COMPETENCE
OF APPEAL AGAINST ORDER OF RENT TRIBUNAL PASSED IN EXECUTION PROCEEDINGS UNDER
SECTION 31 OF
By:
CHOUDHARY MUHAMMAD BASHIR
Advocate,
(Ex-Member Punjab Bar Council)
This article may be read in continuation of my earlier article titled:
"Competence of appeal against order of Rent Controller in execution proceedings" published in PLJ 1998 Mag. 123, wherein it was opined by me that ratio of judgment of Mr. Justice Mian Nazir Akhtar that no appeal lies against order of Rent Controller passed in execution proceedings under Section 17 of West Pakistan Urban Rent Restriction Ordinance, 1959, reported in PLD 1979 L 451,is not correct on account of being opposed to two judgments of-Lahore High Court reported in 1991 MLD 1227 and 1991 MLD 1587 and a judgment of Supreme Court of Pakistan reported in 1991 MLD 2457.”
West Pakistan Urban Rent Restriction Ordinance, 1959 has been replaced by Punjab Tenanted1 Premises Act, 2009.
In Section 2(b) of the said Act right of appeal against order passed by Rent Tribunal in execution proceedings "purports" to have been taken away in the garb of definition of "final order".
The present article intends to determine the legal efficacy of the said definition clause.
In order to determine the said question it is appropriate to reproduce hereunder Section 2(b), Section 28(1) and Section 31 of The Punjab Tenant Premises Act and Sections 15(A) and 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
S. 2(b)
"final order" means a final order passed by a Rent Tribunal culminating the proceedings including an order in respect of adjustment of pegari, advance rent, security, arrears of rent, compensation or costs but shall not include an order passed in an execution proceedings.
S. 28(1)
A person aggrieved by a final order may, within thirty days, prefer an appeal in writing to the District Judge of the district.
S. 31
Execution of orders
A Rent Tribunal shall
execute an order passed under this Act by a Rent Tribunal or a District Judge
or an Additional District Judge as a decree of a
S. 15 (A)
Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may within thirty 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 land in relation to which the order is passed, is situated.
S. 17
Every order made under Section 10, Section 13-B and every order passed in appeal under Section 15, shall be executed by the Controller as the Controller as if it were a decree of a civil Court.
From the perusal of the said provisions it is evident that while Section 28(1) is at par with Section 15(A) and Section 31 with Section 17, the definition clause excluding order passed in execution proceedings, from the category of "final order" is a new introduction.
Taking the said definition clause on its face value, in isolation of substantive provision of Section 31, it seems to deny a person, aggrieved of the order passed in execution proceedings, under the said section, a right of appeal under the said Act and the only remedy left open to him is to invoke the writ jurisdiction of the High Court under 199 of the constitution of Pakistan.
However, I am of the opinion that a right of appeal is available against order passed in execution proceedings for the following two-fold reasons:
1. The right of appeal against order passed in execution, proceedings is sought to be denied by means of definition clause in Section 2(b), in the absence of it being made a part of the substantive part of the Act.
2. That Supreme Court of
“Ordinance on the premises that the
order passed disposing of execution of an order under Section 13 for ejectment of a tenant, will also be an order under Section
13 for which an appeal is provided by Section 15 of the Ordinance. The
non-mention of an order under Section 17expressly in Section 15 of the
Ordinance is accordingly immaterial."
The legal effect of this interpretation is that order passed in execution proceedings under Section 31 of Punjab Tenanted Premises Act, 2009, which is pari meteria with Section 17 of West Pakistan Urban Rent Restriction Ordinance, 1959, is appealable under Section 28(1) of the said Act, which, in its turn, is pari meteria with Section 15(A) of the said Ordinance.
There is, as yet no reported judgment of the Lahore High Court on this points.
It will be proper that Lahore High Court settles this question to do away with uncertainty about the appealability of an order passed in execution proceedings.