This appeal is directed against the judgment dated 9-1-1976 passed by the learned District Judge, Tharparkar at Mirpurkhas in Civil Appeal No. 33/75.
The brief facts leading to the filing of the above appeal arc that the house, bearing City Survey No. 756/10 C. S. No. 34, situated, in Mirpurkhas town was transferred to one Mst. Hanifa Khatoon. After that she filed Rent Application No. 60/63 against the respondents No. 10 i.e. Haji Muhammad Ismail.
It seems that in the above rent case an ex parte ejectment order was passed on 14-10-1963. After that the said Mst. Hanifa Khatoon filed Execution Application No. 80/63. It may be observed that since then Mst. Hanifa had expired and the respondents Nos. 1 to 9, being the legal heirs were brought on the record in her place, It is the case of the appellant that after coming to know about the passing of the above ejectment order, he filed a Miscellaneous Application before the learned Rent Controller alleging therein, that he was in possession of the house since 1950 and that he was paying taxes in respect, thereof. It is also the case of the appellant that no order on his above application was passed, but he was ejected from the house in pursuance of the aforesaid ex parte ejectment order. It further seems that the Evacuee Trust Property Board filed certain proceedings in 1964, for getting a declaration that the property in question was an evacuee trust property. The above declaration sought was granted by an order dated 13-7-1965, against which aforesaid Mst.
Hamfa filed Writ Petition No. 680/65, which was dismissed on 19-5-71. However, it may be pertinent to point out that by section 10 of the Act XIII of 1975 (Evacuee Trust Properties) (Management and Disposal) Act, 1975 the permanent transfer order issued prior to June, 1968 were validated, and it is the case of the respondents 1 and 2 that the transfer in favour of Mst. Hanifa stood validated before the learned Rent Controller passed his order in question. Be that as it may, it also seems that the present applicant filed an application on 23-8-1965 under section 144 and section 151, C. P. C. For restitution on the two grounds, namely (i) P. T. O. Was declared void ab initio in favour of said Mst.
Hanifa Khatoon, 2(ii) that the appellant was illegally ejected in pursuance of an order, to which he was not a party. It appears that the above application remained pending in view of the filing of the Writ Petition No. 6x0/65 by said Mst. Hanifa against the aforesaid declaration in respect of the status of the property. Upon the dismissal of the above writ on 19-5-1973, the appellant filed an application praying therein, that the application for restitution be taken up and proper order be passed. It seems that the learned Rent Controller by his order dated 6-3-1975 granted the application and ordered restitution. The respondents Nos. 1 to 9 being aggrieved by the above order filed the aforesaid Appeal No. 35/75, which was allowed by the learned District Judge, Tharparkar at Mirpurkhas, by his aforesaid judgment dated 9-1-1976 oh the ground that the provision of section 144, Cr. P. C. Could not have been pressed into service as the same was not available to the learned Rent Controller, while exercising jurisdiction under the late West Pakistan Urban Rent Restriction Ordinance. In consequence thereof, the learned District Judge by his aforesaid judgment set aside the order of the learned Rent Controller dated 6-3-1975. The appellant being aggrieved by the above order has filed the present appeal.
2. (a) 1n support of the above appeal the main contention apart fibm the contentions on merits, which has been urged by Mr. Muhammad Sharif is that the learned District' Judge was not competent to entertain the aforesaid appeal as admittedly the learned Rent Controller's order was not an order under section 144, C. P. C. And that at the most the above ord-.r was an order passed under the inherent power of the Court under section 151, C. P. C. In support of the above contention Mr. Sharif has relied upon the case of Ramesh war Gal Jhunjhuwala v. Ramcharan Prasad Sahu and others (1), the case of Brij Mohan Singh v. Rameshr Singh and others (2), the case of Syed Usman Sahib and others v. Vegisana Sivarama Raju and others (3), the case of Muhammad Ishaque v. State (4), the case of Muhammad Aslam v. State (5), the case of Hussain Bux v.
Settlement Commissioner, Raisalptndf (6), and the case of Ahmadul Haq v. Dr. Abdul Quddus Khan (7).
(b) On the other hand Mr. Mokarim learned counsel fox the respondent has made the following submissions "(i) That as the order of the learned Rent Controller was of the nature of the order which is passed under section 144 an appeal under section 96 was competent before the District Judge.
(ii) That since the order dated 6-3-1975 was passed by a learned Rent Controller, an appeal under section 15 of the Ordinance was competent.
Majaraja Sasikanta Acharjee v. Jald Bukhsha Munshi and others (8), the case of Gopal Laskar v.
Barikar Mukherjee and others (AIR 1948 Cal. 37), the case of
(1) AIR 1938 Pat. 447 (2) AIR 1939 Oudh 273
(3) AIR 1950 Mad. 463 (4) PLD 1956 SC (Pak.) 256
(5) P L. D 1959 SC (Pak.) 119 (6) PLD 1970 SC 1
(7) PLD 1960 Dacca 462 (8) AIR 1931 Cal. 779 Asghar A.I Mollah v. Surabindu Sen and others (PLD 1968 Dacca 498and the case of A.I Hussain v.
Rafiquddin (PLD 1977 Lah. 418) and the case of Syed Altaf Hussain and others v. Mian Fazal lllahi and others (PLD 1974 Lah. 502).
(i) Reverting to AIR 1938 Pat. It may be observed that in the above case the question for consideration before the Patna High Court was, as to whether an appeal was competent against the order for the refund of certain amount passed by the subordinate Court. While dealing with the above point, it was observed that the appeal lies from an order for restitution passed under section 144, C. P. C. As from a decree but if an order is passed under section 151, it is not appealable.
Reliance was placed on the case reported in 1 Pat. L J 4, 57 Cal. 226, and 11 P L T 156.
(ii) With reference to 1939 Oudh 273, it may be stated that in the above case it was held that when an order does not fall within the purview of section 144, but comes within the four corners of section 151, C. P. C., the order is not appealable.
(iii) With reference to AIR 1950 Mad. 463, it may be observed that it in a case decided by a. Full Bench comprising of 3 Judges of the Madras High Court, the question before the Full Bench was, as to whether the restitution order passed under section 151 is appealable or not. The Full Bench after reviewing the entire case-law on the subject held that no appeal was competent. It was observed by the Fult Bench that as there was no specific appeal provided under the Code against the orders of restitution and refund passed under section 151 of the Code and that as an order under the aforesaid section did not amount to a decree, the appeal was incompetent. It was also observed that the right of appeal is a right created by statute which cannot be conferred by implication.
(iv) Reverting to PLD 1956 SC (Pak.), it may be observed that the Supreme Court while interpreting Article 159 of late Constitution of 1956 observed that the right of appeal in this country being created by statute is substantive right and has only to be conferred or taxed away retrospectively by express words or necessary implication.
(v) With reference to PLD 1959 SC (Pak.) 119, it may be observed that while dealing with the scope of section 423 of the Cr. P. C. It was again observed by the Supreme Court of Pakistan that an appeal is the creation of Statute and is essential in the nature of right.
(vi) Reverting to PLD 1970 SC 1, it may be pertinent to observe that the question before the Supreme Court was, as to whether the right of review can be claimed in the absence of any provision. While considering the above question it was observed by the Supreme Court that "right to claim review of any decision of any Court of law like the right of appeal, is substantive right and not a mere procedure". Their Lordships also quoted with approval the case of Saudbach Trustee v.
North Stafforshire Railway Co. ((1877) 3 Q B D 1), in which Lord Branwall, L. J. Made the following observation relating to the right of appeal.
"Does not exist in the nature of things, a right .Of appeal from any decision of any tribunal must be given by an express enactment."
(vii) With reference to PLD 1960 Dacca, it will suffice to observe that the learned Single Judge of the Dacca High Court while considering the ques--petition as to whether an appeal would be competent against an order passed under section 151 observed that a Court may allow an application for restitution of an order under section 144 or under section 151, C. P. C. And that when the Court purports to act under section 144, then the order will be appealable, but whereas it acts under section 151, C. P. C. The order shall not be appealable.
(viii) In PLD 1968 Dacca 498, it was held that an order of setting aside on the ground of fraud and under section 151 was not appealable.
(ix) Reverting to PLD 1977 Lah. 418, it may be observed that in the above case also the question was as to whether an appeal will be competent against an order passed under section 151, C. P. C.
And not against an order under Order XXI, rule 97/103, C. P. C. It was held that the order passed under section 151 was not appealable.
(x) With reference to A I. It 1948 Cal. 3'7, it map be stated that in the above case the learned Single Judge of the Calcutta High Court took the view that an order of the nature provided for under section 144, C. P. C. Though passed under section 144, C. P. C shall be appealable.
(xi) With reference to 1931 Cal. It may be stated that in the above case it was held by a Division Bench of the Calcutta High Court that where a Court acting under section 151, C. P. C. Exercises same jurisdic--petition which section 144 provides an order of restitution made under section 151 shall be appealable.
(xii) In AIR 1943 Nag. 1.72, it was held that an order of the nature of section 1.44 or 145, C. P. C. But passed under section 151 was appealable.
(xiii) Reverting to 1974 Lab. 502, it may be observed that in the above case the facts were that the person in possession of the property in dispute of which ejectment order was passed resisted the execution of writ of possession and in consequence thereof the execution application was dismissed. It was held that since the order passed by the executing Court was also under section 47, C. P. C. It was open to appeal and also to a second appeal under the West Pakistan Urban Rent Restriction Ordinance (section 13).
3. From the above-cited and discussed cases, it is clear that the reasoning adopted in the cases, in which it has been held that an order passed under section 1.51, C. P. C though of the nature provided for in section 144, C. P. C. Is not appealable, is that the right of appeal is a creation of statute and such right cannot be claimed or conferred by implication.1 The above view found favour with the Indian High Courts referred to A hereinabgve seems to he in consonance with the view taken by the, High Court and the Supreme Court of Pakistan in the cases cited and discussed hereinabove. Whereas the contrary view taken by the High Courts of Calcutta and Nagpur referred to hereinabove in sub-paragraphs (x) to (xii) is on the reasoning that an order of restitution though passed under section 151, C. P. C. Is akin to an order under section 144, C. P. C. And, therefore, if an order passed under the latter provision is appealable, in that event by necessary implication an order passed under the former provision is also appealable, Though the above reasoning has some force. However, with due respect to the learned Judges who decided the above cases, I am unable to agree with the view found favour with them. In my view an order does not become appealable unless a right of appeal is provided, under the C: P. C. And for under any other enactment. If a right of appeal is not relatable to any enactment or the rules framed thereunder, it cannot be claimed or conferred by implication to meet the ends of justice.
4. (a) Reverting to Mr. Mukarim's contention that since the Rent Controller had passed an order, it was appealable order under section 15 and that if the first appeal was not competent under the Ordinance from it, it must follow that the second appeal i.e. The appeal in question is also incompetent, it may be observed that whereas subseetion..(1) of section 1:5 provides a right of appeal to an aggrieved party against an order made by the Controller under section 4, 10, 12 or 13 of the late W. P. U. R. R. Ordinance. Admittedly the Rent Controller's order in question, with no stretch of imagination can be said to have been passed under any of the above sections and, therefore, the appeal was not competent under section 15.
(b) Reverting to the question as to whether a second appeal is competent or not, it may be pertinent to observe that there is a marked distinction between the language employed in subsection (1) of section 15 and subsection (4) of section 15 inasmuch as in the former an appeal is provided against the order passed under section 4, 10, 12 or 13, whereas under sub-section (4) there is no such restriction or embargo provided for and it has been provided that any party aggrieved by an order passed on appeal by the Appellate Authority may file an appeal to the High Court within 30 days. In this view of the matter the second appeal would have been competent against an order passed by the First Appellate Court purporting to exercise power under section 15 of the Ordinance.
(c) It was next contended by Mr. Mukarim learned counsel for the respondent that as a matter of fact the respondent's appeal was not under section 15 of the West Pakistan Rent Restriction Ordinance, but was an appeal under section 104, C. P. C. And, therefore, the present second appeal under section 15(4) of the Ordinance is not competent. From the caption of -the memo of appeal filed before the learned District Judge, it seems that it was an appeal under section 104, C. P. C. But this will not .Change the position inasmuch as it is well-established principle of law that if party wrongly, quotes the provision of lave, it will not debar the Companygranting relief, if such a - relief can be granted by the Court in the matter under Borne other provisions of law. If I were to accept the contention of the learned counsel for the respondent that the respondent' appeal was under section 104, C. P. C, on the assumption that the Rent Controller's order was of the nature of a case in that even a second appeal would also be competent to this Court under the C. P. C.
(d) It was also contended by Mr. Mukarim that if the learned District Judge had no jurisdiction to entertain the appeal under section 104, C. P. C., from it, it must follow that a second appeal is also not competent tinder the C. F. C. Before this Court. In my view this contention is J,-void of any force.
In this regard reference may be made to the case of Bahadur v. Mirza Abdul Qayyum (PLD 1969 Lab. 636), in which it was being held that where the first appeal was entertained without jurisdiction, the second appeal would be competent against the decision of the Court. In this view of the matter this contention also fails.
5. In view of the above discussion I allow the appeal and set aside the order under appeal on the ground that the appeal before the learned District Judge was not competent. There will be no order as to costs.