2003 PLP 35 (YLR)

‑‑‑‑Ss. 21 & 21‑A (as inserted by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]‑‑‑Civil Procedure Code (V of 1908), Ss. 4, 12(2) & 150‑‑‑Judgment passed in First Rent Appeal by High Court‑‑ Application under S.12(2) read with S.151, C. P. C., for setting aside such judgment after insertion of S.21‑A in Sindh Rented Premises Ordinance, 1979‑‑‑Maintainability‑‑‑Remedy by way of an application under S.12(2), C. P.C., would lie before Appellate Authority as all such proceedings could be entertained and disposed of in first appeal by District Judge now vested with such jurisdiction‑‑ High Court sent such applications to the District Judge for disposal on merits. Amanullah Khan Leghari v. Adib Shaikh Ahmed First Rent Appeal No. 423 of 1995 and United Bank Limited v. Messrs J. Tylor & Co. Ltd. 2002 CLD 917 ref. Zubaida Khatoon v. Administrator, Union Council Uch Gillani, Tehsil and District Bahawalpur and another 1996 MLD 1689; Mst. Asia Bano v. The Rent Controller, Gujranwala etc. 1991 MLD 813; Muhammad Yousuf through legal heirs and others v. Noor Din and others PLD 2002 SC 391; Abid Kamal v. Muddassar Mustafa and others 2000 SCMR 900 and Pakistan Burmah Shell v. Hashwani Sales and Services Ltd. F.R.A. No. 748 of 1983 ref. Maqbool Baqar for Appellant. Zafar Hadi Shah for Respondent. Dates of hearing: 7th and 8th August, 2002. The question that has arisen for determination is whether this Court has jurisdiction to hear an application under section 12(2) read with section 151, C.P.C. seeking set aside of the judgment, dated 15‑12‑2000 recorded in above first rent appeal on the ground, inter alia, that said judgment was obtained by misrepresentation and fraud through active concealment of facts. Mr. Maqbool Baqar, learned counsel appearing , on behalf of the appellant contended that since the judgment impugned in the listed application was passed by this Court, therefore, it is the Court before which the cause of action to move listed application has accrued. He, therefore, contended that the application may be heard and decided by this Court. Learned counsel attempted to distinguish the transfer of the case effected after establishing of the Banking Court under the Banking Companies (Recover if Inane Advances, Credits and Finances) Act, 1997 and Financial Institutions (Recovery of Finances) Ordinance, 2000. Section 7(6) thereto, provided for transfer of all the pending proceedings to the newly‑created Banking Court. According to him no such provision is contained in section 21‑A inserted vide Sindh Rented Premises (Amendment) Ordinance, 2001 (hereinafter referred to as the "Ordinance XIV of 2001 "). In support of his contention, he relied upon the case‑laws reported as (1) Zubaida Khatoon v. Administrator Union Council UCH Gillani, Tehsil and District Bahawalpur and another (1996 MLD 1689), (2) Mst. Asia Bano v. The Rent Controller, Gujranwala etc. (1991 MLD 813), (3) Muhammad Yousuf through Legal Heirs and others v. Noor Din and others (PLD 2002 SC 391) and (4) Abid Kamal v. Muddassar Mustafa and others (2000 SCMR 900). In contra, Mr. Zafar Hadi Shah, learned counsel for the respondent relied upon unreported judgment of this Court recorded in First Rent Appeal No. 423 of 1995, Mr. Amanullah Khan Leghari v. Adib Shaikh Ahmed, wherein, this Court directed all the applications under Order IX, rule 13, C.P.C. to be transferred to the Appellate Court constituted under the Amending Ordinance, XIV of 2001 referred to above. I have heard the arguments of learned counsel of the parties, perused the material available on record and examined the case laws cited by both the learned counsel. Fact shows that the instant appeal was decided alongwith a large number of First Rent Appeals in which leading case being F.R.A. No. 748 of 1983 (Pakistan Burmah Shell v. Hashwani Sales, and Services Ltd. whereby the ejectment orders passed in favour of the respondents/landlords on the ground of reconstruction with reservation of tenants rights under section 13(5‑B) of the West Pakistan Urban Rent Restriction Ordinance, 1959 vide judgment dates 15‑12‑2000 was maintained. It appears that the appellant was not satisfied with the judgment recorded in this appeal, filed the listed application (C.M.A. No. 1332 of 2002 . on 10‑6‑2002 under section 12(2), C. P. A. together with an application (C.M.. No. 1333 of 2002) seeking stay of operatic. of the impugned judgment and execution proceeding. In order to appreciate the contention of learned counsel, it will be advantageous to reproduce section 7(6) of the Banking Companies (Recovery of Loan, Advances, Credits and Finances) Act, 1997 and section 21‑A added to Sindh Rented Premises Ordinance, 1979 vide Ordinance XIV of 2001. Section 7(6) of the said Act, 1997 reads as follows: "All proceedings, including proceedings following the tiling of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Banking Court, pending in any Special Court constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979), or under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XXV of 1997), or any Banking Tribunal under the Banking Tribunals Act, 1984 (LVIII of 1984), or any other Court including a High Court shall stand transferred to, or be deemed to be transferred to, the Banking Court having jurisdiction. On transfer of proceedings under this subsection, a Banking Court shall required the attendance of the parties through notices issued in accordance with the procedure for service of summons or notice laid down in subsection (3) of section 9." Section 21‑A of Sindh Rented Premises Ordinance, 1979 (Ordinance XIV of 2001) which is as follows: "21‑A. All appeals tiled under this Ordinance and pending in the High Court immediately before the commencement of the Sindh Rented Premises (Amendment) Ordinance, 2001, shall stand transferred to the District Judge having jurisdiction as provided in subsection (1) of section 31, for disposal: Provided that the appeals as are fixed for judgments shall be disposed by the High Court." It may be pointed out that under the unamended section 21 of Sindh Rented Premises Ordinance, 1979 appellate forum against the order of Rent Controller was High Court. By virtue of the amendment, as reproduced above, the forum of appeal has since now been conferred on District Judge. Appellate jurisdiction under the new scheme of Rent Law now vests in the District Judge. The judgment impugned herein was passed by an Appellate Authority earlier vested with the jurisdiction. Same jurisdiction by virtue of amendment in rent law now vests in another Court. It is settled position in law that no party can claim any right in forum that is available to hear a particular cause that may have arisen in a particular matter. Where Special Law confers exclusive jurisdiction in a Court, forum or tribunal created for the purpose or takes away such jurisdiction and/or confers the same on another Court, forum or a tribunal already existing or especially created to adjudicate and decide a particular cause then it is the Court, forum or tribunal which at the point in time when the cause is ripe for hearing will have jurisdiction to hear and decide such cause unless it is provided otherwise in law effecting change in forum. It is so provided under section 4 of C.P.C. that whenever a special jurisdiction is created or power is conferred on a Special Court or designated forum then unless a contrary intention is expressed in the amending law the jurisdiction in respect of the cause pending will stand conferred and transferred to such newly created forum or on Court upon which such jurisdiction has been conferred. By creation of such a forum or conferring a particular jurisdiction on a Court other than the one in which such jurisdiction was earlier vested will not prejudice the substantive right that might have accrued to a person. In terms of section 150, C.P.C. as well, in cases where the entire business of the Court is transferred to the jurisdiction of another Court, then the transferee Court, upon which such jurisdiction is conferred by transfer of business, under law also has jurisdiction to C hear and decide all incidental applications and proceedings arising therein including application for setting aside of judgment and decree either under Order 9, rule 13, C.P.C. or under section 12(2), C.P.C. as the case may be. Respondent through listed E application under section 12(2), C.P.C., by and large seeks setting aside of a judgment and decree. In the case of Amanullah Khan (supra) application under Order 9, rule 13, C.P.C. seeking setting aside of judgment in first rent appeal rendered by this Court as an "Appellate Courts" when moved, was transferred to the District Judge, the Appellate Forum as provided for under the amended Ordinance, 2001. In a case reported as United Bank Limited v. Messs J. Tylor & Co. Limited (2002 CLD 917). In said case, the matter was remanded by the Hon'ble Supreme Court and the dispute arose that whether the controversy raised would be decided by this Court under its ordinary civil jurisdiction under section 9, C.P.C. or by the Banking Court establishment under the Banking Law. It was held, that where a special law confers exclusive jurisdiction by creating Special Court or forum created for the purpose, then ordinary jurisdiction conferred under the General Law would not be available. In view of the foregoing discussion, I am of the view that the remedy by way of an application under section 12(2), C.P.C. in first rent appeal would lie before the Appellate Authority since now vested with the District Judge. Therefore, all such proceedings could be entertained and disposed of accordingly in first rent appeal by the District Judge now vested with such jurisdiction. Let the file be sent immediately to the learned District Judge, Karachi South within whose jurisdiction subject tenement is situated. The parties are directed to appear before the learned District Judge, Karachi. South, on 5th October, 2002 on which date the learned District Judge, shall fix a date of f hearing after giving an opportunity of being heard to both the parties and dispose of the case on merits either by himself or may transfer the same to any other Additional District Judge for disposal according to law. Interim order shall remain in force till 5th October, 2002 whereafter the learned District Judge or Additional District Judge, as the case may be, may pass any appropriate order as it may deem fit. S.A.K./C‑56/K Order accordingly.