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Second Appeal from Order No. 108 of 1960, decided on 31st May 1963.

Ss. 96 & 107 and O. XL, r. 5-Lower Court stipulating time limit for performance of act-Effect of appellate proceedings against order-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 15 & 13(6).

Where an appellate order or a decree affirms the decree or order of the lower Court, without any change or modification, including the time limit with regard to the performance of an act by a certain date, it supersedes the original Court's order in all its details and has to be implemented in the same context and the silence of the appellate order on the point of time cannot be construed as allowing a fresh period of time from the date of the appellate order equal to one allowed by the original Court. Where a decree or order is under an appeal the matter disposed of is re-opened and remains in abeyance, but the confirmation by the appellate Court restores its provisions as they stood when it was passed, held, an appeal, by itself does not operate as a stay of proceedings under the decree or order appealed from. However, the position would be different in cases where the appellant obtains a stay order from the appellate Court, stopping the operation of the order under appeal during the pendency of the appeal. The stay order suspends the operation of the original Court and when an order is suspended by a competent Court in its operation, its performance is obviously avoided and if in the meanwhile the date of the performance expires during the suspension period, the party that had to perform the act on that date cannot be visited with a penalty for not having performed it during the time when its operation was suspended. In such cases, therefore, while the dismissal of the appeal brings about the restoration of the original decree, with all its contents and provisions, the time for the performance of the act, which had been suspended during the pendency of the appeal is revived from the date of the appellate order to be performed within the period equal to that as enjoined in the original order.

26 I C 775 ; I L R 11 All. 346 ; Chiranji Lal v. Dharam Singh I L R 18 All. 223 ; Wasawa Singh v. Lal Singh and others 1906 P R 48 and Jairam Nagogi v. Khawaja Obaidullah Khawaja Mahmud A I R 1947 Nag. 81 ref.

S. 13(6)-Fixation of time for payment of future monthly rent by 5th of each month-Controller not competent either to enlarge or abridge statutory period for payment of monthly rent.

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----Day fixed by Court for performance of 1-certain act-Act can be performed up to expiry of last minute of that day-Civil Procedure Code (V of 1908), S. 148.

30 I C 544, A I R 1949 Mad. 370 and Afajuddin Molla v. Abdur Rahman P L D 1959 Dacca 454 ref.

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-----S. 148-Provisions applicable only to cases where period granted by Court for doing an act as prescribed or allowed by Court-Time fixed by statute itself for doing certain act-Court has no power to interfere

O. III, rr. 4 & 5 --Words "all proceedings- in the suit are ended so far as regards client" in r. 4 (2)-To be interpreted in terms of contract between client and counsel-Counsel engaged for particular stage-Cannot be bound down to all subsequent stages of case after he has dis charged his specific engagement

(f

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---Service of notice on counsel-Counsel declining acceptance on ground that he had ceased to represent party-Notice to party personally necessary.

30 I C 544 and A I R 1949 Mad. 370 ref.

Fazle-e-Ghani Khan for Appellant.

Malik Muhammad Akram for Respondents.

Dates of hearing : 18th January 1963, 15th and 24th May 1963.

This judgment will dispose of S. A. O. Nos. 108 of 1960 and 37 of 1961 which are directed against the orders of the learned District Judge, Lahore, dated respectively the 12th of July 1960 and the 23rd of December 1960, made in the same matter. The brief facts are as follows: On the 21st of September 1959, the Holy Trinity Church Trust (hereinafter described as the appellant) brought an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) (hereinafter called as the Ordinance) for the ejectment of Ansari Brothers, Radio Dealers, Robert Road, Lahore (hereinafter described as the respondent) on the ground that the respondent was in occupation of two shops as the appellant's tenant on a monthly rental of Rs. 118 per mensem but he had defaulted in payment of rent for many years. On the 3rd of December 1959, Mr. Cheema, Senior Civil Judge, dealing with the application as a Controller under the Ordinance, passed an order for deposit of the arrears of rent, viz., Rs. 6,480 by the 6th of January 1960, adding a further direction that the respondent should pay the future monthly rent due from him before the 5th day of each month. This order was made under subsection (6) of section 13 of the Ordinance.

2. The respondent preferred an appeal against this order on the 2nd of January 1960 and obtained a stay order under sub section (2) of section 15 of the Ordinance from the appellate Court (the District Judge, Lahore) on the 4th of January 1960, whereby the implementation of the order of the lower Court, directing the deposit of the arrears and the payment of the future rent was suspended till the decision of the appeal. The appeal, however, was dismissed on the 2nd of April 1960, resulting in the automatic vacation of the stay order earlier made by the appellate Court. The case was remanded to the Rent Controller for further proceedings.

3. The appellant thereafter moved an application before the Controller on the 4th of April 1960, requesting that since the respondent's appeal had been dismissed by the Distrust Judge, an early date be fixed in the proceedings and as the respondent had failed to make good the payment of rent, as directed by the Controller, his defence be struck off. The matter came up before the Controller on the 18th of April 1960 and he directed that the respondent should pay all arrears of rent up-to-date by the 30th of April 1960, and continue to deposit future rent by the 5th of each month. It was stated in the order that as the respondent's appeal had been rejected, the Controller's order dated the 3rd of December 1959, is revived but since it was the subject-matter of an appeal and the appellate Court had not stipulated any time limit for payment of arrears, it was necessary to give further time to the respondent, which was thus given up to the 30th of April 1960.

4. When the case came up again before the learned Rent Controller on the 30th of April 1960, a treasury challan for Rs. 6,480 was filed by the respondent as evidence of payment of that amount in the treasury in lieu of the arrears of rent, but the learned Rent Controller remarked that this fell short of full compliance with his orders dated the 18th of April 1960, which without any ambiguity had directed the payment of all arrears up-to-date, although by the previous order of the 3rd of December 1959, the direction was in respect of the deposit of Rs. 6,480 only. The defence of the respondent was, therefore, struck off' and his summary ejectment was ordered as he had failed to deposit the balance of the arrears of rent for the period from the 3rd of December 1959, to the 30th of April 1960 total amounting to Rs. 720.

5. The respondent challenged this order in appeal before the learned District Judge, Lahore, wherein two contentions were raised-

(i) that the order of the Rent Controller dated the 30th of April 1960, was premature as the deposit was to be made by that date which included that day, and

(ii) that since the order of the Controller had been superseded by that of the appellate Court dated the 2nd of April 1960, although it was one of affirmance, the time allowed for making the deposit was to be counted from the date of the appellate order and not from the date of the order of the Rent Controller.

Both these contentions prevailed with the learned District Judge who accepted the appeal and remanded the case for trial by the Rent Controller in accordance with law. It was held by the learned District Judge, on the basis of the authorities referred to in his judgment, namely, "30 I C 544, A I R 1949 Mad. 370 and P L D 1959 Dacca 454" that when time is given by a Court to a party, for the performance of an act till a certain date, it includes that date. It was also held by him by reference to "26 I C 775 and I L R 11 All. 346" that where a period is provided for the performance of an act by a lower Court, which is challenged in an appellate Court, the appellate order supersedes the original order for purposes of execution and time has to be calculated from the date of the appellate order. On this basis, the learned District Judge considered that the respondent, Ansari Brothers, were within time for payment of the arrears up to the 2nd of May 1960. He made a direction that they should deposit the arrears of rent within a week from the date of his order which he made on the 12th of July 1960, i.e., the arrears were to be paid by the 19th of July 1960.

6. On remand the case was laid before the Controller on the 1st of September 1960, and he issued a notice to the counsel for the respondent for the 4th of November 1960. The counsel on whom notice was served was Mr. Masud Butt, whose power-of -attorney existed on the file of the case. The counsel reported on the summons that he was no longer a counsel in the case as the respondent had changed his counsel. The learned Rent Controller, however, considered that the wakalatnama of Mr. Masud Butt had not been determined by the Court in accordance with paragraph 2 of Order III, rule 4, of the Code of Civil Procedure and that service on the counsel amounted to service on the party. Ex parte proceedings were ordered against the respondent. It was observed in the order that as the respondent who had been directed by the appellate Court to deposit the arrears of rent by the 2nd of May 1960, had not done so and he had also not paid the rent for the remaining months within the terms of section 13 (6) of the Ordinance, his defence be struck off and his ejectment effected. This order of the learned Rent Controller was again challenged in appeal by the respondent before the learned District Judge and the latter by his order dated the 23rd of December 1960, accepted the appeal with the findings that the respondent should have been personally served for the proceedings taken by the Rent Controller on the 4th of November 1960 and that service on. the counsel was not sufficient. It was also held that the respondent had produced a receipt showing that the arrears of rent were duly deposited by him before the 19th of July 1960, as directed by the appellate Court, which fact was not denied by the counsel for the appellant -landlord. It was, however, urged before the District Judge by the appellant's counsel that the Controller's order was not open to any exception as the respondent-tenant had failed to put in appearance on the 4th of November 1960 in spite of service on his counsel.

7. S. A. O. No. 108 of 1960 now before me is directed against the order of the District Judge dated the 12th of July 1960 and the second, S. A. O. No. 37 of 1961, challenges the order of the learned District Judge dated the 23rd of December 1960, the purport of both of which have already been stated above.

8. The contentions of the learned counsel for the appellant in support of S. A. O. No. 108 of 1960 briefly are that the time for the deposit of arrears, as ordered originally by the Rent Controller, Mr. Cheema, on the 3rd of December 1959, had expired on the 6th of January 1960, which had been fixed as the last date for the deposit and since the appeal filed by the respondent before the District Judge against that order was dismissed on the 2nd of April 1960, without any extension of time for making the deposit, the matter stood where it was, i.e., the tenant had committed a default in not making the deposit in time as ordered by the Controller and the latter was not right in extending the time till the 30th of April 1960 and that the learned District Judge in the impugned order of the 12th July so 1960, made a mistake in considering that the time could be extended inclusive of the whole of the last day, viz., the 30th of April 1960. The second argument urged is that with the dismissal of the appeal by the appellate Court on the 2nd of April 1960 and the restoration of the original order of the Rent Controller the respondent had, at any rate, to pay rent for March 1960, due from him by the 5th of April 1960 and since he failed to do that, his defence was rightly struck off by the order of the Controller dated the 30th of April 1960.

9. The contentions raised involve a consideration of the effect of the appellate proceedings against the order of the lower Court which stipulates a time limit for the performance of an act. There has been a conflict of judicial opinion on the matter, some holding that when an appeal is preferred against a lower Court's decree, the latter is held in abeyance and it is the appellate Court's decree then, whether of affirmance, variance or reversal, which comes to supersede the lower Court's decree and it is that alone which is to be implemented in execution. According to this view the appellate order, even without specifying a fresh time limit, would be taken to embody the time limit of the original decree but the time shall start from the date of the appellate order. According to another view, where the appellate order upholds the decree of the original Court without extending the period of time within which a certain act, as ordered by the original Court is to be performed, it incorporates in the appellate order every term of the original decree, including the time limit for performance of the act and even if the appointed time has expired during the period of appeal, the defaulting party must suffer. The learned District Judge appears to have preferred the former view on the strength of Rup Chand v. Shamsul Jehan (I L R 11 All. 346) but it is to be pointed out that this view was not followed by the same Court in a Full Bench case reported as Chiranji Lal v. Dhararn Singh (I L R 18 All. 223). Again, it was dissented from by a majority judgment in the Full Bench case of the Punjab Chief Court, reported as Wasawa Singh v. Lal Singh and others (1906 P R 48). In the last-mentioned case it was laid down by the majority opinion-

(i) that an appellate Court when deciding an appeal by a purchaser from a decree for pre-emption and dismissing the same is not bound to fix a period subsequent to the date of its decree within which the price fixed by the Court of first instance is to be paid, and

(ii) that the decree of an appellate Court, dismissing the purchaser's appeal on the ground that the price fixed by the Court below in a pre-emption suit was correct but silent as to time for payment of pre-emptive money must be construed to have incorporated all the terms of the decree confirmed, including the provision fixing the date or time for payment, and that in such cases the time allowed must be calculated from the date of the original and not of the appellate decree.

In Jairam Nagogi v. Khawaja Obaidullah Khawaja Mahmud (A I R 1947 Nag. 81) the lower Court passed a decree for ejectment of the defendant -appellant under section 76 of the Berar Land Revenue Code on the 11th of September 1939, but the decree was not to be operative if the defendant deposited the arrears of rent on or before the 15th of February 1940. The defendant unsuccessfully appealed to the District Judge who, by his order dated the 5th of February 1940, extended the time for payment up to the 5th of April 1940. The defendant preferred a second appeal to the High Court which was dismissed on the 25th of September 1942, but no mention was made of any extension of time for the defendant to make payment of arrears of rent. The defendant made the deposit on the 14th of November 1942. On the point whether the deposit was made in time it was held that under section 76, Berar Land Revenue Code, there was no obligation to fix a date for the payment of arrears of rent and neither the decree of the lower Court nor that of the District Court had laid down a fixed period of months but certain dates were fixed before which the amount was to be paid. It was further observed that the High Court's order in second appeal being silent as to extension of the period of time and there being no statutory obligation to fix a fresh date for payment, the date of payment was not extended.

10. I have referred to this conflict of judicial opinion because of the ready acceptance by the learned District Judge of the view adopted in I L R 11 All. 346 referred to above, although as stated above, it did not find favour in a subsequent view expressed by the same Court on the point and in other weighty decisions from other Courts. I am of the opinion that where an appellate order or a decree affirms that of the lower court, without any change or modification, including the time limit with regard to the performance of an act by a certain date, it supersedes the original Court's order in all its details and has to be implemented in the same context and the silence of the appellate order on the point of time cannot be construed as allowing a fresh period of time from the date of the appellate order equal to the one allowed by the original Court. Where a decree or order is under an appeal the matter disposed of is reopened and remains in abeyance, but the confirmation by the appellate Court restores its provisions as they stood when it was passed. An appeal by itself does not operate as a stay of proceedings under the decree or order appealed from (order XLI, rule 5, C. P. Code). However, the position would be different in cases where the appellant, as has been done in the present case, obtains a stay order from the appellate Court, stopping the operation of the order under appeal during the pendency of the appeal. The stay order suspends the operation of the order of the original Court and when an order is suspended by a competent Court in its operation, its performance is obviously avoided and if in the meanwhile the date of performance expires during the suspension period, the party that had to perform the act on that date cannot be visited with a penalty for not having performed it during the time when its operation was suspended. In such cases, therefore, while the dismissal of the appeal brings about the restoration of the original decree, with all its contents and provisions, the time for the performance of the act which had been suspended during the pendency of the appeal is revived from the date of the appellate order to be performed within the period equal to that as enjoined in the original order. In the present case, there were two parts of the original order made on the 3rd of December 1959 ; first, that the amount of arrears of Rs. 6,480 was to be deposited by the 6th of January 1960, and, second, that the future monthly rent for each month was to be paid on the 5th of every month. On the first part, I agree with the learned District Judge, although for a reason different from those given by him, that the period within which the respondent could make the deposit in this case stood extended to the 2nd of May 1960 by allowing the period equal to that granted by the original Court, from the date of the appellate order. This part of the order was with regard to the arrears that were outstanding and which had been ordered to be paid by the first Court by its order dated the 3rd of December 1959. But the second part of the order, namely, that the future monthly rent had to be paid by the 5th of each month also stood fully revived by the District Judge's order of the 2nd of April 1960 which meant that the respondent had to pay the rent for the month of March 1960, on or before the 5th of April 1960, and it is not denied that he did not pay it at the proper time, thus infringing subsection (6) of section 13 of the Ordinance, for which reason his defence alone could have been struck off, irrespective of the payment of arrears.

11. The learned counsel for the respondent has argued that the order made by the Controller on the 18th of April 1960, extending the period to the 30th of April 1960, for the respon dent to deposit all arrears of rent up-to-date and to continue to deposit future rent by the 5th of each month was made on the application of the appellant himself and as it was not challenged by him by any further proceedings, it became final and thus the default made by the respondent in the payment of the rent before the 5th of April 1960, for the month of March 1960, is covered. I consider that the respondent was already in the teeth of the Court's order in respect of the rent for March 1960 which was confirmed by the District Judge's order dated the 2nd of April 1960, and the subsequent order of the Rent Controller dated the 18th of April 1960, requiring him to make payment of all arrears of rent up-to-date was not intended to cover and could not have covered the respondent's default which had already occurred in respect of payment of rent for March 1960. The learned District Judge's view, as stated in the impugned order, that the order made by the Controller for the deposit of the arrears by the 30th of April 1960, was premature because it included the whole of that day and further that the period of time should be construed to have been extended to the 2nd of May 1960 and which was further extended by the District Judge himself to the 19th of July 1960, ignores the fact that the respondent had defaulted in complying with the order of the Court regarding payment of the rent for the month of March 1960, which after a period of suspension during the pendency of appeal gained full force and operation after the dismissal of the respondent's appeal by the District Judge. No exception can be taken to the view of the learned District Judge that the order of the Rent Controller made on the 30th of April 1960, striking off the defence of the respondent for non-deposit of the arrears was premature. It is now well-settled that where a day is fixed for the performance of a certain act it can be performed up to the expiry of the last minute of that day and I would have had no hesitation in affirming the order of the learned District Judge on that ground, setting aside the order of the Rent Controller. But, as already held by me, the arrears did no include the payment of the rent for the month of March 1960, which was future monthly rent and for which default was committed by the tenant-respondent, and the learned Controller, in my view, while extending the time for payment of arrears could not have legally extended the time for the payment of this amount, and in fact he did not do so. The provision for the payment of future rent for the running months is contained in subsection (6) of section 13 which lays down as a matter of statutory obligation that the tenant shall be directed to pay the monthly rent for each succeeding month on the 5th of the next month. The learned counsel for the respondent urged that the provisions of the Civil Procedure Code apply to the pro ceedings under the West Pakistan Urban Rent Restriction Ordinance and that under section 148 read with section 141 of the Code of Civil Procedure, the Rent Controller had the power to extend the period for the payment of the arrears by the respondent. In my opinion, section 148 of the Civil Procedure p Code, even, if it were to be applied to the present proceedings does not help the respondent because section 148 is applicable only to cases where the enlargement is made by the Court in the time fixed by it for the doing of any act as prescribed or allowed by the Court. In cases falling under the Rent Restriction Ordinance the fixation of the time for payment of the future rent, viz., the 5th day of each running month is provided by the statute itself and it would be defeating that statute if it were to be held that in spite of this express provision, laying down a particular date for the payment of the future monthly rent, the Court can under its own powers interfere with that fixity of time by its enlargement or abridgement. I, therefore, hold that the learned Rent Controller by his order dated the 18th of April 1960, did not and could not have extended the time with regard to the payment of rent for March 1960, which had to be paid on the 5th of April 1960, under the statute, and in respect of which the respondent had already committed a default before the Rent Controller made a direction on the 18th of April 1960, enlarging the time for payment of arrears of rent by the 30th of April 1960. This disposes of S. A. O. No. 108 of 1960, with the result that the same is accepted and the learned District Judge's order is set aside, restoring that of the Rent Controller, directing that the defence of the respondent is struck off for the reason that he had failed to comply with the order of the Controller in regard to the payment of rent for the month of March 1960, on or before the 5th of April 1960. The further result is that the appellant-landlord is to be put into possession of the property. The possession shall be delivered within a period of one month from today.

12. In view of acceptance of F. A. O. No. 108 of 1960, the decision of the other appeal in practical effect is rendered unnecessary, but since it entails a law point, it may as well be disposed of on its merits.

13. The sole contention of the appellant in this case is that the ex parse order against the respondent was rightly made by the Rent Controller on the 4th of November 1960 as he had been duly served through his counsel, Mr. Masud Butt, whose wakalatnama on the file of the case had not been determined and that the order of the learned District Judge in appeal, setting aside that order, holding that the service on the respondent through his counsel was not effectively made is erroneous. The learned Rent Controller in passing the ex parte order relied on sub-rules (L) and (2) of rule 4 of Order III, which are as follows:-

"4. (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client."

To my mind, the aforesaid provision has to be read in conjunction with rule 5 which is more directly relevant and is as follows:-

"5. Any process served on the pleader of any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person."

It is no doubt true that when a counsel is engaged in a cause, service of process on him is as good as service on the party which he represents, as long as the cause in which he is engaged continues in Court and until its termination. The words "all proceedings in the suit are ended so far as regards the client" contained in rule 4 (2) ibid have to be interpreted in terms of the contract between the client and the counsel. If a counsel is engaged for a particular stage of the case, e.g., if he is engaged only to argue a case at some stage, it would be unfair to bind him down to all subsequent stages in the case after he discharges his specific engagement. Supposing a counsel is engaged for the conduct of an application to the extent of only seeing its fate in the Court in which it is pending, it would not be fair to extend the scope of his engagement to the point that even after the termination of proceedings in that application he is to be deemed as a counsel for the party in the appellate proceedings without a fresh engagement and if the petition is remanded again to the first Court after the conclusion of the appeal, his obligations are revived to pursue the petition afresh. In the present case, Mr. Masud Butt was engaged for the respondent in the original application and the matter ended when the respondent's defence was struck off and the proceedings before the Controller were then terminated. It is not shown that he continued to be his counsel thereafter, and when Mr. Masud Butt himself stated on receipt of the summonses from the Court that he was no longer the counsel for the party he had represented, the Court could not have possibly insisted that he was still the counsel. On the refusal of Mr. Masud Butt to accept service it was only proper that the Court should have issued process for the party itself. In the case of Satiapal and others v. Sant Ram and others (A I R 1934 Lab, 91) a similar situation arose. After the transfer of a case to the transferee Court the latter issued notice to the plaintiffs personally, to their counsel and to the defence to appear in his Court. The notice issued to the plaintiffs personally was not served. The notice to their counsel was tendered to him but he declined to accept it on the ground that he was no longer repre senting them. The note made by the counsel on the notice was brought to the notice of the Judge but he took no action either to serve the plaintiffs personally or to inform the counsel that service on him would be considered to be service on his clients. On the date fixed nobody appeared for the plaintiffs and the trial Court dismissed the suit. The learned Judge, Jai Lal J., held that it was unfair to penalise the plaintiffs for the conduce of their counsel even if it was illegal, and especially because the failure of the counsel to accept service was brought to the notice of the Court in sufficient time to enable it to serve the plaintiffs personally. I am in respectful agreement with this view and would only add that in enforcing the rigour of law with regard to process, care should always be taken that the main purpose of the issue of process is not defeated, namely, that the party itself, either personally or through recognized legal agency, which includes a duly appointed counsel with subsisting authority for representation is duly informed of the proceedings and is not condemned without a notice. In this view of the matter I concur with the decision of the learned District Judge that the ex parte order made by the Rent Controller on the 4th of November 1960 against the respondent was improper. S. A. O. No. 37 of 1961, in the circumstances, stands dismissed. Parties will bear their own costs in both the appeals.

K. B. A./A. H. Appeal accepted.

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