necessary. If the objection raised is capable of being considered and disposed of on the materials before the Tribunal, an adjournment ought not to be granted.
The Rent Controller should immediately ascertain the grounds on which those objections are based, and if those grounds can be settled one way or the other, either on the admission of the parties or on the materials before the Court or with reference to matters that are verifiable from official records, he should proceed to settle those grounds and give his decisions there and then. On the other hand, if the substance of the objection requires further consideration, and the material with reference to which that further consideration is to be given, cannot be brought before the Rent Controller without an adjournment, the Court shall give as short an adjournment as is consistent with the object in law.
I do not think that these abuses, which are possible because of the manner in which the relevant provisions of the law are implemented, can be taken as an indication of an intention on the part of the Legislature to make a provision which would, in fact, amount to saying that anyone may be dragged before the Court, and no matter how ineffective the allegation against him may be, the Rent Controller is under an obligation, in the first instance, to call upon him to deposit some money before the Rent Controller would proceed to determine the ineffectiveness of the allegation against him.
The meaning of subsection (6) of section 13 is that when it is not disputed that the Rent Controller has jurisdiction in the matter, or, when having been disputed, it has been decided that the Rent Controller either has the jurisdiction, or is bound to proceed on the assumption that he has the jurisdiction under section 13, then on the first date of hearing (i.e., the first date of hearing in proceedings which are not disputed to be, or are admitted to be, or have been ascertained to be, proceedings under section 13) or as soon as possible after that date and before issues which are relevant under section 13 are framed, the Controller shall direct the tenant to deposit all the rent considered to be due from him and also to deposit regularly till the final decision of the case the monthly rent considered to be due from him.
Held, in the instant case, however, that the facts did not attract the application of the propositions enunciated above.
The fact that the respondent in this appeal was, the transferee of the property in question under the Settlement law, was not disputed. By the operation of the statute, therefore, the appellant was a tenant.
The notice sent to him in terms of section 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958, may have been unsigned but this omission was immaterial in this case because on the day on which the tenant was required to make the deposit, the provisions of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 were undoubtedly applicable to him, and his objection ceased to be valid, even if it was well founded to start with.
Muhammad Ismail v. Israr Ahmad P L D 1961 Lah. 601 and Mst. Karam Bibi v. Mir Muhammad Hassan and others P L D 1962 Quetta 67 approved.
Ilyas Dobash v. Muhammad Iqbal P L D 1960 Lah. 1112 and Shams‑ud‑Din v. Soofi Abdul Rahman P L D 1961 B J 88 considered.
Iftikhar Ali Sheikh for Appellant. Irshad Husain for Respondent.
Dates of hearing (before S. B.) : 13th December 1962 ; (before F. B.) : 7th March 1963.
‑This is a second appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959 and is directed against the order of the District Judge, Lahore, dated the 11th of October 1962. The background of facts is that the respondent Altaf‑ur‑Rehman made an application under section 13 of the Ordinance for the eviction of the appellant Akhtar Ali Parvez on the following grounds :‑
(a) That the appellant had "not paid rent of the said house to the petitioner since the day of its legal transfer in the name of the petitioner in spite of the fact that the respondent was duly informed under the spirit of law of the true facts of the case";
(b) that the "respondent has committed such acts which are destructive and injurious to the property."
One of the defence taken by Akhtar Ali Parvez before the Rent Controller was that the "notice given by the petitioner (Altafur‑Rehman) is invalid". His object by raising this defence was to question the jurisdiction of the Rent Controller. The Rent Controller proceeded, in spite of this defence, to order, on the 21st of November 1961, that Akhtar Ali Parvez should deposit the arrears as well as current rent. This order was not complied with by the respondent in consequence of which his defence was struck off on the 7th of March 1962. Akhtar Ali Parvez, therefore, went in appeal to the District Judge, who dismissed it, by the above‑mentioned order, on the 11th of October 1962.
2. A perusal of the order under appeal shows that the main argument that was addressed to the District Judge was that the Rent Controller had no jurisdiction to hear and decide the application of Altaf‑ur‑Rehman under section 13 of the Ordinance. It was repelled by the District Judge as follows :‑
"It is laid down under section 13 (6) that a Controller on the first date of hearing or as soon as possible after that date and before issues are framed shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. This order has to be passed irrespective of the fact whether the jurisdiction of the Controller is challenged. Only in one case, the learned Controller cannot straightway pass the order under section 13 (6) of the Ordinance and that is when the relationship of landlord and tenant is not admitted."
Counsel for Akhtar Ali Parvez has argued that the view expressed by the District Judge that the Rent Controller could order the occupant of a premises under section 13 (6) of the Ordinance to deposit rent irrespective of whether the occupant challenged the jurisdiction of the Rent Controller or not, is not correct. In support of this contention, counsel has relied on Muhammad Ismail v. Israr Ahmad (P L D 1961 Lah. 601). In this authority the learned Judges have observed :‑
"In an action for eviction if the respondent denies that he is a tenant under the petitioner, the Controller must put the contro versy in an issue and determine whether the plea raised in defence has merit. If the answer be that the respondent is a tenant under the petitioner, section 13 (6) of the Ordinance will immediately come into, operation and the Controller may pass such orders as he deems fit in the circumstances of the case. Cases of this nature must necessarily be very few and this will meet the criticism that in putting this interpretation on section 13 (6) its object, namely, that the landlord may not be deprived of the rent due to him during the pendency of an action for eviction will be destroyed." The risk of adopting a false plea of this kind by a tenant is manifest. For example, in an action for eviction for non‑payment of rent the tenant will be precluded from pleading and leading evidence to the effect that he was not in default as the pleas that he was not a tenant under the petitioner and that he had been paying rent to him on due dates, will be mutually destructive.
Moreover, the issue whether the relationship of landlord and tenant exists between the parties is one of jurisdiction and should be determined first ; in case the answer be in the negative, the Controller loses seisin over the lis and must stay his hands forthwith. It should be remembered in this connection that a Rent Controller is not a Civil Court of general jurisdiction but is a Special Tribunal and as soon as it is established that the relationship of landlord and tenant does not exist between the parties, the jurisdiction over the subject- matter of the lis and the parties terminates."
3. The learned Judges were apparently confronted with some difficulty in coming to the above conclusion owing to the language of section 13 (6) of the Ordinance which is as follows :‑
"(6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is 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 taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by tenant."
The words to be noted in the above provision are : "on the first date of hearing or as soon as possible after that date and before issues are framed . . . . .". If effect is given to these words, then the Rent Controller has to direct on the first date of hearing and, in any case, before framing any issue, that the rent be deposited. This provision is not consistent with the view of the learned Judges that the relationship of landlord and tenant being the foundation of the jurisdiction of the Rent Controller, be is to decide this question first and cannot order a tenant to deposit the rent until the question is decided in favour of the landlord. They have reconciled this inconsistency by quoting with approval the observation made by the Single Judge in his order of reference as follows :‑
"I consider, therefore, that the words, before issues arc framed' occurring in the first part of the subsection should be taken only to refer to the issues which may arise between a landlord and his tenant, but cannot be said to include a question as to the very existence of the tenancy."
But the words "before issues are framed" are too clear and too general to linguistically admit this interpretation. These words also fix the point of time before which the Rent Controller is to direct a tenant to deposit the rent. The commencement of the period during which the Rent Controller is to direct a tenant to deposit the rent is fixed by the words "on the first date of hearing or as soon as possible after that date" by the end of the period is fixed by the words "before issues are framed." The Rent Controller, therefore, cannot postpone the direction to deposit the rent by framing an issue which may embody the dispute relating to the existence of tenancy unless the interpretation placed by the learned Judges for restricting the meaning of the word "issues" is accepted. The meaning of the words "before issues are framed" had, therefore, to be changed by the learned Judges from something that is obvious to that which was considered to be latent.
4. Apart from the doubtful propriety of introducing this artificial change in clear language of the statute, the contemplated change itself creates a restriction which is inconsistent in the desired solution because if the word "issues" refers to these issues only "which may arise between the landlord and the tenant", the power of the Controller to frame issues becomes restricted to such issues as may arise between a landlord and his tenant, thus excluding from the competence of the Rent Controller to frame an issue which may embody the denial of tenancy.
5. The view taken by the Division Bench in the above mentioned case differs from the views of at least three other Judges of this Court. Jamil Husain Rizvi, J., has taken the view in Mst. Shahzamani Begum and another v. Ch. Ali Muhammad and others S. A. O. No. 114 of 1962 (unreported) as follows :‑
"The contention of the learned counsel that the question as regards notice should have been put in issue first and decided before passing an order under section 13 (6) of the Ordinance has no force. This order could only have been passed before framing of the issue."
S. A. Mahmood, J., has also taken a view, which is contrary to the view of the Division Bench, in Shams‑ud‑Dirt v. Soofi Abdul Rahman (P L D 1961 B J 88). He has observed as follows:
"Mere denial by a tenant of relationship of landlord and tenant is not enough to oust the jurisdiction of the Rent Controller. When an application is made before a Rent Controller alleging relationship of landlord and tenant and default by the tenant in paying the rent, subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance enjoins on the Rent Controller to direct the tenant to deposit all rent due from him before issues are framed and to determine the rent due or the rate of rent, if there is a dispute about it, and if the tenant makes a default, to make an order of ejectment, without taking any further proceedings in the case."
A. R. Changez, J., too has expressed views which are not in consonance with the views of the Division Bench. He has stated in Doctor Ilyas Dobash v. Muhammad Iqbal (P L D 1960 Lah. 1112) as follows :‑
"It is true that subsection (3) of section 1 of the Ordinance says that nothing contained in this Ordinance shall be deemed to effect any evacuee property as defined in the Pakistan (Administration of Evacuee Property) Act, 1957', but surely this does not mean that as soon as a plea is raised that the property is evacuee property, the Controller is not to take further proceedings which, under the law, he is bound to take. It being one of the pleas raised in defence, the Controller could not have decided this issue before complying with the provisions of subsection (6) of section 13 of the Ordinance. In fact, he could not have framed an issue on this point, until his order in respect of the deposit of the arrears had been complied with."
This view was before the learned Judges who constituted the Division Bench, but the views of Jamil Husain Rizvi, J. and S. A. Mahmood, J.; were not before the learned Judges.
6. I should add that perhaps the Division Bench was aware that the provisions of the Ordinance would be nullified if an issue is struck as soon as an objection is taken to the jurisdiction of the Rent Controller and further proceedings are‑postponed until the decision of this issue. They have, therefore, qualified their views by adopting the following observations of the Single Judge :‑
"But if the application before the Rent Controller be by another person describing himself as the landlord of the property and the respondent denies the factum of tenancy, and such denial does not appear to be frivolous or baseless on the face of it, then it is a question for consideration as to whether subsection (6) of section 13 still makes it obligatory for the Rent Controller to insist that the rent be deposited before the plea of the respondent denying the tenancy can be considered or made into an issue. In my humble view, the existence of a relationship of landlord and tenant between the parties to the proceedings before the Rent Controller is a condition precedent for enforcement of the rule embodied in this subsection, and therefore, any substantial question touching the very existence of this relationship must be determined before the Rent Controller . . ."
According to the above observations, the Rent Controller should not omit to direct that the rent be deposited if the denial of tenancy appears to him to be frivolous or baseless. This latitude is inconsistent with the possible situation that after full inquiry the Rent Controller may come to the conclusion that he has no jurisdiction, which possibility bad apparently induced the learned Judges to hold that he cannot direct the rent to be deposited without first deciding the question of tenancy, yet this latitude seems to have been found by the learned Judges to be necessary because the law lays down categorically that the Rent Controller has to direct, on the first date of hearing or soon after that date, but before issues are framed, that the tenant should deposit the rent and without this latitude the postponement of the direction to deposit rent would have virtually nullified the expressed provision. But I may state with the greatest of respect that the right solution may not be that the language of the law be dis regarded even partly because the real and a good reason for enacting the law might be, as has been pointed out by S. A. Mahmood, J., in Shams‑ud‑Din v. Soofi Abdul Rahman, that: "No harm can be caused to a tenant or alleged tenant by complying with the order of deposit of arrears of rent and monthly rent, because the amount is not paid over to the landlord, but remains in the custody of the Court, and can be obtained back, if excess payment has been ordered by the Rent Controller or if relationship of landlord and tenant is not ultimately established."
7. To be candid, I feel, when I think of the principles of law only, that by conferring the power on the Rent Controller to direct a party to deposit the rent before the issue of tenancy is decided, section 13 (6) has contravened the obvious proposition that the occupant of a premises should not be ordered to deposit rent until he is found to be the tenant and this feeling creates the sense that a sound proposition has been violated. This is, however, a special law meant to deal with a social condition and it is for the Legislature to decide whether a general proposition of law should be allowed in its pristine purity to control the provisions or that it should be coloured a little to achieve the end. The correct course in these circumstances appears to me to take the view that section 13 (6) does confer the jurisdiction on the Rent Controller to direct the respondent, against whom an application for ejectment is made and who is alleged to be the tenant, to deposit the rent and to ignore, for the time being, his denial of tenancy because as suggested by S. A. Mahmood, J., in Shams‑ud‑Din's case, a respondent who is described as a tenant cannot be assumed to have correctly denied the tenancy merely on account of his denial of it ; therefore the jurisdiction of the Rent Controller need not be taken to have been "ousted till he (the Rent Controller) comes to the conclusion that the relationship of landlord and tenant is not established". In this situation there is no absence of jurisdiction on the contrary there is existence of the jurisdiction to order an alleged tenant to deposit the rent.
8. There is nothing wrong in this policy of the law. If policy was my concern, I for one would agree with it but for' anybody who would be critical for the sake of upholding good old ideas, it is possible to criticise the argument that is set out in the preceding paragraph by saying that the word used throughout the Ordinance is "tenant" and not "alleged tenant"; therefore establishment of tenancy is implied as a condition precedent, but the reply is that this condition cannot be implied because it is inconsistent with the expressed provision that a direction to deposit rent is to be given by the Rent Controller on or soon after the first hearing but before any issue is framed. There can be no proof of tenancy or jurisdiction before an issue is framed embodying the contention and the law categorically postpones the framing of issues; thus making it clear that the Rent Controller has to act and direct the tenant or alleged tenant to deposit rent irrespective of an objection affecting his jurisdiction.
9. As the Legislature thinks that an alleged tenant should deposit rent, which will, of course, be refundable, if he is no; found to be so, then it is not for the Courts to come in the way of the Legislature and divert its course to a different direction.
10. In view of the above, I think that this case should n be referred to a Full Bench for further consideration. The papers may be placed before my Lord the Chief Justice for orders.
11. I may add that other arguments, besides those' recapitulated above, were advanced before me but I have not' mentioned them so that prominence may be given to the most important of them; nor have I formulated a question for reference because the Full Bench will be in a position to hear and decide, all questions.
12. Counsel request that until the decision of this case by a larger Bench, status qua may be allowed to be maintained. It is, therefore, ordered accordingly.
‑This second appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959, has been referred for decision to this Full Bench without any specific question or questions having been formulated.
2. The facts are these. The appellant was the occupier of a certain immovable evacuee property. The title to that evacuee property was provisionally transferred to the respondent on the 8th of February 1960 under the provisions of the law governing the settlement of evacuee properties on new owners. Under those provisions a statutory relationship is brought into existence between the occupier of a property so transferred and the person to whom that property is transferred. It is the determination of the exact incidents attaching to that statutory relationship and the procedures by which those incidents are to be enforced, which forms the subject‑matter of the points in dispute in this case, and it is the conflict of opinion between different Judges of this Court on various questions affecting those incidents which constitutes the reason why it was found necessary that this case, as a whole, be referred to a Full Bench without any specific point of reference being formulated.
3. On becoming the provisional owner of the property, the respondent sent through his lawyer a notice to the appellant on the 11th of April 1960, in which the appellant was informed that the property occupied by him had been transferred to the respondent and further that the appellant should pay the rent of his portion of the property from the month of February 1960 according to the prevailing market rates. At the end of this notice, it was said that if the appellant had any objection, he could write to the lawyer who was sending the notice. This notice was not signed.
4. No payment having been made, the respondent instituted proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance of 1959 for the ejectment of the appellant and the recovery of the arrears of rent. The application in this behalf was made on the 18th of October 1961. In that application, it was stated that the appellant being in occupation of the property in question was "a tenant under the land lordship of (the respondent) in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958". It was further averred that a notice dated the 11th of April 1960 had been duly served on the appellant and that, in spite of the service of that notice, no payment had been made. It was also alleged in that application that the appellant had "committed such acts which arc destructive and injurious to the property."
5. In the written statement, in reply to the paragraph in which the status of the appellant as "a tenant under the land lordship of (the respondent)", because of the fact that he was in occupation of the property in question, had been mentioned, it was said that the contents of that paragraph were "admitted to the extent of accupation . . . . ., the rest is denied". In reply to the assertion that a notice was duly served, it was said that this assertion was admitted only to the extent that an unsigned notice was given to the appellant, which, in addition to being unsigned, was also silent about the amount of rent, etc., and was, therefore, not a notice as required by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was further said that no demand notice was ever served by the respondent on the appellant and "the rent was never settled and demanded ". Objection was also taken to the non‑specification of the particulars of the general statement that the appellant had "committed such acts which are destructive and injurious to the property."
6. When the case came on for hearing before the Rent Controller, the appellant was directed to deposit all the rent due from him and also to deposit regularly till the final decision of the case the monthly rent due from him, before proceeding further with the case. This direction was given under sub section (6) of section 13. The appellant did not comply with the direction in spite of an extension of time granted to him.
7. By an order dated the 7th of March 1962, the Rent Controller directed that the defence of the appellant be struck off and that he should vacate the premises and deliver the possession of the premises to the respondent. Against this order, the appellant filed an appeal in the Court of the District Judge as Appellate Authority, in which, to quote from the appellate judgment,‑
"the learned counsel . . . vehmently contended that the . . . . Controller had no jurisdiction to entertain the application, because no valid notice under section 30 . . . . . . had been served on the respondent."
It was urged that the Rent Controller should have determined this as a preliminary issue, but instead of doing so the Rent Controller, it was stated, had proceeded, unlawfully and without authority, to direct that the appellant should deposit the arrears of rent. This appeal, however, was rejected. This was on the 11th of October 1962. The appellant has now come to this Court in second appeal against that order.
8. Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 bears the heading "Eviction of tenant". By its first subsection, it declares that a tenant in possession is not to be disturbed except as provided in that section ; and by its sixth subsection it directs that‑
"in proceedings under this section, on the first date of hearing or as soon as possible after that date, and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then . . . . if he is the res pondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case."
9. The case for the appellant is that the objection he had raised was an objection to the jurisdiction of the Rent Controller. If that objection were sound, the Rent Controller would have no power to take any action in regard to him. It was incumbent upon the Rent Controller, therefore, to determine the issue relating to his jurisdiction before exercising any part of that jurisdiction. It is contended on behalf of the appellant that in so far as the Rent Controller insisted on asking the appellant to deposit the rent before deciding whether he was competent to give that direction in this case or not, he did something which was clearly contrary to the statute and, for that reason, his subsequent order striking off the defence of the appellant for non compliance with his unlawful order, was itself unlawful. Though the contention that the Rent Controller had no jurisdiction to deal with this case was initially based only on the alleged invalidity of the notice, the ground of challenge has been further widened at subsequent stages. As presented before us, the challenge to the existence of jurisdiction in the Controller was based on the following facts and considerations‑
(a) that the relationship between the appellant and the respondent is admittedly created by the Displaced Persons (Compensation and Rehabilitation) Act, 1958. By its thirty sixth section, that Act provides that its provisions shall have effect notwithstanding anything inconsistent with them contained in any other law. Whatever is laid down in that Act, therefore, would override everything provided in any other law.
By the first subsection of the thirtieth section of the aforesaid Act, it is provided that where any person is in possession of any evacuee house which is transferred to any other person under the provisions of that Act, then such person shall be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before the transfer.
To this basic provision there is a proviso which protects the tenant's right for a period of three years. As to the commencement of this period of three years, special provisions are made to the effect that if notice of the transfer is given by the transferee to the tenant within one month of the date of the transfer, the period of three years would commence from the date of the transfer, but if the transferee gives notice at a subsequent date, the period of three years would count from the date of the receipt of such notice by the tenant.
By the third subsection of the aforesaid section, the pro tection given for three years to the tenant under the statutory tenancy created by the operation of law is taken away if the tenant does any one of the several things enumerated in that subsection. Of those several things, two are relevant for our purposes here‑
(i) Non‑payment of arrears of rent within three months of a notice of demand sent by registered post, acknowledgment due; and
(ii) perpetration of any act which is destructive of, or injurious to, the property.
By the fourth subsection of that section it is provided that the relationship of landlord and tenant between the transferee and the tenant shall be regulated by the ordinary law relating to landlord and tenant after the expiry of the protected tenancy. By implication, therefore, this subsection provides that while the protected tenancy lasts, the relationship of landlord and tenant between the transferee arid the tenant will not be regulated by the ordinary law relating to the landlord and tenant.
(b) That the notice that has been sent is not a valid notice and, therefore, the period of protected statutory tenancy is continuing, because it can only come to an end three years after a valid notice.
(c) That the assertion by the appellant in his written state ment that apart from the fact that it was admitted that the appellant was in occupation of a portion of the property in question, the remaining part of the paragraph in which it was asserted that the appellant was a tenant of the respondent was denied, amounts to a denial of the relationship of landlord and tenant between the respondent and the appellant; and in so far as the jurisdiction of the Rent Controller under section 13, subsection (6), is expressed to be in relation to a tenant, the powers under that subsection are not exercisable with reference to a person who claims himself not to be a tenant until he is found to be a tenant.
(d) That the protection given to the statutory tenancy has not been taken away, because no notice of demand having been given, the question of a default after a notice of demand does not arise.
(e) That the allegation that the appellant committed acts which are destructive of, or injurious to, the property, as put, is very vague, and should, therefore, not be taken into account.
10. The above is a resume of the arguments addressed to the Full Bench by the learned counsel for the appellant, but when the case was heard in the Single Bench, the main contention was based on the alleged denial of the relationship of landlord and tenant as between the respondent and the appellant. Many earlier judgments were reviewed on this point, and the basic difficulty in construing section 13, subsection (6) of the West Pakistan Urban Rent Restriction Ordinance, was clearly formulated in the order of reference.
11. The point being of considerable importance, it seems desirable to set it out explicitly and to deal with it fully in the light of the earlier decisions. It seems to me that the various contentions raised here are all reducible to the generalised question‑
If a Tribunal of special jurisdiction is created to deal with a special field and proceedings alleged by one of the parties to be within that field are instituted in Special Tribunal and the other party denies that those proceedings are within that special field, can the Special Tribunal proceed to exercise any of its powers before determining the issue whether the proceedings are, or are not, within the field in which he has the authority to act
This general question itself appears to me to be a species of the still more general question‑
When objection is taken to the competency of a Tribunal to deal with a certain matter, can that Tribunal deal with that matter in any way before deciding whether it is competent or incompetent to deal with that matter.
12. It seems to me that a distinction exists between an issue as to the very existence of the authority to adjudicate, and those other issues which arise as between the parties and which are to be determined by the authority that has the power to resolve them. An issue concerning the very existence of the power to decide, is not an issue between the parties, though the existence of that power may be asserted by one party and denied by the other. It is, in reality, an issue between the Court itself and the party over whom the Court is asked to exercise power. The issues as to the rights or liabilities of the parties, on the other hand, affect only the parties and arise only as between them. They leave the Court unaffected. This point may be put in another way. Objections raised to' the proceedings must be distinguished from objections raised in' the proceedings.
13. The opening words of section 13, subsection (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, are: "In proceedings under this section." Whatever follows applies only to proceedings which are under section 13. If they are not under section 13, nothing contained in subsection (6) is applicable to them. The fact that a party has chosen to institute proceedings under that section, will not make those proceedings to be proceedings under that section unless they are lawfully covered by that section. If proceedings are erroneously instituted under a provision of the law, they would not be rightly described as being proceedings under that law. They can only properly be described as proceedings alleged or purporting to be under that law. In cases were the jurisdiction of the Courts has been ousted by special laws in respect of proceedings under those laws, the expressions "under this Act"; "under this section" or "under this law" have received the same interpretation uniformly by practically all the Courts in this country. The provision contained in subsection (6), accordingly, seems to be attracted only when the proceedings in fact fall under section 13, and not when they only purport or are alleged to fall under that section. If, on whatever ground it may be, one of the parties to a proceeding under section 13 claims that those proceedings cannot validly be sustained or proceeded with under section 13, it will be incumbent, upon the Rent Controller to decide that issue before he can exercise any of the powers mentioned in that section. The words "on the first date of hearing . . . . . and before issues are framed" are to be read along with the words "in proceedings under this section". The determination of the issue whether the proceedings are "under this section", in the context, must precede the "framing of the issues" To appreciate the substance of this point, it will be helpful if the language of this subsection is simplified and shortened. The purport of sub section (6) may be summed up by saying that in proceedings under section 13, the procedure prescribed in subsection (6) is to be observed. When the question is whether the proceedings do or do not fall under section 13, could subsection (6) of that section mean that that issue itself must also be determined according to the procedure prescribed by that subsection
14. The earlier cases decided in this Court show the anxiety of some of the learned Judges who dealt with this matter to guard against possible abuses of any laxity in the rigour of the provision requiring the deposit of rent by defaulting tenants. An attempt to distinguish between cases where a defaulting tenant might be raising a frivolous plea in order to defeat or delay payment and cases where a genuine plea of substance is raised, appears to have been made more than once, only to be given up in the face of the difficulty that the question whether a plea is frivolous or of substance, is itself an issue which will require some consideration before it is resolved, whether that consider ation can be bestowed forthwith or after more material has been placed on the record. Realising the extent to which any latitude in this behalf might be abused, there seems to have been a feeling in the mind of many of the learned Judges that the Legislature, in making the provision under subsection (6) of section 13, had tried to balance the hardship to a large number of landlords, against the hardship to a few persons who might not, in fact, be tenants but might be dragged unnecessarily before the Rent Controller on the incorrect allegation that they were tenants. This, no doubt, is a matter requiring serious and earnest con sideration when discovering the true intent of the Legislature. It seems to me, however, that this circumstance alone is not enough to lead to that conclusion. Most of the abuses can be effectively prevented if the Rent Controllers and the Appellate Authorities do not allow unreasonable objections to be prolonged unnecessarily or indefinitely. Abuse of legal provisions is not necessarily controlled by altering the law. Frequently the fault lies with those who are charged with the duty to enforce or implement those laws, particularly when the interest of one or both of the parties also is to prolong the proceedings.
15. An objection to the jurisdiction of a Tribunal may take one of the following general forms‑
1
(i) that the law under which that Tribunal is created is defective or invalid ;
(ii) that the Tribunal is not constituted or appointed validly under the law;
(iii) that a party or the parties is or are not amenable to the jurisdiction of the Tribunal ; and
(iv) that the subject‑matter is outside the field in which the particular Court is competent to act.
It seems to me that when an objection is taken to the jurisdiction of the Tribunal, that objection must be treated as a preliminary objection and must be resolved before taking any further action. That, however, does not mean that once an objection to jurisdiction is taken, an adjournment in the case must automatically follow. An adjournment in the case is necessitated only when the question raised is one that can be determined by that Tribunal and requires materials which are not before the Tribunal and to bring which time is necessary. If the objection raised is capable of being considered and disposed of on the materials before the Tribunal, an adjournment ought not to be granted. If a plea falling in the first or the second category is raised before a Special Tribunal, the answer of the Special Tribunal, which is a creature of the special law and is constituted or appointed under that law, must be simply and shortly that these matters are not for the Special Tribunal to decide. If a party needs a decision on those points, it will have to apply to the Courts of general jurisdiction in appropriate proceedings for that purpose. If, for example, a Rent Controller is told by a party before him that the West Pakistan Urban Rent Restriction Ordinance is invalid, he ought not, on that ground, adjourn the proceedings in that case to hear elaborate arguments on some future date. Were he to do so, the logical procedure for him would be, not only to adjourn that case but to adjourn all cases, and not only to adjourn cases but also to wind himself up as a Rent Controller till he has decided whether he is a Rent Controller or not a Rent Controller under a valid piece of Legislature. Similarly, if a Rent Controller is told that his own appointment is defective, it is not for him to postpone the hearing in that particular case because his appointment is challenged as defective; if it is defective, it is defective not only for the case in which the objection has been raised but also for all other cases. In respect of all such objections, the obvious and short answer of the Rent Controller must be that he, being a creature of the very laws or notifications which are being challenged before him, cannot suspend himself till he determines that matter; and that he must proceed so far as he is concerned on the assumption that his existence as a Rent Controller is of legal validity until a Court of competent juris diction decides or directs to the contrary. On the other hand, if objections are raised which fall under the third or the fourth general categories, the Rent Controller should immediately ascertain the grounds on which those objections are based, and if those grounds can be settled one way or the other, either on the admission of the parties or on the materials before the Court or with reference to matters that are verifiable from official records, he should proceed to settle those grounds and give his decisions there and then. On the other hand, if the substance of the objection requires further consideration, and the material with reference to which that further consideration is to be given, cannot be brought before the Rent Controller without an adjournment, the Court shall give as short an adjournment as is consistent with the object in law. The Appellate Authorities, in particular, must remain vigilant that the Rent Controllers do not permit objections which can easily be settled on the statement itself from being used as occasions or pretexts for prolonging the proceedings or withholding the payment of rent. The substance of an allegation is easily assessable by an understanding mind, as soon as the allegation is made. The material on which it is based may or may not be readily available. If it is readily available, it must be referred to at once. If it is not readily available, and the reason for non‑availability is not the negligence of the party that is raising the objection, no more time must be given than is absolutely necessary to make it available. The scheme of the Ordinance in question makes it clear that speedy disposal is a part of its essence.
16. I do not think that these abuses, which are possible because of the manlier in which the relevant provisions of the law are implemented, can be taken as an indication of an intention on the part of the Legislature to make a provision which would, in fact, amount to saying that anyone may be dragged before the Court, and no matter how ineffective the allegation against him may be, the Rent Controller is under an obligation, in the first instance, to call upon him to deposit some money before the Rent Controller would proceed to determine the ineffectiveness of the allegation against him. There are some cases affecting jurisdiction in other ways that one can think of. Assume that an Ambassador representing a foreign country is brought before the Rent Controller under section 13 and he claims diplomatic immunity, would the Rent Controller answer by saying that the issue whether diplomatic immunity exists or not, is itself one that I can proceed to determine only after you have deposited the money. It seems to me clear that the meaning of subsection (6) of section 13 is that when it is not disputed that the Rent Controller has jurisdiction in the matter, or, when having been disputed, it has been decided that the Rent Controller either has the jurisdiction, or is bound to proceed on the assumption that he has the jurisdiction under section 13, then on the first date of hearing (i.e., the first date of bearing in proceedings which are not disputed to be, or are admitted to be, or have been ascertained to be, proceedings under section 13 or as soon as possible after that date and before issues which are relevant under section 13 are framed, the Controller shall direct the tenant to deposit all the rent considered to be due from him and also to deposit regularly till the final decision of the case the monthly rent considered to be due from him.
17. The position in regard to the earlier cases, to which we were referred, is this. In the case of Ilyas Dobash v. Muhammad Iqbal (P L D 1960 Lah. 1112), a Single Judge took the view that whatever the nature of the objection, the words "before issues are framed" were of such compelling force that the Controller was under an obligation to ask for a deposit before his objection, whatever it was, could be decided. This case was decided on the 15th of June 1960. In the case of Muhammad Ismail v. Israr Ahmad (P L D 1961 Lah. 601), a Division Bench of this Court, overruling the earlier decision, held that the issue whether the relationship of landlord and tenant did or did not exist between the parties was an issue as to the jurisdiction of the Court and had to be determined first, and in case the answer to that issue were in the negative, the Controller lost seisin over the lis and must stay his hands forthwith. This decision was made on the 10th of March 1961. In the case of Shams‑ud- Din v. Soofi Abdul Rahman (P L D 1961 B J 88), a learned Single Judge decided this point in the same way as it had been decided in the case of Ilyas Dobash v. Muhammad Iqbal, expressly relying on that decision. This case was decided on the 16th of June 1961. The Division Bench decision in Muhammad Ismail v. Israr Ahmad, which had been given three months earlier, was not referred to, because in all probability it had not been printed till then and was evidently not cited during the arguments. The latest decision cited before us at the hearing was a Single Bench judgment in the case of Mst. Karam Bibi v. Mir Muhammad Hassan and others (P L D 1962 Quetta 67). In this judgment, the two cases Shamas‑ud‑Din v. Soofi Abdul Rahman and Muhammad Ismail v. Israr Ahmad are considered in detail (the latter case has been wrongly cited in the judgment. It seems that the page on which the case is reported was wrongly taken down as 609 instead of 601 and due to that error the name of the case appearing at page 609 has been erroneously inserted in place of the name of the case that was intended). After considering the reasons independently, this judgment does not merely follow the Division Bench ruling but endorses the validity of the reasoning on which the Division Bench ruling is based.
18. With the explanations set out above, I am in respectful agreement with the conclusion reached by the Division Bench in Muhammad Ismail v. Israr Ahmad and the Single Bench ruling in Mst. Karam Bibi v. Mir Muhammad Hassan and others. As stated already, it appears to me that the proposition laid down in those two cases is a special application of the more general proposition relating to objections concerning jurisdiction of Courts.
19. In the present case, however, the facts do not attract the application of the propositions enunciated above. The fact that the respondent in this case is the transferee of the property in question under the Settlement law, is not disputed. By the operation of the statute, therefore, the appellant is a tenant. The notice sent to him was not signed. Even if his objection that an unsigned notice is not a valid notice be held to be technically sound, the substance of that objection could only be that without the signature how could he be certain that the notice he had received was, in fact, from the transferee. Even assuming, therefore, that he could have reasonably entertained a doubt as to the identity of the sender of the notice, that doubt must have been entirely removed when the respondent, in his application to the Rent Controller dated the 18th of October 1961, stated that it was he who had sent the notice, which admittedly was served on the appellant. In that unsigned notice, it was clearly stated that the rent was due and had to be paid to the respondent. Assuming for the sake of argument, therefore, that the doubt as to the identity of the sender of the notice having been removed (by the application) only in the month of October 1961, the notice should not be deemed to be operative at any point of time earlier than the month of October 1961, the appellant would be bound to pay the arrears within three months of the October of 1961. He has not paid anything uptil now. The Controller did not order his defence to be struck off till the 7th of March 1962, i.e., more than five months after he knew for certain that the notice he had received by registered post, acknowledgment due, in accordance with the provisions of the law in the month of April 1961, was what it purported on the face of it to be, namely, a notice from the transferee. A clear default under subsection (3) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was thus committed, and having been committed, the statutory protection lapse d in January 1962, if it had not already lapsed three months after the receipt of the original notice. On the day on which he was required to make the deposit, the provisions of subsection (6) of section 13 were undoubtedly applicable to him, and his objection ceased to be valid, even if it was well founded to start with.
20. The learned counsel for the appellant contends that whether it was well‑founded or ill‑founded, the order of the Rent Controller calling upon him to make a deposit before the Rent Controller himself had decided the issue of jurisdiction was not valid and, consequently, that order should be set aside and proceedings should be directed to continue from that stage onwards. Though, on the face of it, this contention seems attractive, in the circumstances of this case it is without foundation. If the Rent Controller bad struck off his defence within three months of the institution of the application, he might possibly have complained that he was never given a chance within three months to clear the arrears, because he had regarded the notice, when received, as invalid and was not given full three months after the possible doubt in his mind as to the identity of the sender of the notice, had been dispelled. That, however, is not what happened. His defence was struck off after the full period of three months and another two and a half months had gone by. Even if the Rent Controller made his order within the three months, he did not direct by that order that the money be deposited before those three months were over, or that the defence of the appellant would be struck off for non‑payment during that period of three months. The date of the order calling upon him to deposit is immaterial in this case.
21. At the conclusion of the hearing, we passed the following short order:‑
"For reasons to be recorded later, we dismiss this appeal. No. order as to costs.
"We grant to the appellant a period of thirty days from today in which to make alternative arrangement for his accom modation and to vacate the premises occupied by him."
Those reasons have now been given in this judgment.
A. H. Appeal dismissed.
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