P L D 1968 Lahore 207 (PLP)

(i) Order rejecting application for review with regard to judgments passed in appeal. Dwarka Das‑Kedar Bux v. Gajanan Jagannath and others A I R 1946 Cal. 10, Mahabir Bakhsh Singh v. Sheoraj Singh and another A I R 1914 Oudh 41, Soudamanoe Dasse v. Maharaj Dheraj Mahatab Chand Bhadoor (1866) 6 W R (Misc. Rep.) 102 and Rajah Enaet Hossein v. Ranee Rowshun Jahan (1868) 10 W R (1). (ii) Order of the High Court refusing stay of execution of a decree appealed against Srinivasa Prasad Singh v. Kesho Prasad Singh 13 Cal. L J 681; (iii) Order refusing to restore an appeal dismissed for default. Mst. Bismillah Begum v. Hira Lal and others A I R 1917 All. 313; Pt. Krishna Kant Malaviya v. Lala Amernath and others A I R 1937 All. 566 and B. Jaipratap Narain Singh and others v. B. Rabi Pratap Naraan Singh and another A I R 1933 All. 453; (iv) Order rejecting an application for amendment of an appellate decree Sunder Koer v. Chandishwar Prasad Singh (1903) 1 L R 30 Cal. 679; (v) Order rejecting an appeal for failure of furnishing security for costs under Order XLI, rule 10, C. P. C. M. A. Ghafoor Khan v. Secretary of State and others, A I R 1914 All. 54 and Radha Kishan v. Jamna Prasad and others 5 I C 940 Contra view is contained in Mahadeo Shahi v. Secy. of State and others A I R 1932 All. 312 but leaving aside the point at the moment as to which view is correct, the broad fact remains that the Courts have been making distinction between the orders passed `on appeal' and those passed in the appellate jurisdiction; (vi) Order dismissing an application to deposit court‑fee on rejection of an earlier pauper application by the High Court. Mst. Barfa v. Kishorilal and others A I R 1919 All. 331 (1); (vii) Order refusing to set aside ex parte decree Ramaswami Udayar and others v. Sevu Rama Aru Ramanathan Chettiar A I R 1942 Mad. 357 (1); and (viii) Where High Court passed a decree in pursuance of the directions of the Privy Council the High Court's decree cannot be said to have been passed `on appeal' by the High Court. Bai Mangu v. Bharatkand Cotton Mills Co. Limited A I R 1932 Born. 90 and S. Gangaju Bahadur and others v. Ramachandra Deo Maharajulum A I R 1925 Mad.

187. On the other hand, some examples can be given of orders which can be held as orders passed "on appeal". See the following:‑ (i) Refusing to appeal as time‑barred is an order passed on appeal. His Highness Brij Indar Singh Chief of the Farid Kote House v. Lala Kansi Ram, etc., A I R 1917 Lah. 448; (ii) Dismissing an appeal for default is an order passed on appeal. Chuni Lal Tulsi Ram v. Amin Chand and others A I R 1933 Lah.

690. Contra view is contained in Ganesh Prasad v. Makhna and another A I R 1948 All. 375. 3ut leaving aside the controversy on the point, the broad fact again remains that the Courts have been making efforts to draw a distinction between the orders passed on appeal and those passed in the exercise of the appellate jurisdiction. (iii) Order of High Court on appeal refusing to set aside a sale in execution of a final order is order `on appeal' within the meaning of section 595 of the C. P. C. (Act XIV of 1882) which corresponds to section 109 of the present C. P. C. (Act V of 1908) and was appealable to Privy Council as such. See Tekait Krishna Prasad Singh Minor by his Guardian Lachmi Kumari v. Moti Chand, 40 I A 140; and (iv) Dismissal of appeal as having abated is an order `on appeal'; Chuni Lal Tulsi Ram v. Amin Chand and others A I R 1933 Lah.

690. From the examples given above, it will transpire as laid down in Ramaswami Udhayar and others v. Sevu Rama Aru Ramanathan Chettiar (A I R 1942 Mad. 357) that refusal to set aside an ex paste decree is not an order passed `on appeal', though it may be an order passed in the exercise of the appellate jurisdiction. Respectfully following that view. I hold that the order of the District Judge in the instant case, whereby he refused to set aside his earlier ex parte order, is not an order passed 'on appeal' and, therefore, was not appealable to this Court under section 15 (4) of the Ordinance.

5. When confronted with the above propositions, the learned counsel for the appellant argued that even though the present appeal may not be maintainable under subsection (4) of section 15 of the Ordinance, it was competent under the "explanation" attached to the said subsection as read with provisions of the Civil Procedure Code. The said "explanation" to reproduce it once again, reads as follows:‑-- "Explanation.‑An appeal under this subsection 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 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 the context may require, apply to such proceedings." Learned counsel for the appellant argues that this explanation so far as relevant for the subject in hand, does two things. Firstly, it says that with such modifications as the context may require. (i) the provisions of Part VI of the Civil Procedure Code shall apply to appellate proceedings; and, secondly. (ii) so shall apply to these proceedings the provisions of the 1st Schedule of the Civil Procedure Code relating to appeals. Part VI of the Civil Procedure Code consists of only two sections, namely, sections 94 and 95 which read as follows: "

94. In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed‑ (a) issue warrant to arrest, the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison; (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient." "95‑(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section:‑‑ (a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or (b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him: Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction. (2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction." The learned counsel for the appellant says that the provisions of the First Schedule relating to appeals are contained in Order XLI, Civil Procedure Code which regulates the hearing and disposal, etc., of appeals from original decrees. Order XLI, rule 17(2) states that when a respondent does not appear the appeal shall be hoard ex parte. Order XLI, rule 21 states that when an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to rehear the appeal; and if he satisfies the Court that the notice was not duly served or that he was prevented by a sufficient cause from appearing when the appeal was called for, hearing, the Court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. Order XLIII, rule I (t) then inter alia states that an appeal shall lie from an order of refusal under Rule 21 of Order XLI to re‑hear an appeal. The learned counsel for the appellant argues that if the provisions of the C. P. C., relating to appeals, are made applicable to the appeals, before the District Judge (which he is to regulate with the aid of the provisions of Order XLI of C. P. C.), then he will pass various orders which will fall within the provisions of Order XLI. When these orders are passed under Order XLI, it is argued that they will carry the incident of appealability along with them under Order XL111, C. P. C. In this way, the orders of the District Judge, from which second appeals will lie to the High Court, according to the learned counsel for the appellant, can be of two types, namely:‑ (a) those which are passed `on appeal' by the District Judge as explained in the discussion of this phrase earlier, and (b) those which are not passed `on appeal' but are Such which are passed by virtue of the applicability of the provisions of the Code of Civil Procedure. When these orders are passed under the Civil Procedure Code, then these orders, it is argued carry with them the incident of appeal ability under that Code. It is thus submitted that if those orders are appealable under O. XLIII, C. P. C., then a person aggrieved from those orders will have a right of appeal under the said Code. I am afraid, I cannot accept this contention. The "explanation" which applies the provisions of the 1st Schedule of the said Code contains a caution that those provisions are to apply with such modifications as the context may require. In the instant case, the provisions regarding the appealability of various orders mentioned in O. XLIII cannot apply to the orders of District Judge because if they are so applied, then they will violate the caution contained in subsection (5) of section 15 of the Ordinance, which, when put in a proper form so far as relevant for the purposes of the present case, reads as follows:‑- "No order passed by‑an Appellate Authority‑under the provisions of this Ordinance, shall be called in question in any Court of law by suit or otherwise except as provided under this Ordinance. If the appeals are allowed to be preferred with reference to the provisions of the Code of Civil Procedure, then it will tantamount to allowing appeals and challenging orders of the Appellate Authority in a manner contrary to the one provided under the Ordinance. Secondly, if on the one hand, the intention was to make only such orders of the District Judge appealable which are passed by him `on appeal', then it will be defeating that provision when orders other, than those which are passed `on appeal' are also made appealable. Thirdly, the provisions allowing appeal under the Civil Procedure Code, apply to Courts and it is well settled that neither the Controller nor the District Judge while dealing with matters under the Rent Restriction Ordinance is a Court. See Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another (P L D 1965 S C 459). Fourthly, all that the `explanation' means is to apply the procedural provisions of the C. P. C. and not the substantive provisions like the right of appeal, which is a matter specifically dealt with and controlled by the Ordinance itself. Rules of the C. P. C., will have to be placed under this modifica tion; because in the context in which those rules are made applicable to appellate proceedings they should not be allowed to enlarge the scope of appeal‑a subject elaborately controlled by the Ordinance itself.

6. The upshot of the above discussion is that the preliminary objection raised by the contesting respondent prevails and the present appeal is dismissed with costs. Since I have disposed of the appeal on the preliminary objection, I need not give my views on the merits of the case. A.H. Appeal dismissed.