SHAH ZAMAN BABAR, J.--Haji Muhammad Akbar Khan was owner of a serai in the vicinity of Shahi Bagh, Peshawar City. This serai consists of 29 garages and 21 rooms. Haji Muhammad Akbar leased out the entire serai to M. M. Ispahani Ltd. defendant No, 1, at the rate of Rs, 1,200 per mensem. It may be noted that Haji Muhammad Akbar died during the pendency of the suit. He was survived by Mst.
Zahira Begum, widow, and Muhammad Ashraf Khan. Under the provisions of section 3 of the North- West Frontier Province Requisitioning of Buildings (Rationing) Act, 1947, the then Government of N.- W. F. P. requisitioned 5 garages of the serai on the 2nd of April 1952. Subsequently on 22nd May 1952, 11 more garages were similarly requisitioned by the Government. On the 22nd of August 1952, four more of the garages of the serai were also requisitioned. On the 19th of May 1953, 7 rooms of the serai were requisitioned. The 20 garages and 7 rooms were requisitioned for storage of Government grains for Peshawar rationed area. In accordance with rule 5 of the N.-W. F. P.
Requisitioning of Buildings (Rationing) Rules, 1947, the P. W. D. assessed the rent of the 16 garages at the rate of Rs, 87-7.0 per mensem. The Governor, North-West Frontier Province was pleased to accord sanction to this rate of rent of 16 garages at the rate of Rs, 87-7-0 per mensem, vide letter dated 27-10-52 (Exh. D. W. 5/5, pages 37 and 38 of the print book). It is clear from the statement of D. W. 5 Muhammad Aurangzeb Khan that the P. W. D. authorities had failed to communicate the Rationing Department the assessm ent of the rent of the 4 remaining garages. The P. W. D. had fixed the rent of 7 rooms of the serai (rooms Nos, 12, 15, 23, 24, 31, 32 and 37) at the rate of Rs, 60-8-0 per mensem. The Governor, N.-W. F. P. accorded sanction to this rate of rent vide letter dated 2-11-53 (Exh. D. W. 5/17) pages 46-47 of the print book). Before the requisitioning of the garages and the rooms, the 20 garages and 7 rooms of the serai, and the assessment of rent for the garages and the rooms, the entire serai was in the occupation of M. M. Ispahani Ltd., defendant No,
1. The Rationing Department in pursuant of the requisition had taken possession of the garages and the rooms from M. M. Ispahani Ltd. A dispute over the payment of rent arose between Haji Muhammad Akbar and M. M. Ispahani. Haji Muhammad Akbar instituted suit against M. M. Ispahani for the recovery of the rent of the entire serai consisting of 29 garages and 21 rooms at the rate of Rs, 1,200 per month in the year 1952 for the period commencing from 1-10-52 and ending on 30 9-53. Vide order of the trial Court, dated 15-10-55, the Provincial Government was made a defendant. Haji Muhammad Akbar died during the pendency of the suit. His legal representatives Mst. Zahira Begum, widow, and Muhammad Ashraf, son, were made plaintiffs in the case. As a result of the trial of this suit, the Senior Sub-Judge, Peshawar by his judgment dated 30-11-60, held that the plaintiff must be paid the rent at the rate which was originally fixed at Rs, 1,200 per month. He thus granted the plaintiff decree for separate sums of money against defendants Nos, 1 and 2. Defendant No, 2 (Province of West Pakistan) did not prefer appeal against this judgment and decree.
2. During the pendency of the first suit, in the year 1956, Haji Muhammad Akbar instituted the present suit against M. M. Ispahani Ltd., defendant No, 1, and the Province of West Pakistan, defendant No, 2, for the recovery of rent, amounting to Rs, 40,800 for the entire serai, consisting of 29 garages and 21 rooms for the period commencing from the 1st of October 1953, and ending on 31st of August 1956, at the rate of Rs, 1,200 per month. As a result of the trial of this suit, the Civil Judge Ist Class, Peshawar, by his judgment and decree dated 28-5-1962, granted the plaintiff a decree for the recovery of Rs, 24,816 against defendant No, I proportionately for occupation of the garages and rooms by defendant No, 1, at the rate of Rs, 1,200 per month for the entire serai. A decree for the amount of Rs, 15,984 was, also granted to the plaintiff against defendant No, 2 for the rent of 20 garages and 7 rooms occupied by the Rationing Department on proportionate rates, at the fiat rate of Rs, 1,200 p.m. of the entire serai.
3. Defendant No, 2 has preferred this appeal, challenging the decree of Rs, 15,984 awarded against it to the plaintiff.
4. During the hearing of the appeal, the learned counsel for the plaintiff-respondent objected that the appeal is deficiently affixed with court-fee in view of section 35-A of the Court Fees (Amendment) Ordinance, 1962. Time was granted to the defendant-appellant to make up the deficiency in court-fee. However, it was later on found on the next hearing that the deficiency in the court-fee had been made up on 3-9-62.
5. The principal question involved in this appeal is whether the proportionate rate of rent assessed by the trial Court at the rate of Rs, 1,200 per month for the entire serai for the occupation of 20 garages and 7 rooms occupied by the defendant-appellant is correct in law. The learned counsel for the plaintiff-respondent also contended that the rate of rent as fixed by the trial Court is hit by the principle of res julicata and it cannot be re-agitated in this appeal. For the decision of the first point, we have to revert to the provisions of the North-West Frontier Province Requisitioning of Buildings (Rationing) Act, 1947 (hereinafter to be called as the Act) and North-West Frontier Province Requisitioning of Buildings (Rationing) Rules, 1947 (hereinafter to be called as the rules).
The disputed serai was requisitioned by the Government under section 3 of the Act. Section 4 of the Act provides for rent and compensation to be paid to owners. It reads :- "Whenever the Provincial Government requisitions any building under this Act, the owner thereof shall be paid such rent as the Provincial Government may determine to be a fair and equitable return on the capital value of the building, and in addition may, at the discretion of the Provincial Government, be paid such sum as compensation for disturbance that the Provincial Government may deem appropriate."
Section 5 (a) of the Act further lays :- "The Provincial Government may, with a view to requisitioning any building under this Act or determining the rent and compensation payable under section 3 by Order :- (a)require any person to furnish to such authority as may be specified in the order such information in his possession relating to the building as may be so specified; (b)......................................
(c)......................................
Section 11 (b) of the Act further provides :"The Provincial Government may make rules for any incidental and supplementary matters including in parti-cular :- (a)............................................
(b)the method of assessing rent and compensation payable to the owner of the requisitioned building; Rule 5 of the rules framed in the exercise of powers conferred under section 11 of the Act, lays :- "The rent shall be assessed by the P. W. D. on a reference made to it for this purpose by the appropriate authority. Before making its recommendation the P. W. D. shall take into consideration, the representation, if any, made by the owner of the building. The decision of the appropriate authority on the recommendation of the P. W. D. shall be final."
6. The learned counsel for the appellant vehemently contended that the rate of Rs, 87-7-0 per month for the garages and the rate of Rs, 60-8-0 per month with respect to the rent of 7 rooms of the serai was recommended by the P. W. D. according to rules and accepted by the Government according to the Act and the rules and is, therefore, final, and the civil Court is debarred to examine the rate of the rent so fixed.
On the other hand, the learned counsel for the plaintiffs-respondents contended that the monthly rent for the 20 garages and the 7 rooms was fixed in violation of the Act and the rules, without notice, at the back of the plaintiff, and in an arbitrary manner, and therefore, cannot be held as final.
The P. W. D. personnel, who assessed the rent of the garages and rooms, have not been produced in support of the assessm ent. The file in respect of the assessment of rent has also been not produced in Court by D. W. 2 Inayatullah Khan. There is nothing on the file to show that any notice of hearing to the owner of the serai was given by the P. W. D. personnel at the time of the assessm ent of rent. Before the recommendation of the assessment by the P. W. D. to the Government, as apparent from the record, no opportunity of representation against the rate of assessm ent recommended by the P. W. D. was given to the owner. P. W. 2 Inayatullah Khan, Superintending Engineer, has deposed that he could not say whether the P. W. D. had given or not any notice to the owner in respect of the assessment of rent by the Executive Engineer Buildings and Roads, Peshawar, who assessed the rent. He further states that no opportunity was given to the owner to make a representation against the assessment of the rent. D. W. 5 Muhammad Aurangzeb Khan, Deputy Director Food, Peshawar, has testified that the P. W. D. authorities failed to communicate them the assessm ent of rent of 4 garages. The relevant portion of letter dated 25-9- 53 (Exti. D. W. 3/2, a t page 30 of the print book) is quoted below :- "E. A. 58. letter No, 16824-P.W./763-W, dated 25-9.53 from Secy., P. W. D. to Secy., Food N.-W. F. P.
No, 16824-P.W./763-W, dated Peshawar the 25-9-1953. North-West Frontier Province, Public Works Department.
From The Secretary to Government, N.-W. F. P. P. W. Department.
The Secretary to Government, N.-W. F. P., Food and Civil Supplies Department.
Subject : REQUISITION OF BUILDINGS Ref : (1)Your No, 9926/AC/47 dated 25-5-53.
(2)Your No, 10170/AC/47 dated 28-5-53.
(3)Your No, 10674/AC/47 dated 6-6-1953.
(4)Your No,10759/AC/47 dated 8-6-1953.
The buildings are not up to the P. W. D. standard and as such the accurate working out of the capital cost, on which the rent has to be based is not possible. Under the circumstances the rent has been assessed on a rough P.A. cost based on the condition of the buildings and is as under :-
(a) Rooms Nos, 12, 15, 23, 24, 31, 32 and 37 in serai Muhammad Akbar Khan near Shahi Bagh.
(i)Capital cost of 2419 s. ft. at Rs, 5 s. ft.: Rs, 12,095 (ii)Standard rent: Rs, 60-8-0 p.m.
Letter dated 27-10-1952 (copy Exh. D. W. 5/5 at pages 37 and 38 of the print book) indicates that the Governor, N.-W. F. P. was pleased to accord sanction to the renting of 16 garages of the serai at the rate of Rs, 87-7-0 per month. Letter dated 2-11-53 (copy Exh. D. W. 5/16 at pages 46-47) shows that the Governor, N.-W. F. P. had accorded sanction to the rent of the 7 rooms of the serai at the rate of Rs, 60-8-0 per month. From the letter (copy Exh. D. W. 3/2) it is evident that the rent of the 7 rooms was assessed on a rough plinth area based on condition of the building and not by a fair and equitable return on the capital value of the building. Moreover, the assessing authority appears to have not taken into consideration the cost of the site underneath the rooms. No documentary proof has been produced by the defendant in support of assessment of the remaining of the rent of 16 or 20 garages at the rate of Rs, 87-7-0. Section 5 (a) of the Act envisages that the Government may, with a view to determining the rent, by order require any person to furnish to such authority as may be specified in the order such information in his possession relating to the building as may be so specified. A notice of hearing of the owner before the determination of the rent is implied in this section. No such notice appears to have been given by the Government to the plaintiff-owner. As earlier stated= the rent was assessed and recommended by the P. W. D. without hearing of the owner-plaintiff and at his back, nor before recommending the assessment of the rent by the P. W.
D. to the appropriate authority any opportunity of representation was given to the owner of the serai. The learned counsel for the appellant argued that the Act and the rules have no specific words, whereby it can be said that the P. W. D. or the Government was bound to give notice to the owner of the serai at the time of assessment of the rent and according sanction to the assessment of the rent recommended by the P. W. D. This argument has no force in law. The undermentioned quotation from para. 114 of the Book "Halsbury's Laws of England, Third Edn., Vol. II", at pp. 55-56, will be helpful:- "Any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, is subject to the controlling jurisdiction of the High Court of Justice, exercised by means of these orders. It is not necessary that it should be a Court; and administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of, and are not in accordance with the practice of, a Court of law. It is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition. A body may be under a duty, however, to act judicially (and subject to control by means of these orders) although there is no form of lis inter partes before it; it is enough that it should have to determine a question solely on the facts of the particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations."
At page 56 note (b) it is quoted :- "So the duty of assessm ent committee was 'clearly judicial', though there was no lis inter partes before them."
It is well settled that the rule of justice embodied in the maxim: audi alterafn partem: "No man shall be condemned unheard" is not confined to proceedings, before Courts, but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form. The rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. Reliance is placed on Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak and The University of Dacca and another v. Zakir Ahmad . Thus we are of the view that the P. W. D. assessed the rent of the garages and the rooms without notice the owner-plaintiff in violation of the rule of natural justice. The assessment has therefore, no force in law, and is not binding on the plaintiff-owner.
In Secretary of State v. Mask & Co. at page 106, it has been held : "The exclusion of the jurisdiction of the civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so ex-chided, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
In view of this dictum of law, the decision of the Government in accepting the recommended rate is not final, as the P. W. D., C or the Government has not acted with the fundamental principles of judicial procedure. A civil Court has, therefore, jurisdiction to examine it.
7. The contention of the learned counsel for the respondent that the rate of rent fixed in the first suit between the plaintiff and defendant-appellant, which is a matter directly and substantially in issue in this suit, had been directly and substantially in issue in the former suit between the plaintiff and the defendant and is, therefore, hit by the doctrine of res judicata, must also prevail. In the former suit between the parties, decided on 13-11-1960 by the Senior Sub-Judge, Peshawar, (judgment copy Exh. P. W. 4/1 at pages 17 to 24 of the print book) issue No, 7 was "whether the plaintiff is entitled to recover the suit amount, if so, from whom and to what extent". As a result of detailed discussion of facts, section 4 of the Act and rule 5 of the rules, the learned Senior Sub-Judge, observed :- "It will thus be seen that the spirit and letter of rule 5 has been flagrantly violated. In these circumstances, plaintiff cannot be bound with the consequence flowing from the assessment so made by the Government, which in turn, is tainted with irregularity, I, therefore, record my finding that the rent has not been fairly and equitably determined by P. W. D. in regard to the property requisitioned by the Government. The necessary consequences of this finding is that the plaintiff must be paid the rent at the rate which was originally fixed at the rate of Rs, 1,200 p.m."
As earlier stated, the first suit was decided on 13-11-1960, before the decision of the present suit between the parties with respect to the same property by Civil Judge 1st Class, Peshawar, on 28-5-
62. The defendant had not preferred any appeal against the judgment and decree in the first suit.
The present suit has been instituted during the pendency of the first suit, but decided later than the first suit. In Bibi Wasilan v. Mir. Syed Husain it has been held : "A suit decided earlier though filed later is former suit within section 11."
The learned counsel for the appellant strenuously argued that there was no res judicata in the present second suit and as such the plea of res judicata could not be raised in appeal for the first time. In the same judgment AIR 1929 Pat. 173 it has been ruled :-1 2 3 4 "The question of res judicata can be raised in appeal and if a decision is come to in prior suit before the disposal of later suit even in appellate stage, the bar of res judicata is applicable."
A previous decision in a rent suit deciding the liability of defendant to pay rent at a certain rate is res judicata in D the subsequent suit. Reliance is placed on Hamid Ali v. Mahomed Nurerjjama Meah and Krishna Chandra Roy v. Surendra Nash Bandopadhya and others .
8. We, therefore, hold that the learned trial Judge has correctly, in law, fixed the rate of rent at the proportionate rate of Rs, 1,200 per month of the entire serai with respect to the 20 garages and 7 rooms. The decree of Rs, 15,984 awarded to the plaintiff-respondent against the defendant- appellant is maintained.
In the result, this appeal is dismissed with costs. PLD 1959 SC (Pak.) 45 PLD 1965 SC 90 AIR 1940 P C 105 AIR 1229 Pat. 173 AIR 1923 Cal. 361 AIR 1932 Cal. 385