IFTIKHAR MUHAMMAD CHAUDHARY, J.---This appeal by leave of the Court has been filed against the judgment dated 3rd July, 1998 passed by Lahore High Court, Lahore whereby Review Application No,20 of 1993 in F.A.O. No,114 of 1998 filed by appellant has been dismissed.
2. Facts in brief, leading to filing of instant appeal, are thatappellant Rahim Jan having qualified Chartered Accountant established a firm by the name and style of Rahim Jan & Company at Lahore and Karachi. Subsequently, he entered into a partnership with Syed Ikram Gardezi (late) both at Lahore and Karachi, respectively. At a later stage, he sold out goodwill of his business at Lahore to the predecessor in interest of the respondents vide agreement dated 30th June, 1973 for a sum of Rs,800,000 with certain other conditions. Similarly he also sold away goodwill of his business at Karachi, for the same consideration. However, subsequently differences between them cropped up as a result whereof the appellant Rahim Jan had to bring a civil suit against all the respondents and ultimately parties agreed to resolve the dispute through arbitration. Late Justice (Retd.) Salah-ud-Din delivered the award on 20th April, 1980 and allowed the claim of appellant Rahim Jan, in the sum of Rs,10,00,000 (rupees one million). The award was objected to by Syed Ikram Gardezi (Late) but the same was made rule of the Court on 1st February, 1983. Against the order of dismissal of objections and making award the rule of the Court, respondent No,1 preferred appeal initially in 1983 before the High Court, but it was sent to the Court of District Judge, from where it again came back to the High Court due to change in law and was numbered as F.A.O. No,114 of 1988, which was decided vide judgment dated 21st July, 1991 in the following terms::- "As a result I partly allowed the appeal and modify the award in the exercise of powers conferred by section 15 of the Arbitration Act, 1940. The modification relates to upholding part payment of Rs,4,98,100 (rounded into Rs,5,00,000) which the Arbitrator did not take into account. The reminder of the amount award was realized during pendency of the present appeal under the orders of the Court dated 28th July 1983. Nothing more is due to the respondent under the award. The parties are left to bear their own costs." Appellant, feeling dissatisfied from the above judgment, preferred Review Application No,20 of 1993, which has been dismissed by means of impugned judgment. Hence, this appeal by leave of the Court.
3. Learned High Court vide impugned judgment has dismissed the review petition being not maintainable as according to it there is no provision for review in Arbitration Act, 1940 (hereinafter referred to as the Act, 1940').
4. Learned counsel for petitioner contended that the provisions of Code of Civil Procedure have been made applicable to all proceedings before the Court and to all appeals under the Act, 1940, therefore, by virtue of Order XLVII, rule I, C.P.0 review was competent before High Court. To substantiate his plea reliance was placed by him on M/s Pakistan Trading Company v. M/s. Ishani Ltd. (1968 Law Notes SC 48, Hussain Bukhsh v. Settlement Commissioner (PLD 1970 SC 1), Executive Engineer P.W.D. v. Iboyaina Singh (AIR 1970 Manipur 76), Sampu Gowda v. State of Mysore (AIR 1982 Orissa 239), Messrs Combined Enterprises v. WAPDA (PLD 1988 SC 39), Tribal Friends Co. v. Province of Balochistan (2002 SCM R 1903).
5. On the other hand learned counsel appearing for the respondent No,1 contended that section 41 of the Act, 1940 specifically has not conferred a right of review, therefore, review was not competent. He also relied on Hussain Bukhsh v. Settlement Commissioner (PLD 1970 SC 1), Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94), Food Corporation of India v. Bibhutibhusan Patra (AIR 1987 Orissa 230).
6. Leave to appeal in the instant case has been granted to examine the following question:-- "To consider whether the provisions contained in section 114 and Order XLVII, rule 1, C.P.0 would apply to any order passed by an Appellate Court in exercise of its power under section 39 of the Arbitration Act and thus a review petition is maintainable?"
7. Before attending to the contentions raised by the learned counsel for the parties, it is expedient to note that statutory right in terms of sections 17 and 39 of the Act, 1940 is available to an aggrieved person to institute appeal and if appeal is not competent then the parameters of section 115 would be applicable, which envisages that revision would be competent if no appeal lies. It is pertinent to mention here that section 115 does not say that if appeal is not competent under the Code, only then revision would be competent, as such conclusion would be that if the Code of Civil Procedure is applicable or has been made applicable on the proceedings then the order passed by any Court, subordinate to the High Court can be challenged in the revision. As far as section 114 of the Code of Civil Procedure is concerned, it speaks iii respect of filing of review by an aggrieved person, against the order or decree from which the appeal is allowed by the Code of Civil Procedure but no such appeal has been preferred. In line to these provisions of Order XLVII, Rule 1 has also been coached thus it is held that in order to make review petition competent in a civil case, a test has to be applied whereby review petition has been filed against an appellate order passed in appeal under any provision of Code of Civil Procedure and for such reason, it is said that appeal and review are the statutory rights. In the case of Hussain Bukhsh (ibid), Settlement Commissioner while examining the question of competency of a review petition, it was held that "the right to review to any decision of a Court of law, like the right of appeal is a substantive right and not a mere matter of procedure". This principle was adopted following the earlier judgment in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1877)
3 QBD 1), wherein it was held as under:-- "An appeal does not exist is in the 'nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment."
Admittedly the Act 1940 provides right of appeal in terms of sections 17 and 39 but there is no expressed provision for filing of review petition. In this context, it may be noted that not only under the Act, 1940 right of review has not been provided expressly as in some other laws like West Pakistan Urban Rent Restriction Ordinance (VI) of 1959. Besides while providing right to appeal no right of review has been conferred by the law itself and this Court in the case of Muzaffar All v.
Muhammad Shafi (PLD 1981 SC 94) has held that "Ordinance neither expressly nor by reference bestows any powers of review, the High Court has no jurisdiction to review its orders passed in a second appeal under the West Pakistan Urban Rent Restriction Ordinance 1959." This view has been reiterated in the case of (1984 CLC 349), (1986 SCM R 118) and (1986 M LD 978).
8. Learned counsel appearing for the appellant contended that in view of the provisions of sections 17 and 39, if an appeal can be filed then revision under section 115 is competent for the reasons that Code of Civil Procedure has been made applicable, therefore, review under the same analogy is competent. In support of his contention, he has relied upon the judgment in the case Tribal Friends Co. (ibid).
9. The contention so raised by the learned counsel is not entertain able in view of the discussion made hereinabove, wherein it has been held that as far as revision is concerned, it is competent against the order of the Court, which is subordinate to the High Court, notwithstanding the fact that the appeal has been disposed of under the Code of Civil Procedure or otherwise. In addition to it, as far as section 115 is concerned, it has not conferred substantive right upon an aggrieved persons because the revisional jurisdiction even can be exercised suo motu by the High Court against the proceedings of its subordinate Courts including the Court who had disposed of the proceedings under the Act, 1940 in order to correct the illegalities or irregularities committed by the subordinate Court, therefore, the judgment relied upon by him is not applicable, as in this judgment it has been held that "where any Act is made applicable to any case or procedure, then all the procedures and remedies available under that Act can be invoked, provided their applicability has not been excluded." In this very judgment, while discussing the competency of revision, it was further held that "the applicability of section 115 of C.P.0 has not been completely excluded. In cases where remedy has been provided by appeal, within the framework of the Arbitration Act, revision application will not lie but in cases where these provisions do not apply, the revisional jurisdiction of the High Court under section 115, C.P.0 can be invoked." It is further held that "where in cases no appeal is provided and the Court has exceeded jurisdiction, acted without jurisdiction, committed material irregularity in the conduct of proceedings passed order in violation of principles of natural justice and the same cannot be assailed under the provisions of the Arbitration Act and the High Court may exercise its supervisory jurisdiction under section 115, C.P.0 on an application made by any party or suo mow. It should be borne in mind that the proceedings relating to Arbitration are to be governed and regulated by the Arbitration Act. The applicability of C.P.0 is in terms of section 41 and subject to the provision of the Arbitration Act." After such elaborate discussion in the judgment no further discussion is called for except that as the High Court can exercise revisional jurisdiction under section 115, C.P.C, subject to the condition that the order which is intended to be examined has been passed by its subordinate Court and no appeal lies against the said order. Although the Court passing the order under the Act, 1940 is subordinate to the High Court but the Act, 1940 itself provides a right of appeal and in respect of those matters which are not covered for the purpose of filing of appeal under sections 17 and 39 of the Act, 1940 revision can be filed. But as far as, filing of the revision is concerned, it would not be competent in terms of section 115, C.P.0 as the appellate Order has not been passed under any of the provisions of C.P.C, therefore, the judgment cited by the learned counsel for petitioner is of no help to him.
10. As far as the judgment in the case of Executive Engineer, P.W.D. (ibid) and Sampu Gowda (ibid) are concerned, the same need not to be discussed because in both these judgments the case has not been examined while taking into consideration the fact that the Act, 1940 itself has not provided substantive right of review, therefore, learned Judges have proceeded to hold that review is competent merely for the reason that under section 41 of the Act, 1940 has applied the provision of Code of Civil Procedure but it escaped from their notice that revision under section 115, C.P.C. Would only be competent if the appeal is allowed under the C.P.C. Since the appeal in the Act, 1940 has not been allowed under C.P.C., therefore, no review would be competent.
11. Learned counsel for respondent has also relied upon another judgment in the case of Food Corporation of India (ibid) wherein it has been held that "review is a creature of statute. It is a substantive right and is not procedural in nature. Although the Act provides for appeal and specifically bars a second appeal in S.39, no whisper has been made by the Legislature for review.
The application of the C.P.C. To the enquiries under the Act would not give a right or review without specific provisions for the same". Since the view expressed in this judgment is line to the judgment of this Court in the case of Hussain Bukhsh (ibid) thus it seems to be based on the correct legal premises. Therefore, is accordingly approved.
Thus for the foregoing reasons, we are inclined to hold that the learned High Court vide impugned judgment has rightly dismissed the review- application filed by the appellant against the order of the Appellate Court dated 21st July, 1991, as such appeal is dismissed with costs.