' This appeal is directed against judgment dated 19-12-1970 delivered by the District Judge, Jhelum:
2. The facts necessary for the purpose of this appeal, briefly stated, are that a shop bearing No, B.
VIII 45/1, situate in Bazar Kalan, Jhelum, was in occupation of Muhamtnad Sadiq appellant as an old tenant. After Partition, he started paying rent to the Custodian at the rate of Rs, 31 per mensem until it was transferred to one Mst. Aisha Bibi the predecessor-in-interest of the respondents. She sold it to the respondents on 14-3.1962. Before effecting the sale, Mst. Aisha Bibi had initiated ejectment proceedings against the appellant which were 'dismissed on 14-2-1962.
3. The present respondents after purchase of the property by them served a notice dated 8-4-1962 on the appellant claiming rent of the shop in dispute at the rate of Rs, 75 per mensem w. e. f. The date of purchase of the property by them. The appellant remitted rent to the respondents at the rate of Rs, 30 p.m. Only on which the respondents filed ejectment application No, 82 of 1962 seeking eviction of the appellant from the shop in dispute on the ground of default in payment of rent. This application was accepted by the then Rent Controller, Jhelum, by his order dated 11-6-1963.
4. The appellant preferred an appeal to the District Judge, Jhelum against this order of the Rent Controller. Mr. M. E. Hayat the then District Judge, Jhelum accepted this appeal vide his judgment dated 13-12-1963 and dismissed the ejectment application of the respondents. While dispose of the alppy he also held OA the months rent of the shop in dispute was Rs, 10.
5. Feeling dissatisfied with this judgment of the learned District Judge the respondents instituted S. A.
0. No, 39 of 1964 in the Lahore High Court which was dismissed by judgment dated 11-11-1966.
6. Another facet 8f this litigation is that during the pendency of the above appeal in the Court of the learned District Judge, Jhelum, the respondent made a second application for eviction of the appellant on 25-10-1963 on the ground of the alleged default in the payment of rent for the months subsequent to the institution of the first application viz. The months of July, August and September 1963. This application of the respondents was dismissed by the Rent Controller, by his order dated 7-9-1964. In this order the Rent Controller also held that it having been determined in the earlier litigation between the parties that the monthly rent of the shop in dispute was Rs, 30 the respondents were not entitled to receive rent at the rate of Rs, 50 which was claimed in this subsequent application for ejectment.
7. Against this order of the Rent Controller dated 7-9-1964 the respondents preferred an appeal to the learned District Judge, Jhelum, which was also dismissed by the then District Judge, by his judgment dated 7-4-1965. He also specifically held that the rent of the shop in dispute earlier determined at the rate of Rs, 30 p.m. Was reasonable.
8. The respondents made yet another application for ejectment of the appellant on 3-1-1967 to the Rent Controller, Jhelum.
9. The appellant contested this ejectment application also and apart therefrom made an application on 17-1-1967 under section 13 of the West Pakistan Urban Rent Restriction' Ordinance (VI of 1959) seeking refund of the amount deposited by him in excess of Rs, 30 the determined monthly rent during the earlier ejectment proceedings initiated by Application No, 82 of 1962 which had concluded finally by dismissal of the appeal of the respondents by judgment dated 11-11-1966 of the High Court delivered in S. A.
0. No, 39 of 1964. It was claimed in this application that the appellant had been depositing rent under the orders of the Rent Controller passed under section 13(6) of the Ordinance at the rate of Rs, 50 p.m. Which was the rent provisionally fixed by the rent having been finally determined by the District Judge in those proceedings as Rs, 30 p.m. The appellant was entitled to the refund of excess of Rs, 20 p.m. Deposited by him. This application of the appellant was resisted by the respondents. The Rent Controller seized of the above two matters dismissed the application of the respondents for the ejectment of the appellant and also rejected the application of the appellant for the refund of the excess amount by his two separate orders both dated 8-1-1968.
10. The appellant as wells the respondents filed separate appeals against the orders of the Rent Controller. The appeal filed by the respondents for eviction of the appellant was dismissed by the learned Additional District Judge, Jhelum, by order dated 5-3-1970.
11. The appeal of the appellant against the order of the Rent Controller refusing to entertain the application of the appellant for refund of the amount was, however, accepted, and by order dated 28-11-1969 the learned Additional District Judge remanded the case to the Rent Controller for adjudication of the application of the appellant for refund of the excess amount on merits.
12. After remand proceedings the Rent Controller then seized of the matter, by his order dated 16-7- 1970, accepted the application of the appellant and held that he was entitled to refund of the amount deposited by him in excess of Rs, 30 p.m. In the ejectment proceedings initiated by the respondents vide Application No, 82 of 1962.
13. The respondents preferred an appeal against this order dated 16-7-1970 passed by the Rent Controller to the District Judge who by his impugned judgment dated 19-12-1970 accepted the appeal of the respondents and held that they are entitled to recover the rent at the rate of Rs, 50 p.m. From the appellant. Hence this Second Appeal from Order.
14. The learned counsel for the appellant contended- "firstly, that since there was specific determination of the rate of rent at the rate of Rs, 30 p.m, in the ejectment proceedings initiated by the respondents vide their application No, 82 of 1962 before the Rent Controller the appellant was entitled to the refund of the amount deposited by him in excess of the finally-determined rent. He elaborating his contention submitted that the finding of the learned District Judge in those proceedings determining the rent at the rate of Rs, 30 p.m. Had attained finality as the same were not challenged by the respondents after the dismissal of their appeal against the judgment of the District Judge by the High Court. He contended that section 15(5) of the Ordinance lays down that any order passed by the Controller, the Appellate Authority or the High Court under the provisions of the Ordinance can be called in question only as provided under the Ordinance; the respondents having failed in their Second Appeal before the High Court the order passed by the District Judge determining the rate of rent at Rs, 30 p.m. Had attained finality and could not be re-opened and set aside in proceedings of collateral nature ; ' secondly, that not only the rate of rent was finally determined at the rate of Rs, 30 p.m. In the proceedings in which the appellant claimed the refund but that the rate of rent was thereafter also determined in the subsequent proceedings as well as the rate of Rs, 30 p.m. Which finding was again not challenged by the respondents after it was so held by the learned District Judge in the subsequent proceedings ; ' lastly, that the lower Appellate Court erred in law in re-opening a past and concluded transaction on the basis of decisions of the High Court made in other matters subsequent to the final conclusion of the proceedings in which the finding had been given as to the rate of rent."
15. On the other hand, the learned counsel for the respondents only submitted that the learned District Judge was competent to determine the rate of rent afresh as no finding pertaining to this question had been given by the High Court in S. A.
0. No, 39 of 1964. It was, however, admitted by the learned counsel that the rate of rent as finally determined at Rs, 30 p.m. By Mr. M. E. Hayat the then District Judge, Jhelum, by his judgment dated 11-6-1963 which was under appeal in the High Court in S. A.
0. No, 39 of 1964, was not set aside and that the said judgment of the District Judge was upheld by the High Court.
16. Having given consideration to the controversy involved the only question which falls for determination is as to whether the District Judge in the collateral proceedings could sit in judgment on the earlier finding as to the rate of rent which had attained finality and had not been challenged by the respondents after the decision in S. A.
0. No, 39 of 1964. The only answer to the above proposition is that the District Judge could not do so.
It is a well-settled principle that past and concluded transactions which have attained finality by virtue of judgments of Courts cannot be re-opened in subsequent proceedings and more so in proceedings which are not directly on the point but arise collaterally only. This in effect is a rule of repose which has every thing to commend it for judicial recognition.
17. It is the admitted position that the refund claimed was in the proceedings which were initiated by the respondents by Application No, 82 of 1962 filed before the Rent Controller for eviction of the appellant from the shop in dispute. It is also the admitted position that the rate of rent was determined by judgment of the Appellate Court in those proceedings at the rate of Rs, 30 p.m.
Which finding had not been set aside in any further proceedings, and on the contrary, the appeal against the judgment of the District Judge whereby he gave, inter alia, the finding as to the rate of rent was dismissed by the High Court. The appellant had deposited rent at the rate of Rs, 50 p.m.
Which was the provisional determination by the Rent Controller. The final determination of rate of rent having been made at the rate of Rs, 30 p.m. In those proceedings it was the legitimate and lawful c claim of the appellant to seek refund of the excess amount. The order of the Rent Controller on the application of the petitioner holding that the appellant is entitled to the amount deposited by him in excess of the rent finally determined is lawful and there was no justification in setting aside the same. The reason advanced by the Appellate Authority (District Judge, Jhelum) that the respondents could recover rent at the rate of Rs, 50 p.m. On account of some later decision of the High Court is obviously erroneous and cannot be sustained in law. If this be allowed it will create an endless chain of litigation in that judgments and orders deciding matters between the parties which have attained finality will become open to challenge at any time in view of a subsequent decision by the superior Courts on a similar point. This never has been the intention of law to create uncertainty and to promote litigation. It will also upset the well-settled and deeply-rooted principle established by judicial precedents that judgments decide cases pending when the judgments are given but do not re-open decided cases.
18. In view of the foregoing discussion, this appeal is accepted, the judgment of the learned District Judge, Jhelum dated 19-12-1970 is set aside and that of the learned Rent Controller dated 16-7-1970 is restored.
' The parties are left to bear their own costs.