P L D 1960 (W (PLP)

2. The plaintiff‑opponents are the landlords, and the applicant in both cases is the tenant of the premises in suit, viz., a residential flat on the ground floor of Amelia house, 102, Depot lines, Karachi. The flat was taken on rent by the applicant on 13th March 1944 at Rs. 125 per mensem. Subse quently he learnt that the rent previously charged was much less and accordingly he made an application on 21st July 1944, to the Rent Controller of Karachi for fixation of fair, rent under the provisions of the Sind (Residential Premises) Control Order, 1942. By his order dated 22‑1‑45, the Rent Controller fixed the fair rent of the flat at Rs. 95 plus 12 percent usual increases, i.e. a total of Rs. 106‑6‑

0. The applicant filed an appeal against this order before the Collector of Karachi under section 12 of the Sind (Residential Premises) Control Order, 1942, but the same was dismissed.

3. The applicant continued paying rent at the rate fixed by the Rent Controller upto 31‑5‑1953. The landlords gave a notice to the applicant for a permitted increase of 25 per cent, in April 1953 under the provisions of the then newly‑enacted Karachi Rent Restriction Act, 1953 (Act VIII of 1953). The applicant stopped paying rent altogether to the opponent‑landlords, with the result that considerable litigation ensued between the parties. First, an ejectment application No. 30 of 1955 was filed against the tenant, but it was dismissed on 14‑9‑

55. The landlords then filed a suit in the Small Causes Court at Karachi, namely Suit No. 319 of 1956, for the recovery of rent for the period from 1‑7‑1953 to 29‑2‑1955. The opponents also filed in the same Court an application (bearing No. 437 of 1956) for the issue of a distress warrant against the tenant under section 27 of the Karachi Small Causes Court Act for the realisation of rent from 1‑3‑1955 to 29‑2‑1956. The suit of the plaintiff‑opponents was decreed by the Chief Judge of the Small Causes Court on 31‑7‑1958. The application for distress warrant was also allowed on 22‑8‑58 by reference to the order already passed by the Judge in Suit No. 319 of 1956.

4. The applicant filed Revision No. 246 of 1958 in the High Court against the judgment and decree of the Karachi Small Causes Court in Suit No. 319 of 1956. When the matter came up for admission before my learned brother, Inamullah, J., he dismissed it summarily on 10‑11‑

58. Now the applicant has filed Review Application No. 406 of 1959 praying that the order of summary dismissal of the revision application be set aside and the same be admitted for regular hearing. The applicant also filed Revision No. 39 of 1959 against the order of the Karachi Small Causes Court passed in distress warrant applica tion No. 437 of 1959. That revision was admitted by Wahiduddin Ahmad, J. on 23‑2‑1959, that is, after the summary dismissal of the previous revision application. Thereupon an application was moved on behalf of the plaintiff‑opponents contending that the Revision Application No. 39 of 1959 was barred by res judicata in view of the decision of Inamullah, J., in Revision Application No. 246 of 1988. It is under these circumstances that the Review Application No. 406 of 1959 and the Revision Application No. 39 of 1959 have come up together for hearing before me.

5. It is conceded by Mr. Nathulal, the learned counsel appearing for the tenant‑applicant, that if the order of summary dismissal passed by Inamullab, J., on 10‑11‑58 in Revision Appli cation No. 246 of 1958 is not set aside in review, it would operate as res judicata between the parties in Revision Application No. 39 of 1959 for the reason that the matters in issue in both cases are the same, and the case out of which Revision Appli cation No. 39 of 1959 has arisen was disposed of by the same judgment which gave rise to Revision Application No. 246 of 1958.

6. The first question, therefore, to be considered is whether the order of Inamullah, J., dated 10‑11‑1958 should be reviewed under the provisions of Order XLVII, rule 1, C. P. C. The main ground put forward by Mr. Nathulal to justify review is that there is an error apparent on the face of the record.

7. The only issue agitated before the learned Chief Judge of the Karachi Small Causes; Court in the two matters before him was regarding the rate of rent which the plaintiff was entitled to recover from the defendant‑tenant. The learned Chief Judge based his findings in this behalf on the order of the Rent Controller dated 22‑1‑1945, and observed that that order had been confirmed in appeal by the Collector of Karachi and subsequently acted upon by the tenant until the year 1953. Further, the same rate of rent was admitted by the tenant in paragraph 6 (c) of the written statement filed in the suit for recovery of rent, as well as in his evidence before the Rent Controller during proceedings on an application (No. 1303 of 1951) brought against him by his own sub‑tenant, Mr. Mayer. The position taken up on behalf of the tenant‑defendant was that the order of the Rent Controller was a nullity as it was without jurisdiction. The learned Chief Judge of the Karachi Small Causes Court, however, did not accept this contention. The same point was agitated before Inamullah, J., at the time of presenting the Revision Application No. 246 of 1958, and the order of dismissal passed by the learned Judge may usefully be reproduced here: "The Rent Controller had jurisdiction to fix rent. His order, though wrong, is final. The rent fixed by the Rent Controller cannot be questioned in Civil Court, Dismissed."

8. As observed in Syed Liagat Husain v. Muhammad Razi and others (A I R 1944 Oudh 198): "In order that a mistake or error may constitute a ground under Order XLVII, rule 1, Civil P. C., for review it must be one apparent on the face of the record and not one which may require extraneous matters to prove the underlying fallacy. Such an error may be one of law, but in order that it may be a valid ground, the law must have been indisputable at the date of the decision which is characterised as erroneous. A view of law taken by a Judge on a debatable point and subse quently found by an authoritative pronouncement to be incorrect is not a mistake apparent on the face of the record so as to entitle the aggrieved party to apply under Order XLVII, rule

1. Now, in the present case, the error put forward as a ground for review is characterised as an erroneous view on a question of law, viz., whether the order of the Rent Controller was without jurisdiction and therefore liable to be called in question in a Civil Court. Mr. Nathulal has taken great pains in elaborating the proposition that an order passed without jurisdiction is a nullity, and that the Civil Courts can question and quash such an order: Abdullamiyan Abdurrehman v. Government of Bombay (A I R 1942 Bom. 257); Anant Krishnaji Nulkar v. The Secretary of State for India in Council (I L R 55 Bom. 165) and Hriday Nath Roy v. Ram Chandra Barma Sarma (A I R 1921 Cal. 34). There can be no quarrel with this proposition, which is indeed well established. But the real point is whether the question of law regarding the jurisdiction of the Rent Controller, which was agitated before the learned Judge, was one in respect of which it could be said that "the law was indisputable, and not merely debatable "

9. As earlier mentioned, the order of the Rent Controller dated 22‑1‑1945 was passed under the provisions of the Sind (Residential Premises) Control Order, 1942. According to subsection (3) of section 12 of that Order: "The decision of the Collector and subject only to such decision, an order of the Controller, shall be final and shall not be called in question in any Court." The power to determine fair rent is given to the Rent Controller under section 4 of the Order, and the definitions of `fair rent' are contained in section

5. It is contended that the case of the premises in suit fell under clause (i) of section 5, and not under clause (iii) of that section, as has been misconstrued by the Rent Controller. It is for this reason that the order of the Rent Controller is described as being one without jurisdiction and hence liable to be questioned in a Civil Court. Mr. Nathulal has cited a large number of authorities for the purpose of assisting the Court in determining the correct meaning and interpretation of the term `jurisdiction' in relation to a special tribunal, and the conclusion he wishes me to draw from these authorities is that in taking the mistaken view that the present case fell within the purview of section 5 (iii) of the Sind (Residential Premises) Control Order, 1942, the Rent Controller has acted without jurisdiction. This is one view. There are, however, authorities to the contrary, and in particular, mention may be made of a recent decision in Haji Muhammad Sultan v. M. M. Ispahani Limited (P L D 1960 Kar. 132) in which the question of jurisdiction was considered at some length with reference to the Sind Rent Restriction Act, and the following passage from Halsbury's Laws of England (Ed. III) Vol. 11, page 62, was quoted with approval "Where the proceedings are regular upon their face and the inferior tribunal had jurisdiction, the superior Court will not grant the order of certiorari on the ground that the inferior tribunal had misconceived a point of law. When the inferior tribunal has jurisdiction to decide a matter, it cannot (merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence, or misdirects itself as to the weight of the evidence, or convicts without evidence) be deemed to exceed or abuse its jurisdiction." Thus it will be seen that the question whether the Rent Controller, in this case, acted with or without jurisdiction in passing his order dated 22‑1‑1945, is a highly debatable and controversial question, and for that reason the order passed by Inamullah, J. cannot be said to be suffering from an error apparent on the B face of the record. Even if the learned Judge has adopted a view of law which may be characterised as erroneous, the error is one which has never been considered to be a ground for review, as it is not an error apparent on the face of the record but an error which has to be laboriously and pains takingly discovered with the help of a large number of elaborate and learned authorities. Thus, this is not a case which would fall within the purview of Order XLVII, rule 1 of the Code of Civil Procedure.

10. Apart from the fact that the case does not fall within the purview of Order XLVII, rule 1, C. P. C. for the reasons just mentioned, I have no hesitation in saying that I respect fully agree with the view of law adopted by Inamullah, J. The Rent Controller had full jurisdiction to determine the fair rent of the premises in suit and following Halsbury, it is clear that the mere fact that he misconstrued the provisions of the statute does not make his order one without jurisdiction. The result, therefore, is that the Rent Controller's order cannot be questioned in a Civil Court. That being so, there is no question of reviewing the order of summary dismissal passed by Inamullah, J., in Revision No. 246 of 1958.

11. The result is that I would dismiss the Review Applica tion No. 406 of 1959. The summary dismissal of Revision No. 246 of 1958 will, therefore operate as res judicata in Civil Revision No. 39 of 1959, which also fails on merits in view of my finding that the Rent Controller's order dated 22‑1‑45 cannot be said to be without jurisdiction. Both the applications are, therefore, dismissed with costs. K. M. A. Applications dismissed.