' The appellant has assailed the order dated 2-7-1979 passed by the learned Rent Controller, Lahore, whereby rent of Property No,181-H, Akbari Mandi, Lahore, occupied by the appellant as a tenant, was enhanced from Rs, 70 to Rs, 125 per month under section 9 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
2. Originally, Muhammad Ishaque, late father of the appellant, was a tenant under the evacuee owners before the partition at a monthly rent of Rs,25. After partition, the property was transferred to the respondent through PTO dated 31-14960. He served a notice on the father of the appellant demanding rent at the rate of Rs,25 per month, who started paying rent at the said rate. Rent was increased to Rs, 50 per month with effect from 1-4-1963 and to Rs, 60 per month since November, 1965. In 1966, the respondent refused to receive rent at the said rate, whereupon the appellant's father started depositing it in the Court. The respondent filed an ejectment petition against Muhammad Ishaque, which was allowed by the Rent Controller but the said order was reversed in appeal by the learned District Judge, who also fixed the rent at the rate of Rs,70 per month. The respondent's appeal against the appellate order was dismissed by this Court in limine. According to the appellant, the respondent again filed an ejectment application against his late father, which was dismissed by the learned Rent Controller. The appellant's father died and his legal representatives became tenants under the respondent.
3. The respondent filed an application under section 9 of the Ordinance before the Rent Controller for enhancement of the rent from Rs,70 to Rs,125. It was allowed by the learned Rent Controller, vide the order dated 2-7-1979.
4. The learned counsel for the respondent raised a preliminary objection that the present appeal was not competent before this Court. He urged that the right of appeal has to be expressly provided in the relevant statute. He placed reliance on the cases of Ibrahim v. Muhammad Hussain (PLD 1975 SC 457) and Jalil Ahmad Khan Niazi v. Qamaruddin Ahmad PLD 1976 Lah. 80 to urge that an order passed under section 9 of the West Pakistan Urban Rent Restriction Ordinance was not appealable. The learned counsel for the appellant urged that an appeal was competent before the District Judge against orders passed under sections 4, 10, 12 and 13 and to the High Court in all other cases. He placed reliance on Faqir Chand v. Mst. Bibi Zulekha (PLD 1962 Peshawar 1). He further urged that even if there was some doubt about the maintainability of the appeal, the benefit should go to the party claiming the right of appeal. He placed reliance on Muhammad Amin v. Sh. Jamshed Ali PLD 1963 Lahore 523.
5. Section 15 of the West Pakistan Urban Rent Restriction Ordinance was originally in the following form: "15. Appeal.---(1) (a) Government may by a general or special order, by notification, confer on such District Judges as it thinks fit, the powers of appellate authorities for the purposes of this Ordinance, in such area, or in such classes of cases, as may be specified in the order.
(b) Any party aggrieved by an order passed by the Controller may within thirty days from the date of such order prefer an appeal in writing to the appellate authority having jurisdiction.
(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal.
(3) 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.
(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 of the First Schedule to the 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."
' Thus, all orders passed by the Rent Controller were appealable either to the appellate authority or to the High Court where no appellate authority was appointed in respect of a particular area or certain classes of cases. Had section 15 stood in the same form till 11-12-1977 when the application under section 9 was filed by the respondent before the learned Rent Controller, then the present appeal would have been competent before this Court. However, section 15 was amended through Ordinance No,XXI of 1966 and right of appeal was restricted to orders passed under section 4, 10, 12 or 13 of the Ordinance. Amended subsection (1) is reproduced below:- "(1) Any party aggrieved by an order made by the Controller under section 4, section 10, section 12, or section 13, may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated."
It was provided that the appeal under subsection (1) of section 15 would lie to the District Judge having jurisdiction over the area where the building or rented land was situated. Thus, for the classes of cases made appealable under subsection (1) of section 15 of the Ordinance, appellate forum was provided. The orders under sections 5, 8, 9 and 11 were not made appealable under the A provisions of subsection (1) of section 15 of the Ordinance. Hence, there was no question of appointing appellate authority in respect of the orders passed under sections 5, 8, 9 and 11 of the Ordinance. That being so, no appeal against the orders passed under the said sections of the Ordinance was competent before this Court under the provisions of subsection (4) of section 15 of the Ordinance. The judgment of the Hon'ble Supreme Court in Ibrahim's case is not relevant in the controversy involved in the present case. In the precedent case, it was held that an order passed under section 13 (6) relating to provisional fixation of rent and its deposit was not appealable under subsection (1) of section 15 of the Ordinance. It was further held that interlocutory orders passed by the Rent Controller were not appealable. However, Jalil Ahmad Khan Niazi's case contains some observations relevant to the present controversy. While dealing with the question as to whether an order deciding the preliminary issue about existence of relationship of landlord and tenant was appealable before the District Judge, it was held that the said order was not appealable and no second appeal before the High Court was competent under subsection (4) of section 15 of the Ordinance. The relevant portion is reproduced below:- "Therefore, the argument that if the Rent Controller's order is held to be not appealable to the District Judge, ignoring the appeal proceedings before the District Judge the present appeal may be treated as a direct appeal to this Court, is of no avail. If the order is not covered by the provisions of section 15 (1), how could it be brought before this Court, when it has been specifically provided in section 15 (4) that an appeal would lie to this Court against orders passed on appeal by the appellate authority and an appeal may be preferred to the High Court directly if an appellate authority has not been appointed in respect of any area or class of cases. Neither of the contingencies contemplated in the section is present and a direct appeal to this Court is also not maintainable."
In the present case, the application for increase of rent was instituted on 11-12-1977 before the Rent Controller when section 15 of the Ordinance had already been amended and right of appeal limited to orders passed under sections 4, 10, 12 and 13 alone. Subsection (4) of section 15 of the Ordinance is subservient to subsection (1) of the said section and does not independently provide a right of appeal in respect of orders passed by the Rent Controller under sections 5, 8, 9, or 11 of the Ordinance. The appeal could be brought before this Court only if basically the order was appealable under the provisions of subsection (1) of section 15 of the Ordinance and two other conditions were fulfilled; firstly, that no appellate authority was appointed to hear appeals in certain area; and secondly, no appellate authority was appointed in respect of certain classes of cases which were otherwise made appealable under subsection (1) of section 15 of the Ordinance.
If these conditions were satisfied, only then an appeal could have been brought before this Court under subsection (4) of section 15 of the Ordinance. As an order passed under section 9 of the Ordinance is not C appealable under subsection (1) of section 15 of the Ordinance, an appeal does not lie to this Court under the provisions of subsection (4) of section 15 of the Ordinance.
6. The learned counsel for the appellant made an alternative prayer that the appeal be treated as a writ petition. There appears to be no legal impediment in allowing the prayer made by the learned counsel. The prayer for treating the D F.A.O. As a writ petition is, therefore, allowed subject to the condition that the petitioner shall pay an additional court-fee of Rs, 95 within a period of one month from the date of announcement of the order. The office is directed to number the writ petition accordingly.
7. Coming to the merits of the case, the Rent Controller was competent under section 9 of the Ordinance to increase rent on account of some increase in the amount of a rate, cess or tax levied by the local authority. Admittedly, the assessment of the property tax of the house in question was increased to Rs,125 (from Rs, 70 as it stood earlier). Under the proviso to subsection (1) of section 9 of the Ordinance, the Rent Controller could not increase the rent exceeding one-half of the amount of rate, cess or tax or the amount of the increase in such rate, cess or tax. The amount of the increase in the present case was Rs,55 half of which comes to Rs,27,50. Thus, the Rent Controller could have increased the rent from Rs,70 to Rs,97.50 only. The order increasing the rent from Rs,70 to Rs,125 is clearly without lawful authority and of no legal effect. I, therefore, modify the impugned order to the extent that instead of Rs,125 per month, the rent of the' disputed property shall be Rs,97.50 payable by the petitioner with effect from 11-12-1977, the date when application under section 9 of the Ordinance was instituted. The petitioner shall be entitled to adjustment of the rent, if already deposited by him, at the rate of Rs,125 per month under the order of the learned Rent Controller. The petition is partly allowed with the above modification in the impugned order. The parties are left to bear their own costs.