The question of court-fee payable on the present appeal has been referred to me for determination by the learned Registrar (A. S.).
2. The appeal is directed against an order dated 18th of July 1970, passed by the learned Additional District Judge, Karachi, in an appeal under section 15(1) of the W. P. Urban Rent Restriction Ordinance, 1959, holding that the appellant, as a tenant of the premises in dispute, had become liable to be evicted for non-compliance of his earlier order dated 21-3-1970, requiring the appellant to furnish security in respect of the arrears of rent and directing the future rent to be deposited in the manner stated therein. Consequently the appellant was ordered to be evicted from the premises.
3. The relevant facts of this appeal are that the Controller by an order dated 3rd of November 1970, passed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, had directed the appellant to deposit the arrears of rent determined at Rs, 3,783 before the 15th of April 1970, and to continue depositing the rent for the future months before the 15th of each month.
Being dissatisfied with this order the appellant filed an appeal against it. The learned Additional District Judge, before whom the appeal came up for bearing, passed an interim order on 21st of March 1970, requiring the appellant to deposit the rent of February, before the 31st of March 1970 and the rent for the future months before the 15th of each following month. In respect however of the arrears, the appellant was required to furnish security to the satisfaction of the Rent Controller before the 15th of the following month. Upon the appellant failing to comply with the last mentioned order the respondent moved an application before the learned Additional District Judge under section 13(6) for punitive action against the appellant by way of his ejectment. It was on this application that the learned Additional District Judge ordered the appellant to deliver vacant possession of the disputed premises to the respondent within one month from the date thereof.
4. The present appeal is directed against the last mentioned order. But the appellant had paid only Rs, 4 as court-fee on the said appeal and not the court-fee calculated on one year averages rent.
5. The contention of the learned counsel for the appellant is that the present appeal is not against any order passed by the learned Additional District Judge on the appeal before him, but an order purportedly passed under section 13(6) of the Rent Restriction Ordinance. It is contended that the learned Additional District Judge, as the first appellate authority, had no jurisdiction to pass an order under section 13(6) particularly in an appeal which was itself directed against an order passed by the Controller under section 13(6). Any order under this section, it is contended, can only be passed by the original Court and not by the appellate Court. This argument, in so far as it goes, seems to have considerable force. In support of his contention counsel referred to the Supreme Court's decision in Abdul Ghafoor v. Ahmed Kunhi wherein their Lordships observe that an order contemplated by the first part of section 13(6) could only be passed by the original Court. This view of the Supreme Court is based on the premises that such an order, being as it is of an interim or interlocutory nature, cannot be said to remain effective after the final determination of the proceedings. However, in the case of Roshandin v. S. M. Badruddin a Division Bench of the then High Court of West Pakistan at Karachi observed that after conclusion of a case before the Controller the appellate authorities will have to make a fresh order for deposit of rent under section 13(6) before a tenant could be penalised for its non-compliance. This observation no doubt implies that the appellate authority also was possessed of requisite jurisdiction to pass such an order under section 13(6); but the case in which the above observation was made was one in which the matter had been carried to the appellate authority upon final conclusion of the case before the Controller. The powers of the appellate Court to pass an order under section 13(6) in such cases was argued before the Supreme Court in Abdul Ghafoor v. Ahmed Kunhi but the question was left open. But even so the decision of the then Karachi Bench in Roshan Din v. S. M. Badruddin has no material bearing on the case before me, since in the reported case the appeal was from an order that had finally concluded the matter before the Controller. In the instant case however the appeal was not from an order directing the ejectment of the tenant but only determining the rent and directing its deposit, the Controller continuing to be in seizure of the main case. There is, however, another aspect which seems to me to clinch the present issue. The powers of the first appellate authority in relation to staying of further proceedings before the Controller are set out in subsection
(2) of section 15. But the first proviso to the said provision takes away the power of the first appellate authority to stay any order in respect of the payment or deposit of rent determined by the Controller, although the second proviso enables the appellate Court to direct that instead of the rent being deposited or paid in cash, security, to its satisfaction, of the amount of the rent may be furnished by the tenant. In other words an order of deposit of rent passed by the Controller continues to remain effective even during an appeal against the order and the only variation which the first appellate Court may make in respect of such an order is that it could substitute the deposit or payment of rent in cash with an order for security to be furnished to its own satisfaction. It is thus quite obvious that the scheme of the two provisos to subsection (2) of section 15 of the Ordinance exclude by necessary implication the power of the first appellate authority to pass itself an order for deposit of rent of the nature contemplated in section 13(6) while the Controller continues to be seized of the main case. The result of this discussion would, therefore, tentatively seem to be that the order passed by the learned Additional District Judge on 21-3-1970 requiring the appellant to deposit the rent for February before the 31st of March 1970 and the future monthly rents before the 15th of each month is void. If this result is correct then the order of the learned Additional District Judge of 18th July 1970, directing the eviction of the appellant for non-compliance of his earlier1 2 order dated 21-3-1970 can be struck down as unlawful.
6. It became necessary to enter on the foregoing analysis in view of Mr. Azizuddin's contention that the first appellate Court had no jurisdiction to pass itself an order under section 13(6) of the Ordinance and I have done so after hearing the learned counsel for both the sides. But the conclusion reached by me does not, I am afraid, advance in any way, the case of the appellant on the question of court-fee. His contention is that the order now in appeal being a void order could not be construed as an order passed by the learned Additional District Judge "on appeal under section 15" in terms of section 17 of the Rent Restriction Ordinance and was therefore not a decree within the meaning of the said section to attract ad valorem court-fee. It is also contended that the impugned order could at best be viewed as an interlocutory order passed on a miscellaneous application and the court-fee of Rs, 4 paid by him was appropriate in the circumstances. Counsel perhaps did not realise that the first part of his Contention was destructive of his own case. If the order now in appeal is not an order passed' by the first appellate authority "on appeal under section 15" in terms of section 17 then the logical sequence of this argument would be that no appeal lies to the High Court against the said order since even under subsection (4) of section 15 of the Ordinance a second appeal to the High Court lies only in respect of "an order passed on appeal by the appellate authority" (The asterisk wherever appearing is mine). Thus if Mr. Azizuddin's argument is to be accepted the very competence of the appeal would be open to question.
Counsel however, relied on Aurangzeb v. Bakshi Muhammad and Tajuddin Ahmad v. Dr. Muhammad Abdul Shakur for canvassing the view that the words "every order made under section 10 or section 13, and every order passed on appeal under section 15" appearing in section 17 of the Ordinance, referred to final orders and not to interlocutory orders or to orders passed under section 13(6) of the Ordinance. It was argued that the order appealed herein being one purporting to have been passed under section 13(6) was not a final order and could not be viewed as a decree. The interpretation of the two Lahore decisions as sought to be pressed by the learned counsel for the appellant is apt to lead to confusion. I have seen both the cases and I would say that the ratio laid down by them simply is that section 17 of the Ordinance envisages only orders which are executable and not otherwise. Thus under the first part of section 13(6) the Controller is empowered to pass an order determining the tentative rent and requiring the tenant to deposit the rent. Such an order is not of a nature whose compliance could be physically enforced in execution but upon the non-compliance of the order the Controller is empowered to pass a further order striking off the defence of the tenant and directing him to place the landlord into possession of the property in dispute. This latter order not only brings to an end the whole case and is therefore a final order but is also capable of being executed. The view of the Lahore decision cited by the learned counsel for the appellant is that while an order passed under section 13(6) for deposit of rent is not a final or an executable order within the meaning of section 17 an order striking off the defence and directing the tenant to place the landlord into possession of the property, also passed under section 13(6), is such an order. These decisions, therefore, far from helping the appellant, demolish his case. Even otherwise, if indeed the criterion for determination of court-fee is the question whether the order appealed against is or is not executable as a decree, there is little doubt that an order directing the tenant to handover possession of the property to the landlord under section 13(6) is surely an order which is executable under section 17 and there is no other provision in the Ordinance under which such an order can be given effect. Moreover every order of the above nature operates to bring to a finale the proceedings and the 'Us' between the parties and is a final order in every sense of the term, passed though it may be prematurely. The further aspect that the particular order impugned herein could be said to suffer from a defect of jurisdiction is really not relevant for the purposes of the present reference since it is the character and the effect of the order which is material for determination of the court-fee and not its legality3 4 or competence.
7. This reference is accordingly answered by ruling that the court-fee payable in the instant appeal will be determined in accordance with Article 1 of the First Schedule to the Court Fees Act. PLD 1969 SC 424 PLD 1969 Kar. 546 PLD 1961 Lah. 619 PLD 1962 Lah. 175