First Appeal No, 17 of 1966 and First Appeal No, 5 of 1967 will be disposed of by this judgment.
2. Both of these are first appeals from orders made by the Rent Controllers refusing to implead the appellants as parties to the proceedings which were pending before them for the ejectment of the tenants. In First Appeal No, 17 of 1966 Muhamma i Sulaiman had applied to be impleaded as a respondent on the allegation that he was in possession of the premises. Azizuddin wanted to eject Mohammad Yamin from the same premises, therefore, Sulaiman was interested in the result of the proceedings. His case additionally was that he was in possession of the premises on his own account. His application was dismissed by the Rent Controller on the 19th of July 1966; therefore, he preferred a first appeal to the Addl. District Judge which was held to be not maintainable vide the order dated the 16th of March 1966. The finding was that an order refusing to allow an applicant to become a party to a proceeding is not appealable under subsection (1) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Muhammad Sulaiman has, therefore, filed First Appeal No, 17 of 1966 on the 19th of March 1966, that is to say, after eight months of the impugned order. Counsel for Muhammad Sulaiman says that about two months were spent in obtaining the certified copy of the order. This means that a delay of about six months needs to be condoned.
3. In First Appeal No, 5 of 1967 Abdul Salam had applied to be joined as a respondent in the proceedings which were taken against respondent No, 2 for ejecting him from the premises in dispute on the ground that he continued to be in possession of the premises from a date which was earlier than the 20th December 1958. His stand was that the definition of "possession" having been enlarged, he was the tenant of the premises. His application was dismissed on the 11th of January 1967 and he filed this appeal on the 27th of January 1967.
4. Mr. Ali Nazar has argued in support of First Appeal No, 17 of 1966 that the delay in filing it should be condoned, because there were conflicting judgments about the appealability of the order to the District Judge. That conflict was settled by a Division Bench in Syed Muhammad Naeem v. Syed Sher Ali in favour of the view that the appeal was not competent to the District Judge; therefore, the time that was spent by the appellant Muhammad Sulaiman in this case in invoking the jurisdiction of the District Judge should be excluded from consideration and that this appeal should be considered to be within time.
5. It was implied in the above contention of Mr. Ali Nazar that an appeal which is not competent to the District Judge, lies to the High Court and that therefore, the time that has been wasted in this case, was simply the result of the difference of opinion expressed in various judgments. This being the stand of counsel it becomes necessary for the decision of these appeals to come to a conclusion whether they lie to the High Court or not. Both the Advocates who have appeared in support of these two appeals, have taken the stand that these appeals are competent in terms of subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. That subsection is as follows :- "Any party aggrieved by an order passed on appeal by the Appellate Authority appointed by the Government under clause (a) of subsection (1) and if an appellate Authority has not been appointed in respect of any area or class of cases any party aggrieved by an order of the Controller may, will hin 30 days from the date of the order of the Appellate Authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final."
The italics are mine.
6. The learned Advocates have emphasised the words "if an Appellate Authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the Appellate Authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court." They have laid stress on the words "class of cases" and contended that these appeals fall in a class of cases which is not covered by section 4, 10, 12 or 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959; therefore, they are not appealable under subsection (1) of that section and by the very fact that they are not an appealable, they should be considered to be appealable under subsection (4) of the section. In order to appreciate this contention of the learned Advocates it is necessary to refer to subsection (1) of section 15 which is as follows :- "Any party aggrieved by an order made by the Controller under section 4, section 10, section 12 or section 13, may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated."
The above provision shows that a party which is aggrieved by an order made by the Controller under section 4, 10, 12 or 13 may prefer an appeal to the District Judge and that no appeal is competent under this subsection to the District Judge if the order by which a party is aggrieved is not covered by them. Since there is no appellate Authority, which hears appeals from this class of cases, the learned Advocates argued, they could appeal directly to the High Court under subsection (4) of section 15 because of the words referred to above that "if an appellate .Authority has not been appointed in respect of any class of cases, any party aggrieved by an order of the Controller may prefer an appeal in writing to the High Court." Several judgments have been cited by counsel for both sides including Syed Muhammad Naeem v. Syed Sher Ali ; Allah Ditta and others v. Muhammad Husain and others ; Syed lqbal Husain v. Mst. Sarwari Begum ; N. 0.
Industries v. Mrs. Bapai Kaikhushro and Messrs Kandawala & Co. Ltd. v. Sh. Fayaz-ud-Din and others . In the case decided by Supreme Court the Rent Controller had held that the relationship of1 2 3 4 5 landlord and tenant had come into existence by attornment and that he had no jurisdiction to set aside the award which established the existence of this relationship. Four appeals were filed against the orders of the Rent Controller to the District Judge who held that no appeal lay to him and returned them for presentation to the proper Court. The petitioner than filed four appeals against the order of the District Judge refusing to entertain the appeals and also filed four appeals directly against the orders of the Rent Controller to the High Court. The High Court dismissed the appeals filed against the order of the Rent Controller on the ground that no appeal lay in such cases; therefore, petition for leave to appeal against them were made to the Supreme Court which were dismissed. The judgment of the Supreme Court does not relate to the second appeals which were filed to the High Court against the orders of the District Judge. Subsection (1) of section 15 as it applied to those cases was different from what it is now. At that time the four sections from which appeals now lie to the District Judge, namely, section 4, 10, 12 and 13, were not mentioned in subsection (1) and instead of that the Government was empowered to confer on the District Judges the powers of appellate Authorities for the purpose of hearing appeals, "in such areas or in such class of cases as may be specified in the order" notified by the Government. The argument, therefore, which was advanced before the Supreme Court was based on subsection (1) as it stood at that time, but the basic question was the same as now, namely, whether appeals from such classes of cases as were not specified in the notification were or were not directly appealable to the High Court under subsection (4) of section 15. That subsection was the same at that time as it is now.
7. The main argument which was addressed to the Supreme Court was that a decision in which it was held that the relationship of landlord and tenant ceased to exist was too fundamental to be considered as not appealable. Their Lordships rejected this contention as follows :- "Admittedly there is no notification by the Government to the effect that appeals will lie against a finding of relationship of landlord and tenant by the Rent Controller though this is really not material as will presently appear. The words used in section 15 are 'an order', but learned counsel for the petitioner does not find it possible to contend that these words are to be interpreted in their wide generality and he accepts that some qualification has to be added to these words for otherwise an order adjourning a case or summoning a witness would also be subject to appeal and learned counsel agrees that this could not be the intention. The High Court has in a Full Bench case reported as Muhammad Amin v. Jamshed Ali PLD 1963 Lah. 523 held that 'an order' in the section means any order which is covered by some provision in the Rent Restriction Ordinance. This appears prima facie to be a reasonable quali-fication to add to 'an order'. The section envisages orders which the Rent Controller is empowered by the Ordinance to make while learned counsel for the petitioner does not accept this interpretation he is unable to make a reasonable suggestion as to any other limitation which can be placed on the words 'any order'. All that he has been able to contend is that an order which goes to the root of the case should also be appealable, but he is unable to explain how the words of section 15 are to be interpreted so as to achieve this result. Even in a civil suit a decision which goes to the root of the matter is not always the subject-matter of an appeal. When a civil Court decides a preliminary issue as to jurisdiction in favour of the plaintiff no appeal lies against the finding. The mere fact that an issue as to jurisdiction has been decided cannot be a ground for granting a right of appeal when on the wording of the relevant provision it is not possible to do so."
8. It will be proper for me to specifically state here that according to their Lordships of the Supreme Court it is not a satisfactory argument in support of the maintainability of an appeal from a decision which goes to the root of the matter that no appeal is provided against it. Moreover, their Lordships have expressed their approval of the view taken in Muhammad Amin v. Jamshed All that every order should not be taken to be appealable, because only those are appealable in6 which the order is "covered by some provision of the Rent Restriction Ordinance". In other words, neither an order which went to the root of the matter was appealable merely by reasons of this quality of it, unless it was found to be appealable according to the terms of section 15, nor should every order which is covered by subsection (1) of section 15 to be taken to be appealable, unless it was covered by some provisions of the Rent Restriction Ordinance. The latter restriction was obviously imposed to exclude the possibility of appeals from merely procedural orders.
9. It appears to be fair to conclude from the above views of their Lordships of the Supreme Court that those orders, which are not appealable under subsection (1) of section 15, are not appealable under subsection (4) of section 15, although this precise point was not directly dealt with. To my mind, there is little difficulty in arriving at this conclusion with the help of the language of subsection (1) and subsection (4) of section 15 which have been reproduced above. Appeals from those orders, which are appealable under subsection (1) of section 15, are heard by the District Judges, but supposing for the sake of argument that a District Judge has not been appointed in a certain place then it does not mean that the right of appeal is lost, because in that case use can be made of the provision contained in subsection (4) of sec-tion 15 and direct appeal can be preferred to the High Court. This is why the language of subsection (4) is restricted to absence of appointment. The subsection says that "if an appellate Authority has not been appointed in respect of any area or class of cases", then the aggrieved party may appeal to the High Court. The absence of an appellate Authority to hear appeals in respect of any area or class of cases can be relevant only if such appeals be competent to such an appellate Authority. If an appeal is not competent to an appellate Authority then it will be a futile exercise to appoint such an Authority and it would be without any purpose to make a provision that if an appellate Authority is not appointed, then an appeal can be preferred to the High Court. Counsel for the respondents has argued that the words "if an appellate Authority has not been appointed in respect of any" class of cases "mean that in the absence of a possibility of appeal in terms of subsection (1) of section 15, an appeal will be competent to the High Court. This is a point of view which is difficult to uphold, because the appointment of an appellate Authority presumes the existence of the right to appeal and no such appointment would be relevant in those cases in which no appeal is provided.
The condition laid down in the words "if an appellate Authority has not been appointed" refers to an omission and the provision that in such a circumstance appeals can be preferred to the High Court, compensates for it by providing an alternative forum of appeals. If this were not the meaning of subsections (1) and (4) of section 15, then their cumulative effect would be that two forums would be created, one for hearing appeals from orders made under section 4, 10, 12 or 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and the other from orders made under any other sections. The first forum will be the District Judge and the second the High Court, although it is obvious that the orders made under section 4, 10, 12 or 13 are the most important orders that are made under the West Pakistan Urban Rent Restriction Ordinance, 195). The, argument that appeals are provided to the High Court in respect of those classes of cases in respect of which appeals do not lie under subsection (1), is palpably incorrect, because the word "if" which occurs in subsection (4) of section 15, leaves no doubt that absence of appointment of the appellate Authority contemplated in subsection (4) refers to the failure to do the duty of providing the forums required in terms of subsection (1) and is not intended to provide an additional forum.
10. I may add that according to Mr. Anwar Ali, these appeals can be more easily dealt with than the above argument, because according to the judgment of the Supreme Court only those orders which fall under some provision of the Ordinance should be appealable even if they fall within the purview of subsection (1). In these appeals the Rent Controllers have refused to make the appellants parties. Such a refusal, according to counsel, is more procedural than substantive, because a person who is not a party to a proceeding, is not in the ordinary circumstances, hurt by the result of such proceedings.
He referred in support of this contention to Syed lqbal Husain v. Mst. Sarwari Begum and to the view of the Supreme Court expressed in Messrs Kandawala & Co. Ltd. v. Sh. Fayyazud-Din and others.
11. The conclusion of the foregoing discussion is that subsection (4) of section 15 is complimentary to subsection (1) of C section 15 and not an enlargement of the right to appeal. The above discussion further justified the view that the delay which has been made in preferring First Appeal No, 17 of 1966, was not justified. The application for condoning the delay in filing First Appeal No, 17 of 1966 is, therefore, dismissed with the consequence that the appeal stands rejected. First Appeal No, 5 of 1967 is dismissed on merits only. The respondents in both the appeals will get the costs. PLD 1963 Quetta 8 PLD 1965 Lab. 29 PLD 1967 Lah. 1138 PLD 1968 Kar. 589 1969 SCMR 721 PLD 1963 Lah. 523