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Second Appeal from Order No. 101 of 1962, decided on 17th May 1963.

----S. 13(6)‑Provision meant for benefit of landlord‑Can be waived on general principle‑Court ordering deposit of future rent before 5th of each month ‑ Landlord receiping rent out of Court‑Cannot subsequently claim that tenant's defence be struck off for non‑deposit of rent.

Ss. 13(6) & 15 ‑ Rent not deposited in terms of Court's order under S. 13(6)‑Only Rent Controller competent to strike off defence‑Appellate authority hearing first or second appeal cannot resort to provisions of S. 13 (6)‑Civil Procedure Code (V of 1908).

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---‑Powers of Appellate Court‑Cases in which Court of appeal may exercise powers of first Court and impose same penalty for non‑compliance wish its order as that Court could impose‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 (6) & 15‑Civil Procedure Code (V of 1908), S. 107.

Ch. Khurshid Ahmad Khan for Appellants.

M. Ilyas Khan for Respondents.

Dates of hearing: 6th, 8th, 26th March and 17th April 1963.

This is a second appeal by Jalal Din and Maqbul Ahmad of Mughalpura, Lahore, from the order of Mr. Jamil Asehar, District Judge, Lahore, (Appellate Authority) reversing the order of the Rent Controller and striking off their defence in an application for their ejectment from a shop situated in the main bazar of Mughalpura for non‑deposit of rent under section 13 (6) of the Rent Restriction Ordinance 1959, (hereinafter referred to as the Ordinance).

2. The application for eviction of the appellants was filed in the Court of one of the Rent Controllers of Lahore, on the 26th of February 1960, on the grounds :‑

(i) that the shop was needed for the son of one of the landlords;

(ii) that the appellants carried on business in the shop which was a nuisance for the neighbours ; and

(iii) that they had damaged the shop.

3. On the 27th of April 1960, the appellants filed their written statement in which they controverted the pleas for their eviction and although there was no complaint for non‑payment of rent against them, the learned Rent Controller directed that they should deposit future rent at the rate of Rs. 10 per mensem before the 5th day of each month. On the pleadings of the parties, three issues were framed which embodied the controversy between the parties on the points as set out above. The Court proceeded with the trial and the respondents closed their evidence on the 14th of September 1960. Thereafter, the appel lants' evidence was recorded piecemeal and the 6th of July 1961 was fixed for recording the statement of Maqbul Ahmad appellant as the last witness in the case. On that date, counsel for the respondents pointed that rent in terms of the aforementioned order had not been deposited in Court, but Maqbul Ahmad denied it and undertook to produce the receipts issued by the respondents showing payment of rent to them directly. The hearing in the case was accordingly adjourned and, eventually, Maqbul was examined on the 26th of September 1961. Inter alia he deposed that in spite of the order dated the 27th of April 1960, rent hold all along been received by the respondents out of Court and produced a number of receipts except for the months of May, June and July 1961. Rent for these three months was sent to Aziz‑ud‑Din respondent by money order with a note at the foot of the money order form that rent in the first instance could not be paid because the payee was hospi talized and, thereafter, he had put off the appellants from making payment of rent on one pretext or the other. The respondents refused to receive the amount of Rs. 40 which included rent for August 1961, and a certificate issued to that effect by the Postal Department was also exhibited on the record.

4. As seen above, neither the counsel for the respondents made a prayer that the defence of the applicants should be struck off for non‑deposit of the rent nor did the Court pass any order in that behalf. On the contrary, at the conclusion of the parties' evidence arguments in the case were heard on merits in the course of which counsel for the respondents also raised the contention that the appellants' defence should be struck off under section 13(6) of the Ordinance for non‑compliance with the order for deposit of rent in Court. The plea did not find favour with the Rent Controller on the grounds that the respondents had themselves not acted upon the terms of the order, dated the 27th of April 1960, on the basis of which they wanted the appellants' defence to be struck off and that receipt of rent during the pendency of the application for eviction had resulted in the creation of a fresh tenancy in favour of the appellants. On merits, all the issues were found against the respondents and in the result the application for eviction of the appellants was dismissed.

5. On appeal by the respondents, Mr. Jamil Asghar, District Judge, Lahore, while agreeing with the findings of the learned Rent Controller on the issues framed on the pleadings of the parties, came to the conclusion that as the rent for the month of February 1961, was paid on the 5th of March 1961, and not before that date and rent for the months of May, June and July 1961, was remitted by money order on the 15th of August 1961, and not deposited in Court before the 5th of every succeeding month, the appellants had failed to comply with the order of the learned Rent Controller, dated the 27th of April 1960, and there was no alternative but to strike off his defence. He, accordingly, accepted the appeal, set aside the order of the Rent Controller and directed the appellants to put the respon dents in possession of the shop in question within one month from the date of the order.‑

6. In support of this second appeal preferred by the tenants, it is inter alia contended that the District Judge was not compe tent to strike off their defence as the case had proceeded to trial on merits and the order, dated the 27th of April 1960, had been set at naught from its very inception by the mutual consent of the parties. The conduct of the respondents in receiving rent from the appellants during the pendency of the case was also pleaded as estoppel against them.

7. Of course, there can be no estoppel against the provisions of a statute, but there is considerable force in the contention that as the provisions of section 13 (6) of the Ordinance are for the benefit of landlords, on general principle their application may be waived by them. Be as that may, this appeal is liable to be accepted on the ground that while it was within the competence of the Rent Controller to strike off the defence of the appellants for non‑compliance with the order of the 27th of April 1960--this power did not vest in the learned District Judge as an Appellate Authority.

8. The rowers of an Appellate Authority are not defined in the Ordinance. An appeal under section 15 is to be heard and determined as an appeal under section 96 of the Code of Civil Procedure if it is from the order of a Controller and as an appeal from an appellate order under section 100, C. P. C., if it is from the order of an Appellate Authority. The provi sions of Part VI of the Civil Procedure Code and of the First Schedule to the Code relating to appeals with such modifications as the context may require are also made applicable to these appeals vide Explanation to subsection (4) of section 15 of the Ordinance. Part VI of the Code consists of sections 9‑1 and 95. The first section enumerates the powers of Civil Courts which they may exercise to prevent the ends of justice being defeated by issuing a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for secu rity commit him to the civil prison ; to direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property ; to grant a temporary injunction ; to appoint a receiver and to make such other interlocutory orders as may appear to the Court to be just and convenient. The second section provides for compensation for obtaining arrest, attachment or injunction on insufficient grounds. The provisions relating to appeals in the First Schedule of the Code are con tained in Orders XLI, XLII, XLIII, XLIV and XLV, which do not confer on the appellate Court the jurisdiction to pass orders within the competence of the Court of first instance. This power is conferred on Courts of Appeal by section 107 of the Code, and in the absence of any corresponding provision in the Ordi nance it is clear that the Appellate Authority as well as this Court hearing a first or second appeal from the order of the Rent Controller or the Appellate Authority, as the case may be, cannot resort to the provisions of section 13 (6) of the Ordinance, which are of a procedural nature.

9. It is inherent in the incidence of an appeal that the Appellate Authority may alter, modify or set aside the deter minations of the Court from whose orders, judgments and decrees appeals are brought before it, but that power is distinguishable from the authority of the Court of first instance to take action against the party which fails to comply with its orders regulating the procedure by which a cause is determined before it. For instance, the trial Court may reject a plaint under Order VII, rule 11 (b) of the Civil Procedure Code if the plaintiff omits to comply with an order to correct the value of the relief claimed in the plaint. If by oversight the plaint is not rejected and the suit is decreed on merits in favour of the plaintiff, from which an appeal is preferred to the appellate Court, two distinct conside rations arise ; one, that by overvaluation or upper‑valuation of the plaint the forum of appeal has changed and the other that the default in complying with an order of the first Court may be visited with a penalty. The first question is properly before the appellate Court as wrong valuation of the plaint affects the jurisdiction to hear the appeal. The second question is how ever, not relevant to the determination of the appeal except in so far as the statute may confer the powers of the trial Court on the Court of Appeal as well. Therefore, if error in the valuation of the plaint does not affect the jurisdiction of the appellate Court to hear the appeal and if the provisions of section 107 of the Code are not applicable the appellate Court cannot reject the plaint when the suit has proceeded to trial on merits and there are determinations by the trial Court which affect the rights and liabilities of the parties. Thus, there are two categories of cases. Those in which a party has omitted to comply with a direction of the first Court regulating the proce dure of a cause for which the appellate Court cannot impose the penalty like rejection of the plaint or striking off defence, and cases in which the omission to comply with the order of the first Court has affected the determination of the cause itself. It is inherent in the incidence of an appeal that in such cases the Court of Appeal may exercise the powers of the first Court and impose the same penalty for its non‑compliance which that Court could impose even if there are no express provisions to that effect. The same is, however, not true of the second category of cases. It is only by express provisions of law that the powers of the first Court regulating the procedure of a cause may be conferred on a Court of Appeal and not otherwise. The present case falls in the first of the two categories enume rated above. It has been seen that there was no dispute between the parties regarding the payment of rent and the order under section 13(6) was passed in routine. In fact, the parties them selves did not act upon that order and the failure to deposit future rent in Court had in no manner affected the determination of the cause.

10. In the view expressed above, the learned District Judge was not competent to strike off the appellants' defence for their failure to comply with the direction of the Rent Controller to deposit future rent before the 5th day of each month. So far as merits are concerned, both the Courts below have found in favour of the appellants and nothing has been urged against these findings before me. This appeal is, therefore, allowed and the order of the Rent Controller rejecting the respondents' application for the eviction of the appellants is restored. In the circumstances of the case, there will be no order as to costs.

K. B. A. Appeal accepted.

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