1. ' MUHAMMAD AFZAL ZULLAH, J.---This appeal through leave of the Court has arisen out of a Rent Restriction matter; against the dismissal by the High Court, of the appellant's Constitutional Petition on a legal ground; namely that an appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 as amended in Balochistan being available as adequate remedy, there was no justification for "relief in the writ jurisdiction of the High Court.
2. ' Leave to appeal was granted after noticing the following point for examination: "The learned counsel for the petitioner submits with reference to the language of section 15 of the Ordinance that an appeal against order passed under section 13-B is not competent. In this behalf, learned counsel pointed out that section 13-B is a newly added provision of law and since it has not been included in section 15 which specifies the orders against which an appeal is competent there can be no scope for an appeal against an order passed under section 13-B."
3. ' The two provisions; namely, sections 13-B and 15 of the Ordinance relied upon from the appellant's side read as follows:-- "Section 13-B. Eviction of tenants where the landlord is a salaried employee, widow or minor orphan.--(1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force--
(a) in a case where the landlord has died; or
(b) in a case where the landlord is a salaried employee and has retired or is due to retire within a period of six months, a notice in writing may be given by such landlord or the widow or minor orphan of the deceased landlord, as the case may be, to the tenant of a building informing him that he or she needs the building for personal use and requiring him to deliver vacant possession of the building within a period of two months from the date of receipt of the notice: ' Provided that no application under this section shall be maintainable if it is made after six months from the date of the death of landlord or, in the case of the retirement of a salaried person, before six months from or after six months of the date of his retirement: ' Provided further that in a case where the landlord has died or a salaried person has retired before the commencement of this Ordinance an application may be made within a period of six months from the date of such commencement.
(2) The right to seek ejectment under subsection (1) shall also be available to a landlord of a building who is the wife, husband or a minor child of a salaried employee referred to in subsection (1).
(3) In the case of a landlord referred to in subsection (1) or subsection (2) who happens to be a landlord of more than one building, whether or not in the same locality, action as provided for in this section shall be competent in respect of one of such buildings only.
(4) A landlord referred to in clause (b) subsection (1) or subsection (2) who is in occupation of a building owned by him shall not be entitled to seek ejectment of a tenant from a building situated in the locality in which the building in occupation of the landlord is situated unless he offers the building in his occupation in exchange of the building in possession of the tenant on such terms and conditions and on payment of such rent as may be determined by the Controller: ' Provided that the benefit of exchange shall not be available to the tenant who refuses to accept the offer or the terms and conditions and the rate of rent determined by the Controller.
(5) A tenant who on receipt of the notice referred to in subsection (1) fails to deliver vacant possession of the building to the landlord or to the widow or minor orphan of the deceased landlord within the time allowed in the notice shall be liable to be ejected summarily by the Controller on an application being made to him in this behalf.
(6) On an application being made to him under subsection (5) the Controller shall issue a notice to the tenant and on being satisfied with the bona fides of the request of the landlord or the widow or minor orphan of a deceased landlord, shall order the summary ejectment of the tenant.
(7) a landlord or a widow or orphan of a deceased landlord referred to in subsection (1) or subsection (2) who, within one year of his having obtained possession of a building as provided for in subsection (6), relets the building to any person other than the previous tenant, shall be punishable with fine which may extend to Rs,5,000 unless the benefit derived by the landlord is greater than the amount of fine in which case it shall be equal to the annual rent obtained by him by reletting the building.
4. "S.15. Appeal.--(1) Any party aggrieved by an order of the Controller finally disposing of an application made under S.4, S.10, S.12, S.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."
5. (Typed from PLD 1981 Bal. St. 25)
6. 'Prima facie construction of the language used and interpretation of the above reproduced provisions, one relating to the question of eviction of certain tenants and the other relating to the appeal against certain orders, leads one to a straight conclusion that no appeal has been provided against a final order passed under section 13-B. Learned counsel for the respondent, however, made two submissions in reply so as to defend the impugned judgment of the High Court. One, that the High Court having, entertained and disposed of a number of appeals, the one if filed by the appellant would also have been entertained and disposed of accordingly on merits.
7. Therefore, there was no need for the appellant to file a Constitutional petition. In this behalf he has relied upon the following observation in the impugned judgment:- "The High Courts have been disposing of appeals under section 15 against the orders passed under section 13-B. There are large number of authorities by all the High Courts but here we may refer to two precedents i.e, (i) Azizur Rehman v. Abdur Rahim (PLD 1984 Quetta 46) wherein the appeal against the order passed by the Controller under section 13-B was disposed of by this Court. The other case is Khushdil Khan v. Abdul Jabbar and 2 others (1983 CLC 981), where in a Constitutional petition the order passed by the appellate Court on an appeal against the order under section 13-B was disposed of, we, therefore, hold that the order is appealable and the petition is dismissed as an alternate relief is available to the petitioner."
8. ' The learned counsel for the respondent, however, conceded that none of the afore referred cases are strictly helpful now before this Court when interpreting the said provisions of law as amended for Baluchistan and secondly no such serious controversy was raised as is being dealt with by this Court in this appeal. He accordingly relied upon the reason by the High Court in support of the order and judgment impugned in this appeal. The brief discussion, on the point involved, by the High Court is as follows:-- "Under section 15(I) any party aggrieved by an order of the Controller finally disposing of an application made under sections 4, 10, 12 and 13 of the Ordinance may within 30 days of such order prefer an appeal in writing to the High Court. The learned counsel stated that as section 13B is not mentioned in section 15(1), therefore, the only remedy available to a party against whom an order under section 13-B is passed is to prefer a constitutional petition. He has also referred to section 17 of the Ordinance which provides that every order made under sections 10, 13, 13-B, and every order passed in appeal under section 15 shall be executed by the Controller as if it were a decree of a Civil Court. We have considered the contention of the learned counsel but we have not been able to agree with him that the appeal is not competent under section 15. Section 13 has been specifically mentioned in section 15(1) and section 13-B is part of section 13. According to section 17 if the matter does not go up in appeal then the Rent Controller will execute the orders passed under sections 10, 13 and 13-B."
9. ' The other argument of the learned counsel for the respondent is that although some additional grounds have been provided for eviction of tenants under section 13-B the proceedings and orders are to be taken and passed under section 13 and therefore an appeal filed under section 15 in the cases like the present one would be competent; because the final order, as argued, would be passed under section 13.
10. ' It is not denied that the provisions contained in section 13-B, which no doubt involve certain additional grounds and provide a different procedure for eviction of tenants in some peculiar cases, were not in the original enacted law, they have been introduced by amendments during the last decade. Keeping in view the timings and the amendments particularly one in section 15 it cannot be said that the law-makers did not know that Section 13-B had been enacted and certain orders relating thereto, having finality, would require scrutiny by the higher Courts. Yet orders under section 13-B were not included amongst the appealable orders as specified in section 15.
11. ' There can he three possible explanations: ' One that, as argued by the learned counsel for the respondent, section 13-B did not provide for any final order by virtue thereof, to be passed by the Controller. And that such an order even if relatable to a case under section 13-B had to he passed under section 13. The appeal against the latter orders having been provided there was no need to mention section 13-B independently in section 15.
12. ' If this is not accepted another possibility can be visualised that it is the mistake of the Draftsman.
13. ' Yet another possibility cannot be excluded that the nature of the subject-matter dealt with under section 13-B was such that the legislature might have thought that it would not he necessary to provide an appeal in the cases covered thereunder (section 13-B) and the further remedy left for the aggrieved party was, in the extraordinary jurisdiction of the superior Courts.
14. ' The first possibility which, it seems is the mainstay of the learned counsel for the respondent, cannot at all be supported by the language used in section 13-B if all the subsections thereof particularly, the provisions of subsection (1), subsection (2), subsections (5), (6) and subsection (7) are read together. The provisions contained in section 13-B are fairly detailed and can be treated, by and large, as furnishing self contained small Code for the cases covered thereunder. The procedure provided therefor is also of a summary nature. After the requisite notice from the landlord side application is entertainable by the Rent Controller who also has been empowered to pass final orders under the said section 13-B. That being so, the argument advanced by the learned counsel for the respondent and accepted by the High Court in the impugned judgment, loses force.
15. Independent of section 13 final orders under section 13-B have been visualised and they are in fact passed by the Controller under the said provisions and not under section 13. In this case also the learned Rent Controller when passing the order of appellant's eviction, impugned before the High Court, not only mentioned section 13-B in the heading part of the order, but in the body thereof also he exercised the powers available under the said provision with reference to the grounds and procedure provided therein. Accordingly it has to be held that in so far as the provisions are concerned (section 13-B and section 15) as they stand; there is no right of appeal against a final order passed under section 13-B and obviously the remedy left would be a Constitutional Petition.
16. ' The second possibility and may be also the argument though not advanced that the Draftsman having omitted by clerical mistake to mention section 13-B in the amended section 15, this Court may supply the omission in accordance with the accepted principles and practice in this behalf, is also not tenable. The subject-matter dealt with under section 13-B is such that it speaks for the difference, through the language. Used therein, as providing easy and speedy remedy in the specified cases, which, as the experience shows, are hardship cases. Section 13-B while keeping in view the interest of the tenants and of course the landlords involved therein, purported to remove the hardship in those cases. Accordingly it is not possible to hold as a definite unmistaken intention of the legislature to provide an appeal in those cases as well as in the cases covered under section 13, and to further hold, that the omission in this behalf in section 15 was unintentional and/or attributable to an error committed by the Draftsman only.
17. ' The last possibility and argument that the legislature might have intentionally omitted to include amongst orders appealable under section 15, those orders also, which were to be passed under section 13-B; on account of the subject-matter thereof as afore discussed, is a strong reasonable possibility-cumargument.
18. ' We proceed to determine this controversy accordingly.
19. ' The argument based on the practice of the High Court in entertaining the appeals under section 15 even XXX though not competent in reality, involves the rule of stare decisis. It needs no discussion that the essential conditions for application of that rule including the one relating to a practice during a long time, have not been specified nor satisfied in this case.
20. ' The alternative argument of the learned counsel for the respondent that the appellant could have relied upon the practice of the Balochistan High Court and should, therefore, have filed an appeal which would have provided him adequate remedy, has also no force. No doubt, if the appellant would have filed an appeal, the possibility in normal course was that it would not have been dismissed by the High Court as incompetent, because it has entertained and disposed of on merits a number of similar appeals in this behalf. But this practice is not so entrenched that on a proper jurisdictional/procedural objection having been raised from the respondent's side, he might not have failed on the basis of the reasons discussed above. Therefore, it cannot be said that the appellant deliberately chose to ignore a legally available remedy. Even if it be assumed that the High Court having followed a practice for a period of less than a decade, would not have overruled the earlier decisions though it cannot be said that a larger Bench would not have done so, it cannot at all be said that any of the parties would have been absolutely certain in this case, as to what would be the result of appeal filed in this Court. The practical result of this very appeal supports the course adopted by the appellant in not filing an appeal under section 15 on the assumption that it was not available, and his having sought constitutional remedy, is being found justified.
21. ' In the light of the foregoing discussion this appeal is allowed. The impugned judgment is set aside and the case is remanded to the High Court for fresh decision of the Constitutional Petition on merits in accordance with law. The same shall be treated as pending. There shall be no order as to costs.