P L D 1963 (W (PLP)

Muhammad Hussain for Petitioners. Siraj‑ud‑Din Pal for Respondents. Date of hearing : 17th April 1963. This revision petition is directed against an order passed by Mr. Jamil Asghar, District Judge, Lahore, on the 30th of October 1962. Briefly, the facts are that the respondent Muhammad Hafeez filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for the ejectment of respondent No. 2, Muhammad Din. This application was accepted on the 27th of February, 1960, by Mr. Ishaq Rahim Bakhsh, Senior Civil Judge, Lahore, acting as Rent Controller. The two petitioners Abdur Rashid and Mst. Hashmat Bibi, went up in appeal against that order, but the same was dismissed on the ground that the petitioners were not parties to the ejectment proceedings initiated by the respondent Muhammad Hafeez. The petitioners then moved an application under section 476 of the Criminal Procedure Code, praying that action be taken against respondent Muhammad Hafeez and his guardian‑ad‑litem Abdul Majid for suppressing true facts from the Court regarding the tenancy of the petitioners. This application was also dismissed and the petitioners were advised to move under Order XXI, rule 99 of the Civil Procedure Code. Accordingly, the petitioners made an application to the executing Court, namely, the Senior Civil Judge, on the 25th February 1961, stating that they were tenants directly under the landlord Muhammad Hafeez and were not sub‑tenants of respondent Muhammad Din. This application was accepted by the learned Senior Civil Judge by his order dated the 30th of September 1961. As a necessary corollary, he dismissed the execution application filed in his Court by the respondent Muhammad Hafeez.

2. Muhammad Hafeez then went up in appeal to the District Court, and the same was accepted by the learned District Judge on the 30th of October 1962. After reviewing the evidence of the parties at some length, the learned District Judge came to the conclusion that the objectors (i.e., the two petitioners before me) were sub‑tenants and were not living in the house in dispute in their own independent right as direct tenants under the decree- holder. For this reason, he held that the decree against Muhammad Din was binding on these two persons also. Accordingly he ordered the ejectment of the petitioners from the house in dispute.

3. The only point raised by Mr. Muhammad Hussain, the learned counsel for the petitioners, is that the order Passed by the learned Senior Civil Judge under the provisions of Order XXI, rule 99 of the Civil Procedure Code was not appealable to the District Judge and, therefore, the learned District Judge * * * * * * * * * * * had no jurisdiction to deal with the matter. This question of jurisdiction and competency of the appeal was raised before the learned District Judge also, and he expressed the view that the appeal was competent in view of certain amendments effected in the Civil Procedure Code by the amending Ordinance XLIV of 1962, promulgated on the 7th of June 1962.

4. The subject of first appeals is dealt with in section 96 of the Civil Procedure Code, which lays down that "an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court". The word `decree' is defined in clause (2) of section 2 of the Civil Procedure Code as meaning "the formal expression of an adjudication which, so for as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144". According to this definition, any order passed in execution proceedings under rules 97 to 99 of Order XXI of the Civil Procedure Code, is not to be regarded as a decree, and, therefore, no appeal would lie against it under the provisions of section 96 of the Civil Procedure Code. It was, however, contended by Mr. Siraj‑ud-Din Ahmad Pal that the order passed by the learned Senior Civil Judge on the 30th of September 1961 also directed the dismissal of the execution proceedings initiated by the respondent Muhammad Hafeez, besides adjudicating upon the rights of the two petitioners as against the respondent‑landlord, and therefore, that order should be deemed to fall partly under section 47 of the Civil Procedure Code, and partly under Order XXI, rule 99, and hence included in the definition of the word `decree' as it stood before the recent amendments. In support of this contention, the learned Counsel for the respondent referred to Syed Saeed Ahmad v. Syed Raza Hussain and others (A I R 1933 All. 57), in. which it was laid down that where a case fell both under section 47 and under some rule in Order XXI, there would be no prohibition against a second appeal.

5. It will be seen that the question for determination in such a case would be whether the order passed in execution proceed ings does fall partly under section 47 of the Civil Procedure Code, or whether it falls exclusively within the purview of Order XXI. Section 47 of the Civil Procedure Code lays down a procedure for the determination of "all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree". It is necessary, therefore, for the application of section 47 that the questions arising should be between the parties to the suit or their representatives. In the present case the two petitioners were not parties to the suit, namely, the ejectment proceedings before the Rent Controller, in which the order of ejectment was passed against Muhammad Din. Nor do the petitioners fall within the purview of the term "representatives of the parties to the suit" for the simple reason that they are not claiming through Muhammad Din, but are asserting their own independent right as direct tenants of the respondent Muhammad Hafeez. The position, therefore, that emerges is that the order passed by the learned Senior Civil Judge on the 30th of September 1961, is not an order partly covered by section 47 of the Civil Procedure Code ; and for that reason it cannot be deemed to be a decree, against which an appeal could have been preferred under section 96 of the Civil Procedure Code, as that Code stood before the amendments introduced on the 7th of June 1962.

6. Appeals against orders are provided for in Order XLIII of the Civil Procedure Code and it would appear from clauses (i) and (j) of rule 1 of that Order, that appeals are competent in respect of orders passed under rules 34, 72 and 92 of Order XXI. It is, therefore, clear that even under Order XLIII of the Civil Procedure Code no appeal lay against the order of the Senior Civil Judge passed on the 30th of September 1961.

7. The result, therefore, is that the appeal filed by the respondent Muhammad Hafeez in the District Court on the 31st of October 1961 was incompetent under the Civil Procedure Code as it then stood, and the learned District Judge had no jurisdiction to proceed with it. The question, however, is whether the amendments made in the Civil Procedure Code by the amend ing Ordinance XLIV of 1962 have any effect in the matter. The definition of the word `decree' has been amplified so as to include an order passed under rules 96, 97, 99, 101 and 103 of Order XXI. In other words, the order of the learned Senior Civil Judge passed on the 30th of September 1961, would not be deemed to be a decree under the amended definition and, therefore, be appealable under section 96 of the Civil Procedure Code.

8. According to the section 59 of the amending Ordinance the new provisions shall, as far as practicable, apply to all suits appeals and other proceedings pending before a Court immedi ately before the promulgation of this Ordinance. It is, however, clear that the phrase "pending proceedings" means such proceed ings (or suits etc.) only which were competent under the law, as it stood before the amendments, and cannot be interpreted to include proceedings which were not covered by the then existing law. The provisions of section 59 of the amending Ordinance cannot be used to confer, with retrospective effect, legality or validity upon such incompetent proceedings. The appeal filed by the respondent in the District Court cannot, therefore, be treated as a pending proceeding for the purpose of the application of the amendments introduced in the Civil Procedure Code.

9. However, the matter does not rest there. Although no appeal lay against the order of the Senior Civil Judge passed on the 30th of September 1961, a revision could have been filed in the High Court against that order and, if such a revision had been pending in this Court on the 7th of June 1962, it would have been governed by the amendments introduced by Ordinance XLIV of 1962, with the result that it had to be treated as an appeal from an order or decree ; and being a first appeal it would have been within the jurisdiction of the District Court.

10. It was submitted by Mr. Siraj‑ud‑Din Ahmad Pal, the learned counsel for the respondent, that he filed the appeal in the District Court under a misapprehension, viz., that he considered that the matter was governed by section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, as would appear from the citation of this section along with section 96, Civil Procedure Code, in the heading of the appeal filed by the respondent in the District Court. This was a bona fide mistake on the part of a senior counsel and I think that the appeal should be treated as a revision filed in the High Court and the delay, if any, condoned on the principles embodied in section 14 of the Limitation Act. As that revision petition would have been a pending proceedings within the meaning of section 59 of the amending Ordinance, it would have had to be transferred to the District Court, after the introduction of the procedural amendments on the 7th of June 1962, so as to be disposed of as a first appeal by that Court.

11. For the reasons given above, I have come to the conclusion that the order of the District Judge passed on the 30th of October 1962, in the respondent's appeal against the order of the executing Court dated the 30th September 1961, should now be regarded as a valid order. Once that is done, there is no merit in the present revision petition, as the question decided by the learned District Judge is one of fact, namely, whether the petitioners were sub‑tenants of Muhammad Din or whether they were tenants of respondent Muhammad Hafeez in their own independent right. The finding of the learned District Judge is based on a detailed appraisal of the evidence adduced by the parties, and cannot be interfered with in revision. The revision petition, therefore, fails and is dismissed. In view, however, of the legal question involved, the parties are left to bear their down costs. K. B. A. Petition dismissed