This is second Appeal under section 15(4) of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) against the order dated the 19th September 1974, passed by the District Judge, Quetta in Rent Appeal No. 42 of 1974, whereby he upheld the order of the Controller, Quetta. Dated the 8th April 1974, passed in Rent Application No. 39 of 1970.
2. The material facts giving rise to this second appeal are : That respondents claim to be the owners of a shop premises, bearing No. 1-3/13-B-179 Suraj Gung Bazar, Quetta, and, according to them, appellant is the tenant thereof at a monthly rent of Rs. 40.
On the 26th June 1970, respondents filed an application under section 13 of the Ordinance on the grounds of non-payment of rent by the appellant and for personal requirement of the shop premises by the respondents. However, the appellant denied the relationship of landlords and tenant between the respondents and him. Accordingly, the Controller framed the following issue as preliminary issue : "Whether the applicants are landlords and the respondent is their tenant in respect of the shop premises in dispute."
After recording the evidence of the parties, the learned Controller by his order dated the 8th April 1974, found that the respondents are the landlords and the appellant is their tenant of the shop premises in dispute. By the same order the learned Controller directed the appellant to deposit the arrears of rent at the rate of Rs. 40 per month from the 26th June 1970 amounting to Rs. 3,240 before the 11th May 1974. He also directed the appellant to pay the future monthly rent before the 15th of each month.
Aggrieved by this order, the appellant preferred a rent appeal to the District Judge, Quetta, being Rent Appeal No. 42 of 1974. However the learned District Judge by his order dated the 19th September 1974, dismissed the same by upholding the finding of the Controller on the issue of relationship of landlord and tenant between the parties in respect of the shop premises.
3. Therefore, the appellant has come up to this Court in this second appeal.
4. The learned Advocate for the respondents has taken a preliminary objection as to the maintainability of this appeal. His objection is that no appeal lies against an order determining the relationship of landlord and tenant, as, such an order does not come within the perview of the provisions of section 15, subsection (1) of the Ordinance and therefore, the appeal before the District Judge as well as this Court is not maintainable. In support of his contention, the learned Advocate for the respondents has placed reliance upon the following cases
(1) Kandawala & Co. Ltd. v. Rashiduddin 1969 SCMR 721, In the case of Kandawala & Co. Limited, their Lordships of the Supreme Court observed as follows :- "Admittedly there is no notification by the Government to the effect that appeals will lie against a finding of relationship of landlord and tenant by the Rent Controller though this is really not material as will presently appear. The words used in section 15 are "an order", but learned counsel for the petitioner does not find it possible to contend that these words are to be interpreted in their wide generality and he accepts that some qualification has to be added to these words for otherwise an order adjourning a case or summoning a witness would also be subject to appeal and learned counsel agrees that this could not be the intention. The High Court has in a Full Bench case reported as Muhammad Amin v. Jamshed AU PLD 1963 Lab. 523, held that "an order" in the section means any order which is covered by some provision in the Rent Restriction Ordinance. This appears prima facie to be a reasonable qualification to add to "an order". The section envisages orders which the Rent Controller is empowered by the Ordinance to make While learned counsel for the petitioner does not accept this interpretation he is unable to make a reasonable suggestion as to any other limitation which can be placed on the words "any order". All that he has been able to contend is that an order which goes to the root of the case should also be appealable, but he is unable to explain how the words of section 15 are to be interpreted so as to achieve this result. Even in a civil suit a decision which goes to the root of the matter is not always the subject-matter of an appeal. When a civil Court decides a preliminary issue as to jurisdiction in favour of the plaintiff no appeal lies against the finding. The mere fact that an issue as to jurisdiction has been decided cannot be a ground for granting a right of appeal when on the wording of the relevant provision it is not possible to do so."
However, the above observations of their Lordships of the Supreme Court were on the provisions of section 15(1) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (West Pakistan Ordinance No. Vl, 1959), prior to their amendment by the West Pakistan Ordinance XXI of 1966.
Nevertheless, in a later pronouncement in the case of Ibrahim v. Muhammad Hussain, which is on section 15(1) of the Ordinance, as amended by Ordinance XXI of 1966, the same view has been, reiterated in the following words : "The controversy whether or not any such appeal is competent must be taken to have been set at rest by this Court's judgment in Messrs Kandawala & Co. Ltd. Lahore v. Sh. Fayyaz-ud-Din and others. In that case too, the existence of relationship of tenant and landlord was denied by the tenant and the matter being put in and decided on a preliminary issue was ultimately brought to this Court." and it was further observed by his Lordship Mohammad Gul, J.-who worte the opinion of the Court as follows ; "It is plain that subsection (1) of section 15 is restrictive in character and limits right of appeal against an order falling under section 4. 10, 12 or 13- of the' Ordinance. Therefore, when an appeal is sought against any order made by the Rent Controller, the question will always be, whether the order sought to be appealed against properly falls under any of the above sections. Section 4 concerns the determination of fair rent by the Rent Controller after enquiry, and in accordance with the principles laid down in the section. Section 10 empowers the Rent Controller to order restoration by the landlord of any amenities, conveniences etc. Hitherto enjoyed by the tenant. Section 12 empowers the Rent Controller to allow a tenant to carry out necessary repairs at the expense of the landlord in the event of the latter's neglect so to do. Section 13 lays down with great particularity the circumstances under which tenant will be liable to ejectment. It would be idle to contend that as respects cases falling under any of the above for sections, subsection (1) of section 15 postulates appeal in relation to a matter which is not germane to the substance of the dispute, but which is merely incidental or collateral, to the dispute and which has been disposed of by an interlocutory order. For instance in any such case objection may be taken against the territorial jurisdiction of the Rent Controller and a finding as to the existence of such jurisdiction, cannot on any discoverable principle be made a subject-matter of appeal apart from the whole gamut of the dispute. On a parity of reasoning the same will be true of the interlocutory order in the instance case, which was made to dispose of a collateral matter in the case."
5. Therefore, there is no difficulty at all in holding that no appeal was maintainable against the finding of relationship of landlord and tenant between the parties.
6. However, the contention of Khawaja Safdar Rashid, the learned Advocate for the appellant is that the appeal is not only against the order of determining the issue of relationship of landlord and tenant between the parties, but also against the order directing the appellant to deposit the arrears of rent and future rent and an appeal against such an order was competent under section 15(1) of the Ordinance. In support of the contention reliance has been placed upon a majority judgment of a Full Bench of Lahore High Court in the case of Muhammad Amin v. Sh. Jamshed Ali (PLD 1963 Lah. 523). No doubt, this case supports the contention of the learned Advocate for the appellant, and, notwithstanding the view to the contrary expressed by his Lordship Yaqoob Ali, J.-as he then was (now Chief Justice of the Supreme Court of Pakistan) held the field for a long time but now the same has been expressly overruled in the case of Ibrahim v. Muhammad Hussain (PLD 1975 SC 459), and the minority view has prevailed in the Supreme Court. It will be of advantage if the relevant observations of his Lordship Muhammad Gul, J. From the cited case at pages 461 and 462 of the report are reproduced herein below.
It is observed by his Lordship :- "However, that may be, the majority view, appears to have become obsolete, in view of the recent decision of this Court in the case of Abdul Ghafoor v. Ahmad Kunhi. In that case the provisions of section 13(6) of the Ordinance as amended by W. P. Ordinance XXX of 1960 came in for interpretation, though in slightly different context.'.
It was further observed "This brings into bold relief the provisional character of the order made under the first part of section 13(6) which in the event of default need not necessarily result in the striking off the defence and order of ejectment. The possibility cannot be entirely excluded that the Rent Controller, upon the final determination under the second part of the clause, comes to the conclusion that the tenant was never in default. The provisional fixation of current rent and the amount of arrears, under the first part of the clause remains provisional and until it is followed by final determination or the culmination of the other contingency postulated in the clause namely striking off the tenant's defence and putting the landlord in possession the order would not be appealable under section 15(1) or else a provisional fixation of current rent or past arrears would per se be equated with the default and striking off the defence within the meaning of section 15(1) of the Ordinance, for which, so far as can be seen, there is no warrant in law."
7. Further contention of Khawaja Safdar Rashid is that the order directing the appellant to deposit the arrears of the rent and the future rent was in the nature of final determination and as such an appeal against such an order was competent. However, a perusal of the order of the Controller shows that it is a tentative order and he has passed the same under section 13(6) of the Ordinance as stated by him in the order in the following words "The respondent is directed under section 13(6) of the Ordinance VI of 1959 to deposit rent at the rate of Rs. 40 monthly from 26th June 1970 . . . . . . . Before the 15 of the next month"
Moreover, final determination of the liability of payment of rent h to be made either under the second part of section 13(6) or under section 13(8) of the Ordinance at the conclusion of the proceedings or such earlier date as may be specified by the Controller. Admittedly, the proceedings have not concluded nor has the Controller specified in his order dated the 18th April 1974, when be passed the order of deposit of rent to be such a date. Therefore, the order passed by him on 8-4-1974 could not be said to be an order either under the second part of the section 13(6) or under section 13(8) of the Ordinance as contended by the learned Advocate for the appellant.
8. I have therefore, come to the conclusion that the appeal before the District Judge was not maintainable and so is this appeal. Accordingly, I dismiss the same but without cost, as Mr. Hanafi, the learned Advocate for the respondents does not claim the same.