' This is tenant's second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The appellant was ordered to be evicted by a learned Rent Controller on the ground that the respondents (landlords) required in good faith the shop in dispute for reconstruction. The shop consists of two rooms. It is not denied that the front part which, of course, is the main shop is to be reconstructed while the back room which, presumably, is being used by the appellant as a store was neither to be demolished nor reconstructed. The learned lower appellate Court, after considering the question whether it is necessary for the landlord under section 13(2) (vi) to seek reconstruction of the entire building or a substantial part thereof, came to the conclusion that the plea of reconstruction in this caste fell within the scope of the said provision and the order of the learned Rent Controller was accordingly affirmed. Therefore, this second appeal.
2. Learned counsel for the respondents (landlords) has raised a preliminary objection with regard to limitation. According to him, the certified true copy of this appellate order was not appended with the appeal and as the same was not dispensed with under Order XLI, rule 1 of the C. P. C.
Therefore, its non-production within the period of limitation rendered the appeal as time-barred.
The fact that the copy was placed on record during the hearing of the arguments would not cure the defect.
3. The facts necessary for the disposal of the preliminary objection are as follows. The order of eviction was passed on 28-9-70. The first appeal was dismissed on 10-10-70. Application for supply of copy of the appellate order was made on 14-10-70 and the date of the delivery of the copy is 9- 11-70. Although the date of preparation is 20-10-70, but, admittedly, there is nothing to show that this or any other date was indicated by the Copying Agency as the date of delivery nor there is any assertion that the appellant was negligent in not taking the delivery earlier than 9-11-70. The appeal was filed in this Court on 15-10-70. The memorandum of appeal was accompanied with an application (C. M. No, 6201/C-70) "for dispensing with the certified copies of some documents". In para. 1, the documents mentioned are grounds of appeal before District Judge ; judgment of the Additional District Judge; and judgment of Rent Controller. It is also mentioned in the application that the appellant had already applied for the certified copies and further that unattested copies of these documents had been filed along with the appeal. Those documents are still on the file of this appeal. They have been attested as true copies by the learned counsel for the appellant.
4. The appeal came up for hearing on 19-10-70 when records were ordered to be summoned. The record of the learned lower appellate Court was received on 29-10-70 while that of the learned Controller on 10-11-70. In the order dated 16-12-70, it was noted that the record had been received.
On 21-12-70, appeal could not be taken up. On 22-12-70, the appeal was admitted to hearing and after hearing the counsel for the respondents, interim stay order passed on 19-10-70 was confirmed.
5. Learned counsel for the respondents has contended that this being second appeal, by virtue of the provisions contained in explanation to subsection (4) of section 15, Part VII and the First Schedule of the C. P. C. Would be attracted and that being so, it was necessary for the appellant to have filed with the appeal certified true copy of the order of the learned lower appellate Court; that the said order, on account of the combined reading of section 17 and the aforementioned explanation would be treated as a decree and that being so, this Court had no jurisdiction under Order XL[, rule 1 to dispense with the production of the copy of the judgment/ "decree"; that if the judgment is not to be treated as a decree, then the prayer in the miscellaneous application filed with the appeal being only with regard to the stay matter, the same should not be treated as applicable to the memorandum of appeal ; and lastly, that the certified copy having been tendered long after the admission of the appeal, the same would not save the appeal from the bar of limitation.
6. Sections 15(4) and 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959 read as follows :- "15. Appeal.-1 (1)(A-1)(A-B)
(4) Any party aggrieved by an order passed on appeal by the Appellate Authority appointed by the Government under clause (a) of subsection (1), and if an 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 the order of 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.
' 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 100 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.
"17. Execution of orders.-Every order made under section 10 or section 13, and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court."
' It is necessary here to reproduce Order XLI, rule 1 of the C. P. C. It reads as follows : - "1. Form of appeal. What to accompany memorandum.-(l)Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
(2) Contents of memorandum.-The memorandum . Shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative ; and such grounds shall be numbered consecutively."
7. The language used in section 17 of the Ordinance is clear and leaves no doubt that only for a limited purpose, namely, for the use of the executing Court as a civil Court, various orders passed under the Ordinance including the appellate orders under section 15 are to be treated as decrees.
It is not denied that Civil Procedure Code as such does not apply to the proceeding before the 'Rent Controller'. In order to furnish legal cover to the proceedings before the 'civil Court' as executing Court, an enabling/deeming provision was enacted in section 17 treating certain orders as decrees.
Except for the purposes specified in the Ordinance, the said orders cannot be treated a decrees in a strictly legal sense. They would remain "orders".
8. This supposition finds strength from the language of explanation 4 to subsection (4) of section
15. It is provided therein that although the provisions contained in Part VII and First Schedule of the C. P. C. Would apply to second appeals, as if they were appeals under section 100 of the C. P. C., this injection of the provisions of the C. P. C. Has to be effected by the Court through "such modifications as the context may require." Therefore, the Legislature empowered the Court to modify the provisions of the C. P. C. (Part VII and First Schedule thereof) in order to meet the requirements of the Ordinance. It has to be seen whether it is not necessary in the context of the subject-matter under discussion to make any modification in rule 1 of Order XLI in so far as it applies to appeals under section 15(4) of the Ordinance. The decree and judgment are mentioned in the said rule. Admittedly, the Rent Controllers and the first Appellate Courts as also the second Appellate Court do not prepare decrees in addition to the orders/judgments. This necessitates modification in the language of rule 1. When duly modified, without doing any violence to the pith and substance of the provision, it would read as follows :- "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy (unless the Appellate Court dispenses there with) of the order appealed from."
' Thus modified, the intention of law would be fully satisfied. That being so, it was within the competence of this Court to dispense with the production of the certified copy of the judgment and/or order under appeal.
9. I do not agree with the learned counsel that the miscellaneous application filed by the appellant with regard to the supply of copy endured for his benefit only till the disposal of the stay matter.
The contents of the application clearly brought it to the notice of the Court at the stage of the motion hearing that although officially not attested but true copies (so attested by the counsel) were appended with the appeal. The Court did not treat the motion hearing in two water-tight compartments: one, consideration of the appeal; and the other, the stay application; nor that the copies were dispensed with regarding the stay application but the same not dispensed with, in so far as the appeal is concerned.
10. The law does not require any specific form of request to be made under Order XLI, rule 1 to the Court for dispensing with the production of the copy. The rule does not envisage the imposition of any penalty if the party concerned fails to submit a properly worded application and/or the Court fails to pass a formal speaking order dispensing with the production of the certified copy. The language used in rule I is such that it does not exclude the possibility of the Court dispensing with the copy through an act of Court or otherwise by implication. The word "dispense with" has been used in the rule in a general sense which means either "permit the want of" of a certain thing or "do without" it. Thus, both the modes of exercise of the power under rule 1 are permissible. The Court can formally, through an order of permission, dispense with; as also, by act of hearing the appeal without the help of the certified copy, exercise this power. It may also be observed that the power is wide enough to include those cases of urgency also where even unattested copies are not available. If that is so, the intention of the Legislature could not be other than the provision being salutary has to be applied liberally and in a pragmatic manner.
11. The above interpretation and the rule thereof applied in this case finds further support from a very vivid example furnished by this very case. Admittedly, the record of the learned lower Appellate Court was received in this Court on 29-10-70, i. e., much before the expiry of the period of limitation. The Court had already acted on the private copies of the relevant documents including judgment of the learned lower appellate Court, supplied by the appellant. If the rule is interpreted in a technical manner, despite the original order of the lower appellate .Court being available on record, it would still make the preparation and production of its certified copy a sine qua non not only for the hearing of the appeal but also for treating it as within limitation. This could not be the intention of the Legislature.
12. Learned counsel also raised another argument as follows : ' That if the judgments of the lower appellate Court and/or the Rent Controller are treated as decrees, Order XLII of the C. P. C. Would apply; and by virtue of rule 1 thereof, the details in Order XLI including its rule 1 would apply to the second appeals under section 15(4) of the Ordinance.
However, it is further argued, if the decision of the lower appellate Court is not treated as a decree nor as a judgment but only as an order, then according to the learned counsel Order XLIII of the C.
P. C., which provides for appeals from orders, would apply; and that being so, copy of the order appealed from would have to be treated as a copy of the decree in so far as the requirement of rule 1 of Order XLI is concerned. And the said Order having been made applicable to the appeals against orders by rule 2 of Order XLIII, this appeal would still, on account of non-production of certified copy of the order of the learned lower appellate Court, be rendered as incomplete and, in any case, time-barred after the period of limitation.
This argument also is of no assistance to the learned counsel. Rule 2 of Order XLIII provides that provisions of Order XLI shall apply, "so far as may be", to the appeals from orders. The afore-quoted expression in so far as its intent and also content is concerned, is not much different from similar provision regarding 'modification' contained in. The explanation to subsection (4) of section 15 of the Ordinance. Which has already been discussed. The provisions of rule 1 of Order XLI would not be applied without consideration of the context in which they are sought to be applied. They would be applied only as far as they may be applicable; and in the context of appeals under section 15(4) of the Ordinance against judgments and orders under the Rent Restriction Ordinance which are, of course, appealable, the said rule would be applied only so far as may be. Here in the context, it would be applied in the manner interpreted in the foregoing paragraphs by omitting the word "decree". In the light of the, above discussion, the preliminary objection is overruled.
13. I announced the order on the preliminary objection after the hearing of the arguments. The proceedings which took place thereafter in Court read as follows :- "8-4-1978 Syed Faqir Hussain, Advocate for the Appellant. Ch. Khurshid Ahmed, Advocate for the respondents. Mohammad Sadiq Bhatti, Advocate, with him.
' After the preliminary objection, raised from the respondents' side, having been overruled on the question of merits, the attorney of the respondent, in order to show his bona fides wants to make a statement. Let it be recorded.
(Sd.) JUDGE ' Statement of Muhammad Sadaq Bhatti, Advocate son of Haji Hakam Ali, resident of Nia Bazar, Kasur, on Oath.
I am son of Haji Hakam Ali, respondent No,
2. Respondents Nos. 1 and 3 are my paternal uncles.
Respondents Nos. 4 and 5 are the sisters of my father. Respondents Nos. 6, 7 and 8 in this appeal were originally the respondents in the eviction application and now have been added by the appellant as pro forma respondents.
' I am conducting the case on behalf of the contesting respondents from the be ginning. They gave Power-of-Attorney in my favour, which is on the record. I know the facts of the case and can make a statement on behalf of the contesting respondents.
(Questions on suggestion of the learned counsel for the appellant).
' Q.-Do the respondents want to demolish the back portion of the shop in occupation of the appellant?
' Ans.-In this case it is not the respondents' position that they want to demolish the back portion.
However, I cannot say anything about the future.
' Q.--Do the respondents want to do anything with the back portion ; ' Ans.-No, except what can be treated as essential repairs. The roof of the back portion is torn out. It might have to be replaced so as to make it consistent with the front portion.
' Q.-Have you any reservation or objection to the appellant's taking one front shop from the reconstructed shops i. e., the first one towards the top of the plan P. 8 '
' Ans.-No, The said shop as reconstructed along with the present existing back portion which is in his possession, shall be offered to him but subject to revision of the rent in accordance with law.
' Q.-Will the respondents wait till the decision by the Rent Controller regarding rent for the aforementioned shop prior to handing over the possession thereof in reconstructed position ?
' Ans.-If adequate security for payment of rent, at least for a period of 3 months is deposited by the appellant before occupying the said shop the respondents will have no objection to his occupying the shop before the decision of the Rent Controller on question of rent.
' Note.-Both the learned counsel and Mr. Muhammad Sadaq have agreed that an amount of Rs, 1,500 shall be deposited by the appellant with the Rent Controller. The same shall not be withdrawn by the respondents before the decision of the Rent Controller on the question of rent and both the parties shall try to obtain decision of the question within three months. If, however, those proceedings do not conclude within three months, both the parties shall approach the learned Rent Controller for further deposit as security. In view of the atmosphere of reconciliation learned counsel for the appellant has made an offer that during the time that the roof of the back portion is being replaced and/or essential repairs are being conducted the appellant would cooperate with the respondents in making adjustment with regard to the merchandise in back portion.
' When questioned that if the appellant does, not, on account of any reason, want to take the aforementioned reconstructed one of the five shops, whether he would insist on retaining the possession of the back portion, learned counsel for the appellant has explained that he would not then insist on retaining the back portion.
(Again on question from the appellant side)
' Q.-How long the respondents will take for the demolition and reconstruction ?
' Ans.-They will take 2.1-2 months and at the most three Months from the date the possession of the front portion is handed over to them.
R.
0. & A. C. M. A. ZULLAH, 8-4-1978. JUDGE"
12. Learned counsel for both the sides agreed that this appeal be allowed in terms of the foregoing arrangement and that the impugned order be accordingly modified. The request is reasonable. .
There shall be no order as to costs.