' ALLAH BARHSH, J.-Mst. Adiba ShehVvar sought ejectment of Abdul Aziz from a house and the latter contested the same on various grounds. The learned Rent Controller, Peshawar per his order dated 17-10-1982, accepted the ejectment application and the appeal of Abdul Aziz was dismissed by the learned District Judge, Peshawar on 11-4-1983. He has now by this constitutional petition called in question the aforesaid orders passed against him.
2. The learned counsel for the petitioner raised one point only before us and strenuously contended that Mr. Muhammad Ibrahim was exercising the powers of Civil Judge 3rd Class and, as such, could not function as Rent Controller inasmuch as Civil Judges 3rd Class had not been invested with powers of Rent Controllers by the Provincial Government. He added that the impugned order passed by him was without jurisdiction and a nullity in the eye of law and placed reliance on Ghulam Sarwar v. Muhammad Mithan and another (1), wherein it is held that Civil Judge 3rd Class was not competent to pass order of ejectment under the West Pakistan Urban Rent Restriction Ordinance. It is a S. B. Authority and in a D. B. Authority reported as Messrs Nau-Asio Trading Co. Ltd. v. Sh. Saeed Ahmad Civil Judge, 3rd Class and another (2) it was held that all Civil Judges 3rd Class remained empowered to perform functions of Rent Controllers. The Provincial Government had in this context issued five notifications referred to in the latter authority and are reproduced as under-
(1) No, HG-10-2/59.-In pursuance of the provisions of clause (b) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to appoint the following officers to perform the functions of Controllers under the said Ordinance in the urban areas within the limits of their respective civil jurisdiction :-
(1) All First and Second Class Civil Judges and Subordinate Judges in West Pakistan except Quetta and Kalat Divisions.
(2) All Senior Subordinate Judges and Subordinate Judges in Quetta Division.
(3) All Civil Judges in ,Kalat Division.
(This notification was issued on March 12, 1959 and published in the Gazette of West Pakistan Extraordinary on March 16, 1959).
(II) "No, Judl : 1-17(4)159.-In continuation of Government of West Pakistan, Home Department Notification No, H.G.-10-2/59,, dated the 12th March, 1959 and in pursuance of the provisions of clause (b) of section 2 of the West Pakistan Urban Rent Restriction Ordinance .Of 1959. (West Pakistan Ordinance VI of 1959), the Governor of West Pakistan is pleased to appoint the following officers also' to perform the functions of Controllers under the said Ordinance in the urban areas within the limits of their respective jurisdictions- ' All Third Class Civil-Judge and subordinate 'Judges in West Pakistan except Quetta and Kalat Devisions."
(This notification was issued on October 30, 1963 and published in the Gazette of West Pakistan Extraordinary on November 6, 1963).
(III) "No, Judl : 1-17(4)/59.-In pursuance of the provisions of clause (b) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (West Pakistan Ordinance VI of 1959) in supersession of Government of West Pakistan, Home Department Notification No, H. G. 10-2/59, dated the 12th March, 1959 (appointing certain {{FOOT NOTE}}
(1) 1983 CLC 480 (2) P D 1966 Lah. 268 {{FOOT NOTE}} officers to perform the functions of Controllers under the said Ordinance), the Governor of West Pakistan is pleased to appoint the following officers to perform the functions of Controllers under the said Ordinance in the urban arrears within the limits of their respective civil jurisdiction :--
(i) All First and Second Class Civil Judges in West Pakistan except Kalat Division.
(ii) Ali Qazis and Nazims (Magistrates, First Class) in Kalat Division."
(This notification was issued on March 25, 1964 and published in the Gazette of West Pakistan Extraordinary on April 1, 1964).
(IV) "No, Judl. 1-17(4)0.--In pursuance of the provisions of clause (b) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1459 (West Pakistan Ordinance VI of 1959) and in continuation of Government of West Pakistan, Home Department Notification No, Judl : 1-17(4)/59, dated the 30th October, 1963, the Governor of West Pakistan is pleased to appoint all. Third Class Civil Judges in Quetta Division to perform the functions of the Controller 'under the said Ordinance in the urban areas within the limits of their respective jurisdiction."
(This was issued on July 15, 1964 and published in the Gazette of West Pakistan Extraordinary on July 30, 1964).
(V) "No, Judl. 1-17(4)/59.-In pursuance of the provisions of clause (b) of section 2 of the West Pakistan Urban Rent Restriction Ordinance 1959) and in supersession of Government of West Pakistan, Home Department Notification No, Judl : 1-17(4)/59, dated the 25th March, 1964 (appointing certain officers to perform the functions .Of Controllers under the said Ordinance), the Governor' of West Pakistan is pleased to appoint the following officers to perform the functions of Controllers under the said Ordinance in the urban areas within the limits of their respective civil jurisdiction:-
(I) all First and Second Class Civil Judges in West Pakistan except Kalat Division ;
(II) all Nazims (Magistrate, First Class in Kalat Division.
(This notification was issued on November 24, 1964 and published in the Gazette of West Pakistan Extraordinary on December 21, 1964).
3. The term "Controller" is defined in section 2(b) of the Ordinance as a Judicial Officer who is appointed by the Provincial Government to perform the functions of a Controller under the Ordinance. The first notification empowered all the First and Second Class Civil Judges and Subordinate Judges in West Pakistan except in Quetta and Kalat Divisions to function as Controllers whereas the second notification empowered all Third Class Civil Judges and Subordinate Judges in West Pakistan except Quetta and Kalat Divisions to perform the functions of Controllers. The third notification was in supersession of the first notification and the following observation was made in the case of Nau-Asio Trading Co. Ltd. At page 273 in this context :- ' As observed already the fact that the third 'notification supersedes the first notification with reference to its number and its date cannot be explained upon any hypothesis other than this that the intention was to supersede the first notification only ; had the intention been to supersede the second notification then the draftsman ought to have referred to the second notification also by its number or date or at any rate, suffixed the words "as amended" after a reference to the first notification. Therefore, both on account of the phraseology employed in the third notification and absence of any repugnancy between the second and the third notifications, the second notification continues to be in operation unimpaired by the third notification.
' It was further remarked that "form the fourth notification it becomes manifest that the second notification had survived the issuance of third notification : else there was no occasion for its reference in the fourth notification. In the face of the wording of the fourth notification also, it is otiose to contend that the second notification was also superseded by the third notification by implication." The conclusion arrived at was that the second notification by which all the Civil Judges and Subordinate Judges of Third Class in West Pakistan except in Quetta and Kalat Divisions were empowered to perform the functions of Controllers continued to be in force and operation.
4. A different view of the matter was taken in Ghulam Sarwar's case and it was remarked that the last notification dated 21-12-1964 had the effect of superseding, by implications, all previous notifications in respect of powers of Civil Judges as Rent Controllers and, as such, the Third Class Civil Judges could not perform the functions of Controllers. It appears that the Nay Also Trading Company's case was not brought .To the notice of the Bench which decided the case of Ghulam Sarwar. It is interesting to point out that the fifth notification of 21-12-1964, was not the last notification issued by the Provincial. Government. As a matter of fact there was another notification issued by the Provincial Government in this context and it is reproduced as under: ' No, Judi: I-17(4)/59(0.-4n pursuance of the provisions of clause (b). Of section 2 of the West.
Pakistan Urban Rent Restriction Ordinance, 1959 (West Pakistan Ordinance (V.I of 1959) and in supersession of all previous notifications issued in this behalf and in force immediately before the publication of this notification, the Governor of West Pakistan is pleased to appoint the officers mentioned in column 2 of the Schedule annexed hereto to perform the functions of Controllers under the said Ordinance in the urban areas mentioned against each in column 2 thereunder :- {{TABLE}} Sr. No, Designation of the officer ' Jurisdiction
1. All Civil Judges in West Pakistan, exceptl Kalat Division.
2. All Nazims (Magistrate First Class) in } Within the limits of their Kalat Division. I respective civil jurisdic- J tion.
3. Additional Civil Judge, Karachi.
Tehsildar, Bela, District Lasbella. Within the local limits of Town Committee, Bela, District Lasbella. {{TABLE}} (This notification was issued on August 12,1965 and was published in the Gazette of West Pakistan Extraordinary on August 16, 1965).
This notification was not brought to the notice of the learned Judges I both the aforementioned precedent cases. It had superseded all the previous notifications referred to above and had empowered all the Civil Judges I West Pakistan except Kalat Division irrespective of the class to which the belonged to perform the functions of Controller. This notification has set at rest the entire controversy reiterated before us. It follows that the view expressed in Ghulam Rasul's case cannot be subscribed to and we would, therefore, hold that Mr. Muhammad Ibrahim, Civil Judge 3rd Class was competent to act as Controller under the Ordinance and the impugned orders suffer from no jurisdictional defect.
The only point agitated before us by the learned counsel for the petitioner would not prevail and the writ petition being without any merit is dismissed in limine. nMl1111