1991 PLP 813 (MLD)

Muhammad Akram Sheikh for Petitioner. A. Karim Malik for Respondents. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the order, dated 31st July, 1990, passed by Rent Controller, Gujranwala, dismissing an application under section 12(2) of the Code of Civil Procedure, filed by Mst. Aasia Begum, the petitioner herein, challenging the order of ejectment obtained by respondent No.2 Sheikh Manzoor Ahmad against respondents Nos.3 to 5.

2. The facts necessary for the disposal of this petition are that on 18th February, 1986, Sheikh Manzoor Ahmad, respondent No.2, filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, against respondents Nos.2 to 4 alleging that they were in possession of Property No. 135-36/D Satellite Town, Gujranwaia, as tenants under him and are liable to be ejected on the grounds of default in the rent for seven months and use of the sons of the petitioner. This application came up for hearing before the Rent Controller on 19th February, 1986, who directed that the notices be issued to the respondents in the ejectment petition for 9th March, 1986. It appears however, that on 24th February, 1986, an application was presented by respondent No.2 and respondents Nos.3 to 5 that the parties had entered into a compromise. On this application, the case was taken up on 24th February, 1986, for hearing the same day and the statements of Sh. Shaukat Javed, respondent No.3 (who is the husband of the petitioner) as also Sh. Ghulam Ahmad? Advocate, representing respondents Nos-3 to 5 before the Rent Controller were recorded wherein they agreed to vacate the premises by 31st July, 1987, subject to the condition that respondent No.3 does not claim any future rent. This offer was accepted by Sh. Muhammad Yousaf, Special Attorney of respondent No.2 as also his learned counsel. Acting on these statements, Rent Controller accepted the ejectment petition and directed that the respondents vacate the premises by 31st July 1987.

3. Mst. Aasia Bano petitioner who, ask already stated, is the wife of respondent No.4 Sh. Shaukat Javed, riled an application under section 12(2) of the Code of Civil Procedure, 1908, alleging that a fraud had been practised on the Rent Controller by the respondents Nos.2 to 5 in collusion with each other, with a view to deprive her of the property of which she was in possession as its owner. The application was contested by respondent No

2. One of the objections raised by him was that the application under section 12(2) of the Civil Procedure Code was not maintainable. The Rent Controller after framing the necessary issues, recorded the evidence of the parties. He on 31st July, 1990 repelled the objection to the maintainability of the application but held on merits that no fraud or misrepresentation had been practised by the respondents upon the Rent Controller and dismissed the application under section 12(2) of the Civil Procedure Code filed by the petitioner.

4. Mr. Muhammad Akram Sheikh, learned counsel for the petitioner has addressed lengthy arguments on the merits of the case and also on the maintainability of the application under section 12(2) of the Civil Procedure Code. Mr. A. Karim Malik, learned counsel for respondent No.3, who has appeared in response to the pre-admission notice has also been heard. 'The first question which arises to deal with the arguments on merits is as to the maintainability of application under section 12(2) of the Civil Procedure Code, 1(X

18. It cannot be disputed that a Rent Controller is not a Court and the provisions of Civil Procedure Code are not applicable to the proceedings before him. Section 12(2), Civil Procedure Code is not merely procedural in nature but it also confers a substantive right upon a person to have the decision of a Court annulled by it on certain grounds. A remedy provided by section 12(2) is akin to review though on different grounds. It is well-settled that review is not a matter of procedure alone and the right to review cannot be inferred but must be specifically conferred. (see Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1). As the Rent Controller is not a Court, it can, if it so chooses, follow the procedural provisions of the Civil Procedure Code, but the substantive provisions contained therein like appeal, review or for that matter section 12(2) cannot be said to be applicable to proceedings before it. This aspect of the matter need not be dilated upon any further, in view of the authority of the Supreme Court in Rehmat Ullah v. Ali Muhammad and another 1983 SCMR 1064 wherein while dealing with the applicability of section 12(2) of the Code of Civil Procedure vis-a-vis. the proceedings under the Punjab Urban Rent Restriction Ordinance, 1959, it was observed that:-- "and in other yet a category of the cases the provisions of subsection (2) of section 12, C.P.C. have been pressed in service, notwithstanding the fact that they applied to the Court and not to the Tribunal like Rent Controller. It appears that in the last mentioned category, the provision could be made only when the case under the Rent Restriction Law had passed through the Appellate Court and/or the superior Court. There does not seem to be any difficulty in including the Appellate `Court under the Rent Restriction Ordinance within the connotation of the expression `the Court which passed the final judgment...' used in section 12(2) of the C.P.C. because, it is now an established law in Pakistan that the District Judge when acting as an appellate forum, under section 15 of the Rent Restriction Ordinance (only after the relevant amendment made therein) acts as a Court and/not as a persona designata and same would apply to the superior Courts when they deal with the matter either in appeal and/or in the Constitutional jurisdiction."

6. It becomes clear from the above pronouncement that it is only where the proceedings arising out of Punjab Urban Rent Restriction Ordinance, 1958, have passed through the appellate to the superior Courts that the application under section 12(2), Civil Procedure Code can be maintained. If, however, the case never reached that stage and had remained with the Rent Controller, such an application cannot be filed.

7. It may, however, be stated to the credit of the learned counsel for the petitioner that he has relied upon the following precedents:-- (i) Mamoor Khan v. Nasiruddin alias Nasir Muhammad and 5 others 1985 C L C 130; (ii) Shah Muhammad and another v. Haji Muhammad and 6 others 1989 S C M R 1420 and (iii) Tanveer Jamshed and another v. Raja Ghulam Haider 1987 S C M R 2006. The first judgment, no doubt, supports the argument of the learned counsel for the petitioner, but I am unable to place any reliance in view of the authority of the Supreme Court in Rehmat Ullah's case. As regards the other two cases, only leave has been granted by the Supreme Court. But so far as this Court is concerned, Rehmat Ullah's case being the law declared by the Supreme Court has binding effect in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. The petition is, therefore, liable of be dismissed on the ground that application under section 12(2) of the Civil Procedure Code, out of which these proceedings have arisen was not maintainable before the Rent Controller. The result is that this petition is dismissed in limine. SA./A-1187/L Petition dismissed.