The petitioner is a tenant in Shop No. 1556-A, situate in Jhanda Chichi, Rawalpindi Cantonment at a monthly rental of Rs.
100. Respondent No. 3, who is the landlord, brought a petition for ejectment under section 17 of the Cantonment Rent Restriction Act. It was accepted by the Rent Controller vide his order dated 15th November, 1977, and the petitioner was ordered to hand over possession.
The petitioner filed an appeal before the learned District Judge. He transferred it to the Additional District Judge, where it failed and was dismissed on 29th May, 1978. The petitioner has now filed the present writ petition.
2. It is contended by the learned counsel that the order passed by the learned Additional District Judge is without jurisdiction and, therefore, without lawful authority. He relied on section 24 of the Rent Restriction Act to say that only such Additional District Judges could act as the appellate authority as had been specifically empowered under that section. The learned counsel for the contesting respondent conceded that the Additional District Judge, Rawalpindi, who passed the impugned order had not been invested with any power under section 24 of the Cantonment Rent Restriction Act, by the Central Government. He, however, argued that the learned District Judge, under his own powers, vesting in him under the Civil Courts Ordinance, 1962, could transfer any case to any Additional District Judge.
3. The question of law arising, therefore, is whether an Additional District Judge, who had not been constituted as the appellate authority under section 24, could decide an appeal sent to him by the District Judge? The learned counsel for the petitioner relied on Mst. Aziz Begum v. Sh. Nur Muhammad (PLD 1962 Lah. 887) a decision by a Full Bench of this Court. Their Lordships considered in that case the scope of section 15 of the West Pakistan Urban Rent Restriction Ordinance. It empowered the Provincial Government to confer powers on such District Judges as it thought fit by a general or special order by a notification. The Government by means of a notification dated 12th March, 1959, conferred powers of the appellate authority on all District Judges in West Pakistan. It was held in that case that the District Judge was a persona designate and so he could not transfer an appeal to the additional District Judge. The learned counsel also relied on Khadim Mohyuddin v. Rehmat All Nagra (PLD 1965 SC 459) to the same effect.
4. The learned counsel for the respondent cited Abdul Samad v. Muhammad Ali (PLD 1977 Lah.
687). In that case a revision petition filed under section 115(2), C. P. C. Had been transferred by the learned District Judge to the Additional District Judge. The question arising for decision was whether the Additional District Judge, to whom a revision petition filed under section 115(2), C. P. C.
Had been sent in view of section 15 of the West Pakistan Civil Courts Ordinance, bad competently exercised his jurisdiction in disposing of the said matter? It was held by their Lordships on the basis of section 6(2) read with section 15 of the West Pakistan Civil Courts Ordinance, 1962 that the assignment, by the District Judge of any of his functions to the Additional District Judge, embraced all or sum total of all functions of the District Judge, both as the Judge of the principal civil Court of original jurisdiction or as a recipient of other functions additionally.
5. After bearing the learned counsel for the parties, I am of the view that the impugned order has been passed without lawful authority. The Cantonment Rent Restriction Act is a special statute. It provided its own procedure and appointed Rent Controllers as the tribunals to decide all cases arising. Thereunder. It reserved power to the Central Government to appoint any District Judge or Additional District Judge as the appellate authority in respect of a Cantonment or Cantonments.
Consequently, the Central Government could appoint even one Additional District Judge or any District Judge as the appellate authority for all the Cantonments in Punjab or Pakistan to the exclusion of all others. It is thus quite clear that the District Judge appointed as the appellate authority under section 24 does not exercise his powers under the Civil Courts Ordinance but as a persona designate. Section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, that came up for consideration before a Full Bench of the erstwhile High Court of West Pakistan in the case of Aziz Begum referred to above, contained provisions similar to section 24 of the Cantonment Rent Restriction Act. Their Lordships held in that case that the District Judge acted as a persona designate and not as a District Court and, therefore, he had no lawful authority to transfer an appeal to an Additional District Judge for decision.
6. In the Supreme Court judgment referred to above, the same provision of the West Pakistan Urban Rent Restriction Ordinance, 1959, was interpreted. The conferment of power on the District Judge was also under the same notification. It was held by the Supreme Court as under: "Subsection (1) gives power to the Provincial Government 'to appoint such District Judges as it thinks fit' as appellate authority. Now the question is: Is the District Judge as contemplated in this section the District Judge in his judicial capacity as the Presiding Officer of the principal Court in the District or a persona designate. If the Legislature really wanted that the District Judges should hear the appeal as the Presiding Offer of the principal Court in the District, it could have easily said so. The fact that the Provincial Government is given power to select for this purpose `such District Judges as it thinks fit' indicates that the intention was not to confer appellate power on him as the Presiding Officer of the Principal Court in a District. This is also clear from the provisions of subsections (3) and (5) of section 15."
7. Apart from what has been said above, the provisions of section 24 of the Cantonment Rent Restriction Act themselves make it quite clear that if the Legislature wanted to confer powers of appellate authority on the District Judge as the Presiding Officer of the District Court under the West Pakistan Civil Courts Ordinance, it would not have mentioned the designation of the Additional District Judge along with the District Judge in section 24. The judgment cited by the learned counsel for the respondent has a very lucid and learned discussion on the point to show that the District Judge could assign a case to the Additional District Judge if the District Judge was exercising his powers as the Presiding Officer of the District Court. We, therefore, cannot say that the word `Additional District Judge' is redundant. Further, as no case can directly go to the Additional District Judge the mere fact, that section 24 empowered the Central Government to confer powers on an Additional District Judge, shows that the appellate authority was a persona designate.
8. The learned counsel for the respondent had also half-heartedly raised a preliminary objection that as the petitioner did not object to the jurisdiction of the learned Additional District Judge when he appeared there be should not be allowed any relief in this Court. Reliance was placed on the case of Ghulam Mohyuddin (PLD 1964 SC 829). In that case the jurisdiction of the Tribunal, which had been invoked by the petitioner himself, would stand ousted, if the petitioner had informed it, that he had already filed a revision petition against the order which he was seeking to be reviewed.
It was on the basis of that conduct of the petitioner that their Lordships of the Supreme Court denied him relief. The above situation is not available in the present case. Here the petitioner did file an appeal before the learned District Judge who had been duly empowered to decide the same. His act of transferring the appeal to the Additional District Judge, therefore, would not inflict any penalty on the petitioner. Secondly, it is stated to be the prevailing practice there and, therefore, no one would ordinarily suspect that the transfer was illegal. A similar point came up before the Supreme Court in the case of Muhammad Afzal (PLD 1967 SC 314) in which their Lordships refused to deny relief to a person who had submitted to the jurisdiction in the capacity of a respondent. The ratio decidendi to be deduced from the above two decisions is, that the denial of the relief is for the conduct of the petitioner, either in suppressing some information from the Court, which would affect the jurisdiction of the Court or the authority, which he was approaching or for the reason that knowing that the authority or the Court had no jurisdiction he tried to get a favourable order.
For the reasons given above, the impugned order of the Additional District Judge is declared to be without lawful and of no legal effect. The appeal of the petitioner shall be deemed to be awaiting decision and shall be heard and decided by the District Judge as the appellate authority. As the contesting respondent was at no fault and there was a general practice by the District Judges to transfer such cases to the Additional District Judges; there will be no order as to costs.