' ZAKAULLAH LODI, ACTG. C. J.-This Constitutional Petition assails the Order, dated 14th October, 1981 passed by a learned Single Judge of this Court whereby he dismissed the appeal filed under section 15 of the Urban Rent Restriction Ordinance, 1959 (hereinafter called the 'Ordinance') by the mother and other brothers and sisters (hereinafter referred to as the `tenants') of the petitioners against the decision of the Rent Controller, Quetta dated 31st August, 1980 directing the 'tenants' to vacate House No, 4-15/22, Janaiat Rai Road, Quetta.
2. Briefly narrated the facts of the case are that the above-mentioned house was permanently transferred in the year, 1960 to Jamil-ur-Rehman, the respondent in this petition. It was then in occupation of Qazi Noorul-Haq, the predecessor-in-interest of the 'tenants' and the petitioners.
Qazi Noor-ul-Haq expired in the year, 1977 leaving behind a widow and seven children, who continued to occupy the said house.
3. The respondent filed an eviction application only against the widow and some of the sons and daughters of late Qazi Noor-ul-Haq i. e. The `tenants', thus leaving out the present petitioners, of whom Nos. 1 to 3 are 'his minor sons while the fourth is his minor daughter. The eviction application was moved on the ground of non-payment of rent and bona fide personal use of the premises by the respondent.
' In the rejoinder filed by the 'tenants', it was specifically contended that the application was defective due to omission to join the present petitioners as party to the case. This objection was upheld and the respondent was required to file amended application joining the petitioners herein as party to the case describing their mother (one of the tenants) as their natural guardian.
However, the Rent Controller issued summons to these minors in their own names and in consequence of .Non-service of summons, proceeded against them ex parte, to which effect an order was made on 4th June, 1979. Finally, as said above, an order of eviction was passed against the 'tenants' as well as the present petitioners in the above-noted terms.
4. The order of the Rent Controller was challenged by the tenants as well as the present petitioners before this Court. The appeal was heard by a learned Single Judge of this Court. (This Court is now the only appellate Court under the `Ordinance' as amended). An application was also filed alongwith the appeal by the widow of the deceased (one of the 'tenants') seeking her appointment as guardian of the minors, namely the present petitioners. The main contention in the appeal was that the petitioners herein were not a party to the eviction application before the Rent Controller, therefore, from the very inception the application was not maintainable and that subsequently, when they were impleaded as party, no steps were taken for the appointment of a guardian and also that proper service having not been effected upon them, the ex parte order and all subsequent proceedings leading upto the order of eviction against them were illegal and untenable in law. These objections were considered by the learned Single Judge who was of the view that the irregularities, if any, committed by the Rent Controller were condoneable as the interest of the minors was constantly watched by their motaer, who was a party to the case from the beginning and, hence, no prejudice was caused to the present petitioners. Detailed discussion of the impugned order is not necessary as we propose to dispose of the petition on the preliminary issue of the maintainability of the constitution petition against the order of a Single Judge of this Court.
5. Initially we were reluctant to admit the case due to the bar of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter called the 'Constitution') read with Article 9(9) of the Provisional Constitution Order, 1981 (hereinafter called the 'P. C. O.') which enjoins that no writs shall be issued against the Judges of the Supreme Court and the High Court ; but Mr. Basharatullah, learned counsel for the petitioners convassed that the Single Judge of this Court whose judgment had been assailed in this writ petition did not act as such, but he heard the appeal in the capacity of appellate authority under the `Ordinance' namely that he acted as persona designata, as such, the constitutional bar referred to above did not operate against him. He also referred to Muhammad Shd if v. Muhammad Afzal Sohail (1); a case in which a constitution petition against the order of the appellate authority under the 'Ordinance' (as applicable to Punjab) was held competent. As the question whether the 'appellate authority' under the 'Ordinance' acted as persona designata or as a Judge of the High Court, was of importance, we admitted the petition and simultaneously requested learned Advocate-General and Mr. Aslam Chishti, Advocate to assist us. Mr. Chishti appeared as amicus curiae.
6. For the reasons of the doubts lurking in our minds from the beginning as to the maintainability of the petition owing to the constitutional bar, we formulated the following two points for consideration :-- ' Whether the Single Judge of this Court while hearing appeals against the orders of the Rent Controller under the 'Ordinance acted as persona designata or as Judge of the High Court ; and ' If he acted as Judge of the High Court, what was the effect of the bar of Article 199(5) of the 'Constitution' read with Article 9(9) of the 'P. C.
0.' on the competency of this petition. .
7. The competency of this petition has been further challenged by Haji Sarfaraz Khan, learned counsel for the respondent on an additional ground that the petitioners had not impleaded the learned, Single Judge and the Rent Controller whose orders they seek to.Assail, Eis respondents ; rather by an application they have sought permission to allow them to press the petition only against the private respondent and drop these authorities. As such, it was contended that even if the issuance of the writ was considered valid, it could not be issued in such circumstances. We propose to deal with this object ion as well. In order to appreciate the above, we shall begin with the exa mination of section 15 of the 'Ordinance'
(1) P L I) 1981 SC 246 (which deals with the appeals) as it stood at the inception of the 'Ordinance' and then after the amendments of 1978 and 1980 ; (incorporated in Baluchistan) so as to appreciate its exact scope and true import:- Section 15 of Ordinance of 1959
(1) 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.
(I-A) On such appeal being preferred, the District Judge may himself hear it or refer it for disposal to an Additional District Judge, having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated.
(I-B) The District Judge may recall an appeal made over by him to an Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection (I-A) ; provided that the District Judge shall not so recall or make over an appeal which is partiteard.
(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal.
(3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller.
(4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (I), 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 within 30 days from the date of the order of 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.
Explanation.-An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of Controller and -as an appeal from the appellate order under section 103 of the Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, to such proceedings.
(5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance ; ' Provided that no stay order shall be made in respect of the payment or deposit of rent determined by the Controller : ' provided further that the appellate Court may direct that instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the rent shall be furnished by the tenant.
Section 15 as Amended by Ordinance XXI of 1978 (Baluchistan Urban Rent Restriction (Amendment) Ordinance, 1978)
Appeal (1)-Any party aggrieved by an order of 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 High Court.
(2) On such appeal being preferred, the High Court may order stay o further proceedings in the matter pending decision of the appeal : Provided that no stay order shall be made in respect of the payment or deposit of rent determined by the Controller: Provided further that the High Court may direct that, instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the arrears of the rent shall be furnished by the tenant.
(3) The High Court shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making, either itself or through the Controller, such further inquiry as it thinks fit.
(4) All appeals from the order of Rent Controller pending before the District Judges, shall, on coming into force of this Ordinance, stand transferred to the High Court and be decided under this section.
(5) No order passed by the Controller or the High Court under the provisions of this Ordinance shall be called in question in any Court by suit or otherwise, except as provided in this Ordinance."
Section 1.5 as amended by Ordinance III of 1980 (Baluchistan Urban Rent Restriction (Amendment)
Ordinance, 1980 Appeal.-(1) Any party aggrieved by an order of the Controller finally disposing of an application made under section 4, section 10, section 12, section, 13, of this Ordinance may, within thirty days of the date of such order prefer any appeal in writing to the High Court: ' Provided that no appeal shall lie against an order made by a Controller under subsection (6) of section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due: ' Provided further that no appeal shall lie from an interlocutory order passed by the Controller.
(2) On such appeal being preferred, the appellate authority may stay the operation of the order appealed against
(3) The appellate authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and if the tenant makes default in compliance with such an order, then if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his defence shall be struck off,
(4) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit, either personally or through the Controller.
(5) The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law."
8. The main point for consideration in the case, as said above, is as to whether a Judge of a High Court while bearing appeals under section 15 of the 'Ordinance' against the orders of a Rent Controller acted as persona designata; namely as an appellate authority created by and functioning under the 'Ordinance' or as a Judge of the High Court. Mr. Basharatullah, learned counsel for the petitioners vehemently contended. That the Single Judge of the High Court acted as persona designata while hearing such appeals and not otherwise, as such, his orders were amenable to examination in writ jurisdiction. To substantiate this plea, he relied mainly upon the language of the 'Ordinance' as a whole and, in particular, the wordings of section 15 cited supra. He pointed out, and very rightly that since 1959 (when the 'Ordinance' was promulgated), it had undergone frequent amendments and some of the amendments radically altered it so as to make it totally different from its earlier methodology and scheme. In Baluchistan, it was amended twice; first amendment came in the year, 1978 by means of Baluchistan Ordinance XXI of 1978 (hereinafter called the 'Baluchistan Ordinance of 1978') in order to curtail the right of appeal from two to one and that too to the High Court. It hardly needs recapitulation that originally two appeals were provided; the first to the District Judge and the second to the High Court. The second amendment was introduced in the year, 1980 through Baluchistan Urban Rent Restriction (Amendment)
Ordinance, 1980 (hereinafter called the 'Baluchistan Ordinance of 1980') when section 15 was remodelled; slightly trimming the scope of authority and reshaping the span of jurisdiction of the appellate Court. These frequent changes did give rise to inconsistent and at times, rather incompatible language. Taking advantage of different phraseologies used ac these two occasions and placing reliance mainly upon this lack of harmony in the language used in the abovesaid two amendments; and in particular, with regard to the reference to the High Court, Mr. Basharatullah stressed that since in section 15 as amended by the 'Ordinances of 1978' and 1980, the word `High Court' is used only in the first paragraph (in both the amendments) while the subsequent paragraphs referred the High Court as 'appellate authority' which was of significance He further submitted that not only the word 'appellate authority' had been used in both the amending Ordinances, but a separate procedure to deal with the appeals had also been laid down which further confirmed the position that the High Court was not meant by law to act as such while hearing appeals but only as an `appellate authority' under the 'Ordinance', otherwise neither of the two i,e, the repeated use of the term 'appellate authority' and separate procedure would have been necessary; for the High Court had already section 96 of the Code of Civil Procedure at its disposal to follow; and assuming that for some reason, extra caution was considered necessary, in that event a reference to section 96 of the Code, would have been enough. According to him the addition of paras. 2 to 5 in each of the two amendments laying down the procedure for the disposal of appeals should not be considered a redundant or unnecessary act. He further emphasised that by laying down through proviso 2 of subsection (1) of section 15 that 'no appeal lay against the Controller's order under subsection (6) of section 13 (by which he determines rent etc. And by providing further that `no appeal shall also lie from an interlocutory order passed by the Controller'; the Legislature only meant to explain that the High Court was to function as 'appellate authority' under the 'Ordinance' and work within the ambit of the procedure herein laid down rather than adverting to the procedure of the Code of Civil Procedure which it would have otherwise followed. In nutshell, his case is that conferment of particular procedural exclusiveness within the framework of section 15, coupled with the repeated use of the term `appellate authority' made the Legislature's intent clear that the particular Judge of the High Court who heard appeal against the orders of the Rent Controller acted as persona designata. Of course, this contention was supported by emphasis on the glaring principle of the interpretation of statutes that no word used by the legislators was empty or meaningless; and to this aspect we revert soon. He also invited our attention to the construction- of section 15 as a whole and not disjunctively viz. By pick and choose of one or the other amendment and its separate interpretation. In short, we can say what he means is that these amendments have, in fact, substituted the District Judge as he was at the inception of the Ordinance for all purposes, i,e, a persona designata; though, as we shall see later that this position was also reversed and District Judge heard first appeals not as persona designata, but as District Judge. However, the crux of the aforementioned amendment seems to us to be that firstly, the number Of appeals from the Rent Controller's orders was restricted to one and thus in Baluchistan, this one (or only) appeal lay to the High Court while in Punjab it lay before the District Judge. In the province of Sind, the position is different, and we are afraid its discussion would not be of much help to resolve the controversy here at hand, as altogether different Statute has been introduced there in 1979,
9. Before proceeding further, we may add that the 'Ordinance' and its various amendments do not only use the term 'appellate authority' and `High Court' for the appellate forum, but a third term 'appellate Court' has also been used in some places, which means that implication of the terminology used to denote appellate forum was not very seriously, or to say so oppressively in the mind of the legislators as it is in the mind of the learned counsel for the petitioners.
10. Mr. Muhammad Aslam Chishti, appeared as amicus curiae. He repudiated the stand taken by Mr. Basharatullah. His submission was that the appeals were heard by the High Court not as persona designata but as High Court and that the word 'High Court' used in subsection (1) of section 15 denoted the institution to which the appeals lay and not a particular Judge of the institution specially appointed to act as `appellate authority' under the 'Ordinance' and that as the appeals preferred to the High Court (to which subsection (1) of section 15 of the `Ordinance' refers) could be heard by any of the several Judges of a High Court, therefore, the question of all of them hearing appeals as persona designata does not arise ; for such jurisdiction could be conferred only on one of the Judges especially designated and notified for this purpose. Similarly, the entire institution of the High Court could not be meant to act as persona designata. The term 'persona designata' signifies an individual, or a person and not an institution. To presume otherwise, he submitted, would be illogical, rather absurd on the face of it. He also submitted that each Judge of a High Court while hearing a case acted as High Court, or say, as the institution itself, in contradiction to his individual capacityand, therefore, it was an additional reason necessitating nomination of a particulur Judge had the intention been that the appeals be heard by a persona designata, and not only this, but the said subsection (1) of section t5 would have also manifested that the Judge of the High Court designated for the purpose by the Provincial Government, instead of using the general term of High Court, the way it stood in the original section 15(1) which specifically mentioned that the particular District Judge nominated by the Provincial Government for the purpose etc. Shall hear appeals against the Rent Controller's orders, and so, the position that emerged there was that only the District Judges designated and notified for the purpose by the Provincial Government could act as first Appellate Courts and not others. Thus his rejoinder to Mr. Basharatullah's contention was that after subsection 15(1), reference to the High Court not as High Court, but as 'appellate authority' could only be considered a reference to that particular Judge of the Court who heard a particular appeal. As such, he submitted that the use of these two different terminologies did not allow any scope to draw a conclusion that the appeals were heard by the High Court as persona designata, as the institution as a whole could not be termed as persona designata and this argument finds support from the fact that after the amendment no particular Judge of the High Court was ever nominated as 'appellate authority' by the Provincial Government, and thus the position is that any one of the several Judges can hear the appeal in question.
11. In order to fully appreciate the respective stands of the learned counsel on their point, it would be of help if we rush through, rather chequered history of the 'Ordinance' ; side by side examining the reasons necessitating these frequent amendments, also keeping in view as to which of the two contentions, if accepted, would serve better to get nearer and closer to purpose in view of the legislators.
12. The 'Ordinance' was promulgated on 23rd February, 1959. It provided two appeals against the orders of the Rent Controller, of which , the first appeal lay to the District Judge and the second to the High. Court. We have already seen that all the District Judges were not suppose to hear these appeals, therefore, only those District Judges were competent in this context upon whom the Provincial Governments had conferred necessary powers through a Notification. It will be further noted with significance that this provision (reproduced above) did not lay down any procedure of its own for decision of the appeals, rather by an explanation vide its subsection (1) it provided that an appeal against the order of Rent Controller shall be heard as an appeal from an original decree under section 96 of the Code of Civil Procedure and from the order of the appellate authority (i. e.
From the other of the nominated District Judge passed in first appeal) second appeal lay to the High Court and that the order of such District Judge was to be treated as an order from an appellate order under section 100 of the said Code. This scheme was defective, inasmuch as that although the District Judge was required to act as an 'appellate authority' under the 'Ordinance' yet he had not been provided with any independent procedure to deal with the appeals, so he had to follow the Code of Civil Procedure obviously on the analogy that he was a civil Court and could make use of the Code of Civil Procedure. This position also required consideration that although the Rent Controller was a quasi-judicial authority, but his decisions were to be treated as decrees executable like all other decrees passed by regular civil Courts, as envisaged by the 'Ordinance'. But despite all this, the District Judge did not enjoy the position of a District Court, as under the Code, but he was only a persona designata. This and some other such contradictions -created ample confusion requiring rectification so as to ensure smooth running.
13. A controversy as to whether or not such appeals could he transferred by the District Judges to the Additional District Judges also arose. A Full Bench was constituted in Mst. Aziz Begum v. Noor Muhammad (1). It was held that the words "confer on such District Judges as it thinks fit" were very significant. The Government may or may not confer the powers of an 'appellate authority' on a District Judge as the 'appellate authority' does not hear appeals against orders of 'Controller' as District Judge but as persona designata. This view was upheld by the Supreme Court in Khadim Mohy-ud-Din v. Ch. Rehmat Ali Nagra (2) and it was further held that the Rent Controller acted in quasi-judicial capacity and not as a 'Court'. Uptil this stage, the High Court acted as second appellate authority and the position that it acted as High Court and not as a persona designata was not in controversy. However, the question that arose next was with regard to the court-fee payable on appeals. It was considered on an office objection. Placing reliance on section 17 of the 'Ordinance' which laid down that the orders of the Rent Controller in both the first and second appeals were to be dealt with under sections 96 and 100 of the Code as if they were 'decrees' under the Code, it was held that the court-fee on the annual rental value of the premises was payable on appeals preferred to the High Court as it heard the second appeal as a High Court and not in any other capacity. Similarly while dealing with the question of an appeal against an ex parte order, it was held in Din Muhammad v. Hidayat Hussain (3), that both the Controller and the first appellate Courts (District Judges) were not Courts as the former was a quasi-judicial Tribunal and the later was persona designata. However, no doubt was even now expressed with regard to the capacity of the High Court, as appellate forum.
14. In 1966, by an Ordinance of the same year substituting the word `appellate authority' with the word 'District Judge' and adding a sub-clause to section 15 whereby appeals could be transferred to the Additional District Judges, an amendment was brought in, in the 'Ordinance'. It was necessarily to obviate the difficulty that not all the District Judges but only those who were nominated for the purpose could hear first appeals and cases could not be transferred to Additional District Judges which caused delay in disposal of appeals. This amendment also omitted the opening para. From subsection (1) which dealt with the nomination of particular District Judges etc. As appellate authorities. It further added the following clauses to subsection (1) of section 15 :- "Section 15(1)(a).-On such appeal being preferred, the District Judge may himself hear it or refer it it for disposal to an Additional District Judge
(1) PLD 1965 Lah. 887 (2) PLD 1965 SC 459
(3) PLD 1968 Lah. 207 having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated,
(b) The District Judge may re-call an appeal made over by him to an Additional District Judge and either hear it himself, or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection 1(a) provided that the District Judge shall not so recall or make over an appeal which is part-heard."
' The position that emerged after the above said amendment was that the District Judges ceased to act as 'persona designata' and instead all the. District Judges could hear first appeals in their capacity of District Judges and could also transfer the cases to Additional District Judges.
15. It will be of interest to note that in the above amendment while substituting the words 'appellate authority' with the words 'District Judge' in subsection (1), the phrase 'appellate authority' earlier used was allowed to remain as it was in all the subsections of section 15 (i,e, from subsections (2) to (5)), as such, the amended section 15 (alike section 15 after amendment of 1978 and 1980 by Baluchistan Ordinances) used both these terms for one and the same authority i,e, 'District Judge' and `appellate authority'. The only conclusion that can be drawn from this duality in reference to one and the same authority can be that by the term 'District Judge' in section 15 (1), the institution as it is, was meant, i,e, a District Judge; with all his powers and functions as created and recognized by the Code of Civil Procedure and among other matters, included Additional District Judges and by later term of 'appellate authority' as used in subsections (2) to (5), the particular District Judge or the Additional District Judge who heard the appeal was meant. This position is akin to one that exists in the instant case. It can thus be said on this premises that after using the word 'High Court' in section 15(1) of the 'Ordinance of 1978' and from the words 'appellate authority' in the remaining subsections all what the law-makers meant was to at first point out the institution which was empowered to hear appeals and later on by using the term 'appellate authority' that particular Judge of the institution was meant who heard a particular appeal. More so, because subsections
(2) to (5) deal with procedural matters which are exclusive concern of the particular Judge who hears an appeal But, as also argued by Mr. Chishti, it does not at all mean that particular Judge who hears an appeal becomes an 'appellate authority' or for that matter a creation of the `Ordinance' and is cut adrift from the rest of the institution. Such a situation can arise only in cases in which a particular Judge of the High Court is nominated and assigned a particular function under a special or local law; for example, Judge of the High Court functioning as appellate authority under the Industrial Relations Ordinance, 1969 (See section 38). This provision too after using the words 'a Judge of a High Court' subsequently uses the term 'appellate authority' etc. Thus it seems to be the drafting pattern in vogue at the legislators end. Similarly under the Customs Act, Services Tribunal Act and Banks (Special Courts) Ordinance, 1984, etc. The High Court Judges try cases. These laws do not nominate the High Court as an institution to act under these . Laws but nominate a particular Judge of the High Court to act in a particular capacity under these laws.
' Therefore, if at all that had been the intention, we may mention, at the cost of repetition, that the Ordinance would have certainly said that a Judge nominated by the Provincial Government for the purpose of acting as appellate authority, the manner in which it stated at its inception that a District Judge nominated for the purpose of hearing the appeals against the orders of Rent Controller shall hear the appeals or in the case of above-referred laws where a particular Judge of the High Court was nominated. Thus it is the High Court and all its Judges (as an institution) who hear appeals emanating from the Controller's orders. It may further be mentioned here that every Judge of the High Court acts as High Court and the orders passed by him are not the orders of an individual Judge but those of the High Court. Examining this position, we may further refer to Abrar Hassan v. Government of Pakistan and another (1), in which, it was held by their Lordships Mr. Justice Muhammad Yaqub Ali, Chief Justice (as he then was) and Mr. Justice S. Anwarul Haq (as he then was) that :- "Word 'person'; 'High Court' is not a 'person' to whom a writ may issue; Terms 'High Courts' and 'Supreme Court' used in Art. 199(5) include Judges of these Courts; High Court and individual Judges who constitute High Court are inseparable from each other; Each Judge is a High Court."
16. Reverting back to section 15 of the 'Ordinance', we shall see that subsection (1) thereof as it stands after the amendment by Baluchistan Ordinance of 1978 enjoins that first appeal against the order of Rent Controller would lie to the High Court, thereby omitting the District Judge who earlier was first appellate Court. The provision of a second appeal has been omitted altogether. In this fashion all what has been done is that the District Judge has been replaced by the High Court and second appeal which earlier lay before the High Court stands totally eliminated. The amendment does not introduce any reversal etc. To 1959 position by introducing the nomination of a particular Judge to act as 'appellate authority' etc. As was the case with the District Judge at the inception of the 'Ordinance. So' there is no question of the High Court Judge, hearing the appeal being persona designata. The argument of Mr. Basharatullah is, therefore, no convincing and stands repelled.
No doubt the language used in the 'Ordinance of 1980' is quite different from that of 1978, but the position can be easily reconciled if we appreciate the intent and purpose behind the introduction of the `Ordinance of 1980' which replaced the 'Ordinance of 1978'. There are no two views about it that the legislators were not concerned with the nomenclature of the 'appellate authority' as that was not in issue; but the only task before them was to further restrict the scope of appeals, and that is why the words 'finally dispose of an application under section 1 .' were inserted and they are significant. The necessity to amend the law once again in 1980 also arose to discourage the practice of prolonging the proceedings by filing frivolous, or at least, unnecessary appeals against interlocutory fragmentary and miscellaneous orders which usually are of little consequence and can be dealt with in final appeals. This exercise too was meant to expedite speedy disposal of rent matters. Another noteworthy feature of this amendment is proviso to subsection (1) of section 15 which bars appeals against the tentative fixation of rent under section 13(6) of the 'Ordinance'.
Subsection (2) is yet another important addition. Under this provision, the powers to stay operation of the orders under appeal has been introduced. Likewise, some minor changes here and there of lesser consequence have been introduced. But all this has been don
(1) P D 1976 SC 315 for the purpose of expeditious disposal of litigation. Accordingly, besides others, it is also necessary to construe these amendments in the light of the purpose in mind of the law-givers, instead of fiddling with the words, which may lead to inconsistency or incompatibility; for language used in drafting is at times wanting in perfection. Yet the grasp of the situation for which a law caters solves the issue of correct and logical interpretation in a big way.
17. It is cardinal principle of interpretation of Statutes that to discover the intention of the legislature the enactment should be read as a whole. One may go a little farceur to say that emphasis should be more on enlightening ourselves with the aims and objectives which motivated the E law-givers to enact a particular law or modify, amend or alter an existing law ; for quibbling with the words as has been done before us for two long days does not lead up to logical and reasonable conclusions.
There is wealth of case-law on the point as to how the problem of such a nature should be tackled but we would confine ourselves only to making a precise reference to the observations of his Lordship Mr. Justice Muhammad Munir, Chief Justice (as he then was) on a reference made by the President to the Supreme Court of Pakistan under the erstwhile Constitution of 1956 PLD 1957 SC
219. It was held by him that "the intention of the Legislature in enacting a Statute ought to be derived from a consideration of the whole enactment in order to arrive at a consistent plan. It is wrong to start with some a priori idea of that intention and to try by construction to wedge it into the words of the Statute". The principle enunciated above speaks for itself Suffice it to say, that the rule that has been emphasised with regard to the Constitution shall also generally apply to the construction of enactments, as such, even if some kind of ambiguity or inconsistency was to be found in the phraseology used in different parts of a Statute, constant efforts should be made to harmoniously co-ordinate such diverse phraseology so as to discover the crux of the law-giver's intention. To F waiver, ignore or disregard a particular word used in the common context alonwith the other word meant to convey the same meaning and then by picking up one such word and highlighting its import and meanings shall always result in creating confusion as that is far beyond the 'balanced approach' which law and reason demand for correct and reasonable interpretation of a Statute.
18. As to the instant case, we have already mentioned that the 'High Court' or the on appellate authority' are not the only words used by section 15 to refer to the appellate forum ; but another word 'appellate Court' has also been used in the 'Ordinance'. It, therefore, implies that much importance has not been attached to the name of the forum ; rather the focus has all along been to signify the Court which was to hear the appeal ; as such, after using the words 'District Judge' or the 'High Court' in the opening paragraphs, the words 'appellate authority' have been used. It will not be out of place to mention that Punjab Rent Restriction Ordinance, which among others, introduced District Judge as the only appellate forum has also used the word 'appellate authority' for the District Judge in subsection (1) of section 15 and the District Judges have been nominated to act as such authority but their capacity is not that of persona designata but of District Judge. It is so, in spite of the fact that the entire reconstituted section 15(1) does not use the word 'District Judge'. Sind Rented Premises Ordinance, 1979 may also be perused. It is comparatively a new law.
At places it has followed the pattern of its prototype i. c. The "Ordinance" which earlier applied to Sind as well. In section 21 which provides for appeal, the scheme followed is almost the same as has been used in 'Baluchistan Ordinance of 1978', in it, that except for its first subsection which mentions the High Court as the 'appellate authority' remaining subsections which deal with procedural aspect have used the word 'appellate authority'. But this manner of drafting did not raise any doubts as to the capacity of the High Court in which it hears appeals and at least uptil now, we have not come across any case law pointing to any effort to dub the High Court of Sind as persona designata.
19. The other limb of the argument of Mr. Basharatullah was with regard to the procedure. He submitted that the laying down of the procedure from subsections (2) to (5) of section 15, was indicative of the fact that the legislators had in their minds that the High Court was not to act as High Court but as persona designata and, therefore, an independent procedure was necessary and that a resort to the Code could have given rise to doubts and controversies. The edifice of this argument lies on the fact that when the High Court acts as such, provisions of the Code become automatically available to it, but if it acted in any other capacity, it has no inherent right to resort to it and a procedure had to be provided for its guidance and in the law under which it is to function and that is why subsections (2) to (5) laying down procedure had to be enacted. To say the least it is a conceptual fallacy. It is not so that whenever High Court functions, as appellate or revisional authority, it is bound by the procedure of the Code In fact, in cases not emanating from the Code or from such laws to which Code had been made specifically applicable, it may not at all follow the Code, or in certain cases it may follow the Code only as a general law of the land and not as a matter of compulsive rule. In many matters it follows its own Rules and Orders i. e. ; High Court Rules and Orders, therefore, to Judge the capacity in which the High Court is performing a particular function, criteria is not the procedure that it follows but the capacity conferred upon it by the law under which it is functioning and as said above, if that law does not authorise a particular Judge of th Court to act under it like Industrial Relations Ordinance, 1969, Customs Act, Services Tribunal Act and Banks (Special Courts) Ordinance, 1984 etc. And simply uses the phrase 'High Court', then it does act as High Court. Again, so far as Code of Civil Procedure is concerned, the High Court is not its creation. It owes its existence to the Constitution. Code of Civil Procedure is a general procedural law and it not only covers the matters falling under it but also in cases outside its scope its principles are generally followed. Let us refer to Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (1) on this point. In this case the power to review its own orders had not been provided for under Article 98 of the late Constitution of 1962, but it was held to be available if in principle the case was covered by section 114 of the Code, i. e. Alike matters flowing from the Code or say the only requirement laid down to attract this provision was fulfilment of the conditions in which review is called for under the Code. Here reference to section 114 has been borrowed from the Code so as to clarify and regulate the powers of review, though the Code is not implicitly applicable to writ proceedings and it is, in fact, in the interest of justice that the High Court has assumed unto it the powers of review in extraordinary constitution jurisdiction. Besides, many a matter are governed by its own Rules and Orders. Instances of some other laws may also be
(1) PLP 1970 SC 1 given here in which High Court has to follow the procedure laid down in them and not that of the Code. Election Laws, Income-Tax Laws and Fatal Accident Act etc. Are some such laws. So it is out of place to argue that the procedure followed by a Court of law determines its capacity or that to discover the true intent and import of a law and to put reasonable construction upon it, the touchstone should be the 'procedural' aspect and not the scheme of that law itself.
20. In the light of above, let us advert to the 'Baluchistan Ordinance of 1980'. It needs hardly be repeated that by using the word 'High Court' in subsection (1) of section 15, the Legislature had in mind a particular Judge (to act as persona designata) and not the 'High Court' as institution. A comparative study of the 'Baluchistan Ordinances of 1978 and 1980' has already been made and it goes to show that the later Statute was not intended to describe the capacity of the High Court. It was rather necessitated to further cut down the scope of unnecessary and frivolous appeals. It is now settled position that the use of the term 'appellate! Authority' from subsections (2) to (5) connote the term 'High Court' and the l/ two nomenclatures are synonymous. Mr. Basharatullah's argument based, on the procedural aspect is also devoid of substance.
The upshot of the above discussion is that while hearing appeals against' the Rent Controller's orders under section 15 of the 'Ordinance', the Highs Court does not function as persona designata but as a High Court and every Judge of it who exercises such appellate jurisdiction acts as High Court.
21. In the light of above, it is easy to deal with the second proposition i. e. Whether a writ could be issued against the Single Judge of the High Court passing an order in appeal under the 'Ordinance' or not. Article 199(5) of the 'Constitution' and Article 9(9) of the 'P. C.
0.' which create specific bar in this connection are reproduced below for reference :- Article 199(5)- "In this Article, unless the context otherwise requires,- "Person" includes anybody politic or corporate any authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan ; and "Prescribed Law Officer" means,
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate-General for the Province in which the application is made.
Article-9(9) of the 'P. C.
0.'- ' In this Article, unless the context otherwise requires,- "person" includes anybody politic or corporate any authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under, a law relating to the Armed Forces of Pakistan : and "Prescribed Law Officer" means-
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General ; and
(b) in any other case, the Advocate-General for the Province in which the application is made."
In the enabling clause 199 (I) (a) (i) of the above articles the was `person' has been used, but the definition of word 'person' given in Article 199(5) specifically excludes the Supreme Court and a High Court and Tribunals relating to Armed Forces from the operation of Article 199, therefore, this enabling clause is subject to the rider contained in this provision. The 'P. C.
0.' also follows the same policy. As the word 'High Court' also means every Judge of the High Court, therefore, every Judge is excluded from the operation of Article 199 (1) (a) (i). This position has been discussed in Abrar Hassan v. Government of Pakistan and another. This ruling has taken note of Jyoti Prokash Mister v. The Hon'ble Mr. Justice H. K. Bose, Chief Justice of High Court, Calcutta (1). In this case, the question whether a writ could be issued against the Federation and a learned Judge of erstwhile Sind and Baluchistan High Court came into consideration and with reference to Article 199, sub-Article (5), it was held that a 'writ could not be issued by a Court against a Judge of a High Court'. The following paragraph from the judgment will be of benefit :- "The policy of law that no writ will issue to a High Court and Supreme Court is based on sound principles. If one Judge of a High Court were to issue a writ to another Judge under Article 199, the Judge to whom the writ is issued, may in exercise of the same jurisdiction nullify the writ. This is the logical consequence of the fact that High Courts and their individual groups of Judges are invested with co-ordinate jurisdiction. There is a historical background and practice of British Courts also from which this jurisdiction is borrowed why writs do not lie to Judges of Superior Courts. Writs of certiorari, mandamus, prohibition, quo warranto and habeas corpus have their origin in the exercise of prerogative powers of the Crown. They are commonly known as prerogative writs. These writs issue to persons who act as the agents and servants of Crown in the exercise of its prerogative powers. The reason being that it is only within the sphere of the prerogative that Crown can act by orders given to its servants. The following useful discussion appears on this subject in Law Quarterly Review (January 1932) Vol. XLVIII, pages 26,
27. 'It is by the application of this principle that we can distinguish between the very different classes of persons who, in a large sense are persons in His Majesty's service. It is clear that when such persons are mayors, justices of the peace, lord-lieutenants, or sheriffs perform their functions, they are not acting as the agents or servants of the Crown in the exercise of its prerogative powers. They are performing duties cast upon them by common law or Statute, and, subject to that law, they have a large measure of discretion in the manner in which they perform their duties. The performance of their duties is not dependent upon the order of the Crown; for, in respect of many of their functions, the matter falling within their competence are matters
(1) AIR 1963 Cal. 483 which it is not within the power of the prerogative to control. It is true, as Maitland pointed out in his Constitutional History, that at the present day many of the ministers of the Crown have large powers conferred upon them by Statute, and that in the exercise of these powers they are not acting as the agents of the Crown in the exercise of its prerogative powers. It is true that when acting in the exercise of these statutory powers their position is analogous to those servants of the Crown who do not act as its agents in the exercise of its prerogative powers. But these powers are given to them because they hold for the time being the position of the principal agents through whom the Crown exercises its prerogative powers. The addition of these powers, therefore, does not make them any the less 'persons in His Majesty's service'.
' It will thus appear that the test whether or not a person is a person in His Majesty's service in the strict sense, or in loose or general sense, does not depend upon the question whether or not the person is paid by the Crown; the Justices of the peace are unpaid ; but if a Secretary of State agreed to serve without a salary he would be nonetheless a person in the service of the Crown. Nor does it depend upon the question whether the person is appointed and can be dismissed by the Crown. The Justices of the peace are appointed and can be dismissed by the Crown ; but that does not make them persons who act as the agents of the Crown in the exercise of its prerogative powers. Now, if this test be applied to the Judges of the Supreme Court of Judicature, it is quite obvious that they are not persons in His Majesty's service, nor are their offices in the service of His Majesty. From the very beginning of our legal History they have acted as the arbitrators, not only as between subject and subject, but as between kind and subject. So far are they from being the agents of the Crown in the exercise of its prerogative powers, that one of their principal functions is to adjudicate upon the legality of the exercise of these powers."
' This case also took care of the argument that a Judge should be distinguished from the High Court and that while writ cannot be issued to a High Court, a writ may be issued to a Judge of a High Court as an individual. This is precisely what Mr. Basharatullah has argued in this case. He has placed reliance upon Jvoti Prokash Miller v. The Hon'ble Mr. Justice H. K. Bose, Chief Justice of High Court- of Calcutta. In this case, a Judge of the Calcutta High Court not considering himself to have been justly retired from service desired that the Chief Justice of that Court should assign him work which had been refused to him. As the order of refusal to the assignment of work was an administrative order, writ was issued against the Chief Justice. Here it may be mentioned that the Indian Constitution does not define 'person' (as defined by our Constitution) and the result is that any of the five recognized writs can be directed even against a private person. The scope and applicability of Article 226 of the Indian Constitution (which is in para materia with Article 199 of our 'Constitution') in such manner when assailed before the Supreme Court of India, no affirmative decision was given on this point ; meaning thereby that the practice of issuance of writ by one Judge of the same (or another Court) against another Judge was deprecated and discouraged. It appears that the proposition that writ could issue against a Judge, not as such, but as an individual was in view, with reference to the said Indian case when Mr. Justice Salahuddin, J. (as he then was) held in the case of Abrar Hassan cited above, that where a person in writ proceedings challenges not the act or order of a Judge of the High Court, as a Court, but questions his authority or right to act as such Judge, such a challenge is permitted under Article 199 of the `Constitution'-it is the only way permitted to challenge the appointment of a Judge made in contradiction to clear provision of the 'Constitution'. But despite relaxing a little, the scope of issuance of writ against a Judge he consciously kept orders and functions of a Judge performed in his official capacity, above and beyond challenge under Article 199 of the 'Constitution'.
22. It is thus sufficient for our purpose that it was a unanimous view that when a Judge of a High Court acts as such, there was a clear bar to L the issuance of writ against his order (also see Mian Jamal Shah v. Member, Election Commission. Mr. Basharatullah, however, further referred to Syed Riaz Hussain Zaidi v. Muhammad Iqbal (1) and Rana Abu Bakar v. Mst. Sadaqat Begum (2) in which cases writs were considered competent against the 'orders of appellate authority' under the 'Ordinance'. These cases are absolutely inapt for our purpose as the appellate authority in these cases was District Judge and not the High Court and.No bar is contained in Article 199 against the former. He also attempted to argue that in the present writ petition the order of the Rent Controller had also been challenged and a writ could be issued against him. The argument is fallacious. Need we to say that the Rent Controller is not party before us and further that his order has merged into the order passed in appeal, by the learned Single Judge. Then, what purpose would it serve if we quashed Rent Controller's order and left alone the order passed in appeal. On top of it, remedy by way of appeal to Supreme Court has all along been open to him and why should he be reluctant to avail of it.
23. Lastly, both Haji Sarfraz Khan, learned counsel for the respondent as well as the learned Advocate-General argued against the competency of this petition on an additional ground. They submitted that neither the learned Single Judge, nor the Rent Controller were parties to this petition and the only respondent was Jamil-ur-Rehman, the landlord of the disputed house ; and writ shall not issue against a private person, as such, on this score as well, the petition was liable to be dismissed. There is an application (No, 800 of 1981) on record, whereby Mr. Basharatullah has sought permission not to join the Rent Controller and the learned Single Judge as party to this constitution petition. It hardly makes a sense, as firstly, there is no question of any permission not to join then] as party when they have already been omitted to be joined as respondents, secondly, a prayer in negative terms is hardly understandable , muchless tenable in the circumstances of this case and thirdly, he has himself negated his entire argument by inserting a reason for not joining the said authorities as party to the case. It is in these words :- "That the petitioners have filed a C. P. In respect of the orders made in favour of the respondent, made by the learned Rent Controller and the learned appellate Court. The petitioners have not joined
(1) PLD 1981 Lah. 215 - (2) PLD 1983 Lab. 320 the learned Rent Controller or the learned appellate Court, as respondents, for the reason that the two have passed orders in the exercise of the judicial functions and their joinder as contesting respondents. Is neither called for nor justified.
' It is prayed that the petitioners may be allowed not to join the learned Rent Controller and the learned appellate authority as being respondents to the constitutional petition. '
If the position is as stated above, where is the question of making application and for what purpose ? However, be that as it may, since we have held that under the 'Ordinance' appeals were heard by the High Court M and a writ was not competent against the order of a Judge of a High Court, there is hardly any necessity to dilate on this aspect of the matter.
24. Haji Sarfaraz Khan further pointed out to us that the respondent, landlord, had been permanently transferred the house in question in 1960 and since 1970, he has been desperately struggling to get its possession for his personal use and the matter has all along been prolondged by his opponents on one or the other pretext which to say the least, was highly unjust and harsh upon his client. He, therefore, argued that writs against the orders of the Rent Controller and the appellate authority may be discouraged as they tend to prolong the litigation unnecessarily and defeat the basic purpose of expeditious disposal of rent cases. The argument carries much weight, In fact, both the 'Baluchistan Ordinance of 1978 and 1980' have been introduced only with a view to substantially curtail unnecessary litigation in rent matters. This object was in mind in other provinces also, as such, scope and chances of appeals against ancillary or fragmentary orders have been minimised. But if the writ petition were encouraged, the purpose of the legislators shall certainly be defeated. Even otherwise, in first appeals, the entire record is examined, the evidence is re-appraised and in case of Baluchistan, the exercise is done by none else but a Judge of the High Court. There is, therefore, hardly any reason to encourage if not to open up, new venues of litigation. Even otherwise, writ being extraordinary remedy, is invariably refused in matters where intention of the petitioner is unfair or unjust. In the instant N case, and cases like this, effective remedy by way of appeal to Supreme Court being already available, there is hardly any justification to resort to extraordinary writ jurisdiction of this Court. It was in such circumstances that in Muhammad Sharif v. Muhammad Afzal Sohail the Supreme Court with reference to Article 199, deplored the tendency of filing writ petitions in the High Court against the final orders passed by appellate Courts, although in this case, the appellate order had been passed by an Additional District Judge and writ was competent on legal point.
25. As we are going to dispose of this petition purely on preliminary points of maintainability of the petition, therefore, the points raised in this petition on merits need not be gone into.
26. Before we part with the case, we would like to thank, Mr. Aslam Chishti, amicus curiae, learned Advocate-General and the counsel for the parties for the valuable assistance rendered by them in this case.
27. In the result we hold this petition as incompetent and dismiss it with costs.