1995 PLP 1027 (MLD)

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑ ‑‑‑‑S.21‑‑‑Restoration of appeal dismissed for non‑prosecution on payment of specified costs‑‑‑Application for review of order relating to costs‑‑‑No power of review has been conferred by Sindh Rented Premises Ordinance, 1979‑‑ Appellant being a lady, High Court taking compassionate view and reduced the amount of costs. M. Iqbal Malik for Appellant. Salim Ahmad for Respondent. This appeal was dismissed for non‑prosecution on 17‑4‑1994, C.M.A. No. 440/94 was moved by the appellant for restoration. Said application was decided on 16‑5‑1994 when I ordered restoration of the appeal on payment of costs of Rs. 1,000 by the appellant to the respondent. The appellant is aggrieved by the order about costs and he had moved present application for review of that part of the order by which costs were imposed. Mr. M. Iqbal Malik, learned counsel for the appellant argued that the provisions contained in Civil Procedure Code were not applicable to the proceedings under the Sindh Rented Premises Ordinance, 1979 (hereafter mentioned as Ordinance, 1979) except the powers mentioned in section 20 of the Ordinance, 1979. It was further argued that for restoration of rent application or of a rent appeal the costs cannot be ordered. In support, learned counsel for the appellant cited the case of Ismail v. Rent Controller, Shahdadpur and another 1983 CLC 2994. Mr. Saleem Ahmad, learned counsel for the respondent took a legal objection that this review application was not maintainable, when provisions contained in Civil Procedure Code were not applicable to proceedings under the Rent Ordinance, 1979. In support he cited the cases of Ainul Haq v. Shahid Ahmad Perwaiz 1984 CLC 47 and Mst. Fahmida Begum v. Muhammad Khalid and another 1992 SCMR 1908. In the case of Ismail 1983 CLC 2994, the costs were ordered by the Rent Controller while granting an adjournment and a learned D.B. of this Court held that a Rent Controller is not empowered to award costs on adjournment, while proceeding under the Ordinance, 1979. In the present case, costs were not ordered on grant of adjournment and hence cited case has no application. In the case of Mst. Fehmida Begum 1992 SCMR 1908, it was held by the Supreme Court of Pakistan that a Rent Controller as a Tribunal of limited jurisdiction is competent to re‑call or review his order obtained by fraud or misrepresentation. There is no such allegation and cited case will not apply. In the case of Ainul Haque 1984 CLC 47, the view taken was that the Controller and the Appellate Authority under the Ordinance, 1979, have powers of a Civil Court only in respect of the matters mentioned in clauses (a), (b), (c) & (d) below section 20 of the Ordinance, 1979, with no other power. It was, however, observed that a Rent Controller or the Appellate Authority in the matter of procedure can follow the equitable principles contained in the Civil Procedure Code except the provisions relating to appeal or review. It was also observed that in the absence of any provision for review in the Ordinance, 1979, the power of review cannot be exercised in the proceedings under the Ordinance, 1979. In view of the observations made in the case of Ainul Haq, I am of the view that present review application is not maintainable, because right to file review application is a substantive right and must be conferred by the statute. At the same time one cannot ignore the contention raised by the learned counsel for the appellant that under section 21 of the General Clauses Act a functionary competent to pass an order can re‑call it and can modify it as such power is inherent in the functionary who passes the same. In the present case the costs have been ordered to the tune of Rs. 1,

000. No case‑law has been cited on the point that costs cannot be ordered while restoring an appeal under the Ordinance, 1979. I, therefore, hold that costs can be ordered while restoring a rent appeal. In the instant case the appellant is a lady. 1, therefore, take compassionate view and reduce the amount of costs from Rs. 1,000 to Rs. 200 with a hope that such situation would not arise in future and the matter would be hotly pursued. With this modification in my order dated 16‑5‑1994, I dismiss this review application. A.A./F‑240/K Review application dismissed.