' This is an appeal against the order, dated 14th October,1982 passed by the learned Xth Senior Civil Judge and Rent Controller, Karachi in Rent Case No,1099/1970.
The brief facts leading to the filing of the above appeal are that the present appellant filed Rent Case No,1099/1970 against the respondent on the ground of default and reconstruction of the building. The above rent application was compromised by an order, dated 1st Apri1,1975 on the basis of the compromise application, whereby it was agreed that the respondent would hand over the vacant possession of the shop of which he was the tenant situated in Kachi Gali No,3, Marriot Road, Karachi. It was further agreed that the appellant after demolishing the building and upon reconstruction of the same within one year from the date of vacant possession would give a shop to the respondent in the newly constructed building. It is an admitted position that the respondent handed over vacant possession of the shop to the appellant on 23rd April, 1975. Since the appellant had not constructed new building and had not handed over the possession of the shop within the above period of one year, the respondent filed an application under section 13(5) of the late Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) on 8th August,1977 i,e, after the expiry of more than two years. It may be advantageous to reproduce hereinbelow the above application which reads as follows:- "APPLICATION UNDER SECTION 13(5) THE SIND URBAN RENT RESTRICTION ORDINANCE, 1959.
' It is submitted on behalf of the opponent herein that vacant possession of the premises in case was deliverd to the applicant on 23rd April,1975 in terms of the compromise herein recorded on 1st Apri1,1975 but the applicant has not constructed new building as agreed and undertaken by him with the result that the opponent has been deprived of his commercial premises.
' It is, therefore, prayed that the applicant be proceeded against and punished in accordance with law.
' An affidavit in support hereof is filed herewith. The case was disposed of on 1st Apri1,1975."
The above application was resisted by the present appellant and inter alia it was pleaded that the building could not be reconstructed on account of the reasons beyond the control of the appellant.
In support of the above application the respondent examined himself and one Mazharul Haq, whereas the appellant examined himself and one Muhammad Sadik. The learned Rent Controller after hearing the parties passed the order, under appeal dated 14th October,1982 directing the appellant to put back the respondent/tenant in the occupation of the demised shop within two months of the order. The appellant being aggrieved by the above order has filed the present appeal.
2. (a) In support of the above appeal Mr.Dastagir, learned counsel for the appellant has urged as follows:-
(i) That the Rent Controller had no power to entertain an application under section 13(5) of the Ordinance and therefore, the order under appeal is without jurisdiction.
(ii) That even otherwise, the order under appeal directing the appellant to induct the respondent into possession of the demised shop could not have been passed without first convicting the appellant under subsection (5) of section 13 in view of the provision of subsection (5-A) of section 13 of the Ordinance.
(iii) That even otherwise on the basis of the evidence on record the order under appeal could not have been passed as the shop already stands demolished.
(b) On the other hand Mr.Syed Inayat All learned counsel for the respondent has contended as follows:-
(i) That the word "Court" used in subsection (5) of section 13 of the Ordinance means the Rent Controller.
(ii) That without even convicting the landlord under subsection (5) of section 13, the Rent Controller has the power to pass an order under subsection (5-A) of section 13 and, therefore, the order under appeal is in consonance with law.
(iii) That there is evidence on record to indicate that the shop is still there except the roof and, therefore, the direction of the nature in issue could have been issued by the learned Rent Controller.
3. (a) Adverting to the first contention, it may be observed that both the learned counsel have referred to subsections (5) and (5-A) of sections 13 and 19 of the Ordinance, which read as follows:- "Subsection (5) of section 13 of the Ordinance.--Where a landlord obtained possession of a building in pursuance of an order under clause (vi) of subsection (2), of this section and does not have the building demolished within a period of four months from the date of taking possession of the same or does not construct the new building within a further period of two years after the expiry of the period of four months from the date of taking possession of the same, he shall, unless he satisfies the Court that he was unable to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both.
' Subsection (5-A) of section 13 of the Ordinance.--Where a landlord has been convicted under the provisions of subsection (5), the tenant, who has been evicted from the building or rented land in respect of which the landlord is convicted, may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land, and except in the case of a building which has been demolished, the Controller shall make an order accordingly.
' Subsection 19 of the Ordinance.-- (1) If any perosn contravenes any of the provisions of subsection
(1) of section 13, section 11 or section 18 he shall be punished with fine which may extend to one thousand rupees.
(2) No Court shall take cognizance of an offence under this section except upon:-
(a) a complaint of facts which constitute such offence filed with the sanction of the Controller in writing; or
(b) a report in writing of such facts made by the Controller.
' It may be noticed that above quoted subsection (5) provides that where a landlord has obtained possession of a building (which includes part of the building in view of the definition of the building given in section 2 in pursuance of an order under clause (vi) of subsection (2) of section 13 and who does not have the building demolished within a period of four months from the date of taking possession or does not construct the new building within a further period of two years after the period of four months from the date of taking of the possession, he shall, unless he satisfies the Court that he was unable to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both.
' It may also be noticed that subsection (5-A) provides that where a landlord has been convicted under the provisions of subsection (5) the Rent Controller upon an application of the tenant shall direct the landlord to restore the possession of the building or rented land to the tenant except in the case of a building which has been demolished.
(b) It may also be mentioned that section 19 lays down that any person who contravenes any of the provisions of subsection (1) of section 13, section 11 or section 18 of the Ordinance shall be punished with fine which may extend to Rs,1,000. It further provides that no Court shall take cognizance of an offence under this section except upon (a) a complaint of facts which constitute such offence filed with the sanction of the Controller in writing or (b) a report in writing of such facts made by the Controller. It may also be pertinent to mention that sub-section (1) of section 13 of the Ordinance provides that a tenant in possession of the building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of the Ordinance or otherwise and whether before or after the termination of the tenancy except in accordance with the provisions of the Ordinance. It may further be stated that section 11 of the Ordinance lays down that no person shall convert a residential building into a non-residential building except with the permission in writing of the Controller. It may also be mentioned that section 18 of the Ordinance provides that every landlord and every tenant of a building or rented land shall be bound to furnish to the Controller, or any person authorised by him in that behalf, such particulars in respect of such building or rented land as may be prescribed.
4. The moot question in issue is, whether the word "Court" employed in subsection (5) means the Court of the Rent Controller or an ordinary criminal Court. It has been vehemently urged by Mr.Dastagir that in all the other provisions of the Ordinance wherever it was intended to make reference to the Rent Controller, it has been so made and, therefore, the use of a different word, namely, Court is not without any purpose. He has further submitted that under section 19 even for contravening subsection (1) of section 13, section 11 and section 18 of the Ordinance the Rent Controller has not been given the power to try the minor offences involving punishment of Rs,1,000 fine alone. On the other hand it was urged by Mr.Syed Inayat Ali learned counsel for the respondent that the word "Cburt" used in subsection (5) means the Court of the Rent Controller which had passed the ejectment order. It has been urged by him that section 19 of the Ordinance includes only the trial of the landlords who have contravened the three provisions of the Ordinance referred to in the section itself, namely, sections 11, 13(1) and 18 and, therefore, it must follow that the Rent Controller is competent to try a landlord for contravening provision of subsection (5) of section 13 as it has not been expressly excluded by mentioning the same in section 19.
5. I am inclined to hold that the use of the word "Court" in subsection (5) of section 13 does not mean the Court of Rent Controller. A perusal of the various provisions of the Ordinance makes it abundantly clear that whenever the Legislature intended to empower the Rent Controller to pass certain order or to take particular action the word "Rent Controller" has been used. The use of different word in subsection (5) of section 13 cannot be without any purpose. In my view the word "Court" employed in subsection (5) of section 13 means the ordinary criminal Court of competent jurisdiction. It may be pointed out that the Legislature has not empowered A the Rent Controller even to try the offences for violating sections 11,13(1) and 18 though the above offences entail maximum punishment of Rs, 1,000 fine whereas the contravention of subsection (5) of section 13 of the Ordinance entails the sentence of six months or with fine or with both. It will stand to no logic or reason to hold that though the Rent Controller has not been empowered to try offences involving lesser punishment, he is competent to try an offence under subsection (5) of section 13 which entails higher punishment as observed hereinabove on the basis of the use of the word Court.
I may also mention that it is a well-settled principle of law that if in the same enactment two different words are used, they will carry B different meaning. Mr.Dastagir has referred to the case of Khadim Mohy-ud-Din and another v. Ch. Rehmat All Nagra and another PLD 1965 SC 459 in support of his contention that Rent Controller under the Ordinance is not a Court. In this regard it may be pertinent to quote hereinbelow relevant observation of the Hon'ble Supreme Court, which reads as follows:- "From the provisions of the Ordinance it appears that though under section 16 the 'Controller' has been given powers "of summoning and enforcing the attendance of witnesses and compelling the production of evidence" he is not bound in every case to follow the procedure as laid down in the Code of Procedure. He has been given powers under sections 4,10(3) and 12 to make order after holding such enquiry as he thinks fit. In such cases the question of nature of enquiry is left to him.
That means that in such enquires the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquires. In short these enquires may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban Area the landlord may not convert a residential building into a non-residential building. The power thus conferred on the Controller would appear to be purely executive. Then subsection (3) of section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be "satisfied that the claim of the landlord is bona fide." But there is no express mention of any enquiry by the Controller. If the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure.
' We, therefore, conclude from the foregoing examination of the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that he acts in a quasi-judicial capacity."
From the above quoted passage of the above Supreme Court judgment, it is evident that the Hon'ble Supreme Court held that the Rent Controller while acting under the Ordinance does not act as a Court but at the most he acts in quasi-judicial capacity. In this view of the matter the application filed by the respondent before the Rent Controller under subsection (5) of section 13 of the Ordinance was without jurisdiction. The effect of section 19 seems to be that a complaint under section 13(5) of the Ordinance can be lodged by a tenant without obtaining the sanction of the Rent Controller referred to in section 19.
6. As regards the second contention of the learned counsel for the parties, it may be observed that an application under subsection (5-A) of the Ordinance can be filed only when the tenant proves two facts:-
(i) that the landlord has been convicted under subsection (5) . Of section 13 of the Ordinance; and
(ii) that the building has not been demolished.
' I am not inclined to agree with the contention of Mr.Syed Inayat All that a Rent Controller can entertain an application under section 13(5-A) of the Ordinance independent of the conviction referred to in the above subsection.
7. Reverting to the third contention, it may be observed that the parties are at issue on the question of fact. According to the appellant the shop in question has already been demolished, whereas according to the respondent only roof of the shop has been demolished and the rest of the structure is still there. In my view, it is not necessary to go into the above question of fact as the above appeal can be disposed of on the above legal grounds referred to hereinabove. I am of the view that the order under appeal cannot be sustained. However, this is without prejudice to the respondent's right to file appropriate legal proceedings for the wrong done to him by the appellant in not providing an alternate shop as F was agreed to in the compromise application, on the basis of which appellant obtained vacant possession of the shop from the respondent. With the above observation the appeal is allowed and the order under appeal is set aside with no order as to costs.