1. This appeal is directed against order, dated 18-7-1994, passed by learned Civil Judge II-cum- Controller; Quetta.
2. Relevant facts briefly stated are than Noor Muhammad was owner of Shop No. 55/39, Moti Ram Road, Quetta. He filed an application for eviction of appellant from said premises mainly on the ground of reconstruction which culminated in FA.O. No. 60/87 and ultimately decided on 28th June, 1987 by way of compromise in the following terms whereby vacant possession of the shop was delivered to said Noor Muhammad:--- "That the respondent would hand over the vacant possession of Shop No. 55/39 within one month and thereafter the appellant would raise construction over both the shops in accordance with the plan (Exh. A) approved by the Municipal Corporation and then one of the shops would be delivered to the respondent after reconstruction at the monthly rent of Rs. 300."
3. Admittedly after prolonged ailment said Noor Muhammad expired during year 1989. It is the case of appellant that late Noor Muhammad and after his death respondents, failed to demolish the shop and raise new construction whereupon appellant filed application under section 13(5) and (5-A) of Baluchistan Urban Rent Restriction Ordinance, 1959 before Civil Judge-cum-Controller, Quetta towards 13th September, 1993. Respondents (i) (widow of late Noor Muhammad and (ii)
4. Muhammad Arif son of Noor Muhammad) resisted the same and filed written statement on 8th December, 1993. Question of limitation, maintainability of application and competency of proceedings without impleading other heirs were, inter alia, raised. Learned Controller, framed following four issues on 31-12-1993 and gave parties opportunity of leading evidence:--
(i) Whether the application is bad for non-joinder of necessary parties?
(ii) Whether before Hon'ble High Court of Baluchistan in F.A.O. No. 60/67, the respondent agreed that he will put back the applicant in possession of the newly constructed building but the respondent failed to demolish the building and let it out to some tailors on contract basis and violated the liabilities contained in subsections (5) and (5-A) of section 13 of the Ordinance making himself liable to penalty under subsections (5) and (5-A) of the Ordinance?
(iv) Relief.
5. Appellant got recorded his own statement, to substantiate the claim, put forth in the application.
6. Whereas respondents in rebuttal have adduced R .W.1 Hashmatullah, R.W.2. Naseer Ahmad, besides, statement of widow respondent Shahmim Akhtar. Learned Civil Judge-II and Controller, Quetta by means of judgment dated 18-7-1994 dismissed the application. Aggrieved from the same, present appeal was filed on 18th August, 1994.
7. Mr. Tahir Muhammad Khan learned counsel for appellant strenuously urged that matter was finally decided by way of compromise, therefore, late Noor Muhammad and his successors had contractual bindings to reconstruct and hand over possession of newly built premises or restore him possession of existing shop. He stressed that respondents have miss-conducted by violating directions of the Court, as such are liable for punishment under Contempt of Court. It was canvassed that bar of limitation had no applicability while considering claim for restoration, therefore, impugned judgment was highly defective.
8. Whereas Mr. Sakhi Sultan, learned counsel for respondents vehemently opposing the appeal, contended that only remedy on failure to reconstruct new building was provided under subsection
(5) of section 13 for which Controller had no jurisdiction. Reliance was placed on the observations of reported judgment in case Haji Jamil Ahmad v. Muhammad Ibrahim 1984 CLC 2804. He further argued that no action was specified against respondents because other heirs of deceased Noor Muhammad were not impleaded as party. According to him claim of appellant in the peculiar circumstances did not have legal sanctity. He thus supported the impugned order.
9. I have carefully perused the record and considered the arguments advanced by learned counsel for parties. To effectively determine real controversy between parties it would be appropriate to reproduce below section 13 (5) and (5-A) of Baluchistan Urban Rent Restriction Ordinance, 1959 as under:--- "(5) Where a landlord has obtained possession of a building in pursuance of an order under clause
(vi) of subsection (2) of this section and does not have the building demolished within a period of four months from the date of taking possession of the same or does not construct the, new building within a further period of two years after the expiry of the period of four months from the date of taking possession of the same he shall unless he satisfies the Court that he was unable to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both.
10. (5-A) Where a landlord has been convicted under the provisions of subsection (5), the tenant, who has been evicted from the building oriented land in respect of which the landlord is convicted, may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land, and except in the case of a building which has been demolished, the Controller shall make an order accordingly."
11. It is admitted feature of the case that in pursuance of consent order possession of shop was obtained by the late Noor Muhammad. At same occasion old structure of shop was partly moved but new building has not been constructed, nor possession returned to appellant. It may be seen that undisputedly original application for restoration under section 13(5) and (5-A) was instituted towards 13th September, 1993 only against widow Mst. Shamim Akhtar and one son Muhammad Arif, of late Noor Muhammad, whereas remaining five heirs were not joined as party during proceedings before trial Court, despite specific objection in the written statement: No doubt, during pendency of appeal an application praying for impleadment of other heirs was submitted on 12th September, 1994, which respondents have opposed. Obviously this application being highly belated cannot be entertained at appellate stage.
12. It is quite manifest that absolutely no proceedings have been launched against majority of heirs of deceased Noor Muhammad, for seeking restoration of premises before competent forum. Learned counsel urged that prolonged illness and death of Noor Muhammad adversely affected resources and bona fides for reconstruction of new building. Prima facie above factors constitute genuine reason concerning respondent's failure to raise construction. Apparently tenant on the failure of landlord or his successors to construct new building ought to have approached the Controller within reasonable time from period contemplated by section 13(5), Ordinance VI of 1959. Besides the proceedings initiated by appellant even if do not contravene specific provision of limitation nevertheless same suffer from laches. Therefore, relief of discretionary nature cannot be legitimately allowed specially when majority of heirs were not impleaded. It is pertinent that application for restoration of possession has been filed more than six years after possession was delivered. Though limitation for moving application for restoration of- possession in obedience to order passed by Controller is not specifically prescribed yet same cannot be extended beyond the period otherwise provided for executing normal decree of the Court. Thus, in my considered opinion the application at first instance must be filed within 3 years from the date of delivering possession. Even otherwise for submitting applications where no period is prescribed, provisions of Article 181, Limitation Act which prescribe period of 3 years is attracted. Therefore, considering cumulative effect of above factor I am satisfied that original application filed by appellant was not maintainable.
13. Additionally it may be seen that (for) failure to construct new building or restore possession, penal action is provided under section 13(5) of Baluchistan Urban Rent Restriction Ordinance. High Court of Sindh in case Haji Jamil Ahmad v. Muhammad Ibrahim (1984 CLC 2804) has interpreted requirement of section 13(5) of Rent Restriction Ordinance for drawing proceedings in that behalf. It is opined that aggrieved person should approach Criminal Court of competent jurisdiction for said purpose and Controller has no authority to draw proceedings under said law. Relevant observations appearing at pages 2807-2808 are reproduced here:--- "(5) I am inclined to hold that the use of `Court' in subsection (5) of section 13 does not mean the Court of Rent Controller. A perusal of the various provisions of the Ordinance makes it abundantly clear that whenever the Legislature intended to empower the Rent Controller to pass certain order or to take particular action the word Rent Controller to pass certain order or to take particular action word `Rent Controller' has been used. The use of different word in subsection (5) of section 13 cannot be without any purpose. In my view the word `Court' employed in subsection (5) of section 13 of Baluchistan Urban Rent Restriction Ordinance means Criminal Court of competent jurisdiction.
14. It may be pointed out that the Legislature has not empowered the Rent Controller even to try the offences for violating sections 11, 13(1) and 18 though the above offences entail maximum punishment of Rs. 1,000 fine whereas the contravention of subsection (5) of section 13 of the Ordinance entails the sentence of six months or with fine or with both. It will stand to no logic or reason to hold that though the Rent Controller has not been empowered to try offences involving lesser punishment, he is competent to try an offence under subsection (5) of section 13 which entails higher punishment as observed hereinabove on the basis of the use of the word Court.
15. I may also mention that it is a well-settled principle of law that if m the same enactment two different words are used, they will carry different meanings. Mr. Dastagir has referred to the case of Khadim Mohy-ud- 1 Din and another v. Ch. Rehmat A.I Nagra and another PLD 1965. SC 459 in support of his contention that Rent Controller under the Ordinance is not a Court. In this regard it may be pertinent to quote hereinbelow relevant observation of the Hon'ble Supreme Court, which reads as follows: `From the provisions of the Ordinance it appears that though under section 16 the `Controller' has been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence' he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10(3) and 12 to make order after holding such enquiry as he thinks fit. In such cases the question of nature of enquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban area the landlord may, not convert a residential building into a non-residential building. The power thus conferred on the Controller would appear to be purely executive. Then subsection (3) of section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be `satisfied that the claim of the landlord is bona fide'. But there is no express mention of any enquiry by the Controller. If the word `satisfied' imports the necessity of enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure.
16. We, therefore, conclude from the foregoing examination of the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that he acts in a quasi-judicial capacity'.
17. From the above-quoted passage of the above Supreme Court judgment, 'it is evident that the Honourable Supreme Court held that the Rent Controller while acting under the Ordinance does not act as a Court but at the most he acts in quasi-judicial capacity. In this view of the matter the application filed by the respondent before the Rent Controller under subsection (5) of section 13 of the Ordinance was without jurisdiction. The effect of section 19 seems to be that a complaint under section 13(5) of the Ordinance can be lodged by a tenant without obtaining the sanction of the Rent Controller referred to in section 19."
18. I am in respectful agreement, with conclusions of afore-quoted judgment and have no hesitation to hold that proceedings under section 13(5), Baluchistan Urban Rent Restriction Ordinance initiated by appellant before the Controller are without jurisdiction.
19. Lastly it may be seen that contention of learned counsel for appellant concerning contempt committed by respondent does not appear to have any legal sanctity. Evidently failure to comply with order of Controller entails consequences of penal action against person responsible for contravening the same. Therefore, question of initiating proceedings for contempt does not arise.
20. For the above reasons, I do not find any justification for interfering with the impugned judgment.
21. The appeal is consequently dismissed. Parties are, however, left to bear their own costs.