Muhammad Nasir Khan Vs Fardad Ali Shah

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

CIRCUIT COURT CHITRAL

(Judicial Department)

R.S.A No.2-C/2019 Muhammad Nasir Khan

V.

Fardad Ali Shah

For Petitioner Mr. Zafar Hayat, Advocate For Respondent Mr. Javed Ali Khan, Advocate Date of hearing 30.04.2026

JUDGMENT

Dr. Khurshid Iqbal, J.-

1.Through this Regular Second Appeal, the appellant/tenant has assailed the order dated 19.04.2019, rendered by the learned Additional District Judge, Chitral Lower, whereby the order dated 26.07.2017, passed by the learned Rent Controller, Chitral, was maintained. Both the learned Courts below have rejected an application of the appellant/ tenant for issuance of direction to the respondent/landlord to file an application for determination of fair rent of the premises after reconstruction, in terms of the earlier order of the learned Rent Controller dated 01.07.2009, which stood maintained up to the Hon’ble Supreme Court.

2.In the year 2008, the respondent/landlord filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (the Ordinance), before the learned Rent Controller for ejectment of the appellant/tenant from Shop No.336, situated in Ataleeq Bazar, Chitral. Ejectment was sought on the ground of renovation of the shop and expiry of tenancy. The appellant/tenant contested the application. Vide order dated 01.07.2009, the learned Rent Controller accepted Sabz Ali/* SB: Justice Dr. Khurshid Iqbal

the application and directed the respondent/landlord to demolish the premises within four months, reconstruct the same within two years and thereafter file an application for determination of fair rent. After the respondent/landlord obtained possession and completed reconstruction, he did not file the requisite application in compliance with the aforesaid order. The appellant/tenant, therefore, approached the learned Rent Controller by filing an application for enforcement of the said order. He prayed that the respondent/landlord be directed to file the requisite application for determination of fair rent and that possession of the reconstructed premises be restored to him.

3.The application was proceeded with and issues were framed. During proceedings, the parties entered into a compromise on 30.06.2017. In appeal, however, the order dated 30.06.2017 was reversed and the matter was remanded to the learned Rent Controller. After remand, the learned Rent Controller dismissed the application vide order dated 26.07.2017, on the ground of maintainability with reference to section 13(5-B) of the Ordinance. The learned Appellate Court dismissed the appeal on 19.04.2019. It is in this background that the appellant/tenant has approached this Court through the present Regular Second Appeal.

4.Arguments heard. Record perused.

5.The controversy involved in the present matter does not merely concern the textual construction of section 13(5-B) of the Ordinance. It also concerns a more fundamental principle of judicial order, namely, whether a Court subordinate to the Hon’ble Supreme Court can decline to implement an operative direction, which has attained finality between the parties up to the Hon’ble Supreme Court, on the ground that such direction, if examined afresh, may not amount to a binding precedent Sabz Ali/* SB: Justice Dr. Khurshid Iqbal

on the interpretation of the statute. The answer, in the considered view of this Court, must be in the negative.

6.Section 13(5-B) of the Ordinance reads as follows:

(5-B) Where, in pursuance of an order under clause (v) of sub-section (2) to as the old building and constructs a new building on the same site, the a landlord has obtained possession of a building in this sub-section referred 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 possession of such area in the new building as does not exceed the area of the old building of which he was in occupation., and 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.

7.On a plain reading of the above provision, the statutory mechanism primarily enables the evicted tenant to approach the Rent Controller before completion of the new building and its occupation by another person, for restoration of possession of such area in the new building as may lawfully be ordered by the Controller, together with determination of rent. If the matter had arisen as an original application under section 13(5-B), without any previous final adjudication between the parties, the provision would have been applied according to its own terms. However, the present case does not stand at that simple threshold. Here, an earlier order was passed in the very same lis, possession was delivered to the landlord pursuant to that order, reconstruction was undertaken on the strength of that order, and the said order stood maintained up to the Hon’ble Supreme Court.

8.It is here that judicial discipline assumes decisive importance. A Court does not administer justice by treating every stage of proceedings as an occasion to re- Sabz Ali/* SB: Justice Dr. Khurshid Iqbal

open what has already attained finality. The administration of justice rests upon hierarchy, obedience, finality and institutional continuity. Once an order has travelled up to the Hon’ble Supreme Court and has not been recalled, reviewed, modified or set aside by a competent forum, it is not open to a subordinate Court, or to a Court exercising limited appellate control over the enforcement proceedings, to neutralise its operative effect by re-labelling the matter as one of maintainability. Such an approach would convert execution into appeal, compliance into reconsideration and judicial hierarchy into uncertainty.

9.Article 189 of the Constitution makes a decision of the Hon’ble Supreme Court binding on all other Courts in Pakistan to the extent that it decides a question of law or is based upon or enunciates a principle of law. Article 190 further commands that all executive and judicial authorities throughout Pakistan shall act in aid of the Hon’ble Supreme Court. These provisions, read together, reflect two connected but distinct obligations. First, the law declared by the Hon’ble Supreme Court binds the Courts as precedent. Secondly, an order of the Hon’ble Supreme Court in a particular lis must be obeyed, respected and implemented by all authorities concerned. The former concerns precedential authority. The latter concerns finality, obedience and enforcement.

10.The distinction is vital. Every final order of the Hon’ble Supreme Court, or every order maintained up to the Hon’ble Supreme Court, may not necessarily amount to a general precedent on every statutory question, which could have arisen in the case. For a decision to operate as a binding precedent under Article 189, it must decide a question of law, proceed on the basis of law and enunciate a principle of law. A decision not expressed on a particular point, not accompanied by reasons on that point, or not proceeding upon conscious consideration of Sabz Ali/* SB: Justice Dr. Khurshid Iqbal

the legal issue, may not create a general rule for future cases. This, however, is wholly different from saying that such final order has no binding effect between the parties. The finality of a lis and the precedential force of a decision are not identical concepts.

11.A precedent speaks to future cases through its ratio decidendi. A final order speaks to the parties before the Court through its operative command. The absence of a fully articulated ratio on a particular statutory aspect may affect the use of the order as a precedent in another case. It does not permit the parties, nor any subordinate forum, to treat the order as non-existent in the same litigation. judicial discipline, therefore, requires that a Court must not confuse non-precedential character with non-enforceability. An order may not declare the law generally, yet it may finally determine rights, obligations and consequences inter se the parties. That determination must be respected until displaced by a competent Court.

12.The learned Rent Controller and the learned Appellate Court, with respect, lost sight of this distinction. They examined the application of the appellant/tenant as if the earlier order did not exist, or as if its legal correctness could be re-agitated at the enforcement stage. This was not permissible. The learned Rent Controller was not sitting in appeal over the earlier order. Nor could he examine whether the direction to file an application for determination of fair rent ought to have been made in the first place. His jurisdiction at that stage was to give effect to the final order already passed in the same lis and maintained up to the Hon’ble Supreme Court.

13.It must also be remembered that the respondent/landlord derived benefit under the earlier order. He obtained possession, demolished the premises Sabz Ali/* SB: Justice Dr. Khurshid Iqbal

and reconstructed the same. Having availed the benefit of the order, he cannot be permitted to avoid the burden attached to it. The law does not countenance such selective obedience. A party cannot approbate the part of an order which enables him to secure possession and, at the same time, reprobate the part which obliges him to submit to determination of fair rent and restoration of possession. Judicial discipline binds Courts, but finality also binds litigants. The parties must take the order as a whole, not in fragments selected by convenience.

14.The matter may be put differently. If the earlier order is treated as a precedent for future cases, questions may arise as to the precise legal principle consciously decided therein. But if the earlier order is treated as a final adjudication between the present parties, no such hesitation arises. The order created consequences in the existing lis. It was acted upon by the landlord. It was relied upon by the tenant. It was maintained up to the Hon’ble Supreme Court. It, therefore, continued to govern the relationship of the parties in that litigation. No subordinate Court could dilute, defeat or bypass it on a collateral view of statutory maintainability.

15.This approach does not undermine section 13(5- B) of the Ordinance. On the contrary, it preserves both the statute and the hierarchy of Courts. Section 13(5-B) may continue to be interpreted in accordance with its text in future cases where no final order inter se the same parties intervenes. The present decision is confined to the enforceability of an earlier order in the same lis. It is, therefore, clarified that this judgment should not be read as laying down that every tenant, irrespective of the statutory requirements of section 13(5-B), may seek restoration after reconstruction in disregard of the provision. The ratio here is narrower and rests on judicial discipline, finality of litigation and the obligation of Sabz Ali/* SB: Justice Dr. Khurshid Iqbal

subordinate fora to implement orders maintained up to the Hon’ble Supreme Court.

16.In the light of the above, the impugned orders cannot be sustained. The learned Courts below were required to proceed on the footing that the earlier order remained binding and operative between the parties. The application filed by the appellant/tenant ought to have been entertained as one seeking enforcement/compliance of the earlier final order, and not dismissed by reopening the question of maintainability under section 13(5-B) in isolation from the previous adjudication.

17.Consequently, the instant appeal is allowed. The impugned orders dated 26.07.2017 and 19.04.2019 are set aside. The matter is remanded to the learned Rent Controller, Chitral Lower, with the direction to entertain the application of the appellant/tenant as an application for enforcement/compliance of the earlier order maintained up to the Hon’ble Supreme Court. The learned Rent Controller shall, after notice to the parties and after affording them due opportunity of hearing, determine the fair rent of the reconstructed premises in accordance with law, keeping in view the rent of similar accommodation in the locality, and shall thereafter pass consequential orders for restoration of possession to the appellant/tenant in line with the earlier final order.

18.Since the matter arises out of proceedings initiated in the year 2008 and has already remained pending for a considerable period, the learned Rent Controller is directed to decide the application within three months from receipt of a copy of this judgment, if not earlier.

Announced

...Sd...

JUDGE

Sabz Ali/* SB: Justice Dr. Khurshid Iqbal