MUZAFFAR ALI vs MUHAMMAD SHAFI.

KARAM ELAHF.E CHAUHAN, J.-Muhammad Shafi, respondent/landlord, on 12-12-1960, filed an application for eviction of the appellant, Muzaffar A.I (tenant) from a house bearing No. 4,1242, situated in Qila Sobha Singh, Tehsil Narowal, District Sialkot, under section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter called the Ordinance).,

2. The learned Rent Controller in that case directed the tenant to deposit arrears of rent, etc., but as the aforesaid order was not complied with, therefore, on 6-3-1961, the learned Rent Controller struck off the defence of the tenant and ordered his eviction under subsection (6) of section 13 of the Ordinance.

3. The tenant, Muzaffar A.I, filed an appeal, but. Without any success, as the same was dismissed by the learned District Judge on 13-7-1961.

4. The tenant then filed a second appeal being S. A. O. No. 146 of 1961, which brought fruit and was accepted by a learned Single Judge of the Lahore High Court, by his order dated 5-10-1964, and the case was remanded for the purpose of first finding whether the relationship of landlord and tenant-(which had been denied by the appellant,)-existed between the parties or not.

5. The landlord filed a review application, which was dismissed by the learned Single Judge aforesaid as incompetent on 16-3-1965.

6. Against the last mentioned order dated 16-3-1965 of the learned Single Judge, the landlord filed a Letters Patent Appeal being No. L. P. A. 26 of 1965, which was accepted by a learned Division Bench of the High Court, on the ground that the learned Single Judge was not correct in holding that he had no jurisdiction to review his order under the law relevant on the subject. After recording this finding, the case was directed to be placed before a learned Single Judge for dealing with the review matter.

7. The tenant has come up in appeal to this Court by special leave, which was granted on 27-6-1971 to consider the question as to whether an order passed in Second Appeal by the High Court under the Ordinance was, open to review or not.

8. Before proceeding further, it may be pointed out that right of review is a substantive right and is always a creation of the relevant Statute on the subject. See Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1966 Lab. 53where at page 5, it was held that :- "The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere matter of procedure. An appeal, as observed by Bronwell, L. J., in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 3QBD1- "does not exist in the nature of things ; a right to appeal from any decision of any Tribunal must be given by express enactment.

This is equally true in case of review, because both appeal and review, though they differ in scope, are substantive rights. As such, neither of them is available unless it has been conferred by law."

Examining the present case in the light of the above principle, it will be evident that, in the Ordinance under -consideration, there does not exist any express power of- review of the judgment and order of the High Court passed by it in Second .Appeal under section 15(4). Learned counsel for the respondent herein could not refer to any express provision in the Ordinance which could suggest the existence of any such power in the High Court, and his arguments were of some indirect approach to this subject to which we shall presently attend.

9. Learned counsel referred to Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others (PLD 1970 SC 1which was followed by the Letters Patent Bench in this case. He laid emphasis on a passage which exists at page 58 of the report and is to the following effect :- "When acting as an Appellate Authority under subsection (4) of section 15 of the Ordinance the High Court is to deal with the appeals in accordance with the provisions of Order XLI or Order XLII of the Code, as the case may be. That being so, it is clear that any orders passed in these appeals would be subject to review in the light of the provisions contained in Order XLVII of the Code of Civil Procedure. An order passed in review is an order made by the same authority and must be deemed to be in continuation of the previous order which is sought to be reviewed, and, therefore, the power of review cannot be said to come into conflict with the idea of finality embodied in subsections (4) and (5) of section 15 of the Ordinance."

10. Learned counsel for the respondent adopted the reasoning given in the above passage, to show that as held therein a right of review should be held to exist in the High Court. However, with profound respect, we are of the opinion, that the above reasoning is not legally correct, vis-a-vis the subject-matter under examination. Taking up the first reasoning, it states that as a petition for review, according to the High Court procedure and practice, is to be heard in that Court by the some Judge, therefore, this incident or circumstance was sufficient by itself to hold that a power of review as such could be considered to vest in the said Judge under the Ordinance. This argument, respectfully speaking, deals more with the procedure as to how a review petition, if competent, is to be heard or disposed of, but cannot be a basis for holding that by itself it amounts to a conferment of a jurisdiction of review qua the types of cases involved herein. The jurisdiction to review must flow from some express provision of a statute, and as there is no such provision which confers jurisdiction on High Court to review orders passed by it in Second Appeals under the Ordinance, the fact that how the High Court otherwise disposes of various reviews in general cannot be a deciding factor in the overall context of this case.

11. The second reasoning given in the above passage is that as an order passed in review is-(or to be more precise is to be deemed to be)-in continuation of the main Second Appeal, therefore, it follows that if the jurisdiction to hear the Second Appeal existed then the jurisdiction to hear its review must also continue to exist, implying thereby that the process of review is nothing but a continuation of the hearing of the Second Appeal itself. With due respect, this reasoning is also not correct. Aiyer in his Law Lexicon (1940 Edn.), page 1126, while describing a review states that- "A review is a proceeding which exists by virtue of Statute. It is in the nature of a new trial of the issue previously tried between the parties. The cause of action being brought into Court again for trial by a new petition. The proceeding in some respect resembles a writ of error and also a new trial. ."

To the same strain is the view expressed in Carpus Juris Secundum at page 339, where it is stated that - "The proceeding by way of writ of review, or, os it is sometimes called, a petition for review, or action of review, or a review, is a statutory remedy unknown to the common law. It is a civil action or proceeding, and is in its nature a new trial of the issues previously tried between the parties. In some respects it resembles, although it also is distinguishable from, a writ of error, as considered in Appeal and Error, and new trial, as discussed in New Trial. It is a separate proceeding from the action sought to be reviewed, commenced by a writ which is a new process, as considered infra, and is in one aspect a new and independent proceeding, and not merely a new hearing on an existing proceeding, or a continuation or further step in the action sought to be reviewed.

The above discussion will show that the assumption on which the above passage was based, namely that a review in appeal is a continuation of the appeal, is not correct, with the result that the further corollary drawn therefrom in favour of existence of a right of review on that score will also consequently fall.

12. Again the theory of continuation of trial or proceeding is no conclusive of the existence of a right to make a previous judgment open for scrutiny whether by a higher Court in the form of appeal or the same Court in the form of a review. For example, it will be appreciated that an appeal is regarded as a continuation of trial, but it is well settled that a jurisdiction or right of appeal does not exist merely on this theory but I to be created or granted by a Statute. If so granted and if so invoked or exercised, the proceedings in an appeal are considered as a continuation o the trial, but the basic fact remains that this jurisdiction is to be bestowed by a Statute and Statute alone. If this not done then the aforesaid theory by itself will not create any right or jurisdiction of appeal.

Coming back to the subject -in hand, in the alternative, assuming without conceding, that a review is also a continuation of the previous proceeding-(though our positive finding is that it is not so and that it is a new trial)-even then before the proceedings are allowed to further continue. In the form of a review, a jurisdiction to do so in this case also must be similarly conferred by a Statute just as it is to be done in the case of grant of a right of appeal.1 If there is no statutory conferment of jurisdiction of review, like jurisdiction of appeals, the theory of continuation of proceeding will be of no avail: Similarly this theory-(i.e. Theory of continuity)-Will not be helpful in crossing over the finality to the main judgment rendered in Second Appeal, because subsections (4) and (5) of section 15 of the Ordinance make that order final with a further emphasis that that shall not "be called in question in any Court of law by suit or otherwise. . ." It is well settled that in review, you do call in question the original order on its merits and it is precisely this very exercise which is prohibited to be done and will be covered by the words "called in question . . . Otherwise."

13. The third reasoning given in the above passage is that as the Second Appeals under the Rent Restriction Ordinance are dealt with under the provisions of Order XLI read with Order XLII of the Civil Procedure Code--- "therefore, it is clear that any orders passed in these appeals would be subject to review in the light of the provisions contained in Order XLVII of the Code," and the Letters Patent Bench held that---- "in this connection section 117 further lays down generally that the provisions of the Code shall apply to the High Court. In other words, the High Court acts with all the trappings of the Court of appeal attached to it under the Code. This necessarily means that its orders are subject to the ordinary and usual incidents of review in accordance with the provisions contained in section 114 and Order XLVII of the Code. It is implicit in the powers of the High Court as a superior Court of appeal under the Code."

14. Before proceeding to examine the correctness of the above observa--tions, at this stage, it is necessary to reproduce section 15 of the Ordinance. It reads as follows :- "15. Appeal.-(1) Any party aggrieved by on order made by the Controller under section 4, section 10, section 12, or section 13, may, within thirty days of the date of such order, prefer on 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.

(1-A) On such appeal being preferred, the District Judge may himself hear it or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated.

(1-B) The District Judge may recall an appeal made over by him to an Additional District Judge and either hear it himself or refer h". For disposal to another Additional District Judge having jurisdiction as provided in subsection (1-A) : provided that the District Judge shall not so recall or make over an appeal which is part-heard).

(2) On such appeal being preferred, the Appellate Authority may order stay of further proceedings in the matter pending decision of the appeal.

(3) 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 further inquiry as it thinks fit either personally or through the Controller.

(4) Any party aggrieved by an order passed on appeal by the Appellate Authority appointed by the Government under clause (a) of sub--section (1), and if an Appellate Authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may within 30 days from the date of the order of Appellate Authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final.

Explanation.-An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of Controller and as an appeal from the appellate order under section 103 of the Code if it is from an order of the Appellate Authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modification as the context may require, to such proceedings.

(5) No order passed by the Controller, the Appellate Authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance; Provided that no stay order shall be made in respect of the payment or deposit of rent determined by the Controller; Provided further that the Appellate Court may direct that instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the rent shall be furnished by the tenant."

15. A perusal of the Explanation attached to subsection (4) of section 15 of the Ordinance as above reproduced will show that it applies only the provisions of Part VI-(which it has been held in Maula Bakhsh v. Abdul Hamid and 4 others (1) and in Roshan Din v. S. M. Badruddin (2) really means Part V11)-of the Code to appeals in the High Court. Part VII is headed as `Appeals' and consists of sections 96 to 112. Section 114 of the Civil Procedure Code is headed as `Review' and lays down that- "Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or.

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."

This section exists in Part VIII of the Code which is headed as `Reference. Review and Revision', and comprises of sections 113 to 115. This part and these sections have not been applied to the High Court because by making mention only of the provisions of Part VII, the provisions of Part VIII stand expressly and deliberately excluded. In these circumstances, to bring back section 114 so as to say that this section also applies to the High Court while hearing appeals under Chapter VII, in our opinion, is not justified. Same is the position of section 117 of the Civil Procedure Code which occurs in Part IX which on the same reasoning also stands excluded. It will be appreciated that it is, inter alia, for this reason that section 115 of the Civil Procedure Code which deals with `Revision' and which too occurs in Part VIII is not applicable to the High Court, with the result that the High Court does not possess any power of revision in cases under the Rent Restriction Ordinance. To say, therefore, that despite the fact that section 115 of the Civil Procedure Code does not apply, section 11.4 of the same Chapter VIII which as explained earlier stands excluded, will again apply to the High Court is not correct. The view of the High Court contrary to the above explanation as analysed herein, in the circumstances, cannot be maintained.

16. Another thing to be noticed is that the Explanation to sub--section (4) of section 15 (to excuse repetition) states that- ". . And the provisions of Part VII and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings."

(1) PLD 1971 Lah. 512 (2) PLD 1969 Kar. 546 This will show that the provisions to be applied from Part VII as well as from the First Schedule of the Civil Procedure Code are only those which are relating to appeals. Now, section 114 and Order XLVII of the Civil Procedure Code do riot relate to appeals but to review which is an independent remedy and right different from the remedy and right of appeal. The High Court, in the circumstances, was not justified in holding that while hearing appeals, they also could apply provisions with regard to reviews as well when the aforesaid provisions stand expressly excluded and in the context do not form part and do not constitute, as "trapping" of appeal.

17. When confronted with the above situation learned counsel for the respondent referred to section 107 of the Civil Procedure Code, which reads as follows :- "107. Powers of Appellate Court.-(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power-

(a) to determine a case finally ;

(b) to remand a case ;

(c) to frame issues and refer them for trial ;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."

18. He laid particular emphasis on subsection (2) of the above section and submitted that in respect of suits (in original), the Civil Procedure Code confers on a trial Court a power to review its orders, therefore, when a High Court hears a Second Appeal under the Rent Restriction Ordinance from the order of a Rent Controller, then the powers of the High Court shall be the same as the powers of a civil Court with regard to the trial of a "suit". Continuing this subject, learned counsel for the respondent argued that in this context even if a Rent Controller himself may not be able to review his orders on merits as the Civil Procedure Code does not apply to him and proceedings before him are not proceedings of a suit, nevertheless, the powers of a High Court in a Second Appeal under the Rent Restriction Ordinance are far extensive and more than that of the Rent Controller, inasmuch as, the High Court shall have---(to emphasise)-the powers of "Courts of Original jurisdiction in respect of suits instituted therein", and this is despite the fact that the appeal to the High Court has not come up before it from a "suit" or from "a Court" of "Original jurisdiction" as such. We have considered this plea, but are unable to endorse it, because as already stated Explanation to section 15(4) of the Ordinance expressly excludes provisions of Chapter VIII, i.e., section 114 and section 117 of the Civil Procedure Code (Chapter IX) and it is not justified to bring back these provisions by reference to powers of a civil Court in a suit in general. Moreover the word "suit" in section 107(2) has to be read as stated in the Explanation with "such modifications as the context may require", which would mean that the High Court shall have the same powers as a Rent Controller may have had with regard to the main application initiated before him in his original jurisdiction under the Ordinance, save those which may have been expressly or impliedly excluded.

19. The upshot of the above discussion is that looked at from whatever angle the conclusion is inescapable that as the Ordinance neither expressly nor by reference bestows any powers of review, the High Court has no jurisdiction to review its orders passed in a Second Appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959. We hold accordingly.

20. The result is that the appeal is accepted. The judgment and order of the learned Division Bench impugned herein is set aside and that of the learned Single Judge dated 16-3-1965 is restored. In view of the difficult point of law, the parties shall bear their own costs.