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Petitioner: MUHAMMAD ASLAM MIRZA VS Respondent: Mst. KHURSHID BEGUM
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan, Muhammad Akram, Muhammad Fazle Ghani Khan Title: MUHAMMAD ASLAM MIRZA vs Mst. KHURSHID BEGUM Case No.: Civil Appeal No. 30 of 1969 First Appeal from Order No. 173 of 1965 Date of Judgment:1971-05-17 Reported As: PLD 1972 Lahore 603 Result: Reference answered
JUDGMENT
JUDGMENT MUHAMMAD AKRAM, J.-Briefly the facts, leading up to this reference to the Full Bench before us are these: On 14-9-1964 the respondent filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordi--nance VI of 1959 (hereinafter called the Ordinance), before the Rent Controller, Chakwal, for the ejectment of the appellant from the house in dispute. After the appellant was duly served, he filed his written reply contesting his liability for the ejectment. But on 21-7-1965, neither the appellant nor his learned counsel appeared at the hearing and ex parte pro--ceedings were taken for his ejectment from the premises. However, afterwards on 3-9-1965, the appellant applied to the learned Rent Controller under Order IX, rule 13 of the Code of Civil Procedure to set aside the ex parte order passed against him alleging that he had engaged Syed Zia-ul-Hassan Vakil, Chakwal, as his counsel and made the necessary arrangements for his representation in the case, but that on 30-7-1965, he had to leave for Lahore in connection with the illness of his son admitted to the hospital and that in his absence the order for his ejectment was passed ex parte. But he learned about the order for the first time on 3-9-1965. He asserted that in these circumstances there was sufficient cause for his absence at the hearing, and prayed that the ex parte order passed against him for his ejectment may be set aside. The respondent opposed the application, he raised the objections that it was barred by time and that there was no sufficient cause to set aside the ex parte order. After recording the evidence, the learned Rent Controller, on 12-10-1965, dismissed the application on the short ground of limitation, as barred by time, under Article 164 of the Limitation Act. He did not go into its merits to find out if there was a sufficient cause to set aside the ex parte order of ejectment passed by the Rent Controller.
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2. The appellant filed an appeal to the High Court against this order. On 9-11-1965, a Division Bench of this Court, while admitting the appeal to a full hearing, formulated the following two questions; "(1) Whether the Rent Controller can set aside as ex parte order? The appellant relies on Syed Nafees Ahmad Zaidi v. S. M. Hussain PLD 1964 Lah. 536. It appears that attention of the learned Judge was not drawn to the concluding part of section 141, C. P. C.. . , . . . In proceedings in any Court of Civil Jurisdiction'. The authority is that a Rent Controller is not a civil Court. (2) Whether Article 181 of the Limitation Act is applicable to the application for setting aside ex parte order under the West Pakistan Urban Rent Restriction Ordinance VI of 1959?" and recommended that in view of the above reported decision by another Division Bench, this case may be referred to a Full Bench. Accordingly this Bench was constituted for the disposal of this case. 3. At the hearing before us, Raja Muhammad Muzaffar ap--peared for the appellant and the respondent had failed to put in her representation. In these circumstances we had to call upon Mr. Aslam Riaz Hussain, Assistant Advocate-General, West Pakistan, Lahore, Khawaja Muhammad Tufail and Mr. Amar Raza A. Khan, Advocates amicus curiae, to assist us with their arguments and we are very grateful to them for the valuable services so willingly rendered to us. 4. It is well settled now that the Controller constituted under the Ordinance is not a Court, he merely acts as a persona designate and at best exercises quasi-judicial functions in the discharge of duties enjoined upon him by the law. In the Corpo--ration of City of Lahore v. Mst. Fehmida Begum (PLD 1952 Lah. 258), a Full Bench of the Lahore High Court held that the preponderating balance of authority was in favour of the proposition that the special tribunals created under the circumstances analogous to those obtaining under the Punjab Urban Rent Restriction Act VI of 1947 (corresponding to this Ordinance) are not Courts. In this connection, the Court observed that "The Controller does not appear to be armed with all the power of a civil Court under the Act and, therefore, does not seem to be bound by all the provisions of the Code of Civil Proce--dure. Similarly, the Supreme Court of Pakistan, in Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another (PLD 1965 SC 459), after an examination of all the different provisions in the Ordinance, has held that though some of the functions of the Controller are judicial in character, yet he is not required to act judicially in discharging many of his functions and it would be difficult to hold that the Controller while performing his functions under the Ordinance acts as a Court. At best he acts in a quasi-judicial capacity. He is not bound in every case to follow the procedure laid down in the Code of Civil Pro--cedure. In this connection the Supreme Court observed that:- "He (the controller) has been given powers under sections 4, 10(3) and 12 to make orders after holding such enquiry as he thinks fit. 1n such cases the question of nature of enquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban Area the landlord may not convert a residential building into a non-residential building. The power thus conferred on the Controller would appear to be a purely executive. Then subsection (3), section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be 'satisfied' that the claim of the landlord is bona fide. But there is no express mention of any enquiry by the Controller. If the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure." But in another case, in Ashfaq-ur-Rehman v. Ch. Muhammad Afzal (PLD 1968 SC 230), the Supreme Court observed that the determination of "all rent due", in sub-section (6) of section 13 of
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the Ordi--nance, by the Rent Controller is in the nature of an adjudication by a Court in a suit for recovery of arrears of rent and a "legal process is employed by the Rent Controller to recover rent which is closely akin to an action at law in a Court of Civil Jurisdiction." Nevertheless, it cannot be doubted that the Rent Controller Is not a Court, though it may still have some of the trappings of a Court attached to it. 5. The question that next arises is as to how far, if at all, the Controller is bound by the procedure laid down in the Code of Civil Procedure, 1908 during the course of his enquiry before him under the Ordinance. In this connection section 16(1) of the Ordinance in terms specifies that the Controller shall have the same powers of "summoning and enforcing the attendance of witnesses and compelling the production of evidence" as are vested in a Court under the Code of Civil Procedure. Also section 17 lays down that every order made by a Controller under sections 10 and 13 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. Under section 14 the Rent Controller shall summarily reject any application under sections 13(2) and (3) which raises substantially the same issues as have been finally decided in a former proceeding under the Ordinance. According to the explanation to subsection (4) of section 15 of the Ordinance an appeal under the subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure if it is from the 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 an appellate authority and the provisions of Part VI of the First Schedule to the Code relating to appeals shall, with such modifications as the context may, required apply to such proceedings. It is only by virtue of these adaptations that some of these specified provisions of the Code are made applicable to the proceedings under the Ordinance and all the rest of the provisions in the Code are not in terms applicable to the proceedings before the Controller. 6. However, at places in the very Ordinance a bar minimum of the procedure has been laid down for the guidance of the Controller. For example, under section 13 of the Ordinance, the landlord is required to apply in writing to the Controller by means of an application for ejectment of the tenant. The Controller is bound to accord a reasonable opportunity to the tenant to show cause against the appli--cation under subsection (2) of section 13 of the Ordinance. He is expected to fix a date of hearing for the parties before him and to frame issues. Under subsection (6) of section 13 on the first date of hearing or as soon as possible, after that date before "issues are framed', the Controller shall direct the tenant to deposit the rent due from him and also to regularly posit future rent till the final decision of the case, before the 15th of each succeeding month. If the tenant makes default in compliance with such an order then his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings. These are some of the bare outlines of the procedure followed by the Controller in his enquiry. But there is nothing in the whole of this Ordinances corresponding to the provisions contained in Order IV of the Code for setting aside an ex parte order passed by him. 7. In general, and subject to all the enabling provisions contained in the Ordinance, the Controller is not bound by the procedure embodied in the Code of Civil Procedure or for the matter of that to follow any prescribed procedure in the course The enquiry before him. He can devise his own procedure in matter. At the same time there is nothing to prevent him adopting the procedure generally laid down in the Code embodying the essential principles of justice, equity, good conscience and fair-play. 8. There are a number of reported cases of our own High Court, brought to our notice, in which by reference to section 141 of the Cole of Civil Procedure, it was held that the procedure prescribed in the Code in regard to the suits must be followed, is far as it can be made applicable, in all proceedings before the Controller. One of them is the Division Bench case of Syed Nafees Ahmad
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Zaidi v. S. M. Hussain (PLD 1964 Lah. 536), noticed in the order of reference to the Full Bench. Section 141 of the Code is as under:- "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceed--ings in any Court of civil jurisdiction." This section, therefore, regulates proceedings in a 'Court' of civil jurisdiction. But as discussed above, and according to the law declared by the Supreme Court of Pakistan, in Khadim Mohy-ud- Din and another v. Ch. Rehmat Aid Nagra and another the Rent Controller is not a 'Court'. From this it necessarily follows that section 141 of the Code cannot be invoked and has no application to the proceedings before the Rent Controller. He is not bound by the procedure laid down in the Code in regard to the suits. In this view of the matter, and I say so with due deference and humility that the cases cited before us, reported in Sh. Muhammad Nawaz v. Muhammad Azeem and others (PLD 1961 Lah. 788), Saeed Nafeez Ahmad Zaidl v. S. M. Hussain and Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others (PLD 1966 Lab. 53). Do not lay down good law, they have all proceeded on the erroneous premises that a Rent Controller is a Court. In this connection recently in Siraj Din v. Mst. Iqbal Begum (PLD 1968 Lah. 639), a. Division Bench of this Court has dissented from these reported cases and held that in view of the above dictum by the Supreme Court they do not lay down good law. Also in H. Q. Industries v. Mrs. Napai Kaikhusro (PLD 1968 Kar. 589). a learned Single Judge of this Court has held that section 141 of the Code is applicable only to Courts exercising civil jurisdiction and in so far as the Rent Controller under the Ordinance is not a Court, this section cannot be Invoked in order to regulate the proceedings under the Ordinance by the provisions contained in the Code of Civil Procedure, unless they are otherwise made applicable. Similarly another learned Judge of this Court in Ghulam Muhammad v. Khan Muhammad Sabar Lal (PLD 1969 Lah. 327) has held the provisions of the Code of Civil Procedure in terms do not apply to the proceedings and the Ordinance. He was further of the opinion that Order TV, rule 9 of the Code was not applicable to the proceedings under the Ordinance. 9. In general, an administrative tribunal is not bound by the procedure known to a Court of law. Nor Is It fettered by the rules of evidence for collecting the necessary Information required by the tribunal. It must, of course, always act fairly and conform to the fundamental principles of justice. In this connection, Viscount Haldane L. C. In Local Government board v. Arlidge (1915 A C 120), observed that "the decision roust become to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it did not follow that the procedure of every such tribunal must be the same. In the cave of a Court of law tradition in this country has prescribed certain principles to which in the main the procedure must conform. Bat what that procedure is to be the detail must depend on the nature of the tribunal." In R. v. Manchester Legal Aid Committee ((1952) 1 All E R 480) Parkar, J. Observed that an administrative body in ascertaining facts or law may he under a duty to act judicially notwithstanding that its proceeding have none of the formalities of and are not in accordance with the practice of a Court of law. In general this is also true about the Rent Controller constituted under the Ordinance. 10. But the precise question before as is not one of mare procedure: the substantive provisions embodied in Order IV of the Code of Civil Procedure to set aside the ex paste order or a decree are not merely procedural. They have the likely effect of interfering with the substantial right acquired by a party. In this connection in the Full Bench case of Gadi Neelaveni v. Merappareddiqarl Narayana Reddi (AIR 1920 Mad. 640) Seshagiri Aiyar, J, observed that "A right to set aside an ex parte decree belongs to the same category as an appeal or review. Because in either cage the effect of entertaining the proceedings is to vacate a decree which has been obtained by one of the parties to the suit." 11. This brings me to the discussion about the powers, if any, generally vested in the Courts and the tribunals to review and modify their judgments and orders. Strictly speaking review like an appeal,
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is a substantive right and it does not exist except under a statute, in general apart from the statute there is no inherent power in a Court to review, alter and rescind its orders. In this connection in Drew and another v. Willis ((1891) 1 Q B 450), Lord Esher M. R. Has observed:- "No Court has such a power of setting aside an order which has been properly made, unless it is given by statute . . . , Then it is suggested that there is inherent power in the Court, either at common law or under its equitable jurisdic--tion. Certainly there is no such power at common law, and that there is none in a Court of Equity was shown by the fact that, when asked to formulate an application to a Court of equity, the learned counsel omitted, and rightly omitted, from his prayer any request that the charging order should be set aside." Similarly in Charles Bright & Co. Ltd. v. Sallar ((1904) 1 K B 6), Atkinson, L. J. Has declared that the power of review is not inherent in a Court. The same view was expressed in Hession v. Jones ((1914) 2 K B 421). In this connection in Lala Prayag Lal and others v. Jai Narayan Singh and another (I L R 22 Cal. 419), Prinsep, J. Has remarked that:-- "I cannot admit that such a power is inherent in every judicial or Revenue Officer, it is a power expressly given by law to Judicial Officers under certain conditions, and therefore, it cannot be assumed that when not so given it is inherent in every officer. If this had been so, there need not have been any legislation on the subject. We cannot hold that all this legislation was unnecessary." These observations were cited with approval in Baijnath Ram Goenka v. Nand Kumar Singh (I L R 34 Cal. 677), upheld by the Privy Council in Baijnath Ram Gaenka v. Nand Kumar Singh (40 I A 54). In this case the Court found that under section 2 of the Bengal Land Revenue Act, 1868 the order of the Commissioner, upon an appeal to him, was final. The Privy Council repelled the contention that the Commissioner acting as a revenue officer has discretionary power to review his order. In Anantharaju Shetty v. Appu Hegade (AIR 1919 Mad. 244), the Court held that there was no explicit provision in the' Religious Endowment Act for review and that the power of review was not inherent in a Court and could only be exercised if permitted by statute. In this con--nection Seshagiri Aiyar, J., observed:- "The last argument related to the inherent power of a judicial officer to review his own judgment. It is settled law that a case is not open to appeal unless the statute gives such a right. The power to review must also be given by the Statute. Prima facie a party who has obtained a decision is entitled to keep it un-assailed, unless the Legislature has indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. There is at least as good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the trial Court unless such a power is given to it by the statute." Also in the above-mentioned Full Bench case of Gadi Neelavent v. Marappareddiqarl Narayana Reddi. Seshagiri Alyar, J. Once again emphasised and observed that:- " ------------------------.a right of appeal must be given by the statute and should not be inferred from the inherent power of an appellate Court. In this Court and in the other High Courts it has been held that a right of review is not inherent in the Court but must be given by the statute." He was definitely of the opinion that to interfere with the substantial right acquired by a party under an ex parte decree, it is not enough to invoke the inherent power of a Court. The jurisdiction in this respect can be exercised only if permitted by a statute. In M.J. Kutinha v. Mrs. Nathal Pinto Bai and another (AIR 1941 Mad. 272) the Court held that unless the statute provides a remedy, the Court cannot review its own judgment except in very exceptional circumstances. Similarly in Ramachandra Maradaraj Deo Garu v. Bearo Pollani and others (AIR 1936 Mad, 531) a Full Bench of the Madras High Court has held that generally no Court has the power to review unless specially conferred on it by the statute.
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12. Under the Indian jurisdiction, in Debi Prasad and others v. Khelawan and others (AIR 1957 All. 67) a Division Bench of that Court has held that as a general rule no Court or Judge Las the power to re-hear, review, alter or vary any order or judgment after it has been entered or drawn up. In that case, it was held that the U. P. Land Reforms (Supplementary) Act XXXI of 1952, by itself did not make any provision for a review of an order of the Sub-Divisional Officer and the contention that he has the inherent power in this behalf to review his order, was repelled by the Court. In a Full Bench case, in Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another (AIR 1961 Bom. 21) the Court observed that it is well settled that a Court is not vested with a power of review unless such power is expressly conferred. In another Full Bench case, in Sampu Gowda Hanume Gowda and others v. State of Mysore and others (AIR 1953 Mys. 152) under section 210 of the Land Revenue Code, the Court held that there was no power of review of an order passed by the Government. In the opinion of the Court, review stands almost on the footing of an appeal, which is a substantial right. It involves a re-hearing of appeal and the judgment delivered cannot be altered. In P. Swarajyalakshmi v. The State of Andhra Pradesh (AIR 1959 Andh. Pra. 321) the Court has held that an appal differs from a review in that the primary intention of review is the reconsideration of the subject by the same Judge under certain conditions, while an appeal is a re-hearing by another tribunal. The power to review is not an Inherent power of a judicial officer but must be specifically conferred by statute. There is elaborate discussion of this subject in V. Kesavan v. K. S. Raghavan and others (AIR 1953 Tra-Co. 439) and the Court has held that the power of review is not inherent but has to be conferred. Those observations were made in the context of the Travancore Building Rent Control Order. Similarly, in Anandram Ayaldas and others v. Damodardas and others (AIR 1956 Vind. Pra. 44) the Court has held that the right of review is not inherent. It does not exist unless granted by the Statute. 13. In this country, in this connection, a Full Bench of this Court in Jalal Din and another v. Major Muhammad Akram Khan and others (PLD 1963 Lah. 596) has held that:-- "In any case, an order made in exercise of a judicial power carries with it the incidents of finality so far as that forum is concerned, whenever 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 another case, in Mst. Maqsoodan Bibl v. Mst. Bhano (PLD 1965 Lah. 183), this Court bas held that:- "The right of review is like a right of an appeal-a substantive right, and it is not available unless it is expressly conferred by a statute." Recently in Civil Appeal No. 30 of 1969, Hussain Bakhsh v. Settlement Commissioner and another, the Supreme Court of Pakistan has finally laid down in this respect that:- "The right to claim review of any decision of a Court of law, like the right to appeal is a substantive right and not a mere matter of procedure. An appeal, as observed by Dranwell L.C. In the case of Sandback Charity Trustees v. North Stafford--shire Railway Co. Does not exist in the nature of things; a right to appeal from any decision of any tribunal must be given by express enactment. This is equally true in case of review, be--cause both appeal and review, though they differ in scope, are substantive rights. A9 such, neither of them is available unless it has been conferred by law." It appears from the judgment that the inherent power of the Court in this respect extends only to the correction of errors apparent on the face of the record. In my opinion this principle is well settled and there can be no cavil about it. From what has been discussed above it follows that this principle is of general application and is not peculiar to the Courts alone. It is also applicable to the tribunals in general whose duty is to act judicial--ly though with a varying degree of rigidity. "14. As a general rule, except by way of appeal no Court, Judge or master has power to rehear, review, alter, or vary any judgment or order after it has been entered or drawn up, res--pectively, either in an application made in the original action or matter, or in a fresh action brought to review
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such judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions." This is at best the general rule. It is by no means rigid and is subject to a number of qualifications. In this connection Halsbury has enumerated soma of the well-recognised exceptions. As for instance in certain cases an Act of Parliament, which alters the law retrospectively, has given express power to the Court to rescind, vary or grant relief against the previous judgment or orders given or made before the alterations. A Court will also…
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