MUHAMMAD AYUB Versus RAZIA SULTANA
This petition arises out of an order dated 29th May 1975, of the Addi tional District Judge, dismissing as not maintainable petitioner's application for restoration of an application dismissed in default originally made for setting aside the order dismissing his appeal for non‑prosecution.
2. The facts giving rise to this petition are that the petitioner had filed are appeal before the Additional District Judge against the order dated 7th February 1972, of the Rent Controller directing his ejectment from a portion of house No. 3513/3514 situate in Sutar Mandi, Lahore. It is to be noted here that the dispute mainly revolved round the fact whether the portion in possession of the appellant was part of property No. 3514 transferred to the respondent and let out to th . petitioner or No. 3513 which allegedly was still available for transfer. This appeal was dismissed in default on 21st June 1973. The petitioner made an application for its restoration on 25th June 1973. Unfortunately, this application also met with the same fate and was dismissed 'or non‑prosecution on 4th December 1974. Instead of filing another application for restoration of the appeal the petitioner made a second application on 14th December 1974, for restoration of the dismissed applica tion. This application was rejected on 29th May 1975 on the ground that it did not lie.
3. It is contended by the learned counsel for the petitioner in this petition that the view taken by the learned District Judge was not correct in .law and, therefore, needs setting aside. He relied on a judgment of this Court in Sh. Ghulam Moin‑ud‑Din v. Mst. Razia Begum (PLD 1974 Lah 173) wherein a Division Bench of Karachi High Court held that a second application under Order IX for restoration of a previously dismissed application under the same provision would lie either under Order IX, rule 9 or section 141, C. P. C. Tile same view was taken in Muhammad Rob Nawaz v. Muhammad Sadiq (PLD 1966 BJ 27). It is to be noted here that the proceedings in both the above cases were initiated by regular civil suits. The learned counsel for the petitioner further submitted that the order dated 4th December 1974, of the learned Additional District Judge was a nullity in the eye of law as the same had been passed in violation of a status quo order passed by this Court in Writ Petition No. 681‑R‑74 at E the petitioner's application.
4. In reply the learned counsel for the contesting respondent submitted that the judgment cited above was not applicable to an appeal arising out of an application filed under the West Pakistan Urban Rent Restriction Ordi nance as section 141 or Order IX do not apply to it in view of the Explanation attached to section 15(4) of the West Pakistan Urban Rent Restriction Ordinance. The Explanation reads as under:‑
"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." '
The other provisions about application of some other portion of the C. P. C is section 16 which reads as under:‑
"16.‑(1) For the purposes of this Ordinance an Appellate Authority or a Controller appointed under this Ordinance shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908.
(2) The Controller shall for the purpose of section 480 of the Code of Criminal Procedure, 1898, be deemed to be a Court."
5. It is important to note that the petitioner is challenging the order of the learned District Judge under the constitutional jurisdiction of this Court which would be available only if the impugned order is shown to have been passed without jurisdiction, in excess of jurisdiction or if it amounts to refusing to exercise jurisdiction vesting in him under the law. The case in hand falls in the last category to succeed.
6. The short question that calls for determination here is whether the Additional District Judge while sitting as appellate Court over the order of the Rent Controller was obliged under the law to apply section 141, C. P. C. to the post‑appeal proceedings before him? The above Explanation to section 15(4) read with section 16 leads one to the conclusion that all the provisions of the C. P. C. were never meant to be applied to these pro ceedings.
7. There has been lot of difference of opinion on the applicability of section 141, C. P. C. in such a jurisdiction. Section 141 provides as follows:‑
141. The proceedings provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction."
The proceedings to which it can be applied must be in a Court of civil jurisdiction. Only the procedure in regard to suits can be, as far as possible, applied to those proceedings, Admittedly the Rent Controller is not a Court of civil jurisdiction. The District Judge or the Additional District Judge who is the appellate a authority also is subjected to the limitations as contained in the Explanation to section 15(4) and section 16 referred to above. If section 141 bad to be applied under its own force, Explanation to section 154) and section 16 of the West Pakistan Urban Rent Restriction Ordinance would be rendered redundant.
8. It will be useful to refer to some of the views already expressed by the higher Courts in this regard so far. In Faqir Muhammad v. Dr. Muhammad Yasin etc. (PLD 1964 Lah. 686) it was held that:‑
"The failure of a Rent Controller to frame issues in any case does not furnish a ground to urge that the Rent Controller has in any way acted illegally for the Rent Controller is a special Court stricto sensu as held in Corporation of Lahore v. Fahmeeda Begum P L D 1951 Lah. 258 and Mst. Aziz Begum v. Sh. Nur M uhammad and others P L D 1962 Lah. 887. In Knuda Bux v. Fida Hassain and others P L D 1963 Kar. 446 Qadeeruddin, J. observed that:
`Special tribunals are often appointed so that the strictness of elaborate technicalities may not hamper their proceedings. If they are by circuitous arguments subjected to the same strictness, irrespective of the object of legislation of the ends of justice and without an express or, implied but definite requirement of law, it may amount to indirectly frustrating the purpose of their creation'."
In N. A. Industries v. Mrs. Bapai Kaikhusro (PLD 1968 Kar 589) it was held that:
"Thus, it is now settled that neither the Rent Controller, nor the First Appelate Authority, under the West Pakistan Urban Rent Restriction Ordinance. 1959, acts as a civil Court, and accordingly the rule laid down in Sh. Muhammad Nawaz v, Muhammad Azeem, and in the subsequent decisions of the High Court referred to above that the provisions of the Civil Procedure Code applied to proceedings before the Controller, is no longer good law, because this rule rested on the preposition that the Code applied by virtue of its section 141, which section, how ever, is expressly made applicable only to Courts exercising Civil Jurisdiction., Since the tribunals under the Ordinance are not civil Courts, section 141 cannot be invoked to regulate the proceedings under the Ordinance by the provisions of the Civil Procedure Code, unless these provisions are made expressly applicable to such proceedings."
In Ch. Muhammad Ali & Co. v. Dr. Sirajul Haq (PLD 1972 Quetta 5) it was held that :‑
"But merely because certain provisions of the Civil Procedure Code such as Order IX, rule 13 are applicable to cases under the said Ordinance, it does not follow that all the provisions of the Civil Procedure Code are applicable to the said Ordinance. and it is not irrelevant to point out here that the provisions of Order IX, rule 13, C. P. C., are of an ameliorative nature, whilst those of Order VI, rule 14, C. P. C. are of a technical nature; therefore, the observations cited are not relevant to learned counsel's argument that the Rent Controller was bound by the provisions of Order VI, rule 14, C. P. C. Similarly, the other cases cited do not relate to this rule, nor is there anything in these judgments to lead to the conclusion that all the provisions of the C. P. C. are applicable to proceedings under the said Ordinance" in Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra (PLD 1965 SC 459) their Lordships of the Supreme Court observed as follows:‑
"From the provisions of the Ordinance it appears that though under section 16 the `Controller' has been given powers `of summoning and enforcing the attendance of witnesses and compelling the production of evidence' he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He his been given powers under sections 4, 10(3) and 12 to make orders after holding such enquiry as he thinks fit "
"We, therefore, conclude from the foregoing examination of the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that he acts in a quasi‑judicial capacity."
In view of the above it is not possible to hold that the District Judge or the Additional District Judge while exercising appellate jurisdiction under the West Pakistan Urban Rent Restriction Ordinance are obliged to apply the Code of Civil Procedure to the proceedings before them. It is true that in a number of cases the principles of the C. P. C. have been applied in different situations but that would rather prove that no one can claim a right in the application of a particular section of the C. P. C. and ask for quashing of the proceedings if the same is not applied.
For the views expressed above and the reasons given there is no merit in this petition and the same is dismissed with costs.
S. A. H. Petition dismissed: