MUHAMMAD ZAHOORUL HAQ, J.-These are two connected appeals being IInd Appeal No. 490/1970 entitled D. B. Ghadiail v. Muhammad Hanif andobthers and L. P. A. No. 208 of 1970 filed by Ghulam Hyder against Muhammad Hanif and 6 others including D. B. Ghadiali.
2. Facts in respect of both the appeals are almost the same as both the appeals pertain to the same shop situated on the ground floor of Ghadiali building on Plot No. 23 S. B.-1 measuring 11' x 30', Preedy Street opposite Empress Market, Karachi. The facts are to the following effect : On 7-5-1964 Mr. Ghadiali, who will henceforth be called the landlord filed an application against his tenant Muhammad Siddiq deceased before the Rent Controller under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 for his eviction from the shop on the ground that he intended to demolish the old building and to construct a new building on the old site. The matter was decided in his favour by Rent Controller by his order dated 1-9-1965, and subsequent two appeals filed by Muhammad Siddiq before Additional District Judge and High Court were also decided in landlord's favour. As a result Muhammad Siddiq the tenant was evicted under Court's orders and the landlord started construction of multi-storey building on the site. Muhammad Siddiq, it seems, awaited in the meantime for completion of the new building and for re-instatement in the shop as tenant as his appeals were rejected on the ground that after completion of the new building subsection (5- B) of section 13 of the Rent Ordinance provides sufficient protection for re-instatement.
3. Muhammad Siddiq, as alleged by him, made various approaches to the landlord, during and after completion and before occupation of the shop by any other tenant including present appellant Ghulam Hyder, for re-instatement in the shop and for rent settlement on reasonable terms, but in vain, he was put off by various excuses keeping him always under false hopes. Getting desperate Muhammad Siddiq filed an application on 17-11-1966 in Court of Rent Controller under subsection (5-B) of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 for re- instatement in his shop or in a corresponding area on reasonable terms in the new building.
4. It so happened, that during the proceedings before the Rent Controller. Muhammad Siddiq died, and his legal heirs who now claim tenancy through him and who are the present respondents 1 to 6 were brought on the record. Full opportunity was given by the learned lower Court, to the parties to prove their side of the case, and he ultimately passed an order dated 28-11-1969 in favour of present respondents 1 to 6. Against this order of Rent Controller, the landlord preferred an appeal, which was also dismissed. By the same judgment, the Rent Appeal No. 6 of 1970 which had been filed by Ghulam Hyder was also dismissed.
This Ghulam Hyder is the person who had been inducted into the disputed shop after the reconstruction of the building. He had also appeared as a witness before the Rent Controller on behalf of the landlord and his deposition was recorded on 22-9-1969.
5. Ghulam Hyder filed Ilnd Appeal No. 187 of 1970 in this High Court, but the same was dismissed on 26-10-70, but the learned Judge granted a certificate under clause 10 of the Letters Patent and therefore, Ghulam Hyder filed L. P. A. No. 208 of 1970. Meanwhile, the Second Appeal 490 of 1970 filed in the High Court by D. B. Ghadiali against the respondents which was filed on 28-5-1970 was admitted for hearing on 18-12-1970. Since an L. P. A. Filed by Ghulam Hyder in respect of the same matter had already been admitted for regular hearing by a Division Bench, therefore, a learned Judge of this Court ordered on 14-4-1976 that IInd Appeal 490 of 1970 should also be placed before the Bench hearing L. P. A. 2t,8 of 1970. It is, therefore, in these circumstances; that these two appeals have been heard together and are now being disposed of together.
6. Mr. Ali Nazar, the learned counsel appearing for the landlord has raised many contentions. Firstly, he has argued that application under section 13 (5)(b) was made before the IIIrd Civil Judge who had no jurisdiction in the matter to entertain this application as the application for original ejectment was decided by the IInd Civil Judge. We are however, of the view that this objection has no substance. Mr. G. Raymond, the learned counsel for respondent has drawn our attention to Notification No. HG-10-2/59, dated 12-3-1959 issued by Government of West Pakistan, published in Gezette Extraordinary dated 16-3-1969 which empowers all Ist and Ilnd Class Civil Judges in West Pakistan within the limits of their respective jurisdiction to be the Controllers. Almost to the same effect are the notifications issued on 1-4-1964 and on 21-12-1964. Section 10 of the West Pakistan Civil Courts A Ordinance, 1962 specifies that the local limits of a District shall be deemed to be the local limits of the jurisdiction of the Civil Judge. Thus a Civil Judge is empowered to entertain application as Controller within the limits of his jurisdiction in the whole District.
7. It is a matter of no significance that the District Judge by administrative order allocates work to different Civil Judges. It has been held inP L D 1975 Kar. 39 that the Courts normally deal with cases arising in the limits of certain police stations, but this is a matter of distribution of business among various Civil Judges in Karachi, rather than a question o B territorial jurisdiction, the territorial jurisdiction of Civil Judge is governed by section 10 of the West Pakistan Civil Courts Ordinance 2 of 1952. Thus, the application was competently filed before the IIIrd Controller who had jurisdiction for whole Karachi.
8. Mr. Ali Nazar further contended that Muhammad Siddiq was only statutory tenant and the present respondents Nos. 1 to 6 being the Legal Repr sentatives of Muhammad Siddiq cannot be regarded as tenant because statutory tenancy is not inheritable. This submission of Mr. Ali Nazar would have been of some consequences, but Mr. Raymond has pointed out that the definition of tenant as given in section 2(i) of the West Pakistan Urban Rent Restriction Ordinance has defined 'tenant' as meaning a person by whom or on who account rent is payable for building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour and the wife and children of a deceased tenant etc. Therefore, it is clear that the present respondents Nos. 1 to 6 being the wife and children of Muhammad Siddiq are in the position of Muhammad Siddiq and hence entitled to continue pursuing the application under section 13(5) (b) filed by their predecessor Mohomed Siddiq.
9. Mr. Ali Nazar also contended that the original tenant Muhammad Siddiq did not apply for the shop on the old site and therefore, the application under section 13(5) (b) was incompetent. He lays stress upon the words "and constructs a new building on the same site". His contention is that since Muhammad Siddiq in his application had not clearly specified that he wanted to be put in possession of the shop built on the site of his old shop, therefore, the application was not in compliance with the requirements of the section. But, I find from perusal of the section that there is no requirement that the tenant must make specific plea for being put into the possession of the shop constructed on the site of the old shop. This subsection require Q the tenant "to apply to the Controller for an order directing that he be put in the new building as deer not exceed the area of the old building of which he was in occupation". This is what the tenant exactly did and he specified in para. 5 of his application that there are 8 shops constructed on the ground floor, some portions of the constructed building have been let out and the landlord intended to let out other shops and buildings in the near future. The landlord in his written statement in para. 5 took up the position that the shop on the site of the old shop is completely and fully occupied long ago, and thereafter, the parties have proceeded on the same basis and the evidence has been led by the respondents and their witnesses in respect of this very shop and the landlord and his associate and as well as the present tenant Ghulam Hyder have also made statement in respect of the same shop and therefore, the objection of Mr. Ali Nazar is of no substance. Mr. Ali Nazar has also submitted that the Controller did not make ad order for a new shop on the old site, but we find that Rent Controller has clearly directed that the applicants should be put in possession of new shop constructed on the old site and in the alternative he has further directed that a shop corresponding in area of the old shop in the new building may be handed over. This was, therefore, a very clear order in respect of a shop on the site of the old shop plus an order in the alternative of another shop of the same size.
There is nothing wrong in this order and it was very clear in its effect. The alternate order, if anything, it allowed a latitude to the landlord to offer any other shop of similar size but the alternate order cannot be made use of by the landlord to demolish the effect of the first substantive order. Mr. Ali Nazar has also contended that important admissions by Muhammad Siddiq and his witnesses have been overlooked by the Courts below. It is correct that the appreciation of the depositions of witnesses has not been done by the Controller after taking into considera--tion every aspect of the deposition and particularly the cross-examination of the witnesses, but still the overall effect of the depositions has been correctly appreciated by the Controller as well by the learned IVth Additional District Judge, Karachi. This Court, under section 100, Civil Procedure Code' would not be justified to upset the finding based on appreciation o t/ evidence, more so when there are concurrent findings of fact by the Courts below. We have, however, thoroughly scrutinized the depositions of the witnesses examined on behalf of the respondent as well as on behalf of the appellant with the assistance of Mr. Ali Nazar, Mr. Mohsin Tyabally and Mr. G. Raymond who had initially appeared for the respondents and was thereafter succeeded during the hearing of the appeal by Mr. A. K. Lakhani. We are ourselves of the view that the findings of learned Controller and the Additional District Judge that Ghulam Hyder had not occupied the disputed shop in November, 1966, is quite justified under the circumstances of the case. The overall impression that one gets from the depositions is that the said shop was available in November, 1966, and Muhammad Siddiq deceased had approached the landlord, but the landlord kept him on hopes and then some where at the end of November and the beginning of December, he let out the said shop to Ghulam Hyder, who started making furniture in the said shop in December, 1966 and not earlier. The witnesses examined by the respondents were (1) Achar, (2)
Siddiq, Photographer, (3) Yaseen and (4) Muhammad Hanif respondent. The deposition of Yaseen is particularly unassailable and the same read with the deposition of the photographer and Muhammad Hanif establishes the case of the respondents. As against that the landlord as well as the new tenant Mr. Ghulam Hyder have not been able to prove by unimpeachable evidence that Ghulam Hyder was really inducted into the shop and occupied the same before 17-11-1966, when the application under section 13(5) (b) was filed. In fact the landlord has not produced any receipt book containing the counter files serial wise in respect of the rent receipts from the tenants showing that there is an entry of the rent received from Ghulam Hyder in a regular rent receipt book. The single receipt produced does not inspire confidence in the absence of counterfoils of a properly maintained receipt book. Moreover, no regular books of account have been produced by the landlord to show as to when he received the rent from Mr. Ghulam Hyder. There is no allegation that the rent was paid by cheque, otherwise, a statement from the bank could have been a good evidence by the landlord, but the same is missing as probably, the whole was a cash transaction and therefore, it's veracity can--not be checked.
10. The only objectionable part of the two lower Courts order is where some reliance is placed upon an advertisement issued by the landlord in 1969. This advertisement was of no significance for the purpose of an application which bad been filed on 17th November, 1966 and hence the same should have been completely ignored. But, in view of clear depositions of the respondent witnesses this advertisement could not have played a significant part in the decision of the two Courts below, and therefore, merely on this basis, we will not up set the concurrent findings of the two Courts below.
11. Mr. Mobsin Tayyabally, the learned counsel appearing for Ghulam Hyder has argued that section 13(5) (b) has no retrospective effect as the same was inserted into the Act in 1965 when the original application for ejectment filed by the landlord was pending. Mr. Ali Nazar for the appellant Ghadiali has also supported Mr. Mohsin Tayabally in these submissions. Mr. Mohsin Tayyabally emphasise that section 13(5) (b) has made substantive amendments in the section and therefore it should not be allowed to have a retrospective effect and rights of the parties should be governed by the law which was in force at the time when the original application for ejectment was filed by Mr. Ghadiali against Muhammad Siddiq. He further says that the amendment is not merely procedural and has not been made with retrospective effect. But, this point stands concluded by a judgment of Supreme Court reported in PLD 1975 SC 1, which has declared that this subsection (5) (b) would be prospective even though some of the events, namely, the initiation of the proceeding for eviction of the appellant had already taken place prior to enactment o this subsection.
12. In the case before us, the eviction of tenant Mohammad Siddiq was ordered by the Rent Controller on 1-9-1965 whereas section 13(5) (b) had been inserted on 8-6-1965 by Ordinance 21 of 1965 and therefore this provision was in existence at the time when the original eviction of Muhammad Siddiq was ordered by the Controller. Therefore, in view of the Supreme Court judgment, the present respondent can take benefit of section 13(5) (b)l of West Pakistan Urban Rent Restriction Ordinance, 1959.
13. Mr. G. Raymond had argued that the IInd appeal of Mr. Ghadia was barred by the principle of res judicata as Had Appeal of Ghulam Hyder had been dismissed by a learned Single Judge of the High Court earlier where Mr. Ghadiali was a party and same fact and law was involved and the parties were also the same. But since an L. P. A. Had been admitted against the said order of the learned Single Judge, therefore, the whole question is open again and therefore, the bar of res judicata would hardly be applicable in these circumstances, and we have therefore heard Mr. Ali Nazar at full length.
14. Mr. Mohsin Tayyabally has contended that his client Ghulam Hyder had not been made a party before the Rent Controller in the applica--tion filed by Muhammad Siddiq after construction of the building. He, therefore, urges that the order passed by the Rent Controller in respect of the shop of his client should be treated as nullity in law as principles of natural justice have been breached. He says that it is an established law that a party cannot be condemned unheard. Mr. G. Raymond and Mr. A. K. Lakbani have on the other hand contended that in the first instance when the application for restitution was filed by Muhammad Siddiq, the appellant Ghulam Hyder was not in occupation of the premises and therefore there was no question of making him a party. They further submitted that Ghulam Hyder had come to know that proceedings in respect of his shop were pending before the Controller against the landlord and he took no steps to safeguard his right by making any application for being impleaded as a party in those proceedings, but on the other hand he deposed in this very proceeding as witness for the landlord and at least at the time that he deposed before the Controller be knew that his shop was being claimed by Muhammad Siddiq and he still kept quiet about the matter. Their further contention is that Ghulam Hyder had filed as appeal before the Additional District Judge against the order of ejectment passed by the Controller and since there has been hearing in the appeal, and the case set up by Ghulam Hyder in his deposition has been considered at length by Add]. District Judge therefore, in the circumstances of this case, there is no question of the breach of principles of natural justice. They have relied in this respect upon PLD 1976 Kar. 376, PLD 1976 Lahore 897, PLD 1971 Pesh. 210, PLD 1966 Lab. 464 and PLD 1959 Kar. 669, where it has been held that if a party to whom no notice was given by the First Tribunal was able, taking into consideration proceeding before the First Tribunal and the Final Tribunal as a whole, to present his case sub--stantially as he wanted to and was entitled to present it, then the decision of the Last Tribunal would not be bad merely on the ground that notice was not given by the First Tribunal. It will have to be determined in each case whether the principles of natural justice have been sufficiently complied with on account of opportunity of hearing before the Final Tribunal. The fact that the original order was passed without notice did not necessarily mean that the order was to be set aside. The proceedings as a whole a to be taken into consideration for finding out whether the non-hearing by the First Tribunal had caused any prejudice or not.
15. Mr. Mohsin Tayyabally is quite right in his assertion of the principle that an order affecting Ghulam Hyder's shop could not be passed against him without giving him an opportunity of hearing. But, in the circumstances of the case before us, we find that in the original proceeding before the Rent Controller he appeared as a witness for the landlord and had therefore knowledge of the proceedings, and he has produced document before the Rent Controller showing that he came into the possession of the disputed shop before November 1966. But, the Rent Controller disbelieved him on that score and the Additional District Judge agreed with the Rent Controller.
Furthermore, Ghulam Hyder filed an appeal against the order of Controller and he adopted the case of the landlord as his own and h was fully beard and there is no grievance in respect of the said hearing. We enquired from the counsel whether Ghulam Hyder had made any application at the First Appellate stage for permission to adduce any further evidence in the matter but the reply of the counsel was in the negative. This factum shows that Ghulam Hyder had no other material to present before the Court and there--fore, it would not be possible to argue that any prejudice had been caused to him by the failure, of the Controller to give him notice. In fact having known that there was proceeding pending before the Controller in respect of hi shop, it would have been natural for Ghulam Hyder for applying to b impleaded as a party to the proceeding before the Controller, but he did no do so and thus allowed an order to be passed by the Rent Controller in respect of his shop. In these circumstances, it would be hardly open to Ghulam Hyder to complain that principles of natural justice have been breached or that any prejudice has been caused to him on account of lack of notice of the original proceedings before the Controller.
16. Mr. Mohsin Tayyabally contended that the view of the learned Single Judge that Ghulam Hyder was not an aggrieved party is not correct and he has wrongly interpreted the provisions of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. He contends that the words "party aggrieved" in section 15 should be given a wider import than the restricted meaning assigned to the same by the learned Single Judge. The learned Judge based his decision on the fact that word "person" has no been used in said section 15 and only the word 'party' has been used and he has therefore, held that a "party aggrieved" can be only that party which had been made a party in the proceedings. We however, feel that this is a narrow view of the word 'party' and the expression 'party aggrieved' should apply to any one who claims to have been prejudiced by the order complained against and whose interests are adversely affected by a particular order passed l by a Controller. In our view of the matter the word "party aggrieved" in section 15 has been used to mean a 'person aggrieved' and in this view of the matter, the learned Single Judge was wrong in holding that Ghulam Hyder was not an aggrieved party.
17. The word 'party' as used in this section has to be given extended meaning and has to be read as synonymous with 'person' otherwise it will hardly make any sense. Suppose one person files an ejectment application against 'A' and obtained an order of ejectment against him, while in fact the person actually in possession of the premises is 'B' whose tenancy is also recognised then in that case 'B' should be treated as the party aggrieved as otherwise, he will be having no remedy if a restricted interpreta--tion upon the word 'party' is placed. In Black's Law Dictionary, Ivth Edition, page 1278, the meaning given to the words "party aggrieved" are in statutes permitting any party aggrieved to appeal, one whose right has been directly and injuriously affected by action of Court, Freeman v.Thomas (216 NC 4823)". The same meaning has been adopted for "party aggrieved" in Law Lexicon of British India by Aiyar 1940 Edition, .Page 46. We alsofind that in Oxford English Dictionary 1961 Print, Volume VII, p. 515 "a party" is described as "a single person considered in some relation". And in the same Dictionary in extended sense 'Party', as described in the plural 'the parties' are shown as 'meaning the persons'. Later on in the same Dictionary on the same page 'a party' is shown as meaning "a person". In fact the provision of section 13 (5-B) of the Act is itself suggestive of the proposition that if a new person has been inducted in a new shop then he acquires an interest in the same and if an application by a previous tenant for restitution to the new shop is moved then the new tenant can resist the same on the basis of his occupation. It would, therefore, be fair to give him a right of appeal if an order in respect of his shop was made to ascertain whether he occupied the shop before or after the application. It is, therefore, clear to us that Legislature had used the words 'aggrieved party' in section 15 of the Act in its extended sense and had given a right of appeal to theos persons whose rights have been injuriously or adversely affected by a decision Mr. Mohsin is, therefore, correct in his submissions on this point and Mr. A. K. Lakhani, the learned counsel appearing for the respondents fairly conceded this position. We have, therefore, heard Mr. Mohsin Tayyabali at length in support of every contention advanced by him, but we are unable to agree with most of his contentions, on merit, Mr. Mohsin Tayyab--ali, the learned counsel appearing for the appellant Ghulam Hyder and Mr. Ali Nazar for Mr. D. B. Ghadiali have argued that the application for restitution should have been made by Muhammad Siddiq before the comple--tion of the new building, and since the building had been completed before Siddiq made application, therefore, the application should have been dismissed. The counsel have argued that section 13(5) (b) gives the right of making an application only before the completion of the new building and not thereafter. We however, find that the provisions of section 13(5-B) do not justify the interpretation that the learned counsel are putting on the same. Section 13 (5-B) is to following effect "[(5-B) Wherein pursuance of an order under Cl. (vi) of subsection (2), a landlord has obtained possession of a building (in this subsection referred to as the old building), and constructs a new building on the same site the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in the new building as does not exceed the area of the old building of which he was in occupation, and the Controller shall make an order accordingly in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality."
The important words for this purpose are "before the completion of the new building and its occupation by another person". We feel that the word 'and' used here is conjunctive and it could not be read as disconjunctive. Thus, it would seem that the tenant will have a right of making an application K till the time of actual occupation of the new building by another person, and merely the completion of the new building could not deprive him o the right of making an application for restitution. Since in the case before us the two lower courts below have come to the conclusion that the application by Muhammad Siddiq had been made before the occupation of the shop by Ghulam Hyder, therefore, the application was competent and could not be dismissed on the sole ground that the building had been completed earlier.
18. We however, agree with Mr. Ali Nazar that the learned Controller as well as the learned Additional District Judge did not seriously consider the question of rent to be fixed for shop to be handed over to respondent. The Controller has simply stated that the rent would be double of the previous rent of the old shop. This, however, was not correct criterion to fix the rent as given in section 13(5) (b) which requires the consideration of the rent of similar accommodation in the locality. Unfortunately, the parties have not adduced any evidence in respect of this matter and ordinarily we would have sent it back for fixation of rent, however, there is some material on record on the basis of which the rent could be determined here and prolongation of proceedings avoided.
The area of the old shop was 11' x 30' amounting to total area of 330 sq. Feet. The same area would be made available to the respondent out of the disputed shop. The shop in question which has larger area of 400 sq. Feet was let out on Rs. 250 per month by Exh. 4/1 and since there is no allegation that this rent was in any manner an inflated rent therefore, taking that rent as a guide to rent prevailing in locality for such new accommodation a proportionate rent of 330 sq. Feet. Would amount to Rs. 204 only and we would therefore, modify the order of the rent controller to this extent that the rent of the shop to be handed over to the respondent measuring about 330 sq. Feet would be Rs. 204 only per month. The IInd Appeal 490/1970 is therefore dismissed but the order of Controller is modified in respect of rent. L. P. A. No. 208 of 1970 is also dismissed. But there will be no order as to costs in these appeals as there is partial result in success.