AINUL HAQUE Versus SHAHID AHMED PERVAIZ

ORDER

1. Application under section 151, C.P.C. read with Order XLVII, rule 1, C.P.C. is filed for review of the order, dated 23rd December, 1982 passed of an application filed by the counsel for the parties, containing the terms of compromise, on which, the parties had settled the dispute in the appeal. Parties were also present and had admitted their signature on the applica tion. The compromise was recorded and the appeal was disposed of in terms thereof. The review is sought on several grounds contained in para graphs " A" to "J" of this application.

2. However, an objection has been raised by Mr. Mir R. H. Hydri, Advocate that this application is not maintainable as according to the counsel this Court has no power of review of an order passed on appeal under the said Sind Rented Premises Ordinance, 1979 and in support he has relied on Muzafar Ali v. Muhammad Shafi (PLD1981SC94).

3. In this case, an order passed by a learned Judge on Second Appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was sought to be reviewed by an application. The application was dismissed by the learned. Judge holding the same to be incompetent.

4. Against this order, a Letters Patent Appeal was filed, which was accepted by the learned Division Bench of the Lahore 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 to the subject.

5. A petition for special leave to appeal was filed which was granted and on hearing of the appeal the same was accepted and the judgment and order of the learned Division Bench impugned in the appeal was set aside and that of the learned Single Judge was restored.

6. It was held in this case that right of review is a substantive right and is always a creation of the relevant statute on the subject.

7. In this case, reliance was placed on an earlier decision in Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others (PLD1970SC1), wherein at page 5 of the report, it was ruled as follows

8. "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 pro cedure. An appeal, as observed by Branwell, L. J., in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 3 Q B D 1, does not exist in the nature of things ; a right to appeal from any decision of any Tribunal must be given by express enactment.

9. 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."

10. Mr. A.Q. Malik, Advocate has also heavily relied on Hussain Bakhsh's case. But this case distinguishable as firstly, it was a case of exer cise of constitutional jurisdiction wherein it was held that the review of impugned order was competent under clause (b) of section 114 of the Code of Civil Procedure; secondly, this very case has been relied upon in the judgment of Muzaffar Ali v. Muhammad Shafi and I have already quoted the relevant passage therefrom hereinbefore.

11. So far as the proceedings under the Sind Rented Premises Ordinance. 1979 (hereinafter called the Ordinance) are concerned, the Controller and the appellate authority have powers of a civil Court under the Code of Civil Procedure, 1908 in respect of only the following matters, as mentioned in section 20 of the Ordinance;

(a) Summoning and enforcing the attendance of any person and examining him on oath ; (b) compelling production or discovery of documents;

(c) inspecting the site ; and

(d) issuing commission for examination or witnesses of documents.

12. This necessarily implies that a civil Court has no other power. There is, of course, no doubt that in the absence of any provision in the Ordinance, the Controller or the appellate authority in the matter of procedure can follow the equitable principles contained in the Code of Civil Procedure but so far as the appeal or review is concerned, it is a substantive right and must be conferred by the Statute as held by the Supreme Court and, therefore in the absence of any provision for review in the Ordinance, the power of review cannot be exercised in the proceedings under the Ordinance.

13. Mr. A.Q. Malik also relied on Evacuee Trust Property Board v. Sh. Hameed Elahi and another (P L D 1981SC108), wherein the appeal was heard ex parte on account of mistake of Court. It was held that the appeal was not validly adjudicated and the Court had power to hear such an appeal under its in herent powers and to make necessary order for ends of justice or to prevent abuse of process of Court.

14. It was observed at page 111 of the report by Dorab Patel, J. who de livered the opinion of Court, as follows :‑----

15. "We may pause to point out that this rule is similar to section 369 of the Criminal Procedure Code and as we would not extend our in herent powers to a situation covered by a rule of this Court, the point for determination is whether this rule is a bar to our power to rehear an appeal which has been heard ex parte on account of a mistake of the Court. In our opinion, this rule is no bar to the rehearing of and appeal, because as was observed by Odgers, J. in Somu Naidu's case, the bar to the rehearing of a case by provisions such as section 369 of the Criminal Procedure Code is attracted only when there has been a valid adjudication of the case, before the Courts and in the instant case if the respondent's plea be true, the judgment pronounced by us on the 14th October was not a valid adjudication within the meaning of rule 2 of Order X. But there is no other rule, which is relevant to the question if the rehearing of a matter decided ex parte by the Court, therefore, the application was rightly filed under the said rule, and the next point for determination is whether the respondent has made out sufficient cause for the rehearing of the appeal.

16. It may be stated that in this case, review of ex parte order passed by Supreme Court was sought, but relying on rule 2, Order X of the Supreme Court Rules, an objection was raised that the order could not be reviewed, but the objection was overruled by the above observations. The present case is not one of ex parte order passed by the Court by mistake and exercise of inherent powers. The cited case is, therefore, distinguishable.

17. I am, therefore, of the opinion that this review application is incompetent and accordingly dismiss it with costs.

18. M.Y.H. Petition dismissed.