GHULAM SAFDAR SHAH, J.---This second appeal is directed against the decree of the learned Additional District Judge, Peshawar dated April 30, 1969, by which the appellant's first appeal against the decree of the trial Court was dismissed.
The facts constituting the background of this appeal are that leafy Dost Muhammad Khan, who was defendant No. 12 in the suit and after his death his interest is represented by respondent Nose 8 to 16 as his legal representatives, was the owner of an open, plot of land measuring 2 kanals and 1 marla and 5-- shops Situated in Sarfaraz Ganj, Mardan. This property was leased out by late Dost Muhammad Khan to one Maria Singh, Proprietor of Mana Singh & Company, on 26th May 1945 and the lease deed was registered on the 20th June of that year. Since the contents of this document have been the subject-matter of considerable argu--ments before us it would be proper to reproduce its relevant terms for the sake of facility:--
(1) That the period of lease was to be for 20 years commenc--ing from 1-4-1945.
(2) That the rent at .Which the entire property was let out was Rs. 155 p. m.
(3) That the lessee was to construct Cinema building on the site at his own expense and he was entitled to sublet the same at his own discretion.
(4) That after the expiry of the agreed period, the lease was renewable by the consent of both parties failing which the lessor was to determine the price of the structures with the aid of Munsifan which he was to appoint and the lessee was to accept the said amount or else was to remove his structures and vacate the site.
In pursuance of this lease agreement Mana Singh was given the pose-scion of the leased property and upon the vacant plot he constructed a cinema building which camp to be known as `Golden Cinema'. Mana Singh successfully operated the cinema in question until the Partition of India sub- continent when he went over to India and his interest in the leased property became vested in the Custodian, The appellants in this case, who were, shareholders in Mana Singh & Company, succeeded to acquire the evacuee interest of Mana Singh from the Custodian and ever since have been in possession of the disputed property.
However about a month before the expiry of the lease period respondent Noor Muhammad Khan, who by then had become the sole owner of the leased plot and 5J shops, served notice upon the appellants on 10-2-1965 demanding from them to vacate the premises by accepting Rs. 65,000 which was the price of the structures, or else by removing the structures in terms of the lease deed.
In reply to this notice the appellants took the stand that the lease being perpetual in nature they were not liable to ejectment unless they were paid Rs. 5,00,000 which was the minimum price of the structures. Upon this refusal of the appellants to vacate the leased property respondent Noor Muhammad Khan filed suit against them in the Court of Senior Civil Judge, Mardan for possession through ejectment and for mesne profits of Rs. 400 at the rate of Rs. 200 per day for two days of Ist and 2nd April 1965.
3. The appellants contested the suit by filing their written statement and the defence taken by them is reflected by the following issues framed by the trial Court:---
(1) Whether the plaintiff has deliberately affixed less court-fee on the plaint and the plaint is thus liable to be rejected?
(2) Whether the suit is properly valued for the purpose of court-fee and jurisdiction?
(3) Whether the other sons and daughters of Khan Dost Muhammad Khan are necessary parties to the suit?
(4) Whether the suit is not cognisable by the civil Court?
(5) Whether the suit is not competent in the present form?
(6) Whether the plaintiff has a cause of action?
(7) Whether the plaintiff is the sole owner of the property in suit and the defendants are his lessees?
(8) Whether the period of lease has expired and the plaintiff is entitled to the possession of the property. If so, on what condition?
(9) Whether the lease effected by the registered lease deed dated 26-5-1945 is perpetual lease and the plaintiff under the terms of the deed is bound to extend it for a further period of 20 years on the same terms?
(10) Whether the term regarding the demolition of the superstructure of the cinema building is against law, being against public policy?
(11) Whether the plaintiff" is entitled to get possession of the superstructure of Golden Cinema on payment of Rs. 65,000?
(12) Whether defendants 1 and 3, in case the plaintiff is held entitled to the possession of the superstructure of the cinema building, are entitled to get Ten Lakhs of rupees from the plaintiff as detailed in. Para. No. 8 of the written statement?
(13) Whether tile plaintiff is entitled to recover damages from the defendants for the holding over at the rate of Rs. 200 per day?
(14)Relief.
Upon these issues the panics proceeded to trial and the result was that the suit of respondent Noor Muhammad, in so far his claim for the possession of the vacant plot was concerned, was decreed subject to his paying Rs. 1,19,647 to the appellants as the trice of the structures, but it was dismissed in regard to the possession of the shops on the ground that the tenants thereof could only be ejected by resort to proceedings tinder the West Pakistan Urban Rent Restriction. Ordinance, 1959.
The trial Court also disallowed the claim of mesne profits and instead decreed the suit for the recovery of two days' rent at the rate on which the property had been originally leased out to the appellants. Being aggrieved of the decree of the trial Court both parties went in appeal before the Additional District Judge, Peshawar and the result was that he dismissed the appeal of the appellant but decreed the appeal of respondent Noor Muhammad in regard to the mesne profits by awarding him Rs. 170 per day as damages for the period commencing with the date of the expiry of lease period of 20 years. Not being satisfied with the decree of the Learned Additional District Judge the appellants have come up to this Court in this second appeal:
4. Mr. Pear Bakhsh Khan, the learned counsel for the appellants, confined his arguments only to issues Nos. 4, 5, 6, 8, 9, 11, 12 and 13 and did not address us on the other issues. However since the question of jurisdiction of the two Courts below has been canvassed before us with considerable emphasis we would first like to dispose of this question before adverting to the other issues.
The contention of Mr. Peer Bakhsh Khan is that the suit of respondent Noor Muhammad Khan was incompetent in the civil Court inasmuch as the principal relief sought therein was the ejectment of the appellants from the disputed property which in view of the provisions of the West Pakistan Urban Rent Restric--tion Ordinance, 1959 (hereinafter called the Ordinance) was the exclusive concern of the Rent Controller. The two Courts below, at the Bar of which the same objection was pointedly taken, were not impressed and relying upon few Indian judgments, of which mention would be made presently, held that the suit of respondent Noor Muhammad Khan not being confined only to the relief of ejectment, was properly cognisable by the civil Courts. However in reaching this conclusion both the Courts conveniently omitted to advert to the various provisions of the Ordinance with a view to finding a correct answer to the weighty objection raised before them and consequently the point for decision is whether their concurrent findings on that question are sustainable.
5. The Ordinance which is a permanent statute says in it preamble that "whereas it is expedient in the public interest t restrict the increase of rent of certain premises within the limits of urban areas and the eviction of tenants therefrom in the Province of West Pakistan" and proceeds to lay down the grounds in section. 13 on the proof of which a tenant could be evicted from tenanted premises.
This section in relevant parts reads:--- "Section 13. Eviction of tenant.-(1) A tenant in possession of a building or rented land shall not be evicted therefore in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of the section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that-
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period or which the rent is payable:
(ii) the tenant has, without the written consent of the land--lord,-
(a) transferred his right under the lease or sub-let the entire building; or rented land or any portion thereof; or
(b) used the building or rented land for purpose other than that for which it was leased or has infringed any condition of the tenure on which the building or rented land is hold by the landlord.
(iii) the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or
(iv) the tenant has been guilty of such acts and conduct as are a nuisance to the occupants of buildings in the neighbourhood; or
(v) where the building is situated in a place other than a hill-station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause ; or
(vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, or Town Committee for the area where such building or rented land is situated, the Controller .May make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application;
(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession :- (i).
(ii) in the case of a non-residential building or a scheduled building or rented land, if:--
(a) he requires it in pod faith for his own use or for - the use of any of his male children ;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and
(c) he has not vacated such a building or rented land without sufficient pause after the commencement of this Ordinance, in the said urban area: Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period;
(b) The controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Con--troller is not so satisfied, he shall make an order rejecting the application ---------"
It would be seen that according to the unambiguous language of subsection (1) of section 13 of the Ordinance a tenant in posses--sion of a building or rented land cannot be evicted therefrom, not even in execution of a decree passed before or after the coming into force of the Ordinance, except in accordance with the pro--visions of that section. The words "or otherwise, and whether before or after the termination of the tenancy" appearing in subsection (1) of section 13 are significant inasmuch as they convey the unmistakable intention of the Legislature that for the ejectment of a tenant, including a tenant whose tenancy has terminated, the only forum to which resort has to be made is that of the Rent Controller and not the civil Court. In order not to leave the matter in any doubt "tenant" has been defined in section 2(l) of the Ordinance to mean "any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after termination of the tenancy in his favour . . . ". From this it is clear that a tenant, including the one whose tenancy has terminated or has been terminated can only be evicted from the premises by the Rent Controller and that too when the landlord is able to bring his case within the four corners of the various grounds mentioned in section 13 of the Ordinance. If any authority is needed for this conclusion reference may be made to Jumo Khan v. Ramzani (PLD 1959 Kar. 60), Muhammad Daud v. Sher Bahadur Khan and another (PLD 1963 Pesh. 217) and Mrs. Keays Burne v. M. Obaidullah Khan (PLD 1961 Lah. 256).
7. It is not disputed that in regard to the plot of land the appellants were the tenants of respondent Noor Muhammad Khan and quite rightly so, because the plot of land in question and the shops are severally and jointly covered by the definition of "building" and "rented land" under section 2 of the Ordinance and therefore could be let out together or each property separately. The factual position is that the vacant plot in dis--pute was let out by late host Muhammad Khan to Mana Singh for the express purpose of constructing a cinema building thereon and although the plot was leased out for 20 years the appellants would continue to be holding it as tenants in view of section 2(i) read with subsection (1) of section 13 of the Ordinance, not--withstanding the expiry of the lease period on 31-3-1965. Is would therefore follow that the appellants were completely protected against eviction from the disputed plot in proceedings instituted by way of civil suit because of the unmistakable inten--tion of the Legislature expressed in subsection (1) of section 13 of the Ordinance by which the jurisdiction in that regard has been invested in the Rent Controller.
8. As has been pointed out earlier the Courts below have come to the contrary conclusion because in their view the reliefs by way of demolishing the structures and the award of mesne profits could only be granted by civil Courts and not the Rent Controller whose jurisdiction was confined to ejectment simpliciter to reaching this conclusion these Courts were influenced by few judgments from the Indian jurisdiction, namely Sukhdeo and another v. Basdeo and others (AIR 193 5 All. 594), Nabi Bux v. Chaubey Puttu Lal (AIR 1954 All. 607) and Gir Har Sarpop and others v. Bhagwan Din and others (AIR 1935 Oudh 96). But by going through these judgments none of them seems to have any bearing upon the facts of the present case and it seems that the two Courts below were simply influenced by reading their head notes. The facts In AIR 1935 All. 594 were that instead of filing a suit before the Revenue authorities the plaintiff filed a civil suit and the objection taken was that in view of section 230 of Agra Tenancy Act, 1926 the civil Court had no jurisdiction to try that suit. This objection was repelled by their Lordships not so much for the reason that some of the reliefs claimed in the suit could only be granted by the civil Court but mainly because of the plain language of the 4th Schedule of the Act in which the jurisdiction of the civil Courts was barred in these words: "Or of any suit or application based on a cause of action in respect of which adequate relief could be obtained by means of such suit or application."
Their Lordships were mainly impressed by the words "adequate relief" appearing in this clause and held that since some of the reliefs claimed in the suit could not be granted by the Revenue Courts the bar of jurisdiction contained in section 230 of the Agra Tenancy Act could not come in the way of the civil Courts to try the suit.
The other two judgments, upon which reliance was placed by the Courts below, need not be discussed in any detail because therein also the language of the statute by which the jurisdiction of the civil Court was barred was more or less the same as in the above Allahabad judgment.
9. The learned counsel for the respondent however argued that the civil Courts must be presumed to have jurisdiction to try all suits in which the cause of action is of a civil nature and in support of his contention relied on section, 9, of Civil Procedure Code. This section reads.
"The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."
10. We are of the view that'` section 13 of the Ordinance in which it is mentioned that a tenant shall not be ejected in' execution of a decree whether before or after the coming into force of the Ordinance except on application to the Rent Controller and that too after he successfully brings his case within the four corners of that section, has impliedly, if not expressly, barred the jurisdiction of civil Courts in ordering ejectment of the tenants. To controvert this position the learned counsel argued that if section 13 of the Ordinance is interpreted in this manner it would cause considerable hardship to a landlord because in a case of the present type he would be forced to institute two proceedings one in the Court of the Rent Controller for the eviction of his tenant and the second in the civil Court for the demolition of the structures and for mesne profits. This contention, which is no doubt attractive, proceeds to disregard of the scheme of the above express provisions of the Ordinance the sum total of which is that the Ordinance is principally meant to restrict the increase of rent of certain premises within the limits of urban areas and the eviction of tenants therefrom in the Province. In order to reinforce this conclusion we can do no better than to reproduce the following observations from the judgment of the Supreme Court of Pakistan in the case of Ghulam Mohammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 520): "The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligation from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in tae Transfer or Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions."
These observations, by which we are in any case respectfully bound, do no more than to restate the pragmatic principle of the interpretation of statutes that if the language of the statute Is clear and unequivocal then the Courts are bound to give it effect notwithstanding the consequent hardship which might be caused to the litigants.
11. There is another difficulty for which the contention of the learned counsel cannot be accepted.
According to section 13(6) the Ordinance, when the proceedings are instituted before the Controller he is required to pass an order that the tenant shall deposit the arrears of rent as well as future rent by specified date failing which his defence shall be struck off and the landlord put into possession of the property without any further proceedings. But this does not mean that if a tenant fails to comply with the deposit order of the Controller then the amount can be recovered from him by resort to section 17 of the Ordinance by which all orders passed by the Controller under sections 10 and 13 of the Ordinance are required to be executed by a competent civil Court as if it were a decree of that Court. The fact that this is the only conclusion of which section 17 is susceptible is supported by a Division Bench judgment of the Lahore Bench of the former West Pakistan High Court in the case of Aurangzeb v. Bakhsh Mahmood Ali (PLD 1961 Lah. 619), in which the scope of this section was thoroughly considered. The relevant observations of their Lordships appear at page 626 of the judgment which are to the following effect:- "But it should not be assumed and it is not correct to say that an interim order directing a tenant to deposit arrears of rent or monthly rent by a certain date or dates was intended by section 17 of the Act or is intended by the same provision in the Ordinance to be executed as a decree. It contemplates executable orders only and the order under consideration is not such an order. It has not the nature and character of a decree, which is a formal expression of an adjudication, which conclu--sively determines the rights of the parties with regard to the matters in controversy. A decree is executable and can be enforced by a civil Court even against the will of the judgment--- debtor; but the carrying out of the order of deposit of money is left to the will of the tenant and under the Act or the Ordinance the order is not to be executed; and its non-compliance leads to the only result that the defence of the tenant is struck off, but the law does not provide that a Court can enforce the order by making the tenant to pay. If the order was not obeyed, an order of ejectment under section 13(6) of the Act has to follow, and this can be executed as a decree of a civil Court in view of section 17 of the Act. Therefore, section 17 is not intended to and does not cover the order under consider--ation, whereby the tenant was called upon to pay arrears of rent and monthly rent by certain dates. When section 17 of the Act provided (as does section 17 of the Ordinance) that any order made under sections 10, 13 and 15 shall be executed as a decree of a civil Court, it meant and intended to include only final orders of ejectment made under section 13 by a Controller, or on appeal under section 15 by the appellate authority, and an order under section 10 that a landlord shall restore the amenities enjoyed by the tenant, which had been cut off.
Thus section 17 of the Act not only did not exist to give force to the relevant order as a decree of a civil Court, but it was also not an order which could be enforced as a decree, even if section 17 had been in force. The result which would have followed in case the Act existed is that a further order of ejectment of the tenant could be made which could be executed."
It may be mentioned in passing that these observations, with which we respectfully agree, were made by their Lordships in consequence of the interpretation of sections 13 and 17 of Act IX of 1957 (which was repealed by the Ordinance) but the principles laid down therein would fully apply to the facts of this case as by comparing sections 13 and 17 of the repealed Act with the corresponding sections of the Ordinance we found that the language in which they were worded is exactly the same.
12. The inevitable conclusion therefore is that if in a given case a tenant fails to comply with the deposit order of the Control--ler under section 13(6) of the Ordinance all that the Controller has to do is to strike off his defence and put the landlord into possession of the property without taking any further proceedings in the case. In other words since the order of deposit of the Controller is not executable as decree under section 17 of the Ordinance, the only alternative left for the landlord is to file civil suit against his tenant for the recovery of the rent amount or else give up that claim if he feels satisfied that on account of the default of his tenant he is in any case being put into possession of the property. From this it would follow that while dealing with the rights of the landlord vis-a-vis his tenant the Ordinance has not taken into consideration the element of hardship which he might suffer and consequently the contention of the learned counsel for the respondent has not impressed us.
13. There is yet another aspect of the case which may also be mentioned. According to section 13 of the Ordinance, which we have reproduced in relevant parts, a landlord is entitled to seek the eviction of his tenant only upon the proof of one of more grounds mentioned therein and in our view this again amounts to considerable hardship for the landlord for under the Transfer of Property Act he could evict his tenant simply by p serving him the required notice. The fact that while enacting the Ordinance the Legislature was aware of the rights of a landlord under the Transfer of Property Act it is clear that the Legislature intended that the unfettered rights of the landlord should be curtailed and the corresponding rights of the tenant considerably enlarged. The Ordinance being in the nature of special legislation would have to be given preference in those cases in which the eviction of a tenant is sought by his landlord and this notwith--standing that thereby the landlord would be subjected to hardship or additional burden.
14. The suit filed by the respondent in the civil Court appears to us to be incompetent for another reason. The appellants admittedly continued to be the tenants of the disputed premises up to 31- 3-1965 in view of the lease deed executed between Mana Singh and late Dost Muhammad Khan, the father of the respondent, and the question is if after the expire of the lease period they can be said to have become trespassers so as to sustain claim., of the respondent for mesne profits and the demolition of structures? The answer to this question would be found in section 2(i) and section 13(1) of the Ordinance by virtue whereof the appellants would continue to be the tenants of the premises notwithstanding the expiry of the original lease period. In other words the very cause of action upon which suit was filed against them by the respondent was wholly imaginary inasmuch as their tenancy could not have been terminated by serving upon them simple notice in terms of the Transfer of Property Act nor could they be ejected from the premises unless proceedings were instituted against them in the Court of Rent Controller upon one of the grounds mentioned in section 13 of the Ordinance.
15. The upshot of the whole discussion' is that notwith--standing the expiry of the original lease period of 20 years the appellants continued to be the tenants of the disputed premises by virtue of sections 2(i) and 13 of the Ordinance. In these circumstances the only relief which the respondent could have sought against the appellants would be their ejectment under section 13 of the Ordinance and for that purpose their remedy; lay in the Court of Controller and not the civil Court.
From this it would follow that the suit of the respondent was clearly, incompetent in the civil Court and consequently the decrees of the two Courts below would be nullity in law. Having reached, this conclusion we would avoid to discuss the rest of the issues which concern the merits of the case as sitting in second appeal we have the same limitation upon our jurisdiction with which the two Courts below were faced. In this view we accept this appeal; set aside the decrees of the two Courts below and direct that, the trial Court would now return the plaint to respondent Noor Muhammad Khan for presentation to the proper forum, if he would be so disposed. However in the peculiar circumstances of this case the parties would bear their own costs.