C.M.A. No, 3114 of 2008.
' SALMAN ANSARI, J.---This is an application under section 21 of General Clauses Act, 1897 read with section 114, Order XI. VII and Section 151, C.P.C. Filed by the Respondent No,1 Abbas Hassan, along with his affidavit, to recall the order, dated 13-8-2008, whereby two years time was granted to the petitioners to vacate the demised premises without any notice being given to the respondent, and it is prayed to order for the ejectment of the petitioner from the demised premises with immediate effect.
2. The brief facts of the case being that the C.P. No,325 of 2008 was filed against the impugned judgment, dated 26-5-2008 passed by the IVth Additional District Judge Karachi Central, whereby the F.R.A. No,222 of 2007 filed by the petitioner was dismissed and the appellant/ petitioner was ordered to vacate the premises within 60 days of order and the order, dated 28-9-2007 passed by the Senior Civil Judge and Rent Controller Court No,II, Central Karachi passed in Rent Case No,812 of 2007, required no interference.
3. On the first date the present C.P. No,325 of 2008 being fixed in Court for Katcha Peshi and for orders on the listed applications, his lordship Mr. Justice Khawaja Naveed Ahmed (as he then was) after hearing the advocate for the petitioners without any notice to the respondent, by his order, dated 13-8-2008 disposed of the petition by giving two years time to the petitioners for vacating the shop hence above C.M.A. No,3114 of 2008 was filed on 17-9-2008. Both the learned counsel for the parties were heard, the learned counsel for the respondent/applicant had argued that the order passed is against the norms of natural justice without being heard the respondent being landlord and the party to the previous litigation, the petition had been disposed of which order is liable to be set aside, hence this application has been filed as this Court has inherent powers to rectify and set aside an order by way of review under section 114, C.P.C. And is also empowered under the provisions of the General Clauses Act, as great injustice has been caused to the rights of the respondent by one sided decision of the Court. Learned counsel has relied upon the following citations:--
(1) 2007 SCMR 1866 Khawaja Muhammad Razzak v. Dr. Sultan Mehmood Ghouri and another.
(2) PLD 1984 (Kar.) 139, Masood Jan v. Muhammad Shaban.
(3) PLD 1957 (W.P.) Lahore 70, Mst. Allah Rakhi v. Mst. Raj Bilal and others
(4) PLD 1968 (Kar.) 589, N.Q. Industries v. Mrs. Bapai Kaikhusro.
(5) 1983 CLC 985 (Kar.), Muhammad Shafi v. Messrs Bambino Ltd. And another.
(6) PLD 1983 SC 155, Messrs Bambino Ltd. v. Messrs Selmor International Ltd. And another.
(7) PLD 1987 (Kar.) 16, Haseen Ahmed Khan v. Irshad Khan.
4. Learned counsel for the petitioner who had appeared on receiving notice of the above application has argued that the review application has been filed after a period of 20 days as provided under Article 162 of the Limitation Act, 1908 and is barred as the same being filed after the expiry of the period provided, further under section 21 of the General Clauses Act, it is the legislature which is empowered to add to amend, vary or rescind any order but not the Courts.
5. Learned counsel has also relied upon 1986 SCMR 118 Sultan Mahmood v. Anwar Ahmed, wherein in it has been held that the High Court has no jurisdiction to review its order passed in second appeal under Rent Ordinance 1959. In PLD 2004 SC 752, Rahim Jan v. Mrs. Z. Ikram Gardezi and others, wherein it was held that no express provisions for filing of review petition having been provided in the Arbitration Act, 1940, review petition was not maintainable, 2004 CLC 1525 (Lah.) Ch. Ijaz Sarwar v. Nadeem Farooq and another, it has been held that review was a substantive right and not a matter of procedure and no Court possessed the inherent powers to review its decree or order unless such a power was expressly granted by the statute.
6. Having heard the arguments of the learned counsel for the petitioner and learned counsel for the applicant/respondent. In this case, it is a matter of record that on the first date of hearing after only the petitioners counsel was heard the matter was decided by Justice (as he then was)
Khawaja Naveed Ahmad, by his order, dated 13-8-2008 without even a notice been issued to the respondent to make an appearance, under the circumstances I find where the basic norms of justice have not been adhered to, Lhe Court can review its order which has resulted in one of the parties having to receive the brunt of the order, which in my opinion under the circumstances would not be in accordance with the law as laid down. The provisions of Civil Procedure Code, section 114(b) r/w Order XLVII Rule 1 C.P.C. Where powers to review its orders has been given to the Courts and S.151 C.P.C. Where inherent powers are given to the Courts to pass orders necessary for the ends of justice. I find that this Court has powers to review such order even otherwise under section 21 of the General Clauses Act, 1897, the Courts have been given powers to exercise the same in order to avoid any injustice being caused. Audi alteram partem (hear the other party) is to be read as one of the essential ingredients of all statutes and no party can be condemned unheard in exercise of its powers, by the Courts of law, it embodies one of the settled principles of law and such a principle will be read into the relevant law.
7. With due respect to the case-law cited, I would refer to 2007 SCMR 1866, wherein it was held that "there was no lawful warrant for allowing unusually long period of eighteen months for vacating the premises, which on the face of record, was most unreasonable and unlawful; in order to maintain a balance of convenience between the parties, we would set aside the order of the High Court to the extent of allowing eighteen months time for vacating the premises and substitute it by awarding 120 days from the date of the order of the High Court.
8. In PLD 1957 (W. P.) Lahore 70, it was held with respect to the procedural matters there exists in the Court inherent jurisdiction to review, alter or amend order relating to them.
' In PLD 1968 (Kar.) 589, it was held that, "Controller is competent to review and recall his ex parte order of eviction. Section 15(5), does not operate as bar to exercise of this power".
' In PLD 1983 SC 155, it was held that, "Rent Controller is free to follow equitable principles contained in C.P.C.
' In PLD 1970 Supreme Court 1 Hussain Bux v. Settlement Commissioner Rawalpindi and others, it was held as under:-- "The Civil Procedure regulates civil proceedings. The nature of the proceedings does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceedings. The provisions of the Code other than the specially accepted ones, shall apply in exercise of the High Court's jurisdiction in a civil matter, whatever, may be the nature of the jurisdiction."
"That being so, the requirement of clause (b) of section 114 of the Code is satisfied in the case of an Order made by a High Court in its writ jurisdiction in a civil matter, a review of such an order is, therefore, competent under clause (b) of section 114 of the Code of Civil Procedure."
9. Hence with due respect to the case-law cited by the learned counsel for the petitioner who had himself conceded at the time the order was passed by my learned predecessor Judge, which under the circumstances would be open to review where no notice was issued to the respondent wherein the present matter two Courts below had given concurrent findings in favour of the respondent/applicant hence I find that without the respondent being heard the matter being decided would cause prejudice to the case of the respondent and under such circumstances relying upon the case-law cited by the counsel for the applicant/respondent and the findings of the Hon'ble Supreme Court as given in PLD 1970 Supreme Court and with due respect to the case- law cited by the learned counsel for the petitioner who even otherwise had conceded to the relief he had got from the passing of the previous order, under such circumstances I finding it to be just and proper under the circumstances allow the application C.M.A. No,3114 of 2008 but reduce the period granted for vacating the premises from two years to one year calculated from the date of this order:-- ' C.M.A. No,3114 of 2008, stands disposed of accordingly.