MUHAMMAD HASSAN Versus MEHRAJ DIN

1. This revision petition is directed against the order dated 17th of March 1969 of Mian Mohammad Qureshi, Additional District Judge, Layallpur, accepting the review petition of the respondent landlord against his own order dated 5th of July 1968 by P which he dismissed the appeal of the respondent against the order of dismissal of respondent's application under section 13 of the Urban Rent Restriction Ordinance for ejectment of the petitioner.

2. The facts are that premises in dispute, i.e. House No. P‑68 Santpura, Layallpur, was transferred to the respondent by the Settlement Department. On 29th of September 1967, he filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance against the petitioner for his ejectment on the ground that the above house was transferred to him vide P. T. O. Dated 22nd October 1960 and a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was given by him to the petitioner on 1st of June 1961. As the petitioner defaulted in the payment of rent, an application for his ejectment was submitted to the Rent Controller in which the parties arrived at a compromise to vacate the house within eight months and to pay Rs. 50 p.m. as rent till then. The above application for ejectment was, therefore, withdrawn. It was further alleged that the petitioner was paying the rent, but he did not vacate the house within eight months and now the six years statutory period for which protection was given by section 30 had already elapsed and the respondent bona fide required the house for his own use. In his written statement, the petitioner admitted the transfer of the house in favour of the respondent as well a9 his ejectment alleged to have been taken by the respondent against him, the petitioner asserted tenancy regarding the certain proceedings of the rent that was, in fact, Rs. 12 p.m. but it was increased to Rs. 50 on the insistence of the respondent and for this season, he withdrew the application for ejectment on 15th April 1964. It was, however, denied that there was any agreement to vacate the house within eight months. The allegation about the service of notice under section 30 was made in para. 3 of the application for ejectment, but this particular fact was not specifically denied in reply to that paragraph in the written statement, but at the end of para. 4 this assertion was also added that the petitioner did not receive any notice from the respondent. It was also not, admitted that the respondent required the house for his personal use. From the pleadings of the parties, the following issues were framed:‑

(1) Whether the petitioner had given any notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to the respondent? O. P. A.

(2) Did the respondent agree to vacate the house within eight months on the earlier application for ejectment, if so, what is its effect on the present proceedings? O. P. A.

(3) Does the petitioner require the house for his personal use and can he eject the respondent for this reason?

3. O. P. A.

4. The certified copies of the notice under section 30 and the refusal report Exh. A. 2 to Exh. A. 4 were proved from the record of the earlier ejectment proceedings by A. W. 2 Ch. Hakam Din, Advocate, but issue No.1 was answered in the negative on the ground that the postman should have been produced. As the certified copy of the order of the Rent Controller Exh. A. 6 did not make a reference to any particular term of compromise and the petitioner bad denied that he had agreed to vacate the premises within eight months, this issue was also found against the respondent. 1n view of the finding on issue No. 1, it was held that the ground of ejectment for personal use was not available to the respondent, but on merits also it was found that the respondent had failed to make out a bona fide case of personal use and the evidence of witnesses of the petitioner that the respondent only wanted to enhance the rent from Rs. 50 to Rs. 75 was believed.

5. The respondent filed on appeal against this order before the learned Additional District Judge, Layallpur the learned Additional District Judge in his detailed judgment laid particular stress upon the point that the mere existence of a copy of acknowledgement receipt with the endorsement of the postman about refusal to receive the notice was not sufficient to prove dispatch and actual refusal of the notice in question when even the postal receipt of registration was not placed on the record and the refusal had not been proved by the statement of the person who tried to deliver the notice to the tenant. Reliance was placed before him on P L D 1965 Lah. 126, but this authority was held distinguishable on the ground that in that case the postal receipt and the registered notice was not a point of dispute. The second issue was also likewise decided against the respondent and on issue No. 3, it was held that notice under section 30 not having been delivered the period of protection given by the statute had not elapsed.

6. The respondent filed an application for review of this order On 2nd September 1968 and it was accepted by the learned Additional District Judge by order dated 17th March 1969 on the ground that the application had force as the case was not argued on the relevant lines on behalf of the respondent at the time when the appeal was heard and decided. The learned Additional District Judge held that in the written statement there was no allegation that no notice under section 30 was served, It. was only in another paragraph of the written statement that a side reference was made that the respondent did not serve him with a notice. The file of the previous ejectment proceedings was also called by the learned Additional District Judge in which the registered post‑card along with the acknowledgment were placed in original and the respondent had made a statement on 15th April 1964 before the Rent Controller that he had settled the dispute with the respondent who had agreed to pay Rs. 50 p.m. as rent of the premises to him and to vacate the house within a period of eight months and, therefore, he did not desire to. prosecute the application for ejectment. It was also held that the tenancy was admitted by the petitioner and be was estopped from claiming service of notice upon him under section 30. Issues Nos. 2 and 3 were considered to be the material issues which were not pressed at the time of the hearing of the appeal in view of the main question being whether a notice under section 30 had been served. The case was argued in review on all the issues and as a result of a detailed discussion, the learned appellate Court answered all the issues in favour of the respondent.

7. The learned counsel for the petitioner contended as follows:‑

(1) There is no power of review available to the District Judge or Additional District Judge under the Rent Restriction Ordinance;

(2) Even if the power to review is deemed to inhere in the Additional District Judge its scope should be confined to the principle of Order XLVII, rule 1;

(3) In review proceedings the additional evidence was considered without formally recording it and the record of the earlier proceedings was summoned suo motu arbitrarily and no, opportunity for rebuttal was given to the petitioners; and

(4) On merits also, the findings of the learned Additional District Judge were incorrect.

8. The West Pakistan Urban Rent Restriction Ordinance, 1959, was enforced with a view to protect the tenant from arbitrary ejectment or enhancement of rent. It restricts the rights of the landlord to evict a tenant at his will or to enhance the rent of the rented properties according to his volition. Section 4 of the Ordinance provides for determination and fixation of fair rent even though such fixation may be different from the contractual rent.. Section 10 prohibits the landlord from willfully disturbing any convenience or easement annexed to the premises or remove, destroy or render unserviceable anything provided for permanent use there with or discontinue or cause to be discontinued any supply or service comprised in the fair rent and in contravention can be complained against by the tenant to the Rent Controller who can make an order for restoration of these amenities. Section 12 provides that if a landlord fails to make necessary repairs the tenant can make them with the permission of the Controller and can deduct the expenses from the rent payable by him. Section 13 bars the institution of any suit for ejectment of a tenant and provides that the order of ejectment can be passed by a Rent Controller only and only on conditions specified to the section. Section 15 provides the method by which the order of the Rent Controller can be challenged in a higher forum and it is reproduced below:‑

9. Section 15:

10. "(1) Any party aggrieved by an 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 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.

11. (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.

12. (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 it for disposal to another Additional District Judge having jurisdiction as provided in subsection (I‑A); provided that the District Judge shall not 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:

13. Provided that no stay order shall be made in respect of the payment of deposit of rent determined by the Controller:

14. 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.

(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 subsection (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 the 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.

15. Explanation.---‑An appeal under the 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 the Controller and as an appeal from the appellate order under section 100 of the said 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 modifications as the context may require, apply 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."

16. The order made under either of the above sections is appealable before a District Judge having jurisdiction over the area where building or rented land in relation to which the order is passed is situated and the District Judge may either bear the case himself or refer it to an Additional District Judge. Subsections (2) and (3) provide for the procedure of hearing and disposal of the appeal before the District Judge or the Additional District Judge. The appellate authority has been empowered to stay further proceedings subject to the condition that no stay order shall be made in respect of payment of deposit of rent determined by the Rent Controller provided that the appellate Court may direct that instead of rent being deposited or paid in cash security to the satisfaction of the amount of the rent shall be furnished by the tenant. The appeal can be decided after sending for the record of the case, 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 Controller. The order of appellate Court is further appealable to the High Court and finality has been given to the decision of the High Court. The procedure of the appeal before the High Court is the same as provided by section 100 of the Civil Procedure Code and the provisions of Part VI and the First Schedule relating to appeals of the same Code with such modifications as the context may require. Subsection (5) on which much emphasis had been laid by the learned counsel for the petitioner provides that no order passed, inter alia, by the appellate authority under the above Ordinance shall be called in question in any Court of law by a suit or otherwise except as provided under this Ordinance.

17. The power of review is vested in a Civil Court under section 114 and Order XLVII, rule 1, C. P. C. but there is no corresponding provision in the above Ordinance empowering any Rent Controller or the appellate authority to review its own orders. Provisions of the Civil Procedure Code have been applied by this Ordinance to an appeal before the High Court by the explanation to subsection (4) of section 15, but this; explanation does not apply to an appeal under subsection (3) of section 15 as held in Begum Hamayun Zulfiqar Ismail and another v. Hamida Saadat Ali (1968 S C M R 828). It was held in the above case that "the provisions of the Code of Civil Procedure have not been made applicable to an appeal under subsection (3) as has been done in the case of an appeal to the High Court, subsection (4) is a complete code of procedure in itself for the purposes of an appeal under that subsection" Order XLI, rule 11 empowering a Court to dismiss an appeal in limine was not held applicable to an appellate authority. The provisions of section 114 and Order XLVII, rule 1 cannot therefore, be extended to an appel late Court under subsection (3) of section 15 of the above Ordinance.

18. Section 15 is not only exhaustive of the procedure of appeal provided therein, but also exhaustive of the manners in which an order of a Rent Controller or an order of an appellate authority can be challenged. It does not confer a right of review, which like the right of an appeal, is a substantive right and does not exist except where it is expressly conferred by law. Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (P L D 1970 S C 1). The Intention of the Legislature is clear from the unambiguous words of section 15 itself that only the right of appeal to a higher forum was intended to be given and not a right to a review. Reference in this connection may be made to Maqsoodan Bibi v. Bhano (P L D 1965 Lah. 183) where it was held that a Guardian Judge had no right to review his order under the Guardians and Wards Act. On the question of review the same view appears to have been taken in F. A. O. No. 173 of 1965 which is a Full Bench decision of our High Court. The main question in that case was whether the Rent Controller under the W. P. Urban Rent Restriction Ordinance, 1959, was empowered to set aside an ex parte order passed by him. This question was answered in the affirmative by the majority but the question about the competence of a review was also considered in detail. In his exhaustive judgment Mohammad Akram, J. after considering considerable case‑law on the subject, held that review like an appeal is a substantive right and does not exist except under statute and no Court or Judge has power to re‑bear, review, alter or vary any judgment or order passed by it except in excepted cases, e.g. where the order is a nullity or was obtained by fraud or where certain clerical or accidental slip, mistake or omission was required to be correctness. In all other cases, the power of review, if any, must be found in the statute and there is nothing inherent about it in a Court. Section 20 of the West Pakistan General Clauses Act VI of 1956 was also considered and it was held that it did not apply to recalling a judicial order and the order passed by the Rent Controller in accordance with law was final and could not be called in question except as provided in the West Pakistan Urban Rent Restriction Ordinance itself. It was, therefore, held that the Rent Controller had no jurisdiction to set aside an ex parte order. The majority judgment was written by K. E. Chauhan, J. He answered the question in the affirmative on the basis of grounds of violation of principle of natural justice and the provisions in section 13 too, that the Controller can pass an order after giving the tenant a reasonable opportunity of showing cause against the application and it was held that the principle of natural justice will apply to the tenant and the above provisions of section 13 will extend even to a case where a tenant is precluded by a sufficient cause from appearing before the Rent Controller on the relevant date when the ex parte order was passed and in such case a tenant could claim rehearing and even in the absence of applicability of the Order IX, C. P. C. the Rent Controller can recall the ex parte order on account of the inherent power vested in him to choose any procedure he likes. It was, however, held that the rules of the Civil Procedure Code do not apply per force of any statute to a Rent Controller. The question whether the Rent Controller can review his orders otherwise than by setting aside an ex parte order was not considered, but it was held relying upon Shahab v. The Crown (P L D 1956 F C 46) that section 20 of the General Clauses Act could be invoked by the Rent Controller unless there is any other restriction imposed upon him. It was further laid down that there is no such restriction in respect of re‑calling an order passed by a Rent Controller ex parte and the restriction in subsection (5) of section 15 was only a limited restriction and was confined merely to challenging the merits of the previous order of the Rent Controller.

19. The learned counsel for the respondent, however, relied upon the judgment of the Full Bench to the extent that it held that it was open to the Rent Controller to re‑call an ex parte order and argued that if an ex parte order could be re‑called other orders could also be re‑called at least under section 20 of the West Pakistan General Clauses Act. This argument is without any force because as stated above it was held in that case that a decision on merits could not be re‑called or altered in view of the restriction in subsection (5) of section 15.

20. The learned counsel then argued that the District Judge was no longer a persona designata and was a Court as held in Abdul Haq v. Saifur Rehman and others (P L D 1968 Lah. 478) and being a Court, he would be governed by the Civil Procedure Code. This argument is also devoid of any force because although according to the amendment of section 15 the District Judge or the Additional District Judge are no longer persona designata, but the provisions of subsection (3) have been the subject‑matter of interpretation before the Supreme Court in Begum Hamayun Zulfiqar Ismail and another v. Hamida Saadat Ali and it cannot be said, In view of this authority, that the Civil Procedure Code is applicable to an appellate Authority under the above Ordinance. The restriction imposed by subsection (5) of section 15 impliedly clothes the order of an appellate Court with finality as it provides that the order of the appellate authority shall not be called in question in any Court of law by suit or otherwise. The appellate authority being a Court of law cannot interfere with an order even though it may be passed by itself because it will amount to calling in question the order of an appellate authority by a Court of law otherwise.

21. Reference was also made to Mohammad Fazil Zahir v. Begum Jan (P L D 1966 Lah. 53) in which it was held that the High Court had jurisdiction to review its own orders passed under section 15(4) of the above Ordinance. This authority is, however, distinguish able as the case was decided on the basis of the explanation of subsection (4) of section 15 which applied the provisions of Order XLI or Order XLII of the Code to an appeal before the High Court and it was held that "it Is clear that any order passed in these appeals will be subject to review in the light of the provisions contained in Order XLVII of the Code of Civil Procedure." Another authority relied upon by the learned counsel for the respondent Hussain Bakhsh v. The Settlement Commissioner, Rawalpindi (PLD 1970 SC 1) is also similarly distinguishable because there it was held that the High Court had power to review an order passed in exercise of the writ jurisdiction. The main ground was that section 117 of the Code of Civil Procedure applied the provisions of that Code to the High Courts. In my view, the Additional District Judge had no jurisdiction to review the order passed by him in appeal. In view of this finding, the other objections by the learned counsel for the petitioner became redundant. It is not necessary to give any finding on them. The order of the learned Additional District Judge dated 17th of March 1969 passed in review is, therefore, set aside, but there will be no order as to costs.

22. K. B. A. Petition accepted.