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Petitioner: Haji ABDUL WALI KHAN And Another VS Respondent: MUHAMMAD HANIF And Another
Court Name: Supreme Court of Pakistan Judge(s): Ajmal Mian, Zaffar Hussain Mirza Title: Haji ABDUL WALI KHAN And Another vs MUHAMMAD HANIF And Another Case No.:Civil Appeals Nos. 17-Q of 1985 and 25-Q of 1987 Civil Revision No.3 of 1984
JUDGMENT
Reported As: 1991 SCMR 2457 Result: Appeals accepted Judgment JUDGMENT ZAFFAR HUSSAIN MIRZA, J.---In these two civil appeals the main question of law which arises for determination is whether an order passed by the Controller in execution proceedings of an order of eviction under section 17 of the Baluchistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as `the Ordinance') is appealable under any provisions of the said Ordinance. It will be appropriate to briefly enumerate the facts leading to these appeals. Civil Appeal No.17/0 of 1985 The dispute in this appeal relates to a house situated in Pashtoonabad, Quetta. On 31st May, 1981, Muhammad Hanif, respondent herein instituted an ejectment application against (i) Abdul Qadeer, (ii) Abdul Salam and (iii) Haji Muhammad Rasul, in the Court of Senior Civil Judge, and Rent Controller, Quetta. According to the case set up by the respondent in the ejectment application, he was the owner of the house in question which was demised to Abdul Qadeer in July, 1977. He further alleged that the said Abdul Qadeer transferred the possession of the house to Abdul Salam and Haji Muhammad Rasul as sub-tenants, and himself disappeared from the scene. As no rent was paid by the main tenant and the other two persons in occupation were unauthorised sub-tenants, the respondent sought eviction order against them. Haji Muhammad Rasul alone filed a written statement and contended that his brother Haji Abdul Wafi Khan the present appellant herein, had purchased the said property on 10th May, 1978, from Abdul Salam and was living in the house alongwith the said Haji Muhammad Rasul.
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In the events that happened after filing the aforesaid written statement Haji Muhammad Rasul also did not pursue his defence and remained absent from the proceedings with the result that in absence of any contest the respondent was allowed to produce evidence which remained unrebutted. Notwithstanding this the learned Controller came to the conclusion that there was a dispute of ownership and title over the property and as the respondent had failed to establish his right of ownership, the eviction application was not maintainable. Accordingly the learned Rent Controller dismissed the application on 31st August, 1980. Being aggrieved respondent filed an appeal in the High Court which proceeded ex parte against the respondent shown therein. The appeal was allowed but no specific order of eviction was passed by the. Learned Judge in the High Court in his judgment dated 16th May, 1983. Thereafter respondent (landlord) filed an application for execution of the eviction order before the Controller. Pending the execution proceedings, Haji Abdul Wali Khan the appellant herein appeared before the Controller and filed an objection petition on the ground that he was the owner of the superstructure of the house in respect of which eviction application had been filed, as he had purchased the same from Abdul Salam through agreement, dated 10th May, 1978, His case was that he had raised the then existing superstructure and in its place erected a new construction consisting of seven shops on the front side with a residential house at the back, which is in his occupation. He, therefore, resisted the execution application as not maintainable against him as he was holding the property in his own right. The objections were, however, rejected and the petition of the appellant (intervenor) was dismissed by the Controller vide order dated 18th August, 1983. As a result the execution of the eviction order was directed to proceed. The appeal taken by the appellant herein, was dismissed by the first Additional District Judge, Quetta, on 31st December, 1983, who held that the appeal was not maintainable. It is important to note the grounds on which the appeal was dismissed as not maintainable. The reasons that prevailed with the learned Additional District Judge may be reproduced from the judgment as hereunder:----- "Prior to the amendment of section 17 it was permissible that every order passed by the Controller under sections 10, 13, 13-B and 15 of the Ordinance shall be executed by the Civil Court as if it were a decree of Civil Court therefore, all such orders of the executing Court were appealable or revisable in accordance with the provisions of C.P.C. But after the amendment under section 17 of the Ordinance in the words that every order passed by the Rent Controller under sections 10, 13, 13-B and 15 shall be executed by the Controller as if it were a decree of Civil Court means that the order of the Controller in execution proceedings will be governed by the provisions of the Ordinance and not by the provisions of C.P.C." On the aforesaid reasoning as section 15 of the Ordinance did not expressly refer to an order passed under section 17, among the category of orders made appealable the learned Additional District Judge held that no appeal was competent against an order passed in execution by the Controller. Ultimately the appellant (intervenor) went up before the Baluchistan High Court in revision against the order passed by the learned Additional District Judge. The learned Single Judge who dealt with the civil revision filed by the appellant upheld the view taken by the learned Additional District Judge that on the amendments effected by the 1980 Ordinance, no appeal was competent and therefore, appeal filed by the present appellant was correctly dismissed as not maintainable. However, the learned Single Judge further also dealt with the objections taken by the appellant to the executability of the order of eviction against him and affirmed the conclusion reached by the Controller that the objections were not tenable. Learned Judge also relied upon Zahurul Hasan v. Mst. Ruqqia Begum and 4 others PLD 1981 SC 112, in which this Court held that a revision under
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section 115, C.P.C. Is not maintainable in respect of orders passed under the West Pakistan Urban Rent Restriction Ordinance. In this view of the matter the learned Single Judge dismissed the civil revision filed by the appellant by his judgment, dated 28th November, 1984. Leave was granted by this Court against the aforesaid judgment of the learned Single Judge to consider the following points:-- "(i) Whether or not Controller while executing a decree within the purview of section 17 of Baluchistan Urban Rent Restriction Ordinance, 1959, enjoys all the powers of a Civil Court. (ii) Whether or not, the Controller during execution of an ejectment order is competent to hear all objections as regards executability of decree in accordance with provisions of Order XXI, C.P.C. (iii) Whether or not appeal in respect of the order passed by the Controller in the exercise of powers as Civil Court, would lie to the forum provided for under Civil Procedure Code., (iv) In the event that appeal against the order of Controller exercising powers of Civil Court is not found to be competent under the provisions of Civil procedure Code, was it obligatory on the learned District Judge to return the appeal for presentation to the proper Court, and whether or not in such circumstances, in view of apparent anomaly and possibility of wrong interpretation that period spent in prosecuting said proceedings required to be excluded. (v) Whether the Rent Controller and/or the High Court should not have admitted evidence on question of ownership before rejecting the objection to the execution and also? (vi) Whether in case the appeal in this Court falls, the petitioner/objector (appellant) can be and should be permitted to seek remedy from the Civil Court--if so, whether without vacating the house or after surrendering the possession to the respondent." Civil Anneal No 25-Q of 1987 Habibullah, respondent herein, is the transferee of residential premises bearing Municipal Nos.10- 1/3-1 and 10-1/35 situated on Ashram Road, Quetta, which was formerly evacuee property. The respondent filed an ejectment application against the appellant in the Court of Civil Judge and Rent Controller, Quetta. The appellant resisted the eviction application. However, the Controller by his order dated 13th February, 1974, struck off the defence of the appellant on account of non- compliance with the order for deposit of rents under section 13(6) of the Ordinance and ordered his eviction. The first appeal filed by the appellant having been dismissed by the learned District Judge he filed a second appeal before the High Court of Baluchistan which also met the same fate vide judgment dated 13 June, 1977. The respondent (landlord) then filed an execution application before the learned Controller, who issued writ of possession on 5th July, 1977, with the result that the order of ejectment was satisfied as possession of the premises in dispute was handed over to the respondent. However, on 16th December, 1982, the respondent filed another execution application praying for possession of an area of 822 sq. Ft. Of land allegedly forming part of courtyard of the house in respect of which the ejectment order was passed. The appellant objected to this second application for execution on the plea that the respondent had not been transferred any area as forming the courtyard of the houses which were the subject-matter of the ejectment proceedings and on the ground that the order of ejectment had already been fully implemented. As the learned Controller did not f accept the objection preferred by the appellant vide order dated 6th November, 1984, he filed a civil revision before the learned District Judge, Quetta, under section 115, C.P.C., which he subsequently with drew as the same was incompetent. The learned Controller again took up the execution proceedings and passed an order dated 11th February, 1987, directing that the execution proceedings should continue for the delivery of possession or the additional area of land claimed by the respondent. Against the last-mentioned order, dated 11th February, 1987, an appeal under section 15 of the Ordinance was taken by the appellant before the Baluchistan High Court. A question of theth
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competency of appeal before the High Court under section 15 of the Ordinance was raised and it was held by the learned Single Judge vide judgment, dated 2nd March, 1987, that the appeal was not competent, on the same line of reasoning as in the case hereinabove stated i.e. That there was no provision of appeal in section 15 of the Ordinance from any order made under section 17 thereof. Leave to appeal was granted in this case also in view of the leave already granted in Civil Appeal No.17-Q of 1985. Mr. Khalid M.Ishque learned counsel appearing for respondent in Civil Appeal No.17-Q of 1985 mainly addressed on the question of law arising for determination in these appeals. According to him neither an appeal nor a revision is competent before the High Court against an order passed under section 17, in view of the changed position of law after the amendment of the Ordinance by the Amending Ordinance III of 1980. . So far as the competency of revision against an order passed under section 17 is concerned the position seems to be settled by the judgment of this Court in Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra PLD 1965 SC 459 in which while interpreting the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 (which is in pari materia with the statute applicable in this case), it was held that the powers conferred on the Controller are executive in nature, although some of his functions are judicial in character but as he is not required to act judicially, this Court held that while acting under the Ordinance the Controller does not act as a Court. It, therefore, follows that as the revisional jurisdiction of the High Court is governed by section 115, C.P.C., the same only extends to orders passed by the subordinate Court and not to the order passed by the Controller which is not a Court. In Zahurul Hasan v. Mst. Ruqqia Begum and others PLD 1981 SC 112, also it has been held that the order of the Rent Controller is not liable to be questioned in revision under section 115, C.P.C. Therefore, the only question remaining to be determined is whether an appeal against such an order passed under section 17 is competent. It is common knowledge that prior to the amendment of the law in Baluchistan by the Ordinance of 1980, appeals were filed against orders passed in execution under section 17 of the Ordinance which was in the following terms:-- "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." In view of the foregoing provisions an order passed under section 13 of the Ordinance was taken to a Civil Court for execution and since an order passed by a Civil Court in execution proceedings was appealable in the normal hierarchy of Civil Courts (section 104(1)(ff), C.P.C.), appeals were entertained and determined. However, by the amending Ordinance a radical departure in the language was made with the result an order passed under section 10, section 13, section 13-B, and every order passed in appeal under section 15, was `to be executed by the Controller as if it were a decree of Civil Court'. It may be observed that similar amendment was effected in the Punjab Urban Rent Restriction Ordinance in section 17 by the Punjab Ordinance of 1979 but there corresponding amendment was effected in section 15 relating to appeal with the result that every final order of the Controller on an application made under the Ordinance was made appealable, so that specified sections of the Ordinance previously appearing in section 15 were taken away. The effect of such language qua the Punjab Urban Rent Restriction Ordinance was that an order passed under section 17 by the Controller was also appealable under section 15. The position in Baluchistan is, however, different, because no corresponding change similar to the Punjab Ordinance was effected in section 15(1) which reads as under:-- "15. Appeal.---(1) Any party aggrieved by an order of the Controller finally disposing of an application made under section 4, section 10, section 12, section 13 of this Ordinance may, within thirty days of the date of such order, prefer any appeal in writing to the High Court."
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It will be observed that orders of the Controller under the sections specified therein, namely, section 4, section 10, section 12 and section 13 only were made appealable. Section 17 does not find mention amongst the enumeration of sections listed in connection with appealable orders. It was accordingly urged that reading section 15 and section 17 of the Ordinance together, the conclusion is inescapable that under the changed position of the law, since the execution proceedings are no longer entertained by the Civil Court but by the Controller and since an order passed under section 17 is not expressly made appealable, no appeal can be entertained as heretofore under the existing law. Learned counsel placed strong reliance on this line of reasoning by seeking support from Muhammad Arif v. Mst. Amina Begum and another PLD 1990 SC 288. In the latter case this Court considered the effect of the insertion of the new section 13-B in the Ordinance, and in identical circumstances as in the present case, the non-mention of an order passed under the said section, among the sections of the Ordinance, specified in section 15 of the said Ordinance. The said section 13-B was also inserted by Baluchistan Ordinance III of 1980 and it provided a summary procedure for eviction of tenant where the landlord is a salaried employee, widow or a minor orphan (somewhat similarly as provided by section 14 of the Sindh Rented Premises Ordinance. 1979). This Court held that an appeal under section 15 did not lie against an order passed by the Controller under section 13-B. The argument that an order passed under section 13-B was, indeed finally passed under section 13, and therefore, an appeal lay under section 15 was repelled on the reasoning as appears hereunder:---- "The provisions contained in section 13-B are fairly detailed and can be treated, by and large, as furnishing self-contained small Code for the cases covered thereunder. The procedure provided therefore is also of a summary nature. After the requisite notice from the landlord side application is entertainable by the Rent Controller who also has been empowered to pass final orders under the said section 13-B. That being so, the argument advanced by the learned counsel for the respondent and accepted by the High Court in the impugned judgment, loses force. Independent of section 13 final orders under section 13-B have been visualised and they are in fact passed by the Controller under the said provisions and not under section 13." It was finally concluded, that the Legislature had intentionally omitted to include amongst orders appealable under section 15 the orders passed under section 13-B- on account of the subject- matter thereof. On the other hand it has been urged on behalf of the appellant by Mr. Yahya Bakhtiar and Mr. Abdul Hafeez Lakho, that the legal fiction whereby the order passed by the Controller is executable as decree under section 17, does not extend merely to attract the procedure for the execution of the decree passed by a Civil Court, but would also extend to include the appeals provided in the C.P.C. Against an order passed in execution of Civil Court decree. In this behalf reliance has been placed on Adaikappa v. Chandrasekhara PLD 1947 PC 279, some observations in Muhammad Yasin v. Sheikh Ghulam Murtaza and another PLD 1988 SC 163, Malik Muhammad Shah v. Muhammad Saleem PLD 1982 Lah. 702 and Naik Alam v. District Judge and others 1984 SCMR 1168. Reliance has also been placed on Bashir Ahmad v. Muhammad Umar 1983 SCMR 469. It may at the outset be stated that right of appeal is not a matter of inference or implication from the provisions of a statute but such a right must be given by an express enactment. However, there is also authority for the view that if a matter is placed within the jurisdiction of an ordinary Court, as for instance an order passed by a special Tribunal is treated as an order of regular Court for certain purposes then the right of appeal is attracted under the general law. Thus, this Court in Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1 referred to the dictum laid down by the House of Lords in the case of National Telephone Company Ltd. v. Postmaster-General 1913 AC 546 as under:-----
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"When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court arc to attach, and also that any general right to appeal from its decisions likewise attaches." In such a case even though the special statute may make 'no provision for an appeal, once the ordinary Court is seized of a matter-entrust ed to it by the special law then unless there is anything contrary contained in such enactment the ordinary incidents of appeal and revision available against the decision of such Court will be available. In the English case of National Telephone Company Ltd, v. Postmaster-General (supra) Lord Atkinson explained the underlying principle as follows:-- "It is not, in substance, in my view, at all a question of giving a right of appeal by implication. It is simply the question of extending the jurisdiction of an existing Court of law, with all its incidents including a right of appeal, to a new matter closely resembling in character those matters over which it has already jurisdiction as a Court of law." The crucial point to note in this regard is that the dictum quoted above is attracted in case of a Court of law already established, the decisions of which are appealable under the general .Law. That was precisely the case before the amendment under consideration, because the Controller's order was to be executed by a Civil Court. It was, therefore, that the right of appeal against orders passed in execution was availed under the C.P.C. (not the Rent Ordinance). Now the Controller passes the order of eviction under section 13 and he himself is required to execute the same under the amended provisions of section 17. Therefore, the principle hereinabove stated is not attracted in such a case. It is, therefore, not possible to agree with the contention on behalf of the appellant that even after the change of forum for purpose of execution from the Court to the Controller, under the amended provisions of section 17 by the fiction created on account of the use of the words `as if it was a decree of the Civil Court', the remedies by way of appeal would be available as in the case of an order passed in execution by a Civil Court. There can be no cavil with the proposition that the legal fiction by the device of asifism, the procedural provisions with regard to the execution of a decree by the Civil Court are attracted as held in Muhammad Yasin v. Sheikh Ghulam Murtaza and another PLD 1988 SC 163. In that case it was held that as the power to execute an order passed by the Controller has been conferred on him, in the manner of a decree of a Civil Court, it follows, on the ordinary rule of interpretation that all powers necessary or enjoyed by the executing authority for effectively and completely executing a decree of a Civil Court shall be available to the Controller. But that does not mean that the legal fiction can further be extended to the right of appeal provided in respect of orders of that nature passed by a Civil Court under the C.P.C. That would amount to claiming a right of appeal by implication which, as already stated, is against the settled principle of law. Additionally even on the principle with respect to the right of appeal the special enactment, namely, the Baluchistan Urban Rent Restriction Ordinance, is a complete Code, which would now govern all orders passed by the Controller. The case of Adaikappa v. Chandrasekhara PLD 1947 PC 279 also does not advance the argument of the learned counsel for the appellant, for, in that case the rule laid down was that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts arc governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under special statute which does not interns confer a right of appeal. This rule is in consonance with the rule already referred to as propounded in National Telephone Company Ltd. v. Postmaster-General (supra). It presupposes the conferment of additional jurisdiction upon a Court of law governed by the ordinary rules of procedure. The rule laid down does not relate to special Tribunal or persona designata as a Controller. The case of Malik Muhammad Shafi v. Muhammad Saleem PLD 1982 Lah. 702 is of no assistance as to the question of maintainability of
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appeal, because it was held therein that an application under Order XXI, Rule 100, C.P.C. Would be competent before the Controller for restoration of possession by a person against whom ejectment order was not made and he was holding the possession in his own right at the time he was dispossessed in execution of the order. This decision is within the dictum laid down by this Court in the case of Muhammad Yasin (supra) referred to above. As the view taken in the Lahore case is in conflict with some other judgments of the same Court, it is under examination by this Court as leave has been granted by order which is reported in Naik Alam v. District Judge and others 1984 SCMR 1168. The case of Bashir Ahmad v. Muhammad Umar 1983 SCMR 469, is not relevant to the question under consideration. What then was the object of the Legislature in enacting the amendment in question, in the provisions of section 17? One was obviously to authorise the Controller himself to execute his own or appellate orders passed under the specified sections of the Ordinance, instead of continuing the existing position, whereby the jurisdiction to execute such orders was vested in the Civil Court, having territorial jurisdiction in the area. So the one obvious purpose underlying the amendment was to change the forum. But with the change of forum for execution, the other possible consequence would be to take away the right of appeal since, no consequential amendments were effected in section 15, so as to…
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