Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha, J.
Major (Rtd.) SHAKIL-UD-DIN AHMED--Petitioner
ADDITIONAL DISTRICT JUDGE,
ISLAMABAD and another--Respondents
W.P. No. 2211 of 2006, decided on 28.11.2008.
----S. 21(7), 17(8) & 17(9)--Civil Procedure Code, (V of 1908), O.XLI--Applicability--Defence struck off due to non-depositing amount--Appeal dismissed--Held: First Appellate Court is final Court of facts, therefore, dismissal under Order XLI, S. 21(7) of CPC is not a general rule and provisions of CPC have not been made applicable to an appeal under Islamabad Rent Restriction Ordinance, 2001.
[P. 1055] A
----S. 21(7)--West Pakistan Rent Restriction Ordinance, 1959, S. 15(3)--Appellate Jurisdiction of Court--Summoning of record in appeals--Disposal of appeals by and without summoning record--Guidelines--There are two categories of cases which come before the appellate Court--Where the facts are simple and are not disputed, the first appeal is generally dismissed in limine and examination of record of rent controller is not necessary--Second category is that if the facts are not simple or disputed, the first appeal is not generally dismissed in limine in that case the appellate Court can send for record, provide opportunity of being heard to the appellant. [P. 1055] B
Malik Qamar Afzal, Advocate for Petitioner.
Mr. Muhammad Ilyas Sheikh and Mr. Tariq Khurshid, Advocates for Respondents.
Date of hearing 28.11.2006.
This order shall dispose of this writ petition as well Writ Petitions No. 2212/2006 to 2214 of 2006, all titled as Major (R) Shakil-ud-Din Ahmad vs. Additional District Judge, Islamabad and another, as in all of them similar question of interpretation of the orders passed under Section 17(8) and (9) of the Islamabad Rent Restriction Ordinance is involved and further that the order dated 28.6.2006 of the learned Rent Controller and the order dated 13.7.2006 of the learned Additional District Judge, Islamabad, have been assailed. Through the former order the rent application of the respondent-landlord Ms. Zubaida Azam under Section 17(9) of the Islamabad Rent Restriction Ordinance, 2001 has been accepted after striking off the defence of the petitioner, and through the latter order dated 13.7.2006 the learned Addl: District Judge has dismissed the appeal of the petitioner challenging the order dated 28.6.2006 of the Rent Controller.
2. Brief facts of the case are that Respondent No. 2 Mrs. Zubaida Azam, wife of Brig (r) Muhammad Azam, filed an ejectment petition against the petitioner on the ground of willful default The petitioner/tenant resisted the same by filing the written reply. On 13.6.2006 the learned Rent Controller,
Islamabad passed an order under Section 17(8) of the Islamabad Rent Restriction Ordinance, 2001 directing the petitioner to deposit the past rent due and fixed the case for 28.6.2006 for production of the proof of the rent deposited by the petitioner. On the said date the petitioner, instead of depositing the rent, filed an application for extension of time of 15 days for payment of rent The learned Rent Controller in exercise of jurisdiction under Section 17(9) of the Ordinance struck off the defence of the petitioner/tenant, consequently ordered for ejectment of the petitioner vide order dated 28.6.2006. Feeling aggrieved by the said order, the petitioner filed an appeal under Section 21 of the Ordinance ibid before the learned District Judge, and the said appeal has been dismissed by the learned Additional District Judge in limine, hence this Constitutional petition.
3. The learned counsel for the petitioner contends that the learned Additional District Judge had no jurisdiction to dismiss the appeal of the petitioner in limine. Reliance is placed on the case reported as Abid Hussain vs. Mst. Afsar Jehan Begum and others (PLD 1973 SC 1) and Haji Muhammad Aqil vs. Ghulam Muhammad and another (2002 CLC 969). Further contends that the order of dismissal of the appeal was in illegal exercise of jurisdiction as the Learned Judge did not follow the prescribed procedure under Section 21 of the Ordinance. Adds that the order for deposit of the tentative past rent being interlocutory order could have not been challenged during the proceedings and there is sufficient material on the file to justify that the petitioner had paid
Rs. 40 Lacs (Rupees forty lacs) as good-will and the rent was not payable.
4. I have heard the learned counsel for the parties and perused the record as also examined the impugned order. Before I proceed to interpret the provisions of sub-sections (8) and (9) of Section 11 of the Islamabad Rent Restriction Ordinance, 2001 regarding deposit of rent and striking of defence of the petitioner due to non-deposit of rent, I would deal with the argument of the learned counsel that the appeal could have not been dismissed in limine. At the out-set, I observe that the above referred cases of Abid Hussain vs. Mst. Afser Jehan Begum and Haji Muhammad Aqil, supra, do not apply to the facts of the present case for the reason, firstly that both the cases were out-come of the decision of the First Appellate Court dismissing the appeal against the decree in civil suit passed by the Civil Judge. Secondly, the appeal was dismissed by the District Judge in violation of Order XLI Rule 11 CPC read with High Court Rules and Orders (Lahore) Volume-V, Chapter 3-B R. 1(i) preferring an appeal from the original decree. Thirdly, the appeal is both on facts and law. The First Appellate Court is final Court of facts, therefore, dismissal under Order XLI CPC of first appeal is therefore not a general rule and the provisions of CPC have not been made applicable to an appeal under sub-section (7) of Section 21 of the Islamabad Rent Restriction Ordinance, 2001. Now sub-section (7) of Section 21 of the Ordinance ibid reads as follows:--
"(7) The Appellate Authority shall after perusing the record of the case and given, the parties an opportunity of being, heard and, if necessary, after making such further inquiry, as it thinks fit, either personally or through the Controller, make an appropriate order which shall be final."
Now, Section 15 (3) of un-amended West Pakistan Rent Restriction Ordinance, 1959 (Ordinance No. VI of 1959) provides as follows :--
"The Appellate Authority shall decide the appeal after sending, for the record of the case from the Controller and. after giving the parties an opportunity of being heard and, if necessary, after making such a further inquiry as it thinks fit either personally or through the Controller."
It was obligatory for the learned Appellate Court under Section 15 (3) of the Urban Rent Restriction Ordinance to send for the record of the case from the Controller and provide an opportunity of hearing to the parties before making decision of the appeal. But, while exercising jurisdiction, under Section 21(7) of the Islamabad Rent Restriction Ordinance, the Appellate Court is not required to send for the record and it depend on facts of each case that if the Appellate Court feels it necessary after perusing the record may give the parties an opportunity of being heard and decide the appeal. It means that there are two categories of cases which come before the Appellate Court. The first category of the cases is where the facts are simple and are not disputed the first appeal is generally dismissed in limine, and examination of record of the Rent Controller is not necessary. Second category of the cases is that if the facts are not sample or disputed, the first appeal is not generally dismissed in limine. In that, case the Appellate Court may send for the record, provide an opportunity of being heard to the appellant. In that case the appellate authority will not dispose of the appeal without first sending for the record from the Controller and hearing the parties and further if necessary making such further inquiry as it deems fit. The duty to call for the record in the first instance is imperative. In the latter case it is difficult therefore to agree that the appellate authority could dismiss the appeal in limine. In the case reported as Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali (1968 SCMR 828), provisions of Sections 15(3), West Pakistan Urban Rent Restriction Ordinance (VI of 1959) read with Order XLI Rule 11, CPC and Section 96 CPC came up for consideration before the honorable Supreme Court and it had been ruled that dismissal under Order XLI Rule 11 CPC of first appeal is therefore not a general rule. If the facts are not simple or disputed a first appeal is not general dismissed in limine, meaning thereby that if the facts are not disputed and are simple and the appeal on the face of it is frivolous and the record need not to be examined, it can be dismissed. Now, Section 15(3) of the Urban Rent Restriction Ordinance has been amended and there is no need of sending for the record of the Rent Controller.
5. In the instant case, the facts are very simple. The relationship of land-lord and tenant between the parties is admitted, therefore, on 13.6.2006 the learned Rent Controller correctly passed an order in exercise of jurisdiction under Section 17(8) of the Islamabad Rent Restriction Ordinance, 2001 directing the petitioner to deposit the past rent and fixed the case for 28.6.2006 for production of proof of the rent deposited. The petitioner did not challenge the jurisdiction of the Rent Controller at the time to passing of the order under Section 17(8) of the Ordinance, but he moved an application on the said date for extension of time of 15 days for payment of rent instead of depositing the same. Now he is estopped by his conduct to raise the objection that there is sufficient material on the file to justify that the petitioner had already paid Rs. 40 lacs as good-will and hence the rent was not payable and the restaurant was not operational Since the petitioner violated the order dated 13.6.2006 passed by the Rent Controller under Section 17 (8) of the Islamabad Rent Restriction Ordinance and did not deposit the rent as ordered by the Court, therefore, the Rent Controller had no option except to strike off the defence of the petitioner and passed the order of ejectment in exercise of the jurisdiction under Section 17(9) of the Ordinance. In the case reported as Zikar Muhammad v. Mrs. Arifa Sabir and another (2000 SCMR 1328), where the Rent Controller had struck off defence of the tenant and ordered him to hand over the vacant possession of premises to landlord and the High Court holding that there was no good cause or reasonable explanation for delay/negligence in payment of rent by the tenant dismissed the appeal, the honorable Supreme Court while interpreting the provisions of Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), which are pari materia of Section 17 (8) of the Islamabad Rent Restriction Ordinance, 2001 (IV of 2001), has ruled that "High Court having rightly concluded that defence of the tenant was rightly struck off by the Court below, no valid ground existed for interference in the order of High Court" and refused leave to appeal.
6. In the instant case, not only the rent has not been paid in pursuance of the order passed under Section 17(8) of the Ordinance, but the application was submitted and time was sought by the petitioner to comply with the order. The order of the learned Rent Controller dated 28.6.2006 was unexceptional. The appeal of the petitioner was rightly dismissed by the learned Additional District Judge. No ground to interfere in the well-reasoned order of both the Courts below is made out. This writ petition fails and the same is dismissed in limine.
7. For the same reasons Writ Petitions Nos. 2212/06, 2213/2006 and 2214 of 2006 also fail and are dismissed in limine.
(W.I.B.) Petitions dismissed.