QADEERUDDIN AHMED, C. J.-In continuation with our order of the 15th of January 1971, we have heard at length counsel for the parties today. As mentioned in that order we have already overruled two contentions raised on behalf of the respondent and proceed to examine the third contention which is as follows;- "That this Letters Patent Appeal is not competent from the order of the learned Single Judge because it is only an order of remand."
Mr. Nasim Farooqi has addressed us on two sub-propositions, which were formulated as follows :-
(i) The order of remand is not a Judgment In terms of clause 10 of the Letters Patent and, therefore, is not appealable under the Letters Patent.
(ii) The provisions contained in the Letters Patent regarding an appeal to a Letters patent Bench is inconsistent with the provisions contained in section 15(4) and (5) of the West Pakistan Urban Rent Restriction Ordinance, 1959, inasmuch as the Ordinance makes an order final in terms of these provisions, whereas the Letters Patent provides an inter-Court appeal. In this situation the finality of an order provided by the West Pakistan Urban Rent Restriction Ordinance, 1959, should be given effect.
2. In support of the first contention counsel for the respondent has drawn our attention to the following part of the order of the learned Single Judge from which this appeal has been preferred in order to show that it is not a judgment in terms of clause 10 of the Letters Patent :- "On the other hand, the respondents' contention is that the appellant is in fact doing business in Kenya. This question requires investigation. If in fact the appellant is under restraint within the occupied Kashmir, the failure to pay arrears of rent and occurring monthly rent, it may be contended, may not amount to default within the meaning of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. I myself would not express any opinion on this point at this stage, because I think the case should be remanded to the Rent Controller for investigation on this point."
On the basis of the above observations counsel contended that there was no decisive expression of opinion and, therefore, they do not constitute a judgment. We, however, cannot agree to this contention because the observations which have been made by the learned Single Judge in paragraph 2 of the order lead clearly and definitely to the contrary conclusion. They are as follows :- "Accordingly, the impugned orders of the Rent Controller and the First Appellate Authority are set aside and the case is remanded to the Rent Controller for decision on the following points :-.--
(i) Whether the appellant, during the relevant times, was under restraint in occupied Kashmir, or was doing business in Kenya?
(ii) If it is found that the appellant was under restraint in occupied Kashmir during the relevant tines does this amount to failure of deposit of rent for reasons beyond the appellant's control ?"
The above observations are categorical with the result that two orders have been set aside and at the same time precise points have been laid down further investigation. We, therefore, think that the order of the learned Single Judge does amount to a judgment within the meaning of clause 10 of the Letters Patent.
3. In support of the second contention counsel has raised several subsidiary points, although they were not strictly within the scope of the three contentions which he had raised earlier and which we have noted in our order of 15-1-1971. His third contention as it was raised by him and noted by us above in the first paragraph exhausted itself with sub-proposition (i) of counsel. We have nevertheless, heard him elaborately in support of sub-proposition (ii).
4. The main aspects of the point of view of the learned counsel were that In terms of section 15(4) and (5) of the West Pakistan Urban Rent Restriction Ordinance, 1959, an order made in appeal is "final" in terms of subsection (4) read with subsection (5) of section 15 of the Ordinance. The subsections are as follows :- "15.-(4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1), 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 the 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 the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply 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."
The word "final" which occurs in subsection (4) read with the word "otherwise" which occurs in subsection (5), according to counsel, clinch the argument because they prohibit all further disputes about a question which may be finally determined in terms of the two subsections. As to the effect of clause 10 of the Letters Patent counsel said that the words- "notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of February one thousand, nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal;" should be deemed to have been amended by the prohibition against further disputes contained in subsections (4) and (5) of section 15 the Ordinance. He has cited Dacca Jute Mills Ltd. And others v.
Satish Chandra Banik and others (PLD 1970 Dacca 521), The Union of India v. The Mohindra Supply Co. (AIR 1962 SC 256) and Mst. Nafisul Nissa v. Haji Muhammad Ishaq (AIR 1964 All. 235). As against the above other judgments we have before us are : Hanuman Chamber of Commerce Ltd., Delhi v. Jassa Ram Nand (AIR 1948 Lah. 64), Sh. Mahboob Alam v. Sh. Mumtaz Ahmad (PLD 1960 Lah. 601), Aurangzeb v. Bakhshi Mahmud Ali (PLD 1961 Lah. 619), Haji Pir Bakhsh v. Mst. Almas Begum and others (PLD 1967 Pesh. 49) and Abdul Hag v. Salf-ur-Rehman and others (PLD 1968 Lah. 478). The view, which has prevailed in the latter mentioned judgments, is that a Letters Patent Appeal is not an appeal in the ordinary sense of the word but only an inter-Court remedy which is available in order to make the view of the High Court itself final after a Division Bench of the Court B has heard the matter. In this sense Letters Patent Appeal cannot be considered to fall within the prohibition which is contained in subsections (4) and (5) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
5. The most important expression of opinion to the contrary is to be found in the judgment of the Supreme Court of India given in The Union of India v. The Mohindra Supply Co. Their Lordships have expressed the view that a Letters Patent Appeal is also an appeal in terms of section 39(2) of the Arbitration Act, 1940; therefore the prohibition contained in that enactment for further appeal cannot be said to exclude an inter-Court appeal. We may mention here that the problem for consideration before the Supreme Court of India was the effect of the prohibition contained in subsection (2) of section 39 of the Arbitration Act, 1940 and not any finality contained in a provision of a Provincial Legislation. Their Lordships of the Supreme Court have taken the view that in terms of clause 37 of the Letters Patent the Legislature of India is empowered to amend the provision of Letters Patent ; therefore, a provision to the contrary contained in subsection (2) of section 39 of the Arbitration Act should be deemed to impliedly amend clause 10 of the Letters Patent. It is unnecessary for us to go into these questions because we are not examining the effect of a prohibition against a further appeal contained in any Central Act. The prohibition with which we are concerned in these proceedings is contained in subsection (4) read with subsection (5) of section 15 of the West Pakistan Urban- Rent Restriction Ordinance, 1959. That is a Provincial legislation and can have no claim to amend a Central legislation. This is clear from the language of Article 134 of the Constitution of 1962. The Article is as follows :- "124. When a Provincial Law is inconsistent with a Central Law, the latter shall prevail, and the former shall, to the extent of inconsistency, be invalid."
It follows, therefore, that the right of appeal which is provided by clause 10 of the Letters Patent remains intact notwithstanding the finality provided in subsection (4) read with subsection (5) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. We may also mention here that an attempt to read the word "final" which occurs in subsection (4) of section 15 of the Ordinance as a guarantee against all further proceedings, seems to disregard the fact that it cannot be effective in respect of exercise of Special, Constitutional or extraordinary jurisdic--tions.
Thus, it cannot be said to be final for purposes of proceedings under Article 98 of the Constitution or for purposes of appeals to the Supreme Court under Article 58 of the Constitution nor can it be said, we believe, to be final in derogation of a Central Legislation like Letters Patent.
6. The over-all conclusion is that the three contentions of counsel for the respondent including the two sub-propositions which were formulated by him have to be overruled and the appeal is to be allowed with costs. The order of the learned Single Judge is accordingly set aside.
ORDER OF THE HIGH COURT This is a Letters Patent Appeal from the order of a learned Single Judge of this Court, dated 26th January 1968 by which he accepted the 2nd appeal of the present respondent and remanded the case with certain directions. An application was presented before him on behalf of the present appellant for leave to prefer a Letters Patent Appeal which application was accepted by the learned Single Judge as follows "Looking into the file now, I have no hesitation to say that the ground on which the case was remanded to the learned Rent Controller was raised only at the stage of arguments before me, but I would add that no objection was then raised by the respondent to this ground being urged.
Nevertheless, there is substance in the respondent's contention and I would therefore certify this matter as one fit for Letters Patent Appeal."
Counsel for the appellant has contended that the main point for consideration in this case was as to whether a default had been committed by the respondent in paying rent or not. On this point the learned Single Judge has taken the view that the plea of the respondent being that he was detained at Sirinagar it might be a possible inference that: he was unable to pay the rent and therefore did not commit default in discharging his duty. With this view the learned Single Judge has ordered the case to be re-heard by the Rent Controller so that evidence in support of the plea of detention could be produced by the respondent, but the learned Single Judge expressed no opinion as to whether in the event of detention being established it should amount to default or not.
Counsel for the appellant argued against the above back--ground that the impression of the learned Single Judge that the respondent's plea that he was detained at Sirinagar was itself not the result of the pleas that were taken by the respondent. In the first appeal the respondent had taken the plea in paragraph (8) of the memo of appeal that the appellant had left for on business trips to Geneva, Singapore and other parts of the world after filing his written statement in the lower Court with the result that he did not know of the order that rent was to be deposited: In paragraph
(3) of the appeal his plea was that he had to leave the country again on account of the demands of his business. He is described as partner in that paragraph. Yet at the time of argument it appears that the plea was modified. It was alleged that he was detained at Sirinagar therefore he was unable to deposit the rent as ordered by the Rent Controller.
The learned Single Judge has pointed out that the plea was raised before him only at the time of arguments but no objection was taken to it therefore he remanded the case. We fully appreciate the certificate granted by the learned Single Judge.
The counsel for the respondent has not directly supported the order of the learned Single Judge but has raised three auxiliary contentions in reply. They are as follows :-
(1) That the order of the learned Single Judge was a consent order.
(2) That the plea of detention was raised when an affidavit was required to be filed after the institution of the 2nd appeal under the suggestion of the learned Single Judge. The affidavit was filed on the 1st of November 1966.
(3) That the Letters Patent Appeal is not competent from the order of the learned Single Judge because it is only an order of remand.
In so far as the first contention of counsel for the respondent is concerned he has not been able to show in the order to indicate, that it was a consent order. Counsel for the respondent tried to show us that the appellant was allowed to amend the application for ejectment which does not lead to the conclusion that there was any consent about remanding of the case. In respect of the 2nd contention counsel drew our attention to the affidavit which was filed by the respondent. But in that affidavit there is no plea of detention at Sirinagar.
In view of the above situation we reject the first two pleas. About the third plea however counsel for the respondent has asked for time to be able to produce authorities in support of his contention that in a case like this a Letters Patent Appeal is not competent. In order to examine this point we adjourn to 19th of this month.
K. B. A.