2013 C L C 960

2013 C L C 960

[Lahore]

Before Syed Mansoor Ali Shah and Muhammad Farrukh Irfan Khan, JJ

MUHAMMAD RAMZAN----Appellant

Versus

Mian MUHAMMAD SALEEM----Respondent

Intra-Court Appeal No.377 of 2011, decided on 30th October, 2012.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 15(1)---Civil Procedure Code (V of 1908) S.12(2) & Preamble---Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Constitution of Pakistan, Art. 199---Intra-Court appeal---Maintainability---Tribunal constituted under special statute of limited jurisdiction (West Pakistan Urban Rent Restriction Ordinance, 1959) could borrow equitable principles from C.P.C.---Appellant's Constitutional petition against order of Rent Controller on application under S.12(2), C.P.C. was dismissed on the ground that the appellant/petitioner had an alternate remedy of appeal under S.15(1) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Contention of the appellant/petitioner was that since the application was filed under the provisions of S.12(2) C.P.C., and since no appeal was provided in the C.P.C., therefore, an order passed on such application would be a final order and the provisions of C.P.C. would apply thereto---Validity---West Pakistan Urban Rent Restriction Ordinance. 1959 was a special law and there was no restriction of importing broad principles of equity and civil procedure provided in the C.P.C. to regulate proceedings under special statutes, including the West Pakistan Urban Rent Restriction Ordinance, 1959---As there existed no specific provision for setting aside award of Rent Controller on grounds of fraud, the Rent Controller could assume the jurisdiction and regulate its proceedings by borrowing the broad and equitable principles of S.12(2), C.P.C.---"Original statute" in the present case would be the West Pakistan Urban Rent Restriction Ordinance, 1959, which provided an appeal under S.15(1) to the District Court---In presence of such provision of proviso to S.3(2) of the Law Reforms Ordinance, 1972 was attracted to the case and intra-court appeal was therefore, not maintainable---Intra-court appeal was dismissed in circumstances.

            Allah Ditta and others v. Muhammad Hussain PLD 1965 (W.P.) Lah. 29; Mst. Sarwari Begum v. Jabbar alias Lolia PLD 1965 (W.) Lah. 32; Ahmad and others v. The Additional District Judge, Sargodha and others PLD 1990 Lah. 425 and Ch. Shaukat Hussain and others v. Mian Aslam Riaz Hussain and others 1994 MLD 2079  ref.

            Masjid Intizamia Committee and others v. Anjuman-e-Falah-o-Bahbood and others 2000 SCMR 540; Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577 and Mst. Fehmida Begum v. Muhammad Khalid 1992 SCMR 1908  rel.

(b) Civil Procedure Code (V of 1908)---

----Preamble---Special law---Applicability equitable principles from C.P.C.---Scope---Tribunal which was a quasi-judicial forum and a court working under a special statute, could borrow equitable principles from the Civil Procedure Code, 1908 for the dispensation of justice, however it cannot deviate from what had been laid down in special  law---Broad equitable principles of C.P.C. could be invoked in special cases but the original and basic provisions of the special statute could not be overridden altogether.

            Waqar-ul-Hassan Butt for Appellant.

            Muhammad Akhtar for Respondent No.1.

            Date of hearing: 30th October, 2012.

JUDGMENT

            MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this Intra-Court Appeal the appellant assails judgment dated 29-6-2011, passed by the learned Single Judge whereby the writ petition filed by the appellant was dismissed, on the  ground  that  as  impugned  order  dated  6-1-2010 was a final order, the appellant had a remedy of appeal hence the writ petition was not maintainable.

2.         It has been argued before us by the learned counsel for the appellant that the learned Single Judge has erred in law by holding that order dated 6-1-2010 passed by the learned Rent Controller on the application under section 12(2), C.P.C. was an appealable order. It is urged that under section 15(1) of the Punjab Urban Rent Restriction Ordinance, 1959 ("Ordinance") an appeal is provided only against the order passed by the Rent Controller finally disposing of an application made under the provisions of the said Ordinance and, therefore, application under section 12(2), C.P.C. dismissed vide impugned order was not under the provisions of the Ordinance, hence the impugned order was not appealable. As no remedy of appeal, revision or review is provided against the said order of the learned Rent Controller, therefore, there was no other alternative or efficacious remedy available to the appellant except to invoke the writ jurisdiction of this Court under the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). In support of his contention learned counsel has placed reliance upon Allah Ditta etc. v. Muhammad Hussain (PLD 1965 (W.P.) Lahore 29), Mst. Sarwari Begum v. Jabbar alias Lolia (PLD 1965 Lahore 32), Ahmad etc. v. The Additional District Judge, Sargodha etc. (PLD 1990 Lahore 425) and Ch. Shaukat Hussain etc. v. Mian Aslam Riaz Hussain etc. (1994 MLD 2079).

3.         On the contrary, learned counsel for the respondent has, inter alia, submitted that this appeal is not maintainable keeping in view the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972.

4.         We have heard the arguments of learned counsel for the parties and perused the record with their assistance.

5.         It is admitted by the parties that order dated 6-1-2010 on the application under section 12(2), C.P.C. had originated from eviction order dated 4-1-2006 passed by the learned Rent Controller under the provisions of the Ordinance, which is a special law and section 15 thereof, inter alia, provides that "any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance, may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated".

6.         The main argument of the learned counsel for the appellant is that  as  the  application  before  the  Rent  Controller  was  filed  under section 12(2), C.P.C., therefore, the provisions of Civil Procedure Code, 1908 ("Code") would be applicable thereto and as no appeal is provided in the said Code against an order passed on such an application, the Writ Petition was maintainable and competent before the High Court in exercise of its original jurisdiction under Article 199 of the Constitution.

7.         We are not persuaded by the aforesaid arguments of the learned counsel for the appellant for the reason that, firstly, the original matter has been dealt with by the learned Rent Controller under the Ordinance which is a special statute and there is no restriction of importing broad principles of equity and civil procedure provided in the Code to regulate the proceedings under special statutes, including the Ordinance. As there is no specific provision for setting aside its own order if it was obtained by fraud, the Rent Tribunal can assume the jurisdiction and regulate its proceedings  by borrowing  the  broad  and  equitable  principles  of  section 12(2), C.P.C. Reliance in this behalf is placed on Masjid Intizamia Committee and others v. Anjuman-e-Falah-o-Bahbood and others (2000 SCMR 540) and Hanif and others v. Malik Ahmed Shah and  another (2001 SCMR 577). Further in case of Mst. Fehmida Begum v. Muhammad Khalid (1992 SCMR 1908) it has been observed that the Rent Controller as a Tribunal of limited jurisdiction could invoke equitable principles of the Code and provisions of section 12(2) thereof were held to be applicable as the Rent Controller was required to set aside an order which had been secured by practising fraud and misrepresentation. We are thus fortified that broad equitable principles of C.P.C. can be invoked in Certain cases but the original and basic provisions of the special statute cannot be overridden altogether. In any case, the impugned order has been passed by the learned Rent Controller under the Ordinance which is appealable under section 15(1) of the Ordinance.

8.         The nutshell of the above discussion is that a tribunal which is a quasi judicial forum and a court working under a special statute, can borrow the equitable principles of the Code, for dispensation of justice, however, it cannot deviate from what has been laid down in the special law. Therefore, in our view "the original statute" in the matter in hand would be the Ordinance which provides for an appeal under section 15(1) within 30 days to the District Judge for the enforcement of rights of the parties thereunder. As the provision of appeal was provided under the original statute i.e. the Ordinance, the proviso to subsection (2) of section 3 of the Law Reforms Ordinance is attracted in this case.

9.         For the foregoing reasons, this appeal is not maintainable and the same is accordingly dismissed.

KMZ/M-4/L                                                                                        Appeal dismissed.