The respondent has filed an eviction case against the appellant under= section 13 of the West Pakistan Urban Rent Restriction Ordinance (here--after called the Ordinance), and it would appear that the appellant is challenging it on the ground that the respondent is not his landlord. There-- fore, the Rent Controller, who was hearing the case, struck an issue on this point and decided it against the appellant on 7-8-1972. Thereafter, on 23-8-1972, he passed the usual order for deposit of tentative rent under subsection (6) of section 13 of the Ordinance. The appellant deliberately failed to comply with this order for deposit of rent and challenged it in an appeal in the District Court. I may explain here that according to his learned counsel the appellant was not liable to comply with the Rent Controller's order of 23-8-1972 because the respondent was not his landlord, and it is significant that in his appeal against the Rent Controller's order of 23-8-1972, the appellant had also challenged the earlier order holding that he was the respondent's tenant. This appeal was dismissed by an Additional District Judge on 20th March 1973, and in view of the provisions of the Ordinance, 110 other decision of this appeal was possible. Then, and this is most extra--ordinary, after having dismissed the appeal, the Additional District Judge passed an order allowing the respondent's application for striking off the appellant's defence. This order was also passed on 30th March 1973, and the appellant has now come in IInd Appeal under section 15 (4) of the Ordinance against these orders.
2. When this appeal had come up for admission before me, learned counsel had submitted that the view taken by me in Ghulam Yasin v. Bakhshomal (PLD 1973 Kar. 228) required reconsideration because it was inconsistent with the view of a Division Bench of this Court in Abdul Shakoor v. Kay Khusru Bahman Ardeshediar (PLD 1970 Kar. 599). I was disturbed by this submission and I had therefore given notice to Mr. Naimuddin, Advocate, to assist me amicus curiae. After arguments I am satisfied that my view in Ghulam Yasin's case does not require reconsideration, and, contrary to Mr. Sibghatullah's submission, it supports the appellant's case. However, as there is an apparent conflict of authority on the construction of section 15 of the Ordinance and as I have heard Mr. Naimuddin at length, I would try and resolve this conflict of authority.
3. Before examining the conflict of authority, I have to point out that although the appellant has advanced many submissions in his memorandum of appeal, his learned counsel only relied on the judgment in Abdul Shakoor's case and on another judgment, which I shall presently consider. And his only other submission, a peculiar submission to say the least, was that in view of section 105 of the C. P. C. Which was applicable to appeals under the Ordinance by virtue of the Explanation to section 15, the appellant was entitled to press his appeal against the order for the deposit of tentative rent on the plea that the Rent Controller's finding that the respondent was his landlord was erroneous. It is hardly necessary to quote section 105 and the argument is patently fallacious.
Section 105 deals with appeals against a final decree or judgment, and the result of the Explanation to section 15 of the Ordinance is that if the respondent's eviction case had been decreed against the appellant, the appellant would have been entitled to resist the eviction order by contending that the Rent Controller's order of 7-8-1972 on the issue of the respondent's title was erroneous. But this appeal is not against the final order of eviction but only against an interlocutory order in the eviction case, therefore the appellant cannot rely on section 105. The submission is frivolous, and if the appellant is in default of the Rent Controller's order of 23-8-1972, it is the result of his willful failure to pay rent.
4. I now turn to the conflict of authority on the construction of section 15 of the Ordinance. In Qahir Khan v. Abdullah Tan (PLD 1963 Quetta 21) a learned Single Judge of the West Pakistan High Court held that an Appellate Court was entitled to strike off a tenant's defence under subsection (6) of section 13 of the Ordinance even though the Appellate Authority had not passed its own order for deposit of rent, but as Yaqub A.I, J. Took a contrary view in lalal Din v. Azizuddin (PLD 1963 Lah. 436), the question of an Appellate Authority's powers under section 15 of the Ordinance was referred in Muhammad Hussain v. Wehraj Din (PLD 1965 Lah. 179) to a Full Bench. The Full Bench upheld the view taken in the Quetta case, and Yaqub A.I, J. Who was a Member of this Full Bench observed in his concurring judgment that his attention had not been drawn in Jalal Din's case to the provisions of Order XLI, rule 33, C. P. C. Which were applicable to Appellate Courts by virtue of the explanation to section 15 of the Ordinance. In view of this provision, and I may pause to point out here that subsection (2) of section 107 of the C. P. C. Is a similar provision, Yaqub A.I, J. Held that an Appellate Court had all the powers of the Rent Controller under subsection (6) of section 13 of the Ordinance.
This view was followed by Mushtaq Hussain, J. In D. Lobo v. Sh. Muhammad Zaki (PLD 1967 Lah. 194).
But in Feroze Din v. Muhammad Amin (PLD 1967 Lah. 966), Muhammad Akram, J. Held that an order for the tentative deposit of rent under subsection (6) of section 13 could not survive the disposal of the eviction case, and this view was taken by their Lordships in Abdul Ghafoor v. Ahmed Kunhi (PLD 1969 SC 424).
5. Finally, the entire case-law was examined by my learned brother Arlin, J. In Roshun Din v. S. M.
Badruddin (PLD 1969 Kar. 546). As this judgment is relevant to the so-called conflict of authority, it is necessary to examine it in detail. It disposed of three second appeals, and it is necessary to point out that these appeals did not arise out of interlocutory or interim orders but out of deci--sions by Rent Controllers disposing of the eviction applications before them. First Appeals against these orders were filed in the District Court in all three cases, and in all of them, during the pendency of the appeals, the landlords moved applications under section 13 (6) of the Ordinance for striking off the defence of the tenants on the ground that they bad failed to deposit rent during the pendency of the appeals. But it is to be noted that in none of these cases had the District Court passed any order for deposit of rent, and these applications were pressed by the landlords on the basis of the order for deposit under section 13 (6) passed by the Rent Controllers. These applica--tions were allowed and the defence of the tenants was struck off, therefore appeals were filed in all three cases in this Court, but as they were dismissed, the tenants filed Letters Patent Appeals. The sole question before the Division Bench in these appeals was the construction of section 15 of the Ordinance, and I may recall here that according to the Explanation to the section, the provisions of Part VI and of the First Schedule of the Civil Procedure Code are made applicable to appeals under the section "with such modifications as the context may require." Arfin, J. Who delivered the judgment of the Division Bench, held that Part VI was a misnomer for Part VII and in allowing the appeals observed at page 557: "If so then Part VII contains section 107, subsection (2) of which provides that the appellate Court shall have the same powers and shall perform as nearly a3 may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of the suits instituted therein. Even if there is any doubt with regard to the applicability of Order XLI, rule 33, C. P.
C. To the appellate proceedings under the Ordinance, then section 107 of the C. P. C. Would apply, and under this section the appellate authority shall have the same powers, including the power to make an order for deposit of rent, as is given to the Controller under the Ordinance. It was then contended that it would be difficult to apply section 107 to appellate proceedings for the purpose of making an order for deposit of rent, because under section 13 (6), such an order has to be made before the issues are framed, and no such stage arises in appellate proceedings. Again, there is a misreading of both section 13(6) of the Ordinance as well as of section 107 (2) of the Code. Under section 13 (6) the order for deposit may be made on the first date of hearing or as soon as possible after that date, but before the issues are framed. Under section 107 (2), C. P. C., the appellate Court shall perform "as nearly as may be" the same duties as are conferred and imposed on the Courts of original jurisdiction. Thus, it is not the legal requirement that the appellate Court should perform its duties in exactly the same manner and according to the same Schedule of time as would be done by the Court of first instance. The requirement is that these duties shall be performed as nearly as may be in the same manner as would be done by the original Court. In section 13 (6) itself, the order for deposit maybe made on the first date of hearing, or as soon as possible thereafter, but before the framing of issues. Taking these two provisions together, I should say that an appellate authority under the Ordinance should make the order of deposit either on the date when the appeal is admitted to regular hearing or as soon as thereafter as possible, but before proceeding with the final hearing of the appeal. Thus, the difficulty which was envisaged by the learned Advocate who represented the interests of the landlords before us does not really exist."
I am in respectful agreement with these observations which coincide with my own views on the subject.
6. I now turn to the judgment of the Division Bench in Abdul Shakoor v. Kay Khusru where a contrary view was taken. The judgment does not state the facts of the case but in holding that an Appellate Court was not competent to exercise powers under section 13 (6) of the Ordinance, the learned Judges observed: "By reading the provisions of section 15 (4) of the Ordinance and section 107, C. P. C., we are of the view that in the context of rent proceedings, subsection (2) of section 107, Civil Procedure Code would not apply as the Ordinance being a special law would override the provisions of Civil Procedure Code if they are in conflict with each other and further if its application is excluded expressly or by necessary intendment. Seen in this context it appears to us that subsection (2) of section 107, Civil Procedure Code, in its application to the Rent Appeals, is excluded both expressly and by necessary intendment for the reason that in spite of the amending Ordinance XXI of 1965 section 15 of the Ordinance was not amended so as to empower the Appellate Authority to strike off the defence of a tenant for his failure to furnish security."
With great respect, a bare perusal of section 15 and its Explanation is sufficient to establish that the provisions of section 107 (2) of the Civil Procedure Code are not expressly excluded, nor can I agree with the view that they are excluded by necessary intendment, because as shown by my) learned brother, Arfin, J. In his well-considered observations in Roshan Din's case (I say so with respect), which I have quoted earlier the provisions of section 107 (2) of the Civil Procedure Code are not inconsistent with the provisions of the Ordinance. Additionally, I would point out here that very wide powers are conferred on Appellate Courts under Order XLI, rule 33, according to which all Appellate Courts have the power "to pass any decree and mane any order which ought to have been passed or made and to pass or make such further or other decree of order as the case may require". Now as the First Schedule of the Code is applicable to all rent appeals, it follows that this rule is also applicable to rent appeals, and it is wide enough to attract the Controller's powers under section 13
(6) of the Ordinance. That was the view of Yaqub A.I, J. In the Full Bonch case to which I have referred earlier, and I respectfully agree with it; and perhaps if the attention of the learned Judges in Abdul Shakoor's case had been drawn to this rule, they might have been persuaded to take a different view. After all, sub--section (2) of section 107 of the Code and this rule are the two most material provisions about the powers of Appellate Courts. The Legislature was aware of this, yet it prescribed that Part VII and the Ist Schedule of the Code, in B which these two provisions fall, should apply to all rent appeals. In my humble opinion, that it has so enacted can only mean that rent appeals are to be governed by these two provisions. Therefore the appellate authority as well as this Court can exercise the powers conferred on Rent Controllers under subsection (6) of section 13 of the Ordinance.
7. However in taking the view which they did, the learned Judges in Abdul Shakoor's case also observed that the Ordinance "being penal in nature would be strictly construed". This is almost by way of a passing observation therefore I would merely state my own view, which is that when the meaning of a statute is plain, the Courts have to give effect to it. And as the meaning of section 15 and of its Explanation is plain beyond doubt, it must be given effect to, and resort to any further rules of construction is not justifiable.
8. Finally, the attention of the learned Judges was drawn to the fact that their view would lead to anomalous consequences, but they repelled the plea with the observation that it was "specious", and they further observed: "It is not denied that the only occasion when the Appellate authority would direct a tenant to furnish security would be if he makes an application for the stay of the eviction order of the Controller. This application would be in the nature of an interlocutory application and in case it is allowed by the appellate authority the tenant will have to furnish security according to the peremptory requirement of the second proviso of section 15 (5) of the Ordinance. In case, the tenant fails to comply with the said order then the Appellate Authority would be obliged to vacate the stay order and dismiss the stay application. In this eventuality it would be open to the landlord to approach the Controller to seek the eviction of the tenant for his failure to deposit tentative rent in compliance with the order against which he had gone in appeal before the Appellate Authority.
In this view, obviously our conclusion would not lead to any conceivable absurdity as the landlord would have the right to seek the eviction of the tenant while the tenant would be entitled to prosecute his appeal on merits . . . . . . The result would be that the stay application (of the tenant- appellant) would be dismissed, but his appeal itself would remain un--affected . . . . . . . . ."
Clearly these observations mean that the landlord is entitled to re-let the premises despite the pendency of the tenant-appellant's appeal, and any other view would make the dismissal of the tenant-appellant's stay application meaningless. But as soon as the landlord re-lets the premises in dispute a tenancy under the Ordinance is created, and the new tenant becomes entitled to the protection of section 13 of the Ordinance. What then is to happen if the tenant-appellant succeeds in his appeal? The learned Judges disposed of this problem with the observation : "In case, tile appeal is finally allowed the decree of the Court below will have to be set aside and the appellant restored to the position which he occupied before the decree was executed against him during the pendency of the appellate proceedings". This means that the possession of the disputed premises has to be restored to him by the eviction of the new tenant, to whom the premises had been let during the pendency of the appeal. In other words, the Court, having by its own conduct, induced an innocent third party to become a tenant of the respon--dent would have to use its power to evict him. This is a conclusion, which I would not accept in the absence of authority binding on me.
Secondly, the question is whether the new tenant could be evicted merely because the old tenant had been successful in his appeal. As I observed earlier, the creation of a tenancy brings the tenant within the protection of the Ordinance, there--fore the new tenant also would be entitled to protection under section 13 of the Ordinance. And in these circumstances, I do not see how he could be evicted merely because the old tenant had won the appeal against his land--lord.
Section 13 does not contain any provision to cover such a contin--gency, nor in my humble opinion, would such a case fall under section 144, C. P. C. Again, even if I am wrong and the view of the learned Judges in Abdul Shakoor's case is correct, it clearly means that a tenant committing default in the payment of rent in an Appellate Court would be in a far more favour-able position than the tenant committing default in the Rent Con--troller's Court. Such anomalous consequences cannot be attributed to the Legislature, nor is there anything in the language of section 15 to warrant such an unreasonable construction of the Ordinance. Therefore, with the utmost respect, I cannot agree with the view in Abdul Shakoor's case, and the only question is whether sitting as a Single Judge I can dissent from it.
9. However, before I consider this aspect of the case, I must refer to another judgment to which Mr. Naimuddin, with his usual industry, referred me. In B. M. Rashid v. Razia Abbas Ahmed (PLD 1971 Kar.
468) a learned Single Judge held that the scheme of section 15 by necessary implication excluded the exercise of any powers under section 13 (6) by appellate Courts. This was also the view taken in Abdul Shakoor's case, and it is interesting to note that the learned Single Judge was a Member of the Division Bench in that case. He has given fuller reasons for this view in Rashid's case, and relied on subsection (2) of section 15 of the Ordinance which reads as follows "(2) On such appeal being preferred, the appellate Authority may order stay of 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 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."
According to the learned Single Judge, as the Legislature had thus made express provision regulating the powers of Appellate authorities, this pre--cluded them from exercising any powers under section 13 (6) of the Ordinance With respect, I am not able to agree with this view, because it completely ignores the Explanation of the section which governs subsection (2).
10. Additionally, the view taken by the learned Single Judge cannot be reconciled with the observations of Arfin, J. On the construction of section I S in Roshan Din's case, which I have quoted in para. 5. Now as Roshan Lid's case was cited before the learned Single Judge, and as the judgment does not contain any reference to Abdul Shakoor's case, in my humble opinion, Roshan Din's case was clearly binding on the learned Single Judge. However, he has brushed aside this difficulty with the observation "But even so the decision of the then Karachi Bench in Roshan Din v.
S. M. Badruddin has no material bearing on the case before me, since in the reported case the appeal was from an order that had finally concluded the matter before the Con--troller. In the instant case, however the appeal was not from an order directing the ejectment of the tenant but only determining the rent and directing its deposit, the Controller continuing to be in seizure of the main case." Once again, I have to express my inability to agree with these observations. The powers of this Court and of the Appellate Authority under section 15 of the Ordinance are the same, whether the appeal is against C an interlocutory order passed by the Rent Controller, or whether the appeal has been preferred against the decision of the eviction case itself. And in B.
14. Rashid's case as well as in Roshan Dirt's case, the only point for deter--mination was the scope of the powers of the Appellate Authority under this section, therefore, in my humble opinion, tile learned Single Judge erred in purporting to distinguish a judgment which was binding on him. Roshan Din's case was not distinguishable and tile judgment in B. M. Rashids case is not good law and cannot be followed.
11. Finally Mr. Naimuddin, who has been of great assistance to me in this appeal, advanced an ingenious submission to challenge the correctness of the view taken in Roshan Din's case.
According to learned counsel, the view taken in Abdul Shakoor's case and in B. M. Rashid's case was to be preferred because the contrary view would deprive the tenant of a right of appeal. I am not able to accept this argument because the language of section 15 is free from ambiguity and clearly confers on this Court and on Appellate Authorities the power of striking off the tenant's defence. Secondly, an appeal is a creature of the statute. Thirdly, if learned counsel's view is accepted, it would lead to multiplicity of litigation, one of the objects of the Ordinance is to eliminate technicalities and to prevent the law's delays. Mr. Naimuddin's submission cannot therefore be accepted on these grounds also.
12. I now turn to the effect of the judgment in Abdul Shakoor's case, and if this had been the only judgment of the West Pakistan High Court on the question under consideration, I would have been bound by it. But it is contrary to the earlier Division Bench's judgment in Rosh an Din's case which was apparently not cited before the learned Judges. Now, according to the practice of this Court, a Division Bench cannot dissent from the view taken by an earlier Division Bench, unless it is contrary to a judgment of the Supreme Court or is per in curiam. But that is not so in the present case.
Secondly, the ratio of Abdul Shakoor's case is also inconsistent with Muhammad Hussain's case, which is a judgment by a Full Bench. It is true that the view in Muhammad Hussain's case is no longer good law to the extent of which it is inconsistent with the view of their Lordships in Abdul Ghafoor's case. There, their Lordships held that an Appellate Authority, which had not passed an order for deposit of rent, could not strike off the tenant's, defence on the basis of the Rent Controller's order, as that order had come to an end after the Rent Controller's decision in the eviction case. But Sattar, J. Who delivered the judgment of the Court expressly left open the question whether an Appellate Authority, which had passed an order for deposit of rent, could strike off the tenant's defence for non-compliance of its own order, and this means that Muhammad Hussain's case still holds the field in cases in which this Court or the Appellate Authority have passed an order for deposit of rent. Now as I have observed earlier the facts of the dispute in Abdul Shakoor's case are not known, but clearly the view of the learned Judges that an Appellate Authority does not have any powers under section 13 (6) is inconsistent with the view in Muhammad Hussain's case in so far as it is good law. In the circumstances stated, Abdul Shakoor's case cannot be followed, and the view taken in Roshan Din's case and in the Full Bench case, subject to the qualifications stated herein, must be followed in this Court. I must however confess I had some doubts on this question, but my doubts have been resolved by the judgment of Lord Greene M. R. In Young v. Bristol Aeroplane Co. Ltd. (1944 I K B 718). There Lord Greene M. R. Observed at page 729: "Two classes of decisions per incuriam fall outside the scope of our inquiry, namely, those where the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covers the case before it-in such a case a subsequent Court must decide which of the two decisions it ought to follow ; and those where it has acted in ignorance of a decision of the House of Lords which covers the point-in such a case a subsequent Court is bound bY the decision of the House of Lords."
13. However, this conclusion does not help the respondent for two reasons. In the first place he did not obtain an order for deposit from the Appellate Authority. Hence my observation in para. 2 that Ghulam Yasin's case supports the appellant's plea. Secondly, according to the appellant the learned Additional District Judge had struck off his defence after dismissing his appeal. I found it difficult to believe this allegation, but I have to state with regret that it is borne out by the record. Mr. Naimuddin rightly submitted that the learned Additional District Judge had become functus officio after dismissing the appellant's appeal therefore he was not competent thereafter to strike off the appellant's defence or to pass any order on the merits of disputes between the parties.
14. Mr. Farooqi however submitted that the appellant's default stood proved by his own admission, therefore his objection about the manner in which his defence had been struck off was only a technicality. The appellant has admitted that he did not pay rent because he disputed the respondent's title but after the Rent Controller's order of 7-8-1972, he was not entitled to withhold the payment of rent because of this dispute. Thus, the first limb of Mr. Farooqi's argument has force, but I cannot possibly accept the second limb of his argument. The question of a Judge's authority to pass an order is a question of principle and not a mere technicality. And as the learned Additional District Judge had dismissed the appellant's appeal he had lost seisin of the case. He therefore usurped jurisdiction in striking off the appellant's appeal, therefore this second appeal must be allowed.
15. Mr. Farooqi then submitted that as the learned Additional District Judge had usurped jurisdiction in striking off the appellant's defence; the appellant could not come in appeal to this Court on this ground, because an order without jurisdiction was null and void and therefore not appeal-able. The submission is frivolous, because it would enable the appellant to take advantage of the fact that he had illegally induced the Appellate Authority to usurp jurisdiction, and, as submitted by Mr. Naimuddin, this frivolous submission is contrary to the settled law. Thus in Bandiram Mookerjee v.
Purna Chandra Roy (AIR 1918 Cal. 435), a Division Bench of the Calcutta High Court observed : " . . . . . . When a decree has been made without jurisdiction, an appeal lies against it precisely in the same manner as if it had been made with jurisdiction." But the same view was taken by the Lahore High Court in Kirpa Ram v. Raghbir Singh and another (AIR 1935 Lah. 319) and I cannot conceive of a different view. I therefore respectfully agree with this view and dismiss the respondent's objection as frivolous.
16. The appeal is allowed, but as success is divided between the parties, I will not make any order as to costs. As the appeal is allowed, the case will go back to the Rent Controller to be heard and decided on merits, but, as submitted by Mr. Naimuddin, the respondent is entitled to file an applica--petition before the Rent Controller for striking off the appellant's defence. The Controller shall therefore give the respondent an opportunity to file this application before framing issues or recording evidence in the case. The Controller should dispose of such an application, if filed, expeditiously.
I thank Mr. Naimuddin for his assistance.
K.B.A.