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Petitioner: KAZI ALTAF HOSSAIN VS Respondent: MST. MATIA BEGUM
P L D 1960 Dacca 449
P L D 1960 Dacca 449
Before Murshed, J
Kazi ALTAF HOSSAIN‑Petitioner
versus
Mst. MATIA BEGUM and another‑Opposite‑Parties
Civil Rule No. 735 of 1959, decided on 20th August, 1959.
East Bengal Premises Rent Control Act (XVI of 1953), S. 29 (5)‑Order rejecting review application‑Not appealable -Civil Procedure Code (V of 1908), O. XLVII, r. 7.
Subsection (5) of section 29 of the East Bengal Premises Rent Control Act, 1953, read with the relevant rules thereunder makes it clear that the provision of Order XLVII, rule 7 of the Civil Procedure Code, 1908, which bars an appeal from an order rejecting an application for review, is attracted. Consequently there is no appeal under section 29 from an order rejecting an application for review under subsection (5) of section 29.
Muhammad 1dris Khan v. Haji Erfanuddin P L D 1958 Dacca 132 distinguished.
Asrarul Hussain and Muhammad Nurul Huq for Petitioner. Md. Ayazuddin for Opposite‑Parties.
JUDGMENT
This is an application under section 115 of the Code of Civil Procedure and it arises out of the following circumstances.
2. The opposite‑parties are owners of certain premises in the town of Dacca. They made an application to the House Rent Controller, Dacca, for permission to sue the petitioner, who is a tenant in respect of the said premises, for ejecting him from a portion of the premises. The grounds on which the said application was made are that the petitioner was a defaulter in respect of the rent of the premises and, furthermore, that the applicants required the premises for their bona fide use. It appears that on the 31st of May, 1958, the petitioner filed an applica tion before the Rent Controller praying for a local enquiry into the matter. The case was thereupon adjourned to the 23rd of June, 1958, for hearing the application with regard to the prayer for local enquiry. Then again it was further adjourned to the 13th of, September, 1958, for hearing the application for local enquiry. On that date the case was taken up ex‑parte during the absence of the petitioner and the case was allowed ex‑parte. As soon as the said order was passed, the petitioner filed an application before the Rent Controller for a review of the order allowing the case ex‑parte. On 15‑11‑58, the review application was rejected. Thereupon an appeal was preferred by the petitioner against the orders passed by the Rent Controller on 13‑9‑58 and 15‑11‑58. The appeal was heard by Mr. M. Idris, District Judge, Dacca, and, when it was taken up for hearing, the learned pleader for the opposite‑parties raised a preliminary objection to the effect that the appeal was not maintainable. He argued that as the order allowing the application of the opposite parties, for permission to sue the petitioner in ejectment was passed ex‑pane on 13‑9‑58, and the appeal was filed on the 2nd of December, 1958, the said appeal was barred by the law of limitation. Furthermore, it was contended that no appeal lay from an order rejecting a review application. The learned District Judge has made the following observations in the judgment pro nounced by him:‑--
"The appeal is not maintainable against the order rejecting review petition. Rule 11 of the East Bengal Premises. Rent Control Rules provides that, in reviewing orders, the provisions of Order XI‑VII of the Civil Procedure Code are to be followed. Now, Order XLVII, rule 7 of the Civil Procedure Code provides that an order rejecting an application for review is not appealable. So, the appeal against the order, dated 15‑11‑58, rejecting the review application is not maintainable."
The learned District Judge, therefore, dismissed the appeal. Against the aforesaid order, the petitioner moved this Court in its revisional jurisdiction and obtained the present Rule.
3. At the hearing of this application, Mr. Asrar‑ul‑Hussain, counsel, appeared for the petitioner and Mr. Md. Ayazuddin appeared for the opposite‑parties.
4. The only point that has been canvassed, before me by Mr. Hossain is that under the provisions of section 29 of the East Bengal Premises Rent Control Act, 1953, an order rejecting an application for review made under subsection (5) of the said section is appealable. The contention of the learned Advocate appearing for the opposite‑parties is that such an order is not appealable. The learned counsel for the petitioner as well as the learned Advocate for the opposite‑parties have placed before me the provisions of subsections (1) and (5) of section 29 of the said Act, which read as follows:‑--
"(1) Any person aggrieved by an order of the Controller may, within thirty days from the date of the order excluding the day of the order and such time as is requisite for obtaining a certified copy of the order, present an appeal in the prescribed manner to the District Judge of the district in which the premises, in respect of which such order is made, are situated.
(5) Subject to such rules as may be made under this Act, any order passed under this Act by the Controller or a District Judge or a person appointed under subsection (2) may be reviewed by the person who passed the, order on the ground of the discovery of any new and important matter or evidence or on account of some mistake or error apparent on the face of the record or for any other sufficient cause:
"Provided that before any order is passed under this sub section which is likely to affect any person adversely, such person shall be given a reasonable opportunity of being heard."
Mr. Asrar‑ul‑Hussain has next drawn my attention to rules framed by the Government of East Pakistan ‑under section 37, read with section 34 of the aforesaid Act. Rule 11 thereof reads as follows :‑---
"In reviewing orders referred to in subsection (5) of section 29 of the Act, the procedure laid down in Order XLVII of the First Schedule to the Code of Civil Procedure, 1908, shall be followed as far as may be and no application for review shall be entertained unless it is made within thirty days from the date of the order for the review of which such application is made."
The learned counsel for the petitioner has argued that Rule 11, quoted above, does not provide that the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure shall have to be followed. On the contrary, the words used in the said Rule are that "that procedure laid down in Order XLVII shall be followed . . . . . " He has tried to draw a distinction between the word "procedure" and the word "provision". He has submitted that the learned District Judge was not correct in using the word "provisions". To me it seems that this is a distinction without any difference. The word "procedure" has been used in the aforesaid Rule 11 because it refers to the Civil Procedure Code and the entire body of the Civil Procedure Code purports to be a law of procedure. It seems that for the sake of accuracy in language the word "procedure" has been used which means the same thing as if the word "provisions" has been used instead of the former word in Rule 11. It will be seen that subsection (5) of section 29 of the East Bengal Premises Rent Control Act, 1953, itself made its provision subject to the rules made under the said Act. Therefore, Rule 11 is a part of subsection (5). There can be no manner of doubt that the provisions of the Civil Procedure Code, laid down in Order XLVII, are attracted to subsection (5) of section 29 of the aforesaid Act as far as they are applicable The learned District Judge was right when he held that the provisions of Order XLVII, rule 7, is applicable and is attracted by the terms of the aforesaid sub section (5). The relevant portion of Order XLVII, rule 7, reads as follows :‑---
"An order of the Court rejecting the application shall not' be appealable ; but an order granting an application may be objected to on the ground that the application was‑
(a) in contravention of the provisions of rule 2, (b) in contravention of the provisions of rule 4, or (c) after the expiration of the period of limitation prescribed therefore and without sufficient cause.
Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit".
5. Mr. Asrar‑ul‑Hussain has laid particular emphasis on the words "an order", as used in subsection (I) of section 29 as quoted above. He argues that any order passed under this Act. (The East Bengal Premises Rent Control Act, 1953) is appealable under subsection (1) , of section 29 of the said Act.
To my mind, section 29 has to be construed as a whole. It is obvious that section 29 provides for cases in which there would be an appeal from an order passed by the Rent Controller and it also provides for a review in respect of an order passed either by the Rent Controller or by the District Judge, as the case may be. Furthermore, subsection (5) by its specific terms attracts the provisions of Order XLVII of the Code of Civil Procedure in so far as it may be applicable. It has already been seen that rule 7 of Order XLVII of the said Code bars an appeal from an order rejecting an application for review. I, therefore, think) that the learned District Judge has rightly decided that there is! no appeal under section 29 of the East Bengal Premises Rent Control Act, 1953, from an order rejecting an application for review under subsection (5) of the said section. Mr. Asrar‑ul‑Hussain has, however, drawn my attention to a decision of this Court in the case of Muhammad Idris Khan v. Haji Erfanuddin (P L D 1958 Dacca 132). It appears that in this case there was an appeal before the District Judge from an order rejecting a review application. From the order passed by the District Judge on such appeal, a revision application was made to this Court. This Court discharged the Rule and affirmed the order passed by the District Judge. Mr. Asrar‑ul‑Hussain would, therefore; like to argue that this virtually means that this Court recognises that there is a right of appeal from an order passed under subsection (5) of section 29 of the aforesaid Act rejecting an application for review. I do not think that the learned counsel is entitled to draw that inference from the aforesaid case. The point which has arisen in this application was never agitated or mooted in 1dris Khan's case decided by this Court. That case is no authority for the pro position that an appeal would lie from an order rejecting an application for review. From the specific words used in sub sections (1) and (5) of section 29, read with the relevant rules made under the Act, it is clear that the provision of Order, XLVII, rule 7 of the Code of Civil Procedure, is attracted by subsection (5) of section 29 of the said Act.
6. For the reasons stated above, the Rule is discharged. I, however, make no order as to the costs of this application.
K. B. A. Rule discharged.