By ibis appeal under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) the appellant has impugned the order dated 19-8-1476, passed by the Additional District Judge, Karachi in Rent Appeal No. 200 of 1974.
2. The facts giving rice to this appeal, briefly stated, are : The respondent filed an application under section 13 of the Ordinance, being Rent Case No. 2260 of 1971, in the Court of XVI Civil Judge, III Class, fit Controller, Karachi far eviction of the appellant from a portion (one room), of his house situated behind Kamela, Majeed Coleny. Karachi, on the ground of non--payment of rent and for allowing 4 other persons to live in the room rented out to him. The appellant in his written statement denied the relationship of landlord and tenant between him and the respondent and claimed that the premises in question was a but and was constructed by him and was subsequently sold by him to one Samad Gul who is now in occupation of the same as owner.
3. Therefore, the Controller framed a preliminary issue as to the existence of tie relationship of landlord and tenant between the parties and tried it as such.
4. The respondent examined himself and two witnesses namely, Zarin Rabadur and Shireen Khan, and the appellant besides examining himself, also examined 2 witnesses namely, Samad Gul and Jarridar Khan. Both the parties also produced certain documents which will be discussed at appropriate place hereinafter.
5. The Controller by his order dated 8-4-1974, decided the issue of relationship of landlord and tenant in favour of the appellant by holding that there was no relationship of landlord and tenant between the parties.
6. Aggrieved by ibis order the appellant preferred an appeal under section 1511) of the Ordinance to the District Judge, Karachi, being Rent Appeal No. 200 of 1974 which was transferred by the District Judge to the Ist Additional District Judge, Karacbi, who by the order dated 19-8-1976; reverted the finding of the Controller.
7. Aggrieved by this order the appellant bag come up to this Court in this Second Appeal under section 15(4) of the Ordinance.
8. I may mention that during the pendency of this appeal Samad Gul bas applied under Order XXII, rule 10, C. P. C. For being joined as a party to the proceedings on the ground that he had purchased the premises in question from the appellant on 2-2-1968, but I had rejected the application holding that he was not a necessary party.
9. I have heard Mr. Abdullah Esmail Sanghe, Advocate for the appellant and Mr. Muhammad Sadique, Advocate for the respondent.
10. I may first dispose of the preliminary objection raised by the counsel for the respondent as to the maintainability of this appeal against the finding as to the existence of the relationship of the landlord and tenant between the appellant and respondent given by the Additional District Judge, Karachi on appeal under section 15(1) of the Ordinance.
11. The argument of the counsel for the respondent is that the order of this nature does not fall under sections 4, 10, 12 and 13 of the Ordinance and if no appeal was maintainable against such an order if it was pissed by the Controller, no second appeal would also lie if such an order is passed on appeal by the District Judge or the Additional District Judge as be, according to tie counsel exercises the jurisdiction of the Controller. In support of the contention, the counsel has relied upon Nooruddin Khan v. M. Siddique (Law Notes 1969 Lah. 1) and Zaraad v. Haji Zarin Shah (1969SCMR721).
12. The objection of the learned counsel is not correct.
A Court exercises such jurisdiction as is conferred on it under the enactment under which it acts.
There is no doubt that against a finding of the Controller given on a preliminary issue as to the existence of relationship of landlord and tenant between the parties, no appeal under section 15(1) of the Ordinance is maintainable as has been ruled by their Lordships of the Supreme Court in Kandewala & Co. v. Sh. Rasidduddin (PLD 1976 Pesh. 87) which is a decision which ass given on consideration of the provisions of subsection (1) of section 15 of the Ordinance before their amendment by Ordinance XXI of 1966. The same has however been reiterated by their Lordships even after the amendment in Ibrahim v. Muhammad Hussain (PLD1975SC457)
13. However, the question for consideration now is, when a finding of the Controller that there was no relationship of landlord and tenant between the parties, which finally disposes of the case, is reversed on appeal by the District Judge or the Additional District Judge and it is held that such a relationship exists between the parties, whether further appeal under section 15(4) of the Ordinance against such a finding i3 maintainable or not.
14. The answer to this question . In my opinion, necessarily depends upon the language employed in subsection, (4) of section 15 of the Ordinance. Under subsection (1) only such order is appealable as is pass.-d under sections 4, 10, 12 and 13 of the Ordinance and it finally disposes of the whole care. But under subsection (4) any order passed on appeal is made appeal--able subject to the limitation that the order passed by the Appellate Court is contrary to law or to some usage having the force of law or the order having failed to determine some material issue of law or usage having the force of law or involves a substantial error or defect in the procedure. In other words appeal lies on the grounds contained in clauses (a) to (c) of section 100, C. P. C.
15. Now, we have to examine the consequence if we hold that no appeal lies against the finding given by the District judge or as the case may be, by Additional District Judge on appeal as to the existence of relationship of landlord and tenant between the parties. On such finding having been given by the District Judge or the Additional District Judge he has to remand the case for decision on merits. Now, after the remand if the Controller decides the case finally against the tenant be has a right of appeal against such an order under section 15(1) of the Ordinance. But the tenant however, cannot on such appeal, reagitate the issue of existence of relationship of landlord and tenant before the Controller for that stood already decided in the previous appeal and he also cannot question the previous finding of the first appellate Court given on the issue in the previous appeal in the subsequent appeal for that issue bas become res judicata. Therefore, against such a finding of the District Judge or the Additional District Judge on appeal, it is necessary that tenant should have a right of appeal and the provisions have to be so interpreted, in the absence of any clear bar, as to provide right of appeal against such order for it would be in accord with reason and justice. Moreover, in such a case the reason that fragmentary decisions of such character are most inconvenient which tends to delay the administration of justice which had weighed with their Lordships of the Supreme Court of Pakistan in the two cases cited hereinbefore, would not be available.
16. Now, I may consider the two cases cited by the learned counsel for the respondent. In Nooruddin Khan v. Muhammad Siddique the Controller had found that there was no relationship of landlord and tenant existing between the parties se no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was issued. On appeal by the landlord the District Judge set aside the order of the Controller and remanded the case for fresh enquiry as to the issuance of the notice under section 30 of the Act. The tenant took the matter In second appeal to the High Court against the order of the remand and ii was in this back. Ground of the case that his Lordship Mr. Justice Muhammad Gul observed a, follows :- "In S. A. O. No. 306/19666, the short question that arises for consideration it whether !n the circumstances set out in the beginning of the Second Appeal purporting to be under section 15 of the West Pakistan Ordinance VI of 1959, shall be competent against the remand order of the learned Additional District Judge dated the 9th of July, 1966. In my opinion, the matter is concluded by the recent judgment of the Supreme Court in Messrs Kandewala & Co. Ltd. v. Sh. Rashiduddin Law Notes 1968 SC 10 in which the view taken earlier to a full Bench case of Muhammad Amir v.
Jamsher A.I PLD 1963 Lah. 523 was approved and i1 was held that section 15 of the Ordinance envisaged appeals only against orders passed under sections 4, 10, 12 and 13 of the Ordinance and not against any other order whether procedural or otherwise, not covered by any of the aforesaid sections. The remand order in appeal it is, not disputed, is not one of such order, and therefore, the S. A. O. No. 306/1966 is wholly misconceived and is dismissed with costs."
17. From the above observation it will be seen that reliance was placed upon Kadewala & Co. v. Sh.
Rashiduddin wherein only the Provisions of subsection (l) of section 15 of the Ordinance were under consideration. Moreover, in Nooruddin Khan's case, on remand, a fresh finding as to tae existence of relationship of landlord and tenant between the parties was to be given by the Controller and if the finding of the Controller was in favour of the landlord then the rule laid down by their Lordships of the Supreme Court in Kandevala do Co. v. Sh. Rashiduddin and in the subsequent case of Ibrahim v. Muhammad Hussain would have been attracted and no appeal was maintainable against such an order but if the finding was in favour of the tenant then the matter would have been finally decided by the Controller and there was again a right of appeal against each an order of the Controller under section 15(1) of the Ordinance. Therefore, this case is distinguishable on facts and, is not an authority for the proposition that no second appeal lies against the finding given by the District Judge or the Additional District Judge on appeal as to the existence of aforesaid relationship between the parties. Even otherwise, this being a Single Bench decision, is not binding.
18. The other case cited by the learned counsel for the respondent namely, Zardad Khan v. Haji Zarin Shah, with utmost respect to the learned Chief Justice who decided this case, I am not inclined to follow for several reasons. Firstly, his Lordship has relied upon Nooruddin Khan v.
Muhammad Siddique, and Messrs Kandewala & Co. v. Sh. Rashiduddin, in holding that no second appeal was maintainable. These decisions have already discussed. Secondly, the decision is base) on the concession made by the learned counsel who was appearing in the appeal for the appellant that in view of the dictum of the Supreme Court it was difficult for him (the counsel) to meet the challenge of the learned counsel for the respondent. Thirdly, the reason which persuaded his Lordship to so hold is that the second appeal was not directed against the final order of the Appellate Authority and that the extent of jurisdiction of the Appellate Authority under section 15 of the Ordinance was same as that of the Controller and was therefore, preliminary in nature. The observations with utmost respect to his Lordship, are not well founded. The order so far as the appellate authority was concerned had become final as it had decided the issue of existence of relationship of landlord and tenant between the parties finally so far as it as well as the Controller was concerned for once the first appellate Court has decided the issue finally then in that case the same issue can not be reagitated before the Controller or in appeal filed before the first appellate Court, against the final order passed by the Controller.
The jurisdiction of the High Court for entertaining the second appeal, as already discussed above, depends upon the provisions of subsection (4 of section 15 of the Ordinance, which in my view are very wide as the words used are "any party aggrieved by an order passed on appeal (the italics are mine for emphasis) by the appellate authority . . . May within 30 days from the date of the order of the appellate authority .. . . . Prefer an appeal in wiring to the High Court". These provisions in my view cover even an order of remand. I am fortified in my view by thedecision of this Court in Mst.
Mah Bibi v. Mst. Hameeda Begum (PLD 1976 Kar. 811) wherein Zaffar Hussain Mires, J. Hold that "9-A. The learned counsel sought to support this contention with the dictum laid down in the Supreme Court cases of Messrs Kandewala do Co. v. Fayyazuddin and others 1969 SCMR 720 and Ibrahim v. Muhammad Hussain PLD 1975 SC 457. But in my view the contention has no merit. The two cited cases relate to the interpreta--petition of section 15(1) of the Ordinance which concerns first Appeal against the Order of the Rent Controller to the District Judge. The provisions of section 15(1) of the Ordinance are in the following terms :- Any party aggrieved by an order made by the Controller under sections 4, 10, 12 and 13, may within 30 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 laud in relation to which the order is passed is situated.
Itwas with reference to language of the above provision, that their Lordships of the Supreme Court held in the second case cited above that section 15(1) of the Ordinance postulates an appeal in relation to a matter which falls within the purview of the said sec ton and that a matter which is merely incidental or co lateral to the dispute and which has been disposed of by interlocutory order, cannot be challenged by way of appeal under the said provision.
Similarly, on the same principle in the first cited case, it was he'd that a decision oil the preliminary issue on the question of relationship of landlord and tenant, being a decision on the preliminary issue, was not appealable as the word 'order' in section 15 of the Ordinance envisages only those orders which the Controller is empowered by the Ordinance to make. However, in the case of a second appeal to the High Court under the Ordinance the relevant provision is sub--section (4) of section 15 of the Ordinance which is in the following terms :- Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of sub--section (1) and if the 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 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.
(10) The keyword, for interpreting the scope and right of appeal in regard to appellate orders are the words 'an order' appearing in the opening part of the above-said subsection. Whereas the right of appeal tender subsection (1) of section 15 is confined to orders passed under the specified sections of the Ordinance by the Controller, under the subsection under consideration, 'any order' passed on appeal is subject to a further appeal to the High Court. There can be no controversy that the order of remand passed in this case squarely falls within the ambit of the term 'an order passed on appeal', for, in an appeal against the order of the Controller the District Judge would be competent to pass an order of remand. It, therefore, follows that the correctness of such an, order, would obviously be subject to an appeal under subsection (4) of section 15. Even otherwise to accept the argument of learned counsel for respondent would load to irrational results. During the course of argument I had put it to the learned counsel whether, if the District Judge in this case had dismissed his appeal, would the respondent have had a right of appeal to the High Court ? His obvious reply was in the affirmative. It would be therefore absurd to hold that while 'an order' parsed by the District fudge against one party would be appealable, if the order is passed against the other, it would not be appealable."
19. I therefore, overrule the preliminary objection and hold that this appeal is maintainable.
However, on merits I find no substance in this appeal.
20. The respondent landlord besides himself examined two witnesses namely, Zarin Bahadur and Shirin Khan in support of his claim that the appellant was his tenant and also produced extract of P.
T. 1. (Exh. 6), and original receipts to Form P. T. X. For payment of the property tax for the years 1971- 73 and 1972-73 (Exhs. 7 & 8) in proof of the fact that he was the owner of the property and was paying taxes in respect of the premises in question and a copy o" the order dated 15-1-1971 passed by the Assistant Commissioner and S. 'p, N. Harbour, Karachi under section 107/117, Cr. F'. C. (Exh. 9) which is not material to the point involved in this appeal.
Shirin Khan has deposed that the house consists of three rooms out ,of which two rooms are in possession o-- the respondent/landlord and one he (respondent) had given to the appellant on rent of Rs. 15 per month about 4J years back and the appellant paid rent for 4 months only.
However, this witness was not believed by the Controller on the ground that he had made some contradictory statements as regards the occupation of the house by the appellant and Samad Gul.
Zarin Bahadur has supported the case of the respondent in that he (the respondent) had a house consisting of three rooms, one of which he had rented out to the appellant about 4-- years back on a monthly rent of Rs.
15. However, this witness was also not believed by the Controller on ,the ground that he was admittedly the nephew of the respondent and had strained relations with the appellant as he (the witness) was married to one Mat. Gul Makesh who had obtained divorce through the Court and who was the daughter of Mir Zad Khan who was the brother of the appellant.
The Controller, however, accepted the evidence of the appellant who had deposed that he himself bad constructed the premises in dispute about 9/10 years ago and had sold the same about 6 years back for the sum of Rs. 800 in presence of Jamidar Khan, Subban Shah and Shahzada. The appellant had examined Samad Gul and Jamidar Khan who had deposed that the appellant had sold the promises to Samad Gal and had handed-over possession to him. As regards the document produced by the respondent the Controller relying upon the observations of Faizullah Khan, J. In Haja Muhammad Ramzan v. Mian .Tamil Shah (PLD 1967 Pesh. 380) held that the documents produced by the appellant were irrelevant in relation to the enquiry whether the relationship of landlord and tenant exists between the parties. The relevant .Observations of Faizullah Khan, J., are as follows :- "On a careful review of the evidence in the case, I have formed the opinion that the Rent Controller as also the Appellate Authority have misdirected themselves to the real question, and have, if I may say so with respect, misread the evidence In the case. As already stated, the respondent did not base his application for ejectment on the basis of a written lease deed. The respondent also has not led any reliable evidence to show how he acquired this property. As already stated, the respondent tried to spell out the relationship of landlord and tenant on the basis of the fact that in the Excise and Taxation Register he was shown as s landlord and one Ramzan as occupier. This evidence may have some value on the question of title, but I think it is wholly irrelevant to the enquiry whether the relationship of landlord and tenant existed between the parties."
21. However, on appeal the Additional District Judge reversed the finding of the Controller relying upon the evidence of the respondent and Shirin Khan. No doubt he also agreed with the Controller that the evidence of Zarin Babadur could not be relied upon as he was inimical to the appellant and was related to the respondent, being his nephew. He however, did not accept the evidence of Samad Gul who was examined on behalf of the appellant on the ground that he was an interested witness as the purchaser of the premises. Jamidar Khan was witness only to the execution of the sale deed between the appellant and Samad Gut. Since no number of the house was mentioned in the sale deed and since the name of the respondent was entered into the Excise & Taxation record as owner the Additional District Judge came to the conclusion that the respondent had established that he was the landlord of the premises in question.
22. After going through the deposition of the witnesses examined by the parties and also the documents produced by them, I am of the view that the respondent has proved that he was the landlord of the premises in question and has rented out the same to the appellant. I am influenced by the facts that the premises is part of the house wherein the respondent is residing and in the Excise & Taxation record he has been shown to be the owner of the house. No doubt entrees in the Excise & Taxation registers are irrelevant in enquiry whether the relationship of landlord and tenant existed between the parties as held by Faizullah Khan, J.
However, in view of the evidence of the respondent who is supported fully in material respects by Shirin Khan, the entries in the record of Excise & Taxation Department have some value on the question of title as held by Faizullah Khan, J. In Haji Muhammad Ramzan v. Mian Jmall Shah) particularly when the appellant has not led any evidence as to how he acquired the ownership of the premises for if he was the owner of the premises, he could not be the tenant thereof. In the absence of such evidence) I am of the view that the evidence of the respondent and his witness Zarin Khan should be accepted. The evidence of Samad Gul and Jamidar Khan who were examined on behalf of the appellant was only to the effect that the house has been sold to Samad Gul in the presence of Jamidar Khan who is the attesting witness to the sale deed but this transfer has no bearing on the issue involved in this appeal. Therefore, the evidence of these two witnesses becomes irrelevant, so also the documents produced by the appellant or his witnesses as to the transfer of ownership by the appellant to Samad Gul.
23. In conclusion I find no substance in this appeal and accordingly dismiss it with costs.