P L D 1970 Peshawar 94 (PLP)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15 (4)‑Appeal under S. 15 (4)‑Abatement‑Death of party pending appeal‑Legal representatives not brought on record within time prescribed and in accordance with provisions of C. P. C.‑Appeal abates‑Civil Procedure Code (V of 1908), O. XXII, r.

4. A second appeal was filed in the High Court under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. During the pendency of appeal the respondent died and his legal representatives were not brought on record within the prescribed time. The High Court dismissed the appeal as abated. In Letters Patent Appeal it was urged that the Civil Procedure Code, 1908 did not specifically apply to proceedings under the Ordinance and therefore the question of abatement did not arise: Held, the explanation to subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance lays down that an appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the C. P. C., 1908, if it is from an order of the Controller and us art appeal from the 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 context may require, apply to such proceedings. Now, the subject of "Appeals from original decrees" is dealt with in Order XLI contained in the First Schedule to the Code of Civil Procedure, at the subject of "appeals from appellate decrees" is dealt with in Order XLII of the same Schedule. Thus when acting as an appellate authority under sub section (4) of section 15 of the Ordinance, the High Court is to deal with the appeals in accordance with the provisions of Order XLI or Order XLII of the Code as the case may be. By virtue of Order XLII the rules of Order XLI apply, so far as may be to appeals from appellate decrees. The provisions of abate ment under Order XXII, C. P. C. are procedural exigencies arising out of incidents of death in suits and appeals. By virtue of rule 11 of Order XXII, the rules of abatement in rules 1 to 9 of Order XXII are applicable to orders in appeals. Thus the pro cedure of appeals in Orders XLI and XLII, C. P. C. are applicable to appeals under section 15 of the Ordinance, including the pro visions of abatement under Order XXII of C. P. C. Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others P L D 1966 Lah. 53 ref. (b) Letters Patent (Lahore), CI. 10 and Civil Procedure Code (V of 1903), O.XXII‑‑Order of abatement of suit or appeal Judgment" within meaning of CI. 10, Letters Patent (Lah.) Letters Patent Appeal against such order without obtaining fitness certi ficate Not competent. Ganpati Wadgoo v. Pilaji Kothuji and others A I R 1956 Nag. 211 ref. (c) Civil Procedure Code (V of 1908), O. XXII, r. 4 and Letters Patent (Lahore), CI. 10 Abatement of appeal due to death of respondent‑Order of Court, setting aside or refusing to set aside order of abatement Not "judgment" contemplated by Cl. 10, Letters Patent (Lahore) and such order, therefore, cannot be challenged in Letters Patent Appeal. An order setting aside or refusing to set aside abatement of suit or appeal is an order in procedure which does not affect the merits of the dispute between the parties, and as such cannot be termed as a judgment for purposes of letters patent appeal. And further if the order does amount to a judgment, then the per mission of Single Judge would be necessary for such an appeal. Maria Flaviana Almedia and others v. Ramchandra Santuram Asayle and others A I R 1938 Born. 408 and Lakshmi Narain v. Mirza Muhammad Akbar A I R 1939 All. 185 ref: SHAH ZAMAN BABAR, J.‑This is a letters paten, appeal from the judgment of Mr. Justice Mian Shakirullah Jan, the then Judge of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated 10‑11‑1967 and 11‑12‑1967 respectively, holding the appeal of Chanan Din appellant to have abated and rejecting the application of the appellant for set ting aside the abatement.

2. Relevant facts leading to this letters patent appeal in belief are that Mushtaq Muhammad Khan (now dead and represented by his L. Rs.) filed an application in the Court of Rent Controller Campbellpur against Chanan Din under the West Pakistan, Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) for ejectment from the shop situated in Campbellpur. The application was dismissed by order of the Rent Controller, dated 11‑1‑1966. Mushtaq Muhammad Khan took appeal to the Court of District Judge, Campbellpur, against this order. The appeal was accepted by order, dated 19‑5‑1966 and the respondent (Chanan Din) was directed to put the petitioner (Mushtaq Muhammad Khan) in possession of the disputed shop by the end of June 1966. Chanan Din challenged this appellate order in second appeal in the High Court which came up for final hearing before the Single Judge on 10‑11‑1967. On the wine day, learned counsel for the respondents raised an objection that Mushtaq Muhammad Khan respondent had died during the pendency of the appeal and his legal representatives were not brought on record within the prescribed time, on account of which the appeal stood abated. The objection prevailed and the appeal was, therefore dismissed as abated. The appellant submitted an application on 21‑11‑1967 for setting aside abatement, which was dismissed in limine by the same learned Singe Judge, by his order, dated 11‑12‑1957.

3. Chanan Din has come up on letters patent appeal, without obtaining a declaration of its fitness for such an appeal from the learned Single Judge. This L. P. A. was admitted by order, dated 10‑1‑1968 on the point, inter alia that the Civil Procedure Code has not been specifically applied to the proceedings under the Rent Restriction Ordinance and, therefore, the question of abatement would simply not arise.

4. The learned counsel for the respondents raised pre liminary objections, firstly, that the order of abatement and dismissal of the suit, dated 10‑11‑1967, is a judgment and as such the letters patent appeal is not competent without obtaining a declaration of fitness from the Single Judge, deciding the case and secondly, that the order of refusal to set aside the abatement is not a judgment as contemplated by the letters patent and, therefore, the same order could not be challenged in L. P. A.

5. The learned counsel for the appellant argued that both the impugned orders are judgments passed in original juris diction of the second appellate Court for purposes of letters patent and that a Certificate of fitness was not required.

6. Before going into the merits of the preliminary objec tions, it will be expedient to consider whether the procedure applicable to appeals and second appeals under the C. P. C. is applicable to appeals arising out of the Rent Restriction Ordinance, and as such the procedure of abatement also comes into play. Section 15 of the Ordinance prescribes for appeals and second appeals. Under subsection (4) of section 15, any party aggrieved by an order passed on appeal by appellate authority may prefer an appeal in writing to the High Court. Explanation to section 15 reads :‑ "An appeal under this subsection shall be beard 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 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 required, apply to such proceedings." All this "explanation" means is to apply the procedural provisions of the C. P. C. in appeals and second appeals. This explanation to subsection (4) of section 15 of the Ordinance lays down that an appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the C. P. C. 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority, and the provisions of part VT and of the First Schedule to the said Code relating to appeals shall, with such modifications as context may require, apply to such proceedings. Now, the subject of "appeals from original decrees" is dealt with In Order XLT contained in the First Schedule to the Code of Civil Procedure, and the subject of "appeals from appellate decrees" is dealt with in Order XLII of the same Schedule. Thus when acting as an appellate authority under subsection (4) of section 15 of the Ordinance, the High Court is to deal with the appeals in accordance with the provisions of Order XLT or Order XLII of the Code as the case may be. By virtue of Order XLTI the rules of Order XLT apply, so far as may be to appeals from appellate decrees. Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others (P L D 1966 Lah. 53.). The provisions of abate ment under Order XXII, C. P. C. are procedural exigencies arising out of incidents of deaths in suits and appeals. By virtue of rule 11 of Order XXII, the rules of abatement in rules 1 to 9 of Order XXII are applicable to orders in appeals. Thus, in our view, the procedure of appeals in Orders XLT and XL.II, C. P. C. are applicable to appeals under section 15 of the Ordinance, including the provisions of abatement under Order XXII of C. P. C.

7. Clause 10 of the letters patent ordains, "and we do further ordain that an appeal shall lie to the said High Court of judica ture at Lahore from the judgment not being a judgment passed in the exercise of appellate jurisdiction ‑in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction . . . . ., of one Judge of High Court . . . ., and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from one Judge of the said High Court . . . . . made . . . . in the exercise of appellate jurisdiction in respect of decree or order made fn the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, where the Judge who passed the judgment declares the case a fit one for appeal . . . . " Subsection (9) of section 2, C. P. C. defines that, " judgment means the statement given by the Judge of the grounds of a decree or order ". Judgment for purposes of letters patent has been defined to be meaning a decision which affects the merits of the question between the parties by determining some rights or liabilities.

8. Reverting to the preliminary objections, the learned counsel for the appellant concedes that the order of the learned Single Judge, dated 10‑11‑1967, whereby the second appeal has been held to be dismissed as abated, is judgment for purposes of letters patent, but he argued that this 7 order was passed in original jurisdiction of the learned Single Judge. This argument is without substance. The learned Single Judge while deciding the appeal had decided the same, in the exercise of his jurisdiction in second appeal and not in any way otherwise. By this order the learned Single Judge dismissed the appeal having dealt with the contention of the respondent and has given reasons for the same. As such this order is a 'judgment' for purposes of letters patent appeal (Ganpati Wadgoo v. Pilaj1 Kothuji and others (A I R 1956 Nag. 211)). No declaration of its fitness for letters patent appeal has been obtained from the learned Single Judge, who passed this judgment, as required under clause 10 of the letters patent of the High Court, and therefore, this letters patent appeal is not competent without the necessary certificate.

9. As regards the impugned order of refusal to set aside the abatement, dated 11‑12‑1967, this order is an order in procedure which does not affects the merits of the dispute between the parties, and as such cannot be termed as a judgment D for purposes of letters patent appeal. In Maria Flaviana Almeida and others v. Ramchandra Santuram Asayle and others (A I R 1938 Bom 408) Beaumont, C. J. observed: --‑ "'Judgment in clause 15, letters patent, means a decision which affects the merits of the question between the parties by determining some right or liability. An order setting aside an abatement does not affect the merits of the dispute between the parties, though it certainly determines a right, because in the absence of such order a person is debarred from suing another for the amount claimed. The order is really one in procedure. The party originally had a cause of action which through no fault of their own came to an end by the death of their opponent, and the effect of setting aside the abatement is merely to excuse delay in restoring the suit to an actionable condition. Hence no appeal (letters patent appeal) lies from an order setting aside an abate ment under Order XXIT, rule 9." In Lakshmi Narain v. Mirza Muhammad Akbar (A I R 1939 All. 185), it is ruled :‑ The word jurisdiction in the letters patent covers the exercise of all the powers of the Court in a particular jurisdiction in which the case comes before it. The letters patent do not contemplate that a case which comes before the Court in one kind of jurisdiction can be supplemented by the exercise by the Court of any other kind of jurisdic tion. When a second appeal comes before a Judge of High Court, if it is within his jurisdiction, the jurisdiction which he exercises is a jurisdiction of second appeal. That jurisdiction covers all the orders which he may make in the course of the second appeal from its commencement to its termination, Hence, the order of Single Judge in second appeal refusing to set aside the abatement of appeal is an order made in second appellate jurisdiction and cannot be considered an order passed in original jurisdiction. Such order doe; not amount to a judgment within the meaning of clause 10; letters patent, and therefore no appeal lies. And further if the order does amount to a 'judgment ', then the permission of Single Judge would be necessary for an appeal." We are thus of the view that the impugned order, dated 11‑12‑1967 does not amount to a judgment within the meaning of clause 10 of the letters patent and, therefore, no letters patent appeal lies against it.

10. In conclusion, this letters patent appeal is dismissed. As questions of law are involved, we make no order as to costs. K.

13. A. Appeal dismissed.