1984 PLP 3486 (CLC)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 15 (4)‑Order passed 'on appeal' and other orders passed `in the appeal' in exercise of appellate jurisdiction‑Distinc tion‑Order passed by Appellate Authority refusing to set aside his appellate ex parte order, held, not passed on appeal‑Rent Controller passing ejectment order against appellant -Appellant's appeal against such order dismissed in default‑ Application for restoration of application also dismissed‑He/d: Order passed by Appellate Authority refusing to set aside his appellate ex parte order, being not an order passed on appeal, was not appealable to the High Court under S. 15 (4) of Ordinance and as such second appeal against first appellate ex parte order was patently barred by time. Din Muhammad v. Hidayat Hussain P L D 1968 Lah. 207 ; Ghulam Mustafa v. Waqar Ahmad P L D 1980 S C 9 and Raza Ali v. Ahmed Saeed Khan 1983 C L C 1230 fol. N. Q. Industries v. Bapai Kalkhusro P L D 1968 Kar. 589 ref. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 15 (4)‑Limitation Act (IX of 1908), Ss. 5 & 14‑Second appeal‑Sections 5 & 14, Limitation Act, 1908, held, not appli cable to second appeals under section 15 (4) of Ordinance 1959. Syed Muhammad v. Mazhar Ali Khan P L D 1981 Kar. 76 ref. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑S. 15 (4)‑Provisional Constitution Order (1 of 1981), Art. 9 Writ‑Second appeal‑Conversion of second appeal into Consti tutional petition, held, permissible there being no legal bar to such conversion. Shabbir Hussain v. Chief Settlement Rehabilitation Commissioner 1970 S C M R 44 ; Muhammad Nazir v. Ghulam Muhammad P L D 1979 Notes 45 at p. 31 and Akhtar Nasimi v. Martial Law Administration P L D 1982 Kar. 130 ref. (a) Order, dated 21st March, 1979 dismissing the Rent Appeal in default ; (b) Order, dated 12th February, 1980 dismissing the restoration application filed under Order XLI, rule 19, C. P. C. ; and (c) Order, dated 18th August, 1980 dismissing the application under section 151, C. P. C. filed by the appellant for restoration of the restoration application. I have heard Mr. Malik Muhammad Saeed, learned counsel for the appellant and Mr. Hafiz Abdul Baqi, learned counsel for the respondent.

2. The averments on behalf of the appellant that the dates on two occasions were wrongly noted in the diary of the learned counsel for the appellant are not denied by Mr. Hafiz Abdul Baqi, learned counsel for the respondent. According to the learned counsel for the respondent, on merits, he was not disputing the case put up on behalf of the appellant. However, according to Mr. Hafiz Abdul Baqi Advocate the present Second Appeal filed under section 15(4) of the 1959 Rent Ordinance is hopelessly barred by time and is liable to be dismissed a.; such. Section 15(4) of the 1959 Rent Ordinance makes pro visions for filing of a second appeal against an order passed "on appeal" within 30 days from the date of the order of the First Appellate Authority. This provision of law is reproduced here :‑ "Any party aggrieved by an order passed on appeal by the Appellate Authority appointed by the Government under clause (a) of sub section (I), and if an Appellate Authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may within 30 days from the date of the order of Appellate Authority or, as the case may be, of the Con troller, prefer an appeal in writing to the High Court and the decision thereof shall be final. "According to Mr. Hafiz Abdul Baqi, Advocate an appeal under section 15(4) of the 1959 Rent Ordinance is competent against an order passed on appeal by the First Appellate Authority within 30 days from the date of the order of the Appellate Authority and in the ins‑ant case the order, dated 21st March, 1979 dismissing the appeal in default by the First Appellate Authority is the order on appeal and no appeal was filed against the order, dated 21st March, 1979 within 30 days. According to the learned counsel for the respondent, the present appeal has been filed on 9th August, 1980 i.e. after nearly 15 months of the order, dated 21st March, 1979 dismissing the first appeal. As regards the two other orders passed by the First Appellate Authority that is the order, dated 12th February, 1980 dismissing the restoration application and the order, dated 18th August, 1980 dismissing the application for restoration of the restoration application, the contention of the learned counsel for the respondent is that these two orders are not orders on appeal but orders passed in appeal and no appeal is competent under section 15(4) of the 1959 Rent Ordinance against these two orders, dated 12th February, 1980 and 18th August, 1980. In support of his contention, learned counsel for the respondent has relied upon the following reported judgments :‑ (i) Din Muhammad v. Hidayat Hussain P L D 1968 Lab. 207. (ii) Ghulam Mustafa v. Waqar Ahmad P L D 1980 S C 9. (iii) Raza Ali v. Ahmad Saeed Khan 1983 C L C 1230. In P L D 1968 Lab. 207 a learned single Judge of the Lahore High Court was of the view that an order passed by the First Appellate Authority refusing to set aside his appellate ex parte order was not an order passed 'on' appeal and consequently such order was not appealable to the High Court under section 15(4) of the 1959 Rent Ordinance. In P L D 1980 S C 9, the Hon'ble Supreme Court noted the distinction between the orders passed on appeal and other orders including those passed in the appeal in exercise of appellate jurisdiction. It was held that only orders passed on appeal were open to second appeal before the High Court and not any order passed in exercise of appellate jurisdiction by the First Appellate Authority. However, in that case, the Supreme Court held that an order passes by the First Appellate Authority remand ing the case to the Controller was an order taking the list out of ambit of appellate forum and sending it to lower forum for fresh adjudication and was therefore an order passed on appeal and hence a second appeal against such remand order passed by the First Appellate Authority was competent. The third judgment relied upon by Mr. Hafiz Abdul Baqi, learned counsel for the respondent, !983 C L C 1230, is by a learned Single Judge of this Court. The facts in 1983 C L C 1230 are more or less similar to the facts in the instant case except that on merits in that case the plea raised on behalf of the tenant was opposed by the respon dent. The learned Single Judge of this Court accepted the plea on merits raised on behalf of the tenant but then dismissed the appeal on the preliminary objection raised on behalf of the landlord that no appeal lies to the High Court from an order passed by the First Appellate Court in exercise of its jurisdiction under section 15(1) of the 1979 Rent Ordi nance refusing to set aside his appellate ex parte order and rejecting the application for re‑admission of the appeal. In that Karachi case the second appeal had been filed by the tenant against the order passed by the First Appellate Authority rejecting the application made for re‑ad. mission of the appeal. It was held that such an order of the First Appellate Authority was an order passed in appeal and it was not an order on appeal within the meaning of section 15(4) of the 1959 Rent Ordi nance and therefore such an order was not appealable in second appeal to the High Court. '

3. On the other hand learned counsel for the respondent relied upon a decision of Noorul Arfin, J. in the case of N. Q. Industries v. Bapai Kaikhusro (P L D 1968 Kar. 589) in support of the contention that the impugned orders, dated 12th February, 1980 and 18th August, 1980 were also appealable under section 15(4) of the 1959 Rent. Ordinance. In P L D 1968 Kar. 589, the ejectment application had been granted by Controller ex parte but on the same day an application was made under Order IX, rule 13, C. P. C. for setting aside the ex parte order but the application was later on dismissed. First appeal was filed by the tenant but the First Appellate Authority dismissed the first appeal of the tenant on the ground that no appeal was provided to the First Appellate Authority under section 15(1) of the 1959 Rent Ordinance. The tenant came in second appeal before the High Court which was allowed by Noorul Arfin, J. It was held by Noorul Arfin, J. that the powers to make orders under the 1959 Rent Ordinance implies by necessary implication, power to rescind, recall, vary, alter, or add to these orders and that the order of the Controller refusing to recall his earlier ex parte order of eviction was itself an order made under section 13 of the 1959 Rent Ordinance and was accordingly appealable to the First Appellate Authority. In that judgment, P L D 1968 Lab. 207 was discussed and it was observed that the Lahore judg ment would not be applicable with regard to the point at issue before Noorul Arfin, J. In his judgment Noorul Arfin, J. was of the opinion that an order refusing to set aside an ex parte order approximates in nature to an order of eviction under section 13 and therefore is itself an order under section 13 of the 1959 Rent Ordinance. If the view in P L D 1968 Lab. 207 by a learned Single Judge of the Lahore High Court that an order passed by the First Appellate Authoritvl refusing to set aside his appellate ex parte order is not appealable to the High Court under section 15(4) of the 1959 Rent Ordinance being not an order passed on appeal, is followed, the present second appeal is patently barred by time, as the order which dismissed the first appeal of the appellant is, dated 21st March, 1979 whereas the present second appeal was filed on 9th August, 1980. As already observed, Mr. Justice K.A. Ghani of this Court in 1983 C L C 1230 took the same view as has been taken in P L D 1968 Lab. 207, observing that the judgment in P L D 1968 Lab. 207 was cited with approval by the Honourable Supreme Court in P L D 1980 S C

9. The principle that a second appeal lay against an order on appeal of the First Appellate Authority and did not lie against orders passed in appeal laid down by the Lahore High Court in P L D 1968 Lab. 207 has been followed by a learned Single Judge of this Court in 1983 C L C 1230. Furthermore the principle that an appeal lay to the High Court under section 15(4) of the 1959 Rent Ordinance only against orders on appeal passed by the First Appellate Authority has also been confirmed by the Supreme Court in P L D 1980 S C

9. The judg ment of Noorul Arfin, J. in P L D 1968 Kar. 589 will not support the case of the appellant as Noorul Arfin, J. was dealing with section 15(1) of the 1959 Rent Ordinance that is an appeal from an order made by the Con troller to the First Appellate Authority, whereas the point in this second appeal is the interpretation of "an order passed on appeal by the Appel late Authority" employed in section 15 (4) of the 1959 Rent Ordinance. The orders, dated 12th February, 1980 and 18th August, 1980 passed by the First Appellate Authority in the instant case are not orders passed on appeal to make them appealable under section 15 (4) of the 1959 Rent Ordinance.

4. Mr. Malik Muhammad Saeed, learned counsel for the appellant then contended that the three judgments cited by the learned counsel for the respondent are distinguishable mainly on the ground that in the instant second appeal not only the orders, dated 12th February, 1980 and 18th August, 1980 are challenged but the main order, dated 21st March, 1979 dismissing the appeal has also been challenged. According to the learned counsel for the appellant, therefore, the present second appeal challenges the main order, dated 21st March, 1979 about which there cannot be any doubt that it is an order on appeal. The assertion made by the learned counsel for the appellant that main order, dated 21st March, 1979 dismissing the appeal ex parte has also been challenged is confirmed by the memo. of appeal itself. All the three orders of the First Appellate Authority including the order, dated 21st March, 1979 have been impugned in the present second appeal. Learned counsel for the appellant relied upon sections 5 and 14 of the Limitation Act for getting over the difficulty of the appeal against the order, dated 21st March, 1979 being barred by time. Mr. Hafiz Abdul Baqi, learned counsel for the respondent argued that section 5 of the Limitation Act is not applicable to second appeals under section 15(4) of the 1959 Rent Ordi nance and has relied upon the judgment of a Division Bench of this Court in L.P.A. 62/71 (Messrs Muqtada Khan Iqtidar Khan v. Allah Rakhi Begum) reference to which judgment has been made in paragraph 11 of the judg ment of Mr. Justice Naimuddin in the case of Syed Muhammad v, Mazhar Ali Khan (P L D 1981 Kar. 76). In 1lnd Appeal No. 365/67, a learned Single Judge held by judgment, dated 5th April, 1971 that section 5 of the Limitation Act is not applicable to appeals under section 15(4) of the 1959 Rent Ordinance. This judgment was taken in L.P. A. 62/71 before a Division Bench of this Court and by their judgment, dated 30th March, 1980 the Division Bench dismissed the L.P.A. confirming the view taken by the learned Single Judge that section 5 of the Limitation Act was applicable to appeals under section 15(4) of the 1959 Rent Ordinance. The decision of the L.P.A. Bench is binding on me. Reliance on section 5 of the Limitation Act, therefore, cannot be placed by the appellant for overcoming the delay in filing the appeal. Section 14 of the Limitation Act is also not applicable as provisions of subsections (1) and (2) of section 14 can be resorted to where proceedings are taken in good faith in a Court which, from defect of jurisdiction, or other cause of alike nature, is unable to entertain it. In the instant case the two applications i.e. the restoration application and the application for restoration of the restoration appli cation cannot be termed as proceedings taken in a Court which was unable to entertain the two applications.

5. The present Second Appeal is liable to be dismissed as time barred. The order of the First Appellate Authority dismissing the firs appeal of the appellant ex parte is, dated 21st March, 1979 whereas the present Second Appeal was filed in this Court on 8th September, 1980 i.e. after nearly 16 months. The two orders, dated 12th February, 1980 and 18th August, 1980 of the First Appellate Authority dismissing the restora tion application and the application for restoration of the restoration application are not appealable under section 15(4) of the 1959 Rent Ordinance being orders in appeal and not orders on appeal. Sections 5 and 14 of the Limitation Act are not applicable and, therefore, cannot come to the rescue of the appellant. Placed in this awkward legal situa tion, Mr. Malik Muhammad Saeed, learned counsel for the appellant, submitted that this Second Appeal be converted into and treated as a Constitutional Petition. In fact on 18th October, 1981 an application (C.M.A. No. 3136/81) was filed in this appeal making this very prayer. For the proposition that a second appeal can be converted into a constitu tional petition, learned counsel for the appellant placed reliance on the following judgments (i) Shabbir Hussain v. Chigf Selllement and Rehabilitation Commis sioner 1970 S C M R 44. (ii) Muhammad Nazir v. Ghulam Muhammad P L D 1979 Note 45 at p. 31. (iii) Akhtar Nasimi v. Martial Law Administrator P L D 1982 Kar.

130. In 1970 S C M R 44, the respondent had filed a writ petition against the orders of the Settlement Authorities in the Lahore High Court which was converted at respondent's request as a revision petition under section 21 of the Displaced Persons (Land Settlement) Act and later on it was reconverted into a writ petition. The attack on the reconversion by the High Court was repelled by the Supreme Court in the following words :‑ "We are, however, unable to agree with this contention, for the peti tion was originally filed in the High Court in the form of a writ petition and the High Court had not dismissed the same, but merely allowed its conversion as a revision petition under the Land Settle ment Act subject to just exceptions. Upon these exceptions being taken the High Court could have withdrawn its permission and treated the petition in its original form namely, as a writ petition. This is exactly what it had done. No just exception can, therefore be taken to the procedure adopted by the High Court." The full judgment in the case of Muhammad Nazir v. Ghulam Muhammad, decided by a learned Single Judge of the Lahore High Court is not available, Only a short note appears in P L D 1979 Note 45 at p. 31 from which it follows that the learned Single Judge was of the view that if remedy is open to a petitioner both by way of appeal and a writ petition, an appeal filed by such petitioner can be treated as a writ petition and vice versa. In P L D 1982 Kar. 130, a Division Bench of this Court converted several constitutional petitions into First appeals under section 21 of the 1979 Sind Rented Premises Ordinance. In his opinion Ajmal Mian, J. observed that with a view to foster justice, the Court may take appropriate action or to adopt a procedure which is not provided for, if it is not expressly prohibited by any provision of law and since there is no express prohibition against the conversion of a writ petition into an appeal, the Court has inherent power to adopt the above procedure in a fit case in the interest of justice.

6. I have neither been pointed out any provision of law nor any case law has been cited from which it could be gathered that the law prohibits the conversion of a second appeal into a constitutional petition. Follow ing the general principle expressed in P L D 1982 Kar. 130, I am of the view that a second appeal can be converted into a constitutional petition as there is no legal bar against such conversion. Whether in a case, such procedure is to be adopted, however is a matter which would depend on the facts and circumstances of the given case. In the Sind High Court, a constitutional petition challenging the orders passed by the Controller or the First Appellate Authority under the 1959 Rent Restriction Ordinance are heard by Division Bench. Sitting as a Single Bench, i cannot hear or decide such constitutional petitions. The request of the appellant for con version of this Second Appeal into a constitutional petition, therefore, cannot be granted by me. These proceedings were filed as a Second Appeal and I have considered it as a Second Appeal. The appeal is liable to be dismissed as it is time‑barred as regards the main order, dated 21st March, 1979 and is not maintainable against the orders, dated 12th February, 1930 and 18th August, 1980.

7. Second Appeal No. 353/80 is dismissed but there will be no order as to costs. The appellant is, however, granted time till 30th August, 1984 to vacate the premises. The appellant, if so advised, may file a constitutional petition which will be beard and considered by a Division Bench of this Court on its own merits. M, B. A, Appeal dismissed.