' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has arisen from an order, dated 5th of May, 1980, passed by the learned VIth Rent Controller, Karachi, in Rent Case No.2979/79, whereby defence of the appellants was struck off and they were directed to hand over vacant possession of the rented premises to the respondent within 30 days.
2. The appellants are tenants of the resondent in a Bungalow bearing No.16/1-Khayaban-e- Tanzeem at the monthly rent of Rs.1,500. The respondent filed the Rent Case No.2979/79 for ejectment of the appellants on the ground of default in payment of rent. During the pendency of the proceedings, the learned Controller passed an order, dated 10th October, 1979 that the tenants/appellants should deposit arrears of rent at the rate of Rs.1,500 per month for the period from March, 1979 to October, 1979 on or before 31-12-1979 and continue depositing future rent before 15th of each calendar month till the decision of the case. The appellants deposited Rs.9,000 as against the arrears calculated at Rs.12,000. The respondent made an application dated 24-1- 1980 for striking off defence of the appellants on the ground that they had not fully complied with the order of the Controller for deposit of arrears of rent. The appellants resisted the application contending that they had deposited a sum of Rs.9,000 and they claimed adjustment of Rs.3,000 they .had remitted to the respondent/landlord by two pay orders of Rs.1,500 each. The learned Controller did not accept their contention and passed the impugned order of striking off their defence and directing that they should hand over vacant possession of the Bungalow to the respondent within 30 days of the order. The appellants have preferred this appeal against that order.
3. The learned counsel for the appellants has urged that the impugned order was passed without jurisdiction as the rented premises is situate within the limits of Clifton Cantonment and the territorial jurisdiction of the learned Controller having passed the order did not extend to that area.
He has also urged that no default was committed by the appellants as they had deposited the sum of Rs.9,000 and the balance of Rs.3,000 was adjusted against the two remittances of Rs.1,500 each by way of pay orders. On the other hand, the learned Advocate for the respondent has contended that there is no evidence on the record that the rented premises lies within the limits of the Karachi Cantonment. He has further contended that even if the premises lies within the limits of Clifton Cantonment, the appellants had submitted to the jurisdiction of the VIth Rent Controller, Karachi and they could not challenge his jurisdiction at the appellate stage for the first time. He has relied upon several authorities which will be referred to herein-below at the appropriate place. As regards non-compliance of the order . of the learned Controller, he has urged that the appellants could' not withhold the sum of Rs.3,000 on the ground of adjustment of certain sums remitted by pay orders before the order for deposit of arrears was passed.
4. As regards the question of jurisdiction, the learned counsel for the appellant has contended that the rented building is situate within the limits of the Pakistan Defence Officers Co-operative Housing Society Limited, Karachi, which lies within the limits of Clifton Cantonment. According to him, the provisions of the Sind Urban Rent Restriction Ordinance, 1959, did not extend to the Cantonment areas and the VIth Rent Controller exercising powers thereunder did not have jurisdiction to have entertained the ejectment proceedings and passed the impugned order. In this respect, it is not disputed that the rented building is situate within the limits of the Defence Officers Pakistan Co-operative Housing Society Limited, Karachi, now known as the Defence Officers Housing Authority but it is not admitted that the Pakistan Defence Officers Co-operative Housing Sociefy Limited lies within the limits of a Cantonment. The learned Advocate for the appellants has produced a certificate, dated 25th October, 1983 issued by the Secretary to the Pakistan Defence Officers Housing Authority that the AUTHORITY was established under the President's Order No.7 of 1980 and it is located within the limits of the Clifton Cantonment established under the same Order.
The Pakistan Defence Officers Housing Authority Order, 1980, was published on 9th August, 1980 and the Clifton Cantonment also was established under the same order, whereas the Rent Case No.2979/79, this appeal has arisen from, was filed on 1-7-1979 i.e. more than a year before the establishment of the AUTHORITY and the Clifton Cantonment. But the President's Order No.7 of 1980 clearly provides that on the commencement thereof and on establishment of the AUTHORITY, known as the PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, the Pakistan Defence Officers Co- operative Housing Society Limited, Karachi, and its allied institutions, namely the Executive Committee of the Foundation together with its Board of Government stood dissolved and all their assets, rights, powers, authorities and privileges and property stood transferred to and vested in the AUTHORITY. It is also provided in the order that the Karachi Canton ment existing immediately before the commencement of the order stood bifurcated into two Cantonments, namely--The Karachi Cantonment, comprising all areas of the then existing cantonment lying to the north of Karachi--Drig Road, Main Railway Line; and the Clifton Cantonment, comprising all areas of the then existing cantonment other than those covered by so reconstituted Karachi Cantonment. Since the limits of Clifton Cantonment were a part of the limits of Karachi Cantonment before 9th August, 1980 when the Clifton Cantonment was established under the President's Order No.7 of 1980, and the Pakistan Defence Officers Authority, the successor of the Pakistan Defence Officers Co operative Housing Society, lies within the limits of the Clifton Cantonment, it is understood that the limits of the Pakistan Defence Officers Co-operative Housing Society were within the limits of Karachi Cantonment at the time of the filing of the ejectment case in the year 1979. The ejectment case was filed under the Sind Urban Rent Restriction Ordinance, 1959 (since repleaded and replaced by the Sind Rented Premises Ordinance, 1979) and the order of the ejectment was passed by the Controller appointed under Sind Rented Premises Ordinance, 1979, promulgated by the Government of Sind. But the rent matters arising between landlords and tenants within the limits of Cantonments are dealt with under the Cantonment Rent Restriction Act, 1963 and are adjudicated upon by the Controllers appointed thereunder by the Central Government. It is laid down under section 5 of the Cantonment Rent Restriction Act, 1963, that the provisions thereof and any rule or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument or document. It follows that the Cantonment Rent Restriction Act, 1963, overrides other laws. It is specifically provided under section 17(1) of the Act that no tenant shall be evicted from a building except in accordance with the provisions of the Act. Subsection (2) of section 17 of the Act provides that a landlord seeking eviction of a tenant shall have to apply to the Controller and the Controller has to decide the question in accordance with the provisions of the Act. The "Controller" is defined in clause (d) of section 2 of the Act as a person appointed by the Central Government under subsection (1) of section 6.....". Evidently, ejectment of the appellant from the bungalow situated within the limits of the Cantonment could not be ordered by the Controller other than that appointed by th Central Government under the provisions of the Cantonment Ren Restriction Act, 1963, and the impugned order of ejectment passed b the Controller appointed by the Provincial Government under th Provincial Law viz. the Sind Urban Rent Restriction Ordinance, 195 and its repealing ordinance namely--the Sind Rented Premises Ordinance, 1979, is without jurisdiction.
5. The learned counsel for the respondent has not taken exception to the legal position stated above; but he has contended that the appellant, having submitted to the jurisdiction of the learned Controller who passed the impugned order, could not take exception to his juris diction. In this respect, he has placed reliance on the following authorities:-
(i) Ghulam Mohiduddin v. Chief Settlement Commissioner and others PLD 1964 SC 829, (ii) Sardar Mohammad Ayoob v. Pakistan 1969 SCMR 96(2), (iii) Majid Ali Naqvi v. Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner, Tharparkar and others 1970 SCMR 375, (iv) Sheikh Mohammad Anwar v. Ch. Sultan Mohammad Khan and others 1974 SCMR 371, (v)
Abdul Salam v. M/s. Hafiz Sons Limited PLD 1974 Kar. 118 and (vi) Mst. Kubra Bibi and others v. Abdul Haq and others 1983 SCMR 737.
6. In the cases referred to above, it was, no doubt, held that a person having submitted to the jurisdiction of an authority could not take exception to the jurisdiction he had submitted to. But in all the cases the concerned authorities did have jurisdiction under the relevant law but that jurisdiction could not be exercised in those particular cases.
7. In the case Ghulam Mohiuddin v. Chief Settlement Commissioner and others PLD 1964 SC 829, exercise of power of Ieview by a Settlement Authority during the pendency of an appeal despite bar under law to the exercise of power of review of order in case appeal or revision had been filed, was not set aside on the ground that the petitioner had submitted to the jurisdiction of review conferred on the Settlement Authorities. In that case the Chief Settlement Authorities did have the jurisdiction of review under the relevant law but there was bar to its exercise in case a revision or an appeal had been filed and it was pending.
8. In the case Sardar Mohammad Ayoob v. Pakistan....1969 SCM R 98 it was held that the petitioner having invoked the jurisdiction of the Settlement Authorities of reviewing an order could not challenge it on the ground of lack of jurisdiction at the relevant time.
9. In the case Majid All Naqvi v. Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner, Tharparkar and others 1970 SC Y R 375 leave to appeal on the ground of lack of jurisdiction of a Settlement Authority was refused by the Supreme Court as no such objection was advanced in the Court of first instance. In that case the question involved was whether Settlement Commissioner had jurisdiction to set aside orders of a Deputy Settlement Commissioner. It was, obviously, a question of competency of the Settlement Commissioner to have passed the impugned order in a particular situation.
10. In the case Sheikh Muhammad Anwar v. Ch. Sultan Muhammad Khan and others 1974 SCMR 371 it was held that the appellant therein had not raised objection before the Chief Settlement Commissioner that he was not competent to hear the application as the record was not summoned and he had thereby submitted to the jurisdiction of the Chief Settlement Commissioner and he was not allowed to agitate the question of jurisdiction. It was not a case of total absence of the jurisdiction of the Chief Settlement Commissioner.
11. In the case Abdul Salam v. M/s. Hafiz Sons Ltd. PLD 1974 Kar. 118 the respondent herein did not take objection to the monetary jurisdiction of an Authority seized of the matter under Payment of Wages Act and he was not permitted to agitate the question of jurisdiction in appeal on the ground that he had submitted to the jurisdiction of the Authority. Obviously, it was not a case of total lack of jurisdiction as the authority had been established under the Payment of Wages Act and there was question of only monetary jurisdiction.
12. In the case Mst.Kubra Bibi and others v. Abdul Haq and others 1983 SCMR 737 jurisdiction of Chief Settlement Commissioner was challenged on the plea that he could not decide the matter in respect of the petitioner therein as they were not a party to the case which was opened under the orders of the Chief Settlement Commissioner. It was held that the petitioners having participated in the proceeding before the Chief Settlement Commissioner could not take exception to his jurisdiction. Evidently, it was not a case of lack of jurisdiction.
13. On the other hand, the learned counsel for the appellant has placed reliance on a case Mohammad Afzal v. Board of Revenue West Pakistan and others PLD 1967 SC 314, wherein an order of Collector under the Sind Irrigation Act, 1879 was interfered with by the Board of Revenue and it was held that the Board of Revenue had no authority to interfere with the order of the Collector made under the Sind Irrigation Act and mere submission of the respondent therein to the authority of the Member, Board of Revenue, did not deprive the petitioner of his right to challenge the jurisdiction under Article 98 of the Constitution of Pakistan, 1962.
14. The question of jurisdiction was considered by the Supreme Court in a case Sultan All v. Khushi Muhammad PLD 1983 SC 243 and it was held that there cannot be any waiver by the parties to the total absence of jurisdiction.
15. As discussed above, the impugned order was made without jurisdiction altogether and it cannot be sustained in light of the obser vation of the Supreme Court in the case Sultan Ali v. Khushi Muhammad PLD 1983 SC 243.
16. As regards findings on other issues, those pleas might be re-agitated before a competent forum and any observation made in respect of them are likely to prejudice the case of one or the other party. Those questions are left open to be re-agitated to appropriate time if necessary.
17. For the reasons recorded above, the appeal is allowed and the impugned order dated 5th May, 1980 passed by the learned VIth Rent Controller, Karachi, in Rent Case No.2979/79 is set aside. In view of the legal implication, in respect of jurisdiction of the Controller mentioned above, no order is made for costs.