P L D 1971 Lahore 512 (PLP)

ANWARUL HAQ, C. J.‑This appeal under clause 10 of the Letters Patent has arisen out of an Order made by our learned brother Karam Elahee Chauhan, J. on the 29th of October 1970, dismissing the second appeal filed by the present appellant as having abated owing to the death of the respondent landlord Muhammad Ishaque and the failure of the appellant to bring his legal representatives on record within the prescribed period of ninety days. The appeal was directed against the appellate order made by the learned District Judge of Lyallpur on the 27th of November 1964, holding that the appellant had defaulted in the deposit of rent, and for that reason striking off his defence and directing him to put the landlord in possession.

2. The second appeal had been filed in this Court on the 21st of December 1964 and the landlord Muhammad Ishaque died during its pendency on the 19th of June 1967. The appel lant filed an application on the 9th of October 1967 to bring on record the legal representatives of the deceased Muhammad Ishaque. The learned Judge in Chambers has held that according to the Explanation attached to subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), the provisions of Order XXII of the Code of Civil Procedure were applicable in the matter of appeals filed in the High Court against orders made by the Rent Controllers or the Appellate Authorities under the Ordinance, and that the appellant had failed to show sufficient cause for setting aside the abatement.

3. It is submitted by Mr. Ghazanfar Ali Gondal, the learned counsel for the appellant, that the learned Judge in Chambers has erred in thinking that the penal provisions contained in the Civil Procedure Code were applicable to appeals instituted under section 15(4) of the Ordinance, as the Ordinance was a special law and the Rent Controllers functioning there under were not Courts for that purpose. It is further contended that, in any case, under section 107, C. P. C. the High Court could not enjoy more powers than those possessed by the Rent Controllers and the Appellate Authorities under the Ordinance. The learned counsel has referred us to several decided cases in support of the proposition that the proceedings before the Rent Controllers are not governed by the Code of Civil Procedure.

4. It is true that it has been held that a Rent Controller acts as a persona designata under the Ordinance, and that merely by virtue of section 141, Civil Procedure Code, the penal provisions of that Code are not attracted to proceedings before the Rent Controller. See Khadim Mohy‑ud‑Din and another v. Rehmat Ali Nagra and another (P L D 1965 S C 459); Haji Hayat Gul v. Azizul Haq and another (P L D 1966 Pesh. 118), Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali (1968 S C M R 828), Siraj Din v. Mst. Iqbal Begum (P L D 1968 Lah. 639) and Ghulam Muhammad v. Khan Muhammad Sabar Lal (P L D 1969 Lah. 327). This proposition, however, does not conclude the issue before us.

5. Appeal to the High Court are provided for in sub‑section (4) of section 15 of the Ordinance, and the Explanation attached to this subsection contemplates that "an appeal under this section shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller, and as an appeal from an appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings". It seems that the mention of Part VI of the Code in the Explanation is based on a mistake or a misprint, as it is Part VII of the Code which deals with appeals See Roshan Din v. S. M. Badruddin (P L D 1969 Kar. 546). It will be seen, therefore, that whatever the position regarding the applicability of the provisions of the Code of Civil Procedure to proceedings before the Rent Controller or the Appellate Authority, the proceedings in appeals in the High Court are to be regulated by the provisions contained in Part VII and the First Schedule to the same Code relating to appeals. The First Schedule contains Order XXII, rule 4 whereof deals with abatement of suits, and rule 11 lays down that "in the application of this order to appeals, so far as may be, the word `plaintiff' shall be held to include an appellant, the word `defendant' a respondent, and the word `suit' an appeal". It is clear, therefore, that the provisions regarding the abatement of appeals have been made applicable to appeals filed in the High Court under subsection (4) of section 15 of the Ordinance.

6. This position was clarified by their Lordships of the Supreme Court in the case of Begum Humayun Zulfiqar Ismail, already referred to. Their Lordships distinguished between the procedure applicable to appeals filed under subsection (3) of section 15 of the Ordinance before the Appellate Authorities named in the Ordinance, and that applicable to appeals filed in the High Court under subsection (4) of the same section. They took note of the fact that as regards appeals filed under sub section (3) the Ordinance clearly incorporated within it the rule regarding the powers of the Appellate Authority, whereas under subsection (4) the matter was left to be governed by the relevant provisions of the Code of Civil Procedure.

7. There is still another aspect of the matter, as is evident from the observations made by their Lordships of the Supreme Court in the recent case of Hussain Bakhsh v. Settlement Commis sioner, Rawalpindi and others (1). While considering the question whether the High Court was competent to review an order made in exercise of its writ jurisdiction, they have stated that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court's jurisdiction in a civil matter, whatever may be the nature of that jurisdiction. If the principle embodied in these observations be extended to appeals filed in the High Court, then it would appear that, notwithstanding the source or the statute under which the appellate jurisdiction has been invoked, the proceedings in Civil Appeals shall ordinarily be regulated by the provisions contained in the Code of Civil Procedure. However, in view of the specific provisions embodied in the Explanation to subsection (4) of section 15 of the Ordinance, it is not necessary to invoke the general principle enunciated by the Supreme Court.

8. It now remains to deal with the contention that under section 107, C. P. C. the High Court could not enjoy greater powers than those possessed by the Rent Controller. The submis sion is that as Order XXII, or at least its penal provisions do not apply to proceedings before the Rent Controller, the same could not be invoked by the High Court while dealing with appeals under section 15(4) of the Ordinance. The argument is clearly mis conceived as the provision regarding the abatement of an appeal is not a provision conferring any power on the appellate Court; on the contrary, it is simply a provision regulating the procedure which is to be observed in processing the appeal. The only power enjoyed by the appellate Court in this behalf is the power to set aside the abatement if sufficient cause is shown. There is thus no question here of the High Court enjoying powers greater than those of the Rent Controller as the High Court does not order the abatement of the appeal.

9. Secondly, the argument rests on subsection (2) of section 107 which contemplates that subject to the provisions contained in subsection (1) of the same section, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. The argument overlooks the fact that subsec tion (1) of the same section confers certain additional powers on the Appellate Court and those powers are made subject to such condi tions and limitations as may be prescribed. It follows, therefore, that, apart from the powers enjoyed by the Court of the original jurisdiction, the Appellate Court has the powers mentioned in subsection (1) of section 107 of the Code of Civil Procedure. It is, therefore, not correct to say that the Appellate Court does not possess greater powers than those enjoyed by the Court of the original jurisdiction. In any case subsection (2) of section 107 really deals with the powers of the Appellate Court in the matter of deciding on merits the controversy in appeal, and is not exhaustive of the powers for regulating the procedure to be observed in 'processing the appeal. To put it differently, the provisions contained in subsection (2) of section 107 of the Code do not, in any manner, override, or conflict with, the provisions contained in the First Schedule to the Code regarding the disposal of appeals.

10. The position which, therefore, emerges is that the provisions contained in rule 4 of Order XXII of the Code of Civil Procedure, read with rule 11 of the same Code, were fully applicable in the present case, in view of the Explanation to subsection (4) of section 15 of the Ordinance. The appeal accordingly did abate on account of the appellate's failure to bring on record, within the prescribed period, the legal represen tatives of the deceased respondent. As the appellant failed to show sufficient cause for setting aside the abatement, the learned Judge in Chambers was right in refusing to set aside the abate ment. Accordingly, we see no justification to interfere and dismiss the present appeal in limine. K.B.A. Appeal dismissed.