Syed MUHAMMAD SIDDIQUE SHAH AND OTHERS vs Sh. MUHAMMAD AFZAL

' This second appeal, which is directed against an order under the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), was dismissed in default on 26th June, 1978. The appellant filed a petition (C. M. No, 6550/C of 1978) for restoration of the appeal which was accepted by me vide order, dated 17th March, 1979 and the appeal was restored. Thereafter, the respondents made a petition (R. A. No, 8/C of 1979) for review of the order of restoration of the appeal. This petition has been opposed by the appellant.

' While arguing the petition for review, it was contended by learned counsel for the respondents that the petition for restoration of the appeal was-time-barred and, therefore, it was liable to be dismissed on that ground. According to him, in view of the provisions of Article 168 of the first Schedule of the Limitation Act, 1908, the petition for restoration of the appeal ought to have been made within 30 days but it was actually tiled long after that period. As stated above, the appeal was dismissed on 26th June, 1978, but the petition for restoration was filed on 27th November, 1978, that is, after more than five months. It was further submitted by learned counsel for the petitioner that the said petition was made under Order XLI, rule 19 of the Code of Civil Procedure because by virtue of explanation to subsection (4) of section 15 of the said Ordinance the provisions of Chapter VII (wrongly mentioned as Chapter V in the explanation) and the Schedule to the said Code had been made applicable to second appeals against orders passed under the said Ordinance. He relied on La! Dino and others v. Deputy Commissioner and others (1), Sawab Khan v. Dr. Abdul Hamid Khan (2), lqbal Ahmad v. Mst. Sharif-un-Nisa and others (3) and Dost Muhammad and another v. Rais Satik and another (4) to support his contention.

3. In reply, it was urged by learned counsel for the appellant that by means of the review petition the respondents were seeking review of the

(1) 1982 SCMR 201 (2) PLD 1968 Lab. 1224

(3) PLD 1967 Lab. 1098 (4) PLD 1962 (W. P.) Quetta 82 order of review made by this Court by which the appeal was restored and, therefore, the review petition of the respondents was not competent. In this connection, reliance was placed by him on sub-rule (1) of rule 9 of Order XLVII of the Code of Civil Procedure and Dr. M. Fazil Zahir and others v.

Mst. Begum Jan and others (I). It was, however, conceded by him, that the Code of Civil Procedure was applicable to the second appeal filed under subsection (4) of section 15 of the said Ordinance and that the provisions of Article 168 of the Limitation Act govern' limitation in regard to petition for restoration of second appeal preferred under the said Ordinance.

4. The question which, therefore, requires determination is whether the review petition of the respondents attracts the provisions of sub-rule (1) of rule 9 of Order XLVII of the Code of Civil Procedure which reads as follows : "9 (I) No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained."

The petition of the appellant on which the appeal was restored was not an application for review made under rule 1 of Order XLVII of the said Code. Instead, it was an application under rule 19 of Order XLI of the above Code. The order sought to be reviewed was not an order made on a review but was a substantive order passed on the application for restoration of the appeal. The review petition submitted by the respondent is, therefore, not hit by the provisions of sub-rule (1) of rule 9 of Order XLI. The case of Dr. M. Fazil Zahir and others is distinguishable on facts inasmuch as in that case an application for review of an order had been rejected before the second application for review of the said order was made.

5. As indicated above, learned counsel for the appellant had conceded that Article 168 of the Limitation Act was applicable to the application for restoration of second appeal filed under subsection (4) of section 15 of the said Ordinance. According to Article 168, the appellant ought to have made petition for restoration of the appeal, which had been dismissed for want of prosecution, within 30 days of its dismissal. They had, however, made the above petition after five months of the dismissal of the appeal. Their petition was, therefore, liable to be dismissed on the ground of limitation. This aspect of the matter was not brought to my notice nor it occurred to me when I had ordered the restoration of the appeal. Due to the appellant's failure to seek, restoration of the appeal within time, a valuable right had accrued to the respondents but the same was taken away by means of the order sought to be reviewed. I, therefore, accept the review petition made by the respondents and by reviewing my order, dated 17th March, 1979 set aside the said order and dismiss C.M. No, 6550/C of 1978. As a result, the appeal stands dismissed for want of prosecution by virtue of my order dated 26th June, 1978. There shall be no order as to costs.

6. Learned counsel for the respondents, in whose favour the impugned order for ejectment had been passed. Agrees to four months' time being given to the appellant to vacate the disputed premises. I, therefore, direct that the said order shall not be executed for four months from today.

(1) PLD 1966 (W. P.) Lab. 53