1989 PLP 1934 (CLC)

The respondent filed application for ejectment of the appellant on the ground of default in payment of rent. She has claimed that the agreed rent was Rs.500 per month, but later it was increased to Rs.800 P.M. and the appellant has defaulted in its payment since long. In the written statement the appellant denied that the rent was increased from Rs.500 to Rs.800 P.M. and stated as follows:‑ "The correct position is that from November, 1979, the applicant gave her telephone to the opponent and he paid its charges whatever it might be, whether Rs.300.00 or Rs.400.00 or even more according to the bill received and the applicant shared only a little amount for the calls she made. This arrangement cannot be termed in any way an increment in the monthly rent:" The respondent filed an application under section 16(1) and by order dated 24‑5‑1988 the learned Controller tentatively held that Rs.800 was the rent and directed to deposit the arrears of rent of Rs.32,502 on or before 31‑7‑1988 and also deposit the rent for the month of May 1987 (which should be 1988) @ Rs.800 P.M. plus Rs.15 for gas charges on or before 10th of June 1988 and that he should continue to deposit rent and gas charges for future on or before 10th of every succeeding month at the above rate. The respondent was directed not to withdraw rent @ Rs.300 P.M. till the final disposal of the case. The appellant filed an application for review of this order which remained pending and in the meantime the date fixed for deposit of rent expired and the appellant defaulted. The respondent filed an application under section 16(2) of the Sind Rented Premises Ordinance, 1979 and the learned Controller by the impugned order has struck off the appellant's defence and ordered for ejectment. Mr. Muhamamd Yousuf the learned counsel for the appellant has contented that the Review Application was wrongly rejected as the Controller has the power .to review his order and discrepancies on the face of the record were shown, he should have exercised such power. In support of his contention the learned counsel has referred to Mst. Khalida Begum v. Mst. Amtul Baqi and others 1988 CLC 306 where it was held that by invoking section 20 of the West Pakistan General Clauses Act, a Controller is empowered to exercise review under the Statute. Mr. M.M. Mahmoodi the learned counsel for the respondent who has appeared on pre‑admission notice contended that the Controller has no power to review his own order. With respect I am unable to agree with the judgment in Khalida Begum's case cited above for the simple reason that appeal and review are the creature of the Statute itself, and unless the Statute provides, such a power, the power to review cannot be exercised either under the inherent A power nor under section 20 of the West Pakistn General Clauses Act. In this regard reference can be made to the observation in Ainul Haq v. Shahid Ahmad Perwaiz 1984 CLC 47 in which Naimuddin, J. (as he then was) dealing with similar case under the Sind Rented Premises Ordinance 1979 observed that "right of appeal and review is a substantive right which must be conferred by the Statute and m the absence of any provision of revision in the Statute power of review cannot be exercised in proceedings under that Statute". This observation is based on the following judgments of the Supreme Court:‑ (1) Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94. (2)Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1. (3)Evacuee Trust Property Board v. Sh. Hameed Elahi and others PLD 1981 SC

108. In view of the judgments and authorities of the Hon'ble Supreme Court and a judgment of our own Court I regret, I am unable to agree with the observation in Khalida Begum's case that Controller has power to review his own order. I hold that the Controller has no power to review his own order under the Statute. The second ground pressed by the learned counsel for the appellant is that the Controller has wrongly held in the order dated 24‑5‑1988 that the appellant had admitted the rent to be @ Rs.800 P.M. In this regard the learned counsel has also referred to the impugned order in which an observation has been made that the Controller that his predecessor has wrongly stated that the appellant had admitted the rent to be Rs.800 P.M. The Controller while fixing the rent tentatively under section 16(1) had taken into consideration the written statement and the statement of account filed by the parties. He had observed that the appellant had admitted rent of Rs.800 but with certain reservation and explanations. Such reservations have already been quoted above from which it is clear that the appellant has pointedly mentioned that besides the rent for Rs.500 at least Rs.300 or Rs.400 was to be paid to the respondent. Whether this was an additional rent or by way of telephone charges is a matter which is to be decided after the final hearing. Therefore, there is no dispute that the appellant had agreed to pay Rs.500 plus Rs.300 to the respondent. The learned Controller taking this plea in the written statement has rightly observed that appellant had agreed to pay at least Rs.800 and because this amount of Rs.300 is disputed only to the extent whether it is rent or telephone charges, the same shall not be paid to the respondent. The order under section 16(1) was, therefore, justified IInd legal. It has taken into consideration all the payments and admissions that have been made by the appellant. The appellant has not shown any valid ground for not depositing the rent in terms of order dated 16(1), therefore, there is a clear default and the learned Controller has rightly struck off the defence. The appeal is dismissed in limine. Four months time is allowed to the appellant to vacate the premises. If the appellant fails to vacate the premises within four months writ of ejectment shall be issued without notice. H.B.T./A‑592/K Appeal dismissed.