P L D 1966 (W (PLP)

(iii) That no order could be passed in review without notice to the opposite‑party, and (iv) That no ground was made out for reviewing the earlier order of dismissal.

8. Taking first the question of the availability of the power of review in a case falling under the Ordinance, it is true that the power of entertaining a second appeal has been conferred on the High Court by subsection (4) of section 15 of the Ordinance, and it is also true that under subsection (5) of the same section it is provided that "no order passed by the Controller, the Appellate Authority or the High Court 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''; but the explanation to subsection (4) of section 15 of the Ordinance lays down that "an appeal under this subsection shall be heart 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 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 (hereinafter referred to as the Code), and the subject of "Appeals from appellate decrees" is dealt with in Order XLVII of the same Schedule. 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 XLI or Order XLII of the Code, as the case may be. That being so, it is clear that any orders passed in these appeals would be subject to review in the light of the provisions contained in Order XLVII of the Code of Civil Procedure. An order passed in review is an order made by the same authority, and must be deemed to be in continuation of the previous order which is sought to be reviewed, and, therefore, the power of A review cannot be said to come into conflict with the idea of finality embodied in subsections (4) and (5) of section 15 of the Ordinance. To put it differently, the process of review is nothing but a part of the process by which the order of the High Court attains finality such as is contemplated by these two subsections. Viewed in this manner, the provisions contained in subsections (4) and (5) of section 15 of the Ordinance cannot be construed as excluding the power of review conferred on the High Court by, Order XLVII of the Code.

9. There is another aspect of the matter, namely, that the procedure prescribed by the Civil Procedure Code is applicable to proceedings under the Ordinance by virtue of the provisions contained in section 141 of the Code which is to the effect that "the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings B in any Court of Civil jurisdiction". This view has been held in Sheikh Muhammad Nawaz v. Muhammad Azeem (P L D 1961 Lah. 788) and Syed Nafis Ahmad Zaidi v. S. M. Hussain (P L D 1964 Lah. 536). That being so, the provisions contained in Order XLVII of the Code of Civil Procedure regarding the power of review would also be available to a Court or Tribunal acting under the Ordinance.

10. It was contended by Mr. M. A. Rahman that it had been made clear by Article 130 of the (1962) Constitution of the Islamic Republic .of Pakistan that no Court shall have any jurisdiction that is not conferred on it by the Constitution or by or under any law, and, therefore, it could not be argued that the High Court had any inherent power of review in cases falling under the Ordinance, In support of this contention reliance was placed on Jalal Din and another v. Major Muhammad Akram Khan, Member, Border Committee, Lahore and others (P L D 1963 Lah. 596). The judgment of the Full Bench in that case was delivered by Manzur Qadir, C. J. who, while referring to Article 130 of the Constitution, observed as follows: --‑ "Arguments based on the existence of inherent jurisdiction, apart from that conferred by statute, are, therefore, no longer available. In any case, an order made in exercise of a judicial power carries with it the incidents of finality so far as that form is concerned, wherever rights accrue under that order. Unless it is provided that an order once made may be reviewed, it would not normally be capable of being reviewed. In the case of writ jurisdiction the enabling provision in Order XLVII, rule 1 may be imported, but it must not be forgotten that Order XLVII, rule 1 is only an enabling provision and, there fore, the maximum extent to which review would be possible would be that which Order XLVII, rule 1 permits."

11. It will be seen that the authority, relied upon by Mr.. M. A. Rehman, itself lays down that the power of review conferred by Order XLVII of the Code is available in cases decided under the writ jurisdiction of the High Court, although the relevant Article in the Constitution, namely, Article 98, which confers the power of issuing writs in certain cases, does not contain any mention of the power of review. On the same analogy it is clear that even when the High Court is acting as an appellate authority under the Ordinance it can certainly invoke the power of review conferred on it by law, namely, Order XLVII of the Code of Civil Procedure.

12. For the foregoing reasons, I am of the view that it must be held that it is open to the High Court to review an order passed by it in first or second appeals arising under subsection (4) of section 15 of the Ordinance, and that the exercise of such a power of review does not come into conflict with the concept of D finality embodied in subsections (4) and (5) of section 15 of the Ordinance. At the same time it is clear that this power of review must be exercised in accordance with the principles and limitations laid down in Order XLVII of the Code, and not otherwise.

13. I now proceed to examine the question whether the power of review was properly exercised in this case. The first objection which may be considered is whether the order passed in review is vitiated for the reason that no notice was issued to the opposite‑party as required by proviso (a) to sub‑rule (2) of rule 4 of Order XLVII of the Code. It is clear that in the present case no notice of the review applications filed by the present appellants was issued to the respondents, but the question is whether it was necessary to do so in view of the fact that the order sought to be reviewed was an order summarily dismissing the appeal under the provisions of rule 11 of Order XLI of the Code.

14. This question has previously been considered at least in two decided cases which have been relied upon by the learned counsel for the appellants. The first one is Janaki Nath Hore and another v. Prabhasini Dosi (30 1 C 898). The appeal had been dismissed summarily by a Division Bench of the High Court acting under rule 11 of Order XLI, but that order was recalled on a review application having been made by the appellants, without issuing any notice to the respondent, and it was ordered that the appeal should be heard. A preliminary objection was raised on behalf of the respondent that the order granting review was inoperative because it was made in contravention of rule 4 of Order XLVII which requires that no application for review shall be granted without previous notice to the opposite‑party to enable him to appear and be heard in support of the decree or order a review of which is applied for. The learned Judges observed: "It need not be disputed, to use the language of Lord Macnaghran in the case of Muhammad Zahuruddin v. Nuruddin (14 Madras Law Journal 7), that as a general rule no order of review can be made without previous notice to the person in possession of the decree which is to be reviewed. But the substantial question is who is the opposite‑party upon whom notice of the application should have been served in this case. The expression opposite‑party is not defined in the Code but it may be taken to mean the party interested to support the order sought to be vacated or modified upon the application for review." "If we accede to the contention of the respondent the result would be that he would be subject to needless harassment from which the Legislature intended to protest him by the introduction of rule 11 of Order XLI of the Code. If it is obligatory upon the Court to issue notice upon the respondent when application'. is made to review an order of dismissal under rule 11 of Order XLI, the respondent must appear in answer to the rule to support the order of dismissal without the record before the Court ; and if the rule is made absolute and the appeal directed to be heard in the presence of the respondent, he would have to appear a second time to support the decree under appeal. This result could never have been intended by the Legislature."

15. This question was again considered in Official Trustee of Bengal v. Benods Behari Ghose Mal (A I R 1925 Cal. 114) and the view expressed in the earlier case was followed. I am in respectful agreement with the reasoning adopted in both these cases and consider that where the review sought is in respect of an order dismissing an appeal in a summary manner, no notice is E necessary to the respondent in the appeal for the reason that he is at that stage not yet an opposite‑party within the meaning of the proviso to rule 4 (2) of Order XVLII of the Code. This objection, therefore, fails.

16. The next objection raised by Mr. M. A. Rehman in this behalf is that rule 9 of Order XLVII of the Code clearly lays down that "no application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained", and, therefore, after the dismissal of the first review application of the appellants the second application could not have been entertained at all, with the result that the order admitting the present appeal to a full hearing is without, jurisdiction. It was submitted by Sheikh Abdul Haque, the learned counsel for the appellants, that this rule also, like the proviso to rule 4(2), had no application to a case where the opposite party had not yet appeared, but no authority was cited by the learned counsel in support of his submission. It seems to me that rule 9, as worded, does not permit of any distinction to be drawn between a case where at the time of the hearing of the first review application the opposite party was given F notice; and a case where this procedure was not followed owing to the reason that the review sought was of a summary order passed by the Court at a stage where the opposite‑party had not yet come into the picture. My reason for thinking so is that the object behind rule 9 appears to be to prevent repeated attempts by an interested party to obtain a modification of a judicial order by resorting to successive review applications. Judicial orders, by their very nature, must be clothed with finality as far as the Court or Tribunal passing them is concerned, and the power of review conferred by Order XLVII is indeed of a limited and exceptional nature intended only to correct errors arising out of specified reasons and circumstances, and therefore rule 9 rightly lays down that this power shall not be invoked repeatedly by the parties to a cause.

17. There is, however, some authority for the view that a second application for review of the original order is admissible when some fresh ground is advanced in support of such application, which the applicant was not in a position to adduce in the former application. See 107 P R 1883 and A I R 1915 Cal.

432. In such a case it can perhaps be said that the second application falls within the purview of sub‑rule (1) of rule 1 of Order XLVII I am, therefore, inclined to agree that although rule 9 forbids a second review application, such an application might be considered if it discloses a fresh ground which was not available to the applicant at the time he made the first application for review.

18. It has already been stated that in the first review application (namely, R. A. 97 of 1963) filed by the appellants the two main grounds urged were: (a) that the appellant Dr. M. Fazil Zahir had discovered, after the summary dismissal of this appeal, that on the 29th of April 1959 he had issued a cheque for Rs. 300, for the payment of rent due for the month of March 1959, and (b) that the respondents must be deemed to have waived the default in the payment of rent for the month of March 1959, for the reason that they received rent from the appellant after filing the ejectment application in the Rent Controller's Court. Both these grounds were repelled by me in my order dated the 1st of November 1963 and the first review application was accordingly dismissed. The question now is whether any fresh ground was urged in the second review application (namely, C. M. 1688 of 1963). This application was, as already mentioned, originally filed as an application for' the grant of a certificate of fitness for appeal under clause 10 of the Letters Patent, but it was later on converted into a review application and, therefore, the grounds on which this application proceeds are the grounds of appeal attached to this application. In these grounds paragraphs 1 to 4 deal with the question of the cheque which Dr. M. Fazil Zaheer is supposed to have sent to the respondents regarding the month of March 1959; and in paragraph 5 the question of waiver is raised on the ground that the respondents had accepted rent for the month of April 1959 after there had been default in the payment of rent for the month of March 1959. It is clear that these were precisely the grounds which had already been urged on behalf of the appellants in Review Application No. 97 of 1963, and repelled. Thus no fresh ground was disclosed in the second review application which was accordingly barred by rule 9 of Order XLVII of the Code. The result, therefore, is that the order passed by me on this second review application on the 16th of December 1963, admitting the present appeal to a full hearing, was without jurisdiction. That being so, the appeal stands dismissed in limine.

19. It is unfortunate that when deciding the second review application on the 16th of December 1963 I overlooked the fact that this question of waiver had already been considered by me on the previous occasion, namely, in connection with R. A. 97 of 1963, on the 1st, of November 1963. Sheikh Abdul Haque urged that the question being one of law it should have been permitted to be raised even on the occasion of the consideration of the first review application. That, however, is not the point. The question here is not whether the first review application was rightly dismissed or not, but the question is whether the second review application was competent, and this question has .to be answered with reference to the provisions of rule 9 of Order XLVII of the Code, and in that context the answer is clearly in the negative as pointed out above.

20. In this connection one other submission made by Sheikh Abdul Haque may be noticed. He argued that under rule 7 of Order XLVII it was open to the respondents to go up in appeal against the order dated the 16th of December 1963 by which the second review application was granted, but as they have not done so, the order admitting this appeal to a full hearing should be regarded as binding upon them. This contention ' could have some substance if the order in question had been found by me to be within the purview of the provisions contained in Order XLVII, but as I have already held that the second review application was not competent in view of the provisions contained in rule 9 of that Order, and accordingly its acceptance by me was without jurisdiction, no question arises of this order having any binding effect on the opposite‑1 party.

21. On this view of the matter, the appeal is liable to be dismissed on the short ground that the order of summarily dismissal passed by me on the 29th of October 1963 still holds the field. However, as the case was argued before me on merits at some length, I consider that it would be proper that I should also record my findings on the questions raised. 21A. The first question is that of waiver. It has already been stated that the learned Rent Controller found that there was default in the payment of rent for the month of March 1959. After considering the evidence of the parties he recorded the finding that the total rent from August 1958 to March 1959, amounted to Rs. 2,400, at the rate of Rs. 300 per mensem, but appellant No. 1 Dr. M.' Fazil Zaheer had paid Rs. 2,100 only, thus showing that there was default in the payment of rent for the last month in question, namely, March 1959. The contention is that the appellant Dr. M. Fazil Zahir issued a cheque for Rs. 300, on the 29th of April 1959 for the payment of rent of the month of March 1959, and that this cheque was cashed by the respondents on the 13th of June 1963, i.e., after filing the ejectment application. Another point made in this behalf is that if this is regarded as a payment for the month of April, then also it would amount to waiver as it would mean that the rent for April 1959, was accepted in spite of there having been default for the month of March 1959. These facts were not accepted by Mr. M. A. Rehman, the learned counsel for the respondents, and he controverted the assertion that the statement made by the counsel for the respondents, namely, Mr. S. M. Shafiq, before the trial Court on the 24th of February 1961 led to any such inference. This statement was made by Mr. S. M. Shafiq as counsel for the respondents, before the framing of the issues and in it he accepted the receipt of the various cheques but stated that cash payments for the month of January, February, March, May and June 1959, were not admitted. This statement does give the impression that the receipt of rent for the month of April 1959, was admitted. Assuming, therefore, (but not deciding) that this was so, can it be said that the default found by the learned Rent Controller for the month of March 1959, stood waived?

22. The first thing to be noticed is that this question of waiver was not at all raised in the trial Court, nor before the lower appellate Court, nor in the High Court in the grounds of appeal, and it was only in the first review application that it was raised for the first time. However, this being a question of law, it can be said that there is no legal bar in the way of the question being permitted to be raised even in second appeal. One may refer in this behalf to The Official Liquidator of M. E. Moola Sons Ltd. v. Perim R. Burjorjee (A I R 1932 F C 118) in which it was observed that "when a question of law is raised for the first time in a Court of last resort upon the construction of‑ the document or upon the facts either admitted or proved beyond controversy, it is not only competent but expedient in the interest of justice to entertain the plea". It was contended by Mr. M. A. Rehman that, in any case, the provisions of section 112 of the. Transfer of Property Act bad no application to a case falling under the Ordinance, and in support of this contention he placed reliance on Sheikh Muhammad Nawaz v. Muhammad Azeem and others. In that case their Lordships were considering the application of the principle embodied in section 114 of the Transfer of Property Act to proceedings under the Ordinance. Paragraph 9 of the judgment which deals with this question may be reproduced here with advantage: "Learned counsel for the legal representatives argued that the present position is comparable to that under section 114, Transfer of Property Act. Under that section, where a lease of immovable property has determined by forfeiture for non‑payment of rent, and the lessor sues to eject lessee, if, at hearing of the suit, the lessee pays the rent in arrears, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture. In similar circumstances, a tenant governed by the present Ordinance could also be relieved against forfeiture if he paid up the rent, as the children had paid or were prepared to do. This argument, however, loses sight of two factors. The first is that, except for section 114, Transfer of Property Act, it would not have been possible to relieve the lessee against a forfeiture clause in the agreement of tenancy. The second is that section 114 deals with private agreements while section 13 of the Ordinance provides for a statutory forfeiture."

23. On the reasoning adopted in this authority, it would appear that the liability of a tenant for eviction in respect of buildings and tenancies governed by the Ordinance is to be regulated by the provisions of the Ordinance alone, and the principles of the Transfer of Property Act are not to be imported. I am in respectful agreement with this reasoning. According to clause (i) of subsection (2) of section 13 of the Ordinance, a tenant is liable to be evicted if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered rent due by him in respect of building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable. The liability to ejectment arises on account of the commission of default in the payment of rent, and there is no provision in section 13 of the Ordinance that such liability is waived if the landlord accepts rent for a period subsequent to that for which default has taken place, or at a date subsequent to the filing of his application for the tenant's eviction.

24. On behalf of the appellants a reference was made to Syed masood Hussain and others v. Muhammad Saeed Khan and another (P I. D 1965 Lah. 11). That was a case where an order was made under section 13 (6) of the Ordinance directing the tenant to deposit monthly rent before the 5th of each month during the pendency of the proceedings before the Rent Controller. The tenant committed default in depositing rent of a particular month on the due date, but thereafter he deposited rent within time. The landlord did not take any objection for nearly one year to the default that had been committed earlier. It was held that the default had been waived by the landlord. The learned Judge observed that the provisions of section 13(6) of the Ordinance were for the benefit of the landlord and on general principles their application might be waived by them. It seems to me that the dictum in this case has no application to the facts before me. That was a case falling within the purview of the Ordinance itself and if the landlord did not take any objection, for about one year, to the default that had been committed with regard to a particular month, he might legitimately be denied the privilege of objecting to that default subsequently. This is, however, entirely different from importing the principles of another statute into cases governed by that Ordinance. According to the Ordinance, the liability of a tenant to be ejected from the premises arises on account of the default in the payment of rent, and there is nothing to show that this liability is negatived by the fact that the landlord accepts rent for a subsequent period. I would, therefore, hold that even if it be assumed that the respondents landlord accepted rent for the month of April 1959, after, default had been committed for the month of March 1959, hey cannot be said to have waived their right of moving for the ejectment of the appellants on account of the default committed by them in respect of March 1959.

25. During the course of arguments the learned counsel for the appellants placed on the record a lengthy affidavit sworn by the appellant Dr. M. Fazil Zaheer, giving a history of the tenancy, the litigation which has taken place between the parties, and of the payments which he has been making from time to time towards the rent due from him. The object of placing this affidavit on the record was to prove that there had been no default. It is clear that this affidavit was intended to be in the nature of additional evidence, but no application was made for the production of additional evidence in second appeal. No opportunity was accordingly given to the respondents to oppose such a move, nor were they called upon to furnish any evidence in rebuttal. Such being the case, the affidavit and the statements now furnished by Dr. M. Fazil Zahir cannot be made the basis of fresh findings of fact on the question whether there has been any, default or not. It is, however, interesting to observe that, when examined as a witness by the Rent Controller, Dr. M. Fazil Zahir made some queer statements in cross‑examination expressing his ignorance about several payments, and stating that he did not remember if he had been paying rent for several months in question, in the past; after considerable delays, in some cases amounting to nearly a year. The learned Additional District Judge has rightly commented adversely on these statements of the appellant, which go to show that he was far from regular in the payment of rent in the past. However, I am not prepared to embark on any detailed examination of this question of fact, for the reason that at the time of admitting the present appeal to a full hearing after allowing the second review application of the appellants, the only question indicated for examination was the question of waiver. I had already dismissed the question of default earlier by observing, that this was a finding of fact which appeared to me to be sustainable on the basis of the material placed on the record.

26. It was lastly submitted by Sheikh Abdul Haque, the learned counsel for the appellants, that the Rent Controller and the appellate authority should have exercised their discre tion in favour of the appellants in the peculiar circumstances of this case, and in support of this submission reference was made to Muhammad Shafi v. Iqbal Ahmad and another (P L D 1965 Lah. 23). In that case my learned brother Sajjad Ahmad, J. has held that the Court has discretion in the matter of ordering ejectment of a tenant on the ground of non‑payment of rent, and he has observed that in the circumstances of the case before him a default in the payment of three months rent did not justify an order of eviction. It may be stated that he had found that the tenant before him had been paying rent regularly since 1947, except for the three disputed months. Now, in the present case, as already observed, the history of the payments of rent in the past by Dr. M. Fazil Zahir clearly shows that he was far from regular in these payments and there has been prolonged litigation for the recovery of arrears. In the second place, this question was also considered by me on the 29th of October 1963, and I then observed that this did not appear to be a fit case where discretion should have been exercised in favour of the appellant Dr. M. Fazil Zahir. As that finding still remains intact, it is no longer open to me to reconsider this question.

27. The result, therefore, is that, in the first place, I find that the order of admitting the appeal to a full hearing passed on the second review application of the appellants was without jurisdiction, being in violation of the provisions of rule 9 of Order XLVII of the Code and, therefore, the appeal stands sum marily dismissed as ordered on the 29th of October 1963. In the second place, even if the order passed on the 16th of December 1963,.admitting the appeal to a full hearing be held to have been validly made, then the only question requiring examination is the question of waiver, the finding of fact with regard to default having been already confirmed by me on the earlier date and there being no order to re‑open that finding. Finally, on the question of waiver, it is clear that the relationship between the parties being governed by the provisions of the Ordinance, the principles of section 112 of the Transfer of Property Act cannot be imported into the matter and, therefore, no question of waiver arises.

28. For all these reasons, the appeal fails and is hereby dismissed with costs. K.B.A. Appeal dismissed.