1. ' An ejectment application was filed against the respondent by the appellant, on 2-11-1974, wherein ex parte ejectment order was passed by the learned Controller on 21-12-74 against the respondent directing her to vacate the premises in question within a period of one month. The ex parte order was appealed against before the learned Addl. District Judge, Lahore, who by his order dated 16-5- 75 accepted the appeal holding that since the respondent had not been served upon in accordance with law in the ejectment proceedings, therefore, the order passed by the Controller could not be sustained in law. He, therefore, remanded the case to the Controller for fresh decision.
2. It is, however, admitted on record that the appellant got the order of ejectment passed against the respondent by the Controller executed against her and took possession of the property on 19-2- 1975.
2. After the remand of the case, and after the order of the Controller dated 21-12-1974 was set aside, the respondent moved an application before the Controller under section 144, C. P. C. For restitution of her possession over the suit property. The learned Controller, however, dismissed the application of the respondent holding that since ex parte ejectment order had been set aside or varied by the learned Addl. District Judge in appeal, therefore, the application was not competent and as such question of restitution of possession to her did not arise. According to the Controller the appeal was still pending and the matter with regard to service or otherwise of the respondent in the ejectment proceedings had been referred to him by the learned lower appellate Court and in the circumstances application under section 144, C. P. C. Was liable to be rejected, which was consequently rejected. The respondent preferred appeal against this order before the learned Addl. District Judge, Lahore, who accepted the same vide his impugned order dated 14-6-1975, holding that by his order dated 16-5-1975 he set aside the ex pane ejectment order passed against the respondent and as such application for restitution of possession, filed by the respondent was competent and possession was liable to be restored to her in accordance with law.
3. ' The appellant has now come up to the High Court and has challenged the validity of the impugned order under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
3. Sh. Ghias Muhammad, the learned counsel for the appellant has raised the following contentions: (a)The order dated 5-6-1975, passed by the Controller rejecting the application filed under section 144, C. P. C. Being not appealable under section 15 of the Rent Restriction Ordinance, the appeal filed by the respondent against that order was liable to be rejected.
4. (b)The provisions as contained in section 144, C. P. C. Does not apply to the proceedings under the Rent Restriction Ordinance of its own force since C. P. C. Is not applicable to such proceedings strict.
5. Senso.
(c) Section 144, C. P. C. Does not apply to ejectment proceedings by virtue of the operation of section 17 of the Rent Restriction Ordinance, as the said section is applicable only to the orders which have been passed finally and are executable. Since the order of the learned Addl. District Judge was in relation to remand of the case, therefore, the same having not decided the matters in controversy between the parties finally cannot be executed under section 17 of the Ordinance.
6. (d)Assuming for argument's sake that section 144, C. P. c. Is applicable of its own force, even then application under the said provision, would not be competent as the Controller has not so far determined the case on merits.
4. The first question to be determined in this case is as to whether the appeal filed by the respondent before the learned lower appellate Court against the order dated 5-6-1975, rejecting her application filed under section t 44, C. P. C., was competent or not. The learned counsel appearing on behalf of the appellant has vehemently argued that the said order having not been passed under sections 4, 10, 12 and 13 of the Ordinance is not appealable under section 15 thereof. It has been held in Ibrahim v. Muhammad Hussain (0 that right of appeal under subsection (1) of section 15 of the Rent Restriction Ordinance is limited to orders falling under the aforesaid sections of the Ordinance and interlocutory order of provisional character made under first part of section 13(6) not necessarily resulting in striking of defence and order of ejectment is not appealable under section 15{1). The fact that the first appeal was incompetent and the learned Additional District Judge had no jurisdiction to deal with the matter, does not render the present second appeal incompetent nor it has been argued to be as such by the learned counsel for both the parties.
7. Reference in this respect can be made to Bandi Ram Mookarjee v. Puranchandra Roy (2) and Kirpa Ram v. Raghbir Singh and another (3). It has been held in AIR 1935 Lahore that where appeal to the District Judge being incompetent has nevertheless been filed and decided, second appeal against the judgment thereof, would be competent. The same view has been taken in Abdul Qayyum Ansari v. Saiahuddin Qureshi (4) by Dorab Patel, J., (now Judge, Supreme Court of Pakistan) while relying upon the aforesaid authorities. The present appal being competent is liable to be disposed of in accordance with the provision as contained in section 15(4) read with the explanation thereunder, which reads as follows ..
8. "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 Controller and as an appeal from the appellate order under section 103 of the Code if it is from an order of the Appellate Authority and the provisions of Part VII and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply, to such proceedings."
9. A bare reading of the provision, as contained in section 15, and the explanation given thereunder, would show that the provision of sectien 107(2) as well as the provision as contained in Order XLI, rule 33, C. P. C would be applicable to the present proceedings. Part VII contains section 107(2) which provides that the appellate Court shall have the same powers and shall perform as nearly, as may be, the same duties, as are conferred and imposed by the Code on Courts of original jurisdiction, in respect of the suits instituted therein. It has been held to be so in Muhammad Husslan and another v. Mehraj Din and another (5), Roshan Din v. S. M. Badaruddin (6) and Abdui Qayyum Ansari v. Salahuddin Qureshi. It may be mentioned here that the provision as contained in rule 33 of Order XLI, C. P. C. Provides that the appellate Court shall have the powers to pass any decree and make any order which ought to have been passed or made and to pass or make
(1) PLD 1975 SC 457 (2) AIR 1918 Cal. 435
(3) AIR 1935 Lah. 319 (4) PLD 1974 Kar. 10
(5) PLD 1965 Lah. 179 (6) PLD 1969 Kar. 546 such further order, other decree or order, as the case may require and this power may be exercised by the Court notwithstanding that the appeal is, as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or party may not have filed any appeal or objection. The matter in dispute before the Full Bench in 1965 Lahore, was as to whether the power conferred on a Controller to strike off defence under section 13(6) of the Ordinance was also available to the appellate Court under section 15. The Controller in that case had refused to strike off defence despite non-compliance of his order regarding the deposit of arrears of rent. The question which was decided by the Full Bench was as to whether the appellate Court was competent to pass correct order with regard to striking of defence. Since a different view bad been taken in Jalal Din v. Azizuddin (1) by Yaqub Ali Khan, J., as he then was, now Chief Justice Supreme Court of Pakistan. Therefore, the matter was referred to a Full Bench which upheld the view taken in Qadeer Khan v. Abdullah Ian (2) to the effect that appellate Court was entitled to strike off defence of a tenant under subsection (6) of section 13 of the Ordinance. It was observed by his Lordship Mr. Justice Yaqub Ali Khan that he was not porperly advised in expressing the view in Mal Din's case, as referred to above, that the power conferred on a Rent Controller to strike off defence of the respondents was not available to the appellate Court under section 15 of the Ordinance. It was further held that though the Ordinance did not contain provision corresponding to section 107(2) of the Code of Civil Procedure namely that "the appellate Court shall have the same powers and shall perform as nearly as may be, the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein", however, the provision contained in Order XLI, rule 33, C. P. C. Is applicable to appeals under section 15 of the Ordinance.
10. ' The facts as reported in Foshan Din's case, are that against ejectment orders passed by the Rent Controller three appeals were filed before the learned Additional District Judge concerned, during the proceedings whereof the landlords moved applications under section 13(6) of the Ordinance for striking off defence of the tenants on the ground that they had failed to deposit rent during the pendency of the appeals. These applications were allowed and the defence of the tenants was struck off irrespective of the fact that the learned appellate Court had not passed any order directing the tenants to deposit arrears or monthly rent under section 13(6). The only order available on the file was that of the Controller, passed in this behalf. Three second appeals were filed in the High Court under section 15(4) of the Ordinance which were dismissed. The matter was thereafter taken up in Letters Patent Appeals filed by the tenants, by a Division Bench before whom the sole question for determination was with regard to construction of the provision as contained in section 15 of the Ordinance. It was held while making observations in context of the explanation given under section 15 of the Ordinance, that the order for deposit of rent under section 13(6) of the Ordinance did not survive the conclusion of the proceedings before the Controller whether these proceedings terminated by the tenants' defence being struck off or by order of eviction or by dismissal of landlords' application for eviction of the tenant. While discussing the effect, of 'explanation'
(1) PLD 1963 Lab. 436 (2) PLD 1963 Quetta 21 given under section 15 of the Ordinance, it was observed that so far an Part VII of C. P. C. Was concerned, it contained section 107(2) which provided that the appellate Court shall have the same powers and shall perform: as nearly as may be, the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of the suits instituted therein. It was further held that if there was any doubt with. Regard to the application of Order XLI, rule 33, C. P.
11. C. To the appellate proceedings under the Ordinance the provisions as contained in section 107, C.
12. P. C. Would,. However, apply and under this provision the appellate authority shall have the same powers including the power to make order for deposit of rent as is given to the Controller, under the Ordinance.
13. ' It has been held in PLD 1974 Kar. 10, that the provisions of section 107(2) as well as Order XLI, rule 33, C. P. C. Are not expressly excluded even by necessary intendment, as section 15 and explanation given there. Under shows that the said provisions are very much applicable to the prcceedings in first or second appeals under the Ordinance. It has been further held that wide powers have been conferred on appellate Courts under Order XLI, rule 33, C. P. C. On the basis whereof appellate Courts have been empowered to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. It is also held that since First Schedule of the C. P. C. Has been made applicable to the proceedings before the High Court under Ordinance, therefore, the provision as contained in Order XLI, rule 33, C. P. C. Would be applicable to the said proceedings as the said provision falls in First Schedule.
14. The contrary view taken in Abdul Shakur v. Ray Khusru (1) has been dissented from in PLD 1974 Kar.
15. 10 and the view as given in Roshan Din's case has been followed by giving cogent reasons therefore 1, agreeing with the view as given in PLD 1974 Kar. 10, hold' that the appellate Court in the proceedings under the Ordinance shall have the same powers and shall perform as nearly as may b the same duties as are conferred and imposed by this Code o Courts of original jurisdiction in respect of suits instituted therein; as well as the appellate Court shall have the power to pass any decree and mak any order which ought to have been passed or made and to pass such further order, other decree or order, as the case may require ' As discussed above, bare reading of section 15(4) and the explanation given thereunder makes it clear that the said provisions of P. P. C. Are applicable to the present proceedings in second appeals before the High Court which are liable to be heard and determined as appeals from original decrees under section 9b of the Code of Civil Procedure. No different view can be taken in this behalf as it will lead to ridiculous position. When the provision itself makes the matter clear, there is no need to interpret the same differently.
16. ' The above discussion would show that even if it is conceded, as contended by the learned counsel for the appellant, that appeal before the learned Addl. District Judge against the order of the Controller rejecting the application of the respondent under section 144, C. P. C. Was not competent, the question which still remains to be determined is as to what correct order was liable to be passed by the Controller after the case was remanded by the learned lower appellate Court setting aside the ex parte ejectment order against tie respondent. An erroneous view was taken by the learned
(1) PLD 1970 Kar. 599 Controller that since the ex parte order passed by him was not set aside by the lower appellate Court, therefore, the provision as contained in section 144, C. P. C. Would not be applicable and as such the respondent was not entitled to restitution of her possession. A careful perusal of the order dated 16-5-75 passed by the learned Addl. District Judge makes it clear that the ex pane ejectment order was set aside and the case was remanded for fresh decision. The appeal was never kept pending till the result of any further inquiry to be made by the Controller in the light of the observations made by the lower appellate Court. It is clear that when service of the respondents in regard to the ejectment proceedings was not found to have been made satisfactorily in accordance with law and the case was remanded for fresh decision it evidently involved upsetting of the ex parte ejectment order, otherwise there was no occasion for the learned lower appellate Court to disagree with the findings of the Controller based upon the ex parte proceedings. No other view can be taken after reading the order of the learned lower appellate Court. Further the learned Addl. District Judge himself has made it clear in his impugned order that ex parte ejectment order of the Controller was set aside by him and the case was remanded for fresh decision in accordance with law. In a similar case of Sh. Mehraj Din v. Ghulam Muhammad (1) a tenant ejected in similar circumstances was found entitled to obtain restitution of premises under section 144, C. P. C. In that case an order of ejectment was passed against the respondent before the High Court by the Controller under section 13(6) of the Ordinance. This order was reversed by the learned District Judge, Gujranwala, on appeal, who remanded the case to the Controller with amain directions. Meanwhile the appellant before the High Court had taken possession of the upper portion of the house from the respondent in execution of the order of ejectment. After the remand the tenant i.e., the respondent, applied to the Controller for the restitution of the possession of the house, which had been illegally delivered to the appellant. The learned Controller, after the order of ejectment was set aside held that since the order was no more in existence, therefore, the tenant had a right to be put back into possession of the property, and as such application for restitution of possession was accepted. The appeal filed by the landlord before the District Judge as well as before the High Court against the said order was rejected. It was argued before the High Court that the Controller in exercise of the limited scope of the special jurisdiction conferred upon him was not competent to direct restitution of possession of the property under section 144, C. P. C., which was not applicable to the ejectment proceedings. The contention raised before the High Court was repelled on the ground that under section 13 of the Ordinance Rent Controller was vested with powers to make orders directing ejectment of tenants.
17. These orders being open to appeal before the District Judge any order passed under section 15 of the Ordinance in appeal was liable to be executed as a civil decree. It was further hold that section 144, C. P. C. Did not confer any new substantive right which, an aggrieved party did not possess under the general law. The right of restitution was not derived from section 144 of the Code of Civil Procedure. The said provision only specified one of the methods by which that right could be enforced. It was also held that it is not, at all, necessary that the appellate order should specifically direct the restitution of the property; whenever the order passed by the first Court is varied or reversed the restitution is to follow automatically
(1) PLD 1965 Lab. 374 from the fact that the order is reversed on appeal and in such a case duty is cast upon the Court to put the parties back to their original position. It was further held that section 144 is based upon the principle that no party shall suffer for an act of the Court, whether it is an act of the first instance or that of the highest Court.
18. ' It has been argued by the learned counsel for the appellant, as already noted above, that even if it is assumed that section 144, C. P. C. Is applicable to the proceedings under the Rent Restriction Ordinance, since the matter in controversy between the parties in relation to the ejectment application has not been determined finally, therefore, application under section 144, C. P. C., would not be competent.
19. ' I am afraid, this contention has no force in law. If the argument of the learned counsel is accepted to be correct then it would mean that section 144 would come into play only after the matter in question in that suit has been finally determined by the highest Court of the country and before that the said provision cannot be availed of by a party, irrespective of the fact that the decree passed by the initial Court has been set aside or varied by the lower appellate Court or even by the High Court. I am afraid, in view of the argument of the learned counsel the very provision of section 144 would be redundant, as in the case of final determination of such matter by the highest Court of the country the decree having been passed as such in favour of a party can be executed and benefit of restitution can be had on the basis thereof. If the variation or reversal of the decree passed by the initial Court is made by a superior Court in the same proceedings, or where an ex parte decree is set aside under Order IX, rule 13, C. P. C., the Court can order restitution. Reference in this respect can be made to AIR 1949 Pat. 133, AIR 1949 All. 730, AIR 1947 Mad. 54 and AIR 1937 Mad.
20. 150.
21. ' Since the order dated 16-5-1975, passed by the learned lower appellate Court set aside the ex parte ejectment order, which had already been executed as a civil decree, therefore, application under section 144, C. P. C. Was competent.
22. The discussion made above would show that irrespective of the fact whether the matter in question has been determined finally up to the high Court, if an applicant under section 144 shows to the Court that decree passed against him has been varied or reversed by the first appellate Court or by the superior Court, the provision as contained in section 144 would be applicable and such party would be entitled to restitution under the said provision. Even otherwise, power of a Court, or competent authority, to grant restitution is not confined to the cases covered by the provision of section 144. It extends also to cases which do not come strictly within this provision, the reason being that a Court/competent authority has inherent power under section 151, C. R C., irrespective of section 144, to order restitution. Reference in this respect can be made to SUM Chandra v. Surendra Nath (0, Pent Parshad v. Kundan Lal (2) and Rego v. Ananthamathi(3).
23. I have purposely used the word "competent authority" alongwith the "Court" in order to show that the basic principle underlying the right o restitution is that a wrong done to a party should be rectified. The principle as laid down by the provisions of section 144 would, therefore, be applicable to
(1) 154 I C 411 (2) (1934) 150 I C 924
(3) AIR 1942 Mad. 949 the Ordinance. As observed in PLD 1965 Lahore, the doctrine of restitution is based upon the cardinal principle of law, that act of a Court should not be allowed to work injury on the suitors. It contemplates a case where property had been received through Court under the order of an authority which was later on wholly or partially reversed or varied. In such a case the law imposes an obligation on a party who had received the benefit of the erroneous order to make restitution to the other party for what he had lost, and it is the duty of the Court to enforce that obligation in the interest of justice between the parties.
24. In this view of the matter it cannot be argued that the principle underlying the right of restitution would not be applicable to the proceedings under the Ordinance. Even if it is conceded for argument's sake that section 144 has not been made applicable to the said proceedings of its own force, the fact remains that the principle underlying the right of restitution will be very much applicable to the said proceedings and a party against whom a decree or order already passed has been reversed or varied the would be entitled to restitution. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards parties involved. It cannot be denied that in the exercise of their inherent powers, the Courts have applied the principle underlying the right of restitution to other cases which were not strictly in the terms of the said provision. Reference can be made to Arunachalam V. Partapasimha (1). In that case in appeal from a preliminary decree to High Court parties were allowed to withdraw, pending the appeal, moneys deposited to their credit up to the limit of their shares as fixed by the District Court.
25. As a result of the appeal the said shares were reduced and when the case went back to the District Court for final decree that Court was found entitled in its inherent jurisdiction to order refund of amounts withdrawn.
26. It has been held in Padma Gowda v. Yuvaraja Hedge (2) that inherent jurisdiction to an order of restitution under section 144 can be exercised by a persona designata entrusted with functions of a Court, as for example by a District Munsif to whom decree is transferred for execution unde section 66 of the Madras Village Courts Act. Further there is nothing I the language as used in section 144 that restitution can be made only o the final decision in a case by the highest Court of the country.
27. If this had been the intention of the Legislature then some different language would have been used. Even the words "till the final decision of the case" used in section 13(6) of the Rent Restriction Ordinance have been held to mean final decision of the case by the tribunal of the first instance 1.e , the Controller himself, and does not mean decision which emerges after remedie by way of appeals are exhausted. For reference see Roshan Din v. S. M. Badaruddin.
28. ' On the same analogy the intention of the Legislature in using the language in section 144 is very clear. On the reversal or variation in the decree passed even by the first appellate Court the party concerned can apply under section 144.
29. ' According to law, as enunciated above, the Controller was obliged in the circumstances to accept the application made under section 144, C. P. C. By the respondent and restore her possession of the property taken
(1) 129 1 C 63 (2) A 1 R 1960 Mys. 377 away from her on account of the ex parte order made by him. It is the respondent's right which has been denied to her illegally and arbitrarily. In exercise of the powers conferred upon the appellate Court by the provisions as contained In section 107(2), C. P. C. And Order XLI, rule 33, C. P. C. It is held that the respondent is entitled to restitution of the possession of the property in question which should be delivered to her immediately. This being the position in law, there is no force in the appeal which is hereby dismissed without any order as to costs.