1. The facts relevant for the disposal of this appeal are these. Dr. Qamar-ud-Din respondent filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter called the Ordinance) for ejectment of lalil Ahmad Khan Niazi appellant from shop bearing property No. S-37-R-1.4: otherwise known as 3, Beadon Road, Lahore. The main ground for ejectment was non-payment of rent. The appellant resisted the application on various pleas including the objection of absence of relationship of landlord and tenant because of non-service of notice under section 30 of the Displaced Persons (Compensation and Rehabi--litation) Act, 1951.
2. The learned Rent Controller by order dated 6-11-1974 rejected the plea of absence of relationship of landlord and tenant between the parties. Before any further proceedings were taken in the case by the Rent Controller, the appellant assailed his order in the Court of the Addi--tional District Judge without success. Being dissatisfied he has come up tot's Court in second appeal.
2. A preliminary objection has been raised as to the competence of this appeal. It has been argued that under section 15(1) of the Ordinance an appeal lies against an order passed by the Rent Controller under sections 4, 10, 12 and 13 of the Ordinance only and because the determination of the question whether or not the---Rent Controller has jurisdiction in matter is not an order under section 13, the same is not appealable. It is maintained that the appeal before the Additional District Judge was incompetent and no further appeal lies under section 15(4) from an order emanating out of incompetent proceedings. Reliance has been placed on Kandawala & Co. Ltd. v.
3. Rishidud-Din 1969 SCMR 720 . Stress has been laid on the following observations of their Lordships of the Supreme Court :_ " . . . . . 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 orders'. 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 word' 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."
4. It is further contended that the definition of the term `order' appearing in section 15 of the Ordinance has been interpreted in a Full Bench decision of this Court in Muhammad Amin v.
5. Jamshed Ali PLD 1963 Lab. 523 , and this interpretation has been approved in Kandawala & Co. Ltd. v. Rashid-ud-Din and on parity of reasoning the order of the Rent Controller is not appealable despite the fact that the Ordinance was amended in 1966 after the Supreme Court decision.
6. Learned counsel referred me to Ayesha Bat v. Momin Bat PLD 1973 Kar, 419 . In which a similar question was raised and their Lordships of the Sind & Baluchistan High Court relying on Kandawala & Co. Ltd. v. Rashid-ud.Dln have held that such orders are not subject to appeal, In Abdul Sulam V.
7. Sharif Ahmad (PLD 1971 Kar. 687), affirmed in appeal by the Supreme Court published as Abdul Sulam v. Sharif Ahmad (1971 SCMR 596). The amendment of section 15 has been considered and the question whether by the amendment the scope of right of appeal has in anymanner been enlarged was debated and the Court has come to the conclusion that there 'has been no enlargement of right of appeal even under the amended section 15. On behalf of the appellant, reference has been made to Iqbal Hussain v. Sarwari Begum (PLD 1967 Lah. 1138), Muhammad Hussain v Muhammad Bashir (PLD 1974 Lah. 446) and an unreported judgment dated the 2nd of May 1973 in S. A. O. No- 157 of 1967 Abdul Ghafoor v. Mst. Sadiqa Bibi, which decisions support the contention of learned counsel for the appellant that such orders are appealable under section 15(l). In these three cases, the decision in Kandawalu's case does not appear to have been brought to the nice of the learned Judges.
8. Subsection (1) of section 15 of the Ordinance, as it stood before the amendment of 1966, read as under :- "15. Appeal.-(1) (a) Government may by a general or special order, by notification, confer on such District Judges and Additional 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.
9. The amended subsection (1) of section 15 is;- "15. (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 oriented land, in relation to which the order is passed, is situated.
10. The change brought about in section 15(1) it that the Legislature instead of leaving it to the Government to notify the appellate authorities and classes of cases in which an appeal is to lie before such an authority, has conferred the appellate jurisdiction on all District Judges and has also specified the sections (namely, sections 4, 10, 12 and 13), orders passed whereunder will be appealable, Section 15(4) has been left untouched and the question that falls for determination is whether the decision by the Rent Controller of the plea of jurisdiction in the instant case is an order under section 13. If the answer is in the affirmative, the preliminary objection as to the incompetence of the present appeal cannot prevail. There is ample authority for the view that a tribunal is competent; rather should on objection taken to its jurisdiction before proceeding with the case determine whether or not it has jurisdiction, Nusserwanjee Pestonjee and others v.
11. Mynoodeen Khan Wullud Meer Sadroodeen Khan Bahadoor ((1854-57) 6 M I A 134) and Abdul Sattar v. Hamida Bibi (AIR 1950 Lah. 229) refer. The following terse observations of Muhammad Yaqub Ali, J. (as his Lordship then was) in Muhammad Ismail v. Israr Ahmad (PLD 1961 Lah. 601) are also in point :-- "Moreover, the issue whether the relationship of landlord and tenant exists between the parties is one of jurisdiction and should be deter-- mined first; in case the answer be in the negative, the Controller loses seisin over the lis and must stay his hands forthwith. It should be remembered in this connection that a Rent Controller is not a civil Court of general jurisdiction but is a special Tribunal and as soon as it is established that the relationship of landlord and tenant does not exist between the parties, his jurisdiction over the subject-matter of the lis and the parties terminates . . . . . . "
12. While discussing the question of jurisdiction of special Tribunals created by the Legislature. The dictum (reproduced below) from Queen v. Commissioner for Special Purpose of the Income-tax ((1888) 21 Q B D 313) has been cited with approval in Karamat Ali anotherv. Muhammad Yunus Haji and others (PLD1963SC191)
13. "When an inferior Court or Tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that Tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such Tribunal or body, before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the Tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as, the. Jurisdiction, on finding that it does exist, to proceed further or to do something more. When the Legislature are establishing such a Tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction, they give them, whether there shall be any appeal from that decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the Tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction." .
14. The ratio decidendi of Queen v. Commissioner for Special Purposes of Income-- tax is that there are two classes of cases dealing with the power of such a Tribunal (1) where the Legislature entrusts a Tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of its jurisdiction depends exists and (2) where the Legislature confers jurisdiction on such Tribunal to proceed in a case where a certain state of facts exists or is shown to exist. The difference is that in the former case the Tribunal has power to determine the facts giving it jurisdiction and in the latter case it has only to see that a certain state of facts exists. Again, whether a Tribunal has jurisdiction or not has to be decided with reference to the initial assumption of jurisdiction by the Tribunal. An enquiry, however, whether the Tribunal has in any particular cause jurisdiction over the case itself, is really an investigation as to whether the conditions of cognizance are satisfied. Therefore, a Tribunal is always clothed with jurisdiction to say whether it has jurisdiction to try the cause submitted to it. On that view of the matter the contention that the order under consideration has been passed by the Rent Controller under section 13 and is, therefore, appealable does not stand the test. An argument was raised the if the Rent Controller wrongly decides that it does not have jurisdiction in the matter and returns the petition, the person aggrieved is left with no remedy because firstly the civil Court may not have jurisdiction in the matter at all and secondly the person may be obliged to approach the High Court in writ jurisdiction at colossal expense and that is not the policy of law. There can be no bar in bringing the order of the Rent Controller under the challenge before a civil Court and the apprehension is not well founded (see Muhammad Ismail v. Israr Ahmad at p. 609 of the report).
15. Section 15(4) also affords no difficulty and the view I have taken is in no manner in conflict with its provisions. It has been held in Abdul Salam v. Sharif Ahmad and another1971 SCMR 596.
16. "After the amendment of this provision of law in 1966, no power is left with the Government to confer powers on the District Judges to hear appeals in such area or in such classes of cases as may be specified in the order. The words in section 15(4) of the said Ordinance. Namely, 'if an appellate authority has not been appointed in respect of any area or class of cases' has (sic) now become redundant,,,,,,,,, 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 i3 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.
17. Further by virtue of the provisions of Article 189 of the Constitution Act of 197:3 any decision of the Supreme Court to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan. I, therefore, following with respect the dictum of their Lordships of the Supreme Court in Kandawala's case, reaffirmed in Abdul Salam v.
18. Sharif Ahmad and another, hold that the decision of the question of Jurisdiction by the Rent Controller is not appealable.
3. For the reasons above, the preliminary objection succeeds and the appeal is dismissed as incompetent. In view of the conflict of judicial opinion the parties are left to bear their own costs.