1. ' SHAHID ANWAR BAJWA, J.---By this order, I propose to decide Constitutional Petition No,898 of 2009 and No,899 of 2009. Learned counsel for respondent No,1 has filed objections as well as counter affidavit in both these petitions, the same are taken on record.
2. ' The facts relevant to C.P. No,898/2009 are that the petitioner is landlord and respondent No,1 is the tenant.. Tenancy is in respect of Shop No,G-29 to 35, ground floor, Mezzanine Floor 38 to 57 and 125 to 137 (total admeasuring 8299 Sq. Feet), 1515 sq. Feet of basement for cold storage and 1500 Sq.
3. Feet on first floor for office in building known as Millennium Mall at Rashid Minhas Road. The tenant is operating a restaurant under the name of "Pizza Next" at the rented premises. Tenancy commenced in 2005. Under agreement of tenancy it is provided that tenant shall pay-to the Management Company of the Mall all utility charges in respect of the demised premises. It is further stipulated in the agreement that at the end of each month, the tenant will provide copies of paid bills of utility charges to the landlord. There is a separate service and maintenance charges agreement Millennium Mall Management Company (M.M.M.C.), in which agreement provision has been made in respect of service charges relating to air-conditioning, maintenance and up- keeping of services, including security, supply of electricity, cleaning and janitorial services of common areas etc. Rates for these services are also specified except the rates for electricity. And in respect of rates of electricity it is provided that charges computed as per standard KESC Commercial rates shall be paid. It is however stated that lessee agrees to pay services charges whenever the management revises the same.
4. ' An application under section 13(1) of the Cantonments Rent Restriction Act, 1963 was filed with the following prayers:-- "It is therefore, applicants pray for prohibitory and mandatory order may be passed against the opponents preventing/retraining them for discontinue the electricity connection provided by them for which they have been receiving the huge amount from the applicants and are using for business purpose since June, 2005 without any hindrances.
(2) Award costs throughout to the applicants against the opponents together with such other relief(s) as this Hon'ble Court be pleased to give, grant, and provide under the circumstances of the case."
5. ' Written statement was filed and it was contended in the written statement that electricity is not provide by the landlord/petitioner but it is provided by M.M.M.C. It was further pleaded that the petitioner is a registered partnership and so is M.M.M.C. Though some of the partners are common but both partnerships are separately registered.
6. ' On 24-10-2007 an order was passed by the Rent Controller and applicant under section 13(1) of Cantonments Rent Restriction Act, 1963 was dismissed. Operative part of the order reads as under:- - "It is clear opponent has no concern with the electricity issue as a separate Management Company i.e, Messrs Millennium Mall Management Company has already entered into service and Maintenance Agreement with applicant/tenant and said Millennium Mall Management Company issued separate bills for recovery of electricity, maintenance and air-conditioning which have been paid by tenant/applicant and after September, 2008 they failed to pay any dues rather filed these proceedings. It is clear that said Millennium Mall Management Company do not fall within the definition of "Landlord" as given in subsection (2) of section 2 of the Cantonment Rent Restriction Act, 1963 (Act XI of 1963), who is solely dealing with issue of electricity, air-conditioning and maintenance and that is why the applicant did not choose to join Millennium Mall Management Company in these proceedings. The opponents only concerned with the rent of the premises and not to electricity, air-conditioning and maintenance therefore this Court has no jurisdiction to entertain this Misc. Rent Case filed under section 13 of the Cantonments Rent Restriction Act, 1963 and only the civil Court has got jurisdiction, which is accordingly dismissed with no order as to costs".
7. ' After this order was passed, on 10-11-2009 an application for recalling of the order, dated 4-10- 2009 under section 20 of the General Clauses Act, 1956 was filed and it was prayed therein that the Court may be pleased to recall its order, dated 24-10-2009. It was submitted that M.M.M.C. Is a piece and parcel of the petitioner/landlord. Commitment of any default in payment of electricity charges was denied.
8. ' Learned Rent Controller on 23-11-2009 passed an order recalling his earlier order of 24-10-2009.
9. Operative part of the second order reads as under:-- "This is settled principle of law that if some order law has been passed erroneously and in violation of law, the very Court has power to rescind, vary, modify and alter the same.
(6) For the able reasons order, dated 4-10-2009 is recalled and the matter is adjourned for 2-12- 2009 for filing issues by the parties. This is a case of hardships, where the electricity of the applicant has been disconnected with one reason and the others, Because of disconnection, the business of the applicant has been seriously damaged. The opponents including all other persons having control of electricity are hereby directed to restore the same for premises of the applicant within 24 hours, The opponents and all other persons if any are entitled to submit their claim regarding electricity in this Court if any within a week time and after due hearing, an appropriate order regarding payment of dues shall be passed. This order shall be supplied to the concerns immediately for compliance'. This is interim arrangement for restoration of electricity until and unless another order is passed by this Court."
10. ' Writ Petition No,898 of 2009 has been filed by the landlord against order, dated 23-11-2009. Writ Petition No,899 of 2009 has been filed by the said Millennium Mall Management Company because in the order, dated 23-11-2009 it had been ordered that not only opponent but all persons having control of electricity were directed to restore the same.
11. ' Learned counsel for the petitioner made the following submissions : --
(1) M.M.M.C. And Mumtaz Construction Company are two separate partnerships. Both are registered. Millennium Mall Management Company was not made an opponent in the application before the Court below and therefore no order could be passed in respect of Millennium Mall Management Company. He relied upon Allied Bank of Pakistan Ltd. Through Manager v. Additional District Judge, Islamabad and 2 others, 2005 CLC 738. Respondent No,1 has always paid the utility charges to M.M.M.C. And in this regard the learned counsel referred to various documents submitted with the petitioners,
(2) The respondent has been defaulter both in respect of rent as well as in respect of utility and service charges. Separate suits for recovery of Rent as well as Recovery of Service Charges have been filed and are pending before this Court. Ejectment application for default has been filed and the same is pending before the learned Rent Controller.
12. (3)The Rent Controller cannot review his order. His order is in essence an order reviewing the earlier order and not an order of recalling.
13. (4)Reference to section 27(1) of the Cantonments Rent Restriction Act, 1963 is misconceived because application was dismissed on the short ground and section 27(1) is attracted only when there is dispute between landlord and tenant. Even otherwise without enquiry the Rent Controller could not have passed order for restoration of electricity. Without prejudice, this order is contrary to record because issue pertained to M.M.M.C.. And not to Mumtaz Construction Company (M.C.C.).
(5) Question that M.M.M.C. Is separate company was dealt with in the order, dated 24-10-2009 and has not been even obliquely mentioned in the order, dated 23-11-2009.
(6) Respondent No, 1 had remedy of appeal against order, dated 23-10-2009, but he failed to avail that remedy and therefore that order has attained finality. Learned counsel relied upon Baghpotee Services (Pvt.) Ltd. And others v. Allied Bank of Pakistan Ltd., 2001 CLC 1363 to contend that the order passed by the Court below was an order of review and not an order of recall. Learned counsel relied upon Muzaffar Ali v. Muhammad Shafi, PLD 1981 SC 94 and Sultan Mahmood v. Anwar Ahmad 1983 CLC 2109, to contend that right of review is a substantive right and is always a creation of statute. Unless statute confers such power the Court cannot review its earlier order. Learned counsel relied upon Kohitex (Pvt.) Ltd. v. Muhammad Mukhtar and 2 others 1995 CLC 781, to contend that Rent controller has no power to review his earlier order. Learned counsel relied upon Mian Zafar Iqbal through Attorney v. Farzana Khanum and another, 2009 YLR 403, to contend that in the garb of section 21 of the General Clauses Act, 1897 or under section 20 of the West Pakistan General Clauses Act, 1956, a Court cannot review or recall or modify earlier order passed by it. On question of maintainability of constitutional petitions, learned counsel relied upon Sheikh Abdul Sattar Lasi and another v. Judge Banking Court and 3 others, 2007 CLD 69, to contend that where the order is passed by Court below by wrongly assuming jurisdiction, constitutional petition would be maintainable.
14. ' Learned counsel for respondent submitted that the second order i.e, order, dated 23-11-2009 is interim order and no writ petition could be maintained against interim order. She relied upon Muhammad Shafi v. Rent Controller, 1995 CLC 639 and Muhammad Taj v. Muhammad Younis Khilji and another, 2008 CLC 1666. Learned counsel submitted that a party not approaching the Court with clean hands cannot claim equitable relief from the High Court. In this regard she relied upon West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement), 2007 SCMR 1318 and West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement), 2007 PTD 1744. She also relied upon Muhammad Saeed v. Mst. Saratul Fatima and another PLD 197$ Lahore 1459, where it was held that interlocutory orders not held by Legislature itself not fit to be appealable would not be fit enough to attract constitutional jurisdiction. She relied upon Government of Sindh through Secretary Education and others v. Delhi Anglo Arabic College and Schools, 2009 SCMR 315, to contend that injustice or hardship to a party would not deprive aggrieved party to claim and assert his right available to him under the law. Learned counsel submitted that her business has been shut down, electricity has been discontinued and it is made to run from Court to Court without any relief.
15. Learned counsel submitted that under section 20 of the West Pakistan General Clause Act, 1956, the authority passing an order always had authority to amend, vary or rescind the same.
16. ' I have considered the submissions made by the learned counsel. I have also gone through the record as well as case-law cited by the learned counsel.
17. ' As far as questions of fact such as whether M.M.M.C. And M.C.C. Are two separate registered partnerships and therefore distinct entities or whether as contended respondent No,1, M.M.M.C. Is a department, piece and parcel of M.C.C. And whether there has or has not been any default in payment of rental charges or services charges cannot be decided in exercise of constitutional jurisdiction and reliance placed by learned counsel for respondent No,1 National Highway Authority through Chairman v. Nasrullah Khan Chattah, Secretary, Board of Revenue, Government of Punjab, Lahore and 3 others 2007 CLC 1794, is perfectly apt and justified. Therefore, in these constitutional petitions I cannot decide these questions.
18. ' The core question is whether having passed order, dated 24-10-2009, learned Rent Controller could recall that order as he did on 23-11-2009 and whether the order, dated 23-11-2009 is an order of recall or is it an order of review.
19. ' In Baghpotee Service's case (Supra), Mr. Justice Sabihuddin Ahmed writing for a Division Bench distinguished power of recall and power of review. Relevant observations are as under:-- "(4) The above judgment fully supports the contention of Mr. Asim Mansoor Khan. Indeed there could be no cavil that the power of review must be conferred by statute and that section 27 of the Act has to be given its full effect. Nevertheless, and we say so with the profoundest respect to the learning and legal acumen of the learned Judge pronouncing the above judgment, for which we have great admiration, the real question for determination would be whether an order recalling an earlier order which had not been passed on merits but only on account of non-appearance of a party would really amount to a review of the earlier order?
20. ' The expression review has not been defined in the 1997 Act or any other relevant statute. Therefore, we must resort to its ordinary dictionary meaning. In Black's Law Dictionary (VI Edition) Review has been defined as follows:-- "To re-examine judicially or administratively. A Reconsideration; second view; of examination; revision; consideration for purpose of correction.."
5. In the Lahore Full Bench case cited by learned counsel for the appellant PLD 1972 Lah. 603 the distinction between an application seeking rehearing of a case decided ex parte and one seeking review of the ex parte judgment was appreciated. It was held that in the former type of proceedings a party claims rehearing on the ground that he was prevented by some sufficient cause from appearing on the date of hearing while in the latter he questioned the order passed on its own merits. The distinction if I may say so with respect, was brought out in the Supreme Court judgment in Haji Fateh Muhammad v. Maula Bux and others,. PLD 1963 SC 311. In this case an ex parte order was passed by the. Deputy Settlement Commissioner without hearing the appellant.
21. Upon an application made by the appellant he was duly heard but the same order was passed.
22. Subsequent orders passed in appeal were challenged on the ground that an order passed in review was not appealable but the contention was repelled by S.A. Rehman, J., holding that the Deputy Settlement Commissioner had not in reality reviewed his previous order.
6. The position if we may say so with respect stands clarified from a relatively recent pronouncement of the Honourable Supreme Court in Haji Khuda-e-Nazar v. Haji Abdul Bari 1997 SCMR 1986 which was not cited at the bar before us and was indeed not brought to the notice of the learned Single Judge deciding Allied Bank's case referred to in paras. 3 and 4 above. It may be pertinent to reproduce the following observations of Saleem Akhtar, J. Speaking for a three members Bench of the Honourable Supreme Court of Pakistan:--.
23. "It is now well-settled that in proceedings before Court or Tribunal of quasi-judicial nature, even if there is no provision for setting aside an ex parte order, the Court/Tribunal would be empowered to exercise such power by applying principles of natural justice. Such provisions which enshrine principles of natural justice have to be read in the statute which do not specifically debar such a remedy. Therefore, even without applying the provisions of C.P.C., in terms, the procedure provided under Order IX, Rules 9 and 13 and Order XLI, Rule 17, C.P.C. Can be applied by the Controller or the High Court in rent proceedings. In such cases the Court is not required to consider and decide it on merits, but it is to see whether the defaulting party was prevented from appearing in Court due to sufficient reasons. It would, therefore, not amount to reviewing its own judgment which surely a Controller is not empowered to do."
24. (underlining is ours)
7. In view of the above discussion, we are of the considered opinion that there is a clear distinction between review of an earlier order and recalling one passed on account of non-appearance of a party. In the former the merits of an earlier order are considered but in the latter only the cause of non-appearance is to be taken into consideration. In the former case the power must be conferred by statute but in latter it stems from the principles of natural justice required to be read into every law. The former is excluded by section 27 but the latter continues to remain available.
8. As regards the alternate contention of Mr. Asim Mansoor Khan premised on the specific provision of section 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and the observations made in Allied Bank's case 2000 CLC 1153 we are constrained to express out inability to subscribe to the view canvassed. The observations in the above judgment, if we may say so with respect, arise from the assumption that some inherent power of review is deemed to exist in the Rent Laws of the Industrial Dispute Act, 1947 referred to in the aforesaid judgment which has been taken away from a Banking Court by the express mandate of section 27 of the 1997, Act. Nevertheless once it is acknowledged that the power to review must be expressly conferred by law no question of any such implied power can possibly arise. We are clearly of the view that the power to recall an ex parte order is an altogether different power than one of review and emanates from a different source, therefore, nothing turns on section 27 in the present context.
25. There is no dispute or controversy between the parties that power of review is always a creation of a statute and unless it is conferred by law power of review cannot be exercised. Therefore I need not refer to the case-law on this particular point. The question is whether the order passed by Rent Controller on 23-11-2009 was an order of recall or an order of review. As has been held by Division Bench of this Court, the power of review is to reexamine judicially and power of recalling is either when an order is an interim order or when an order has been passed on account of non- appearance of a party. Obviously the order, dated 24-10-2009 was not an interim order because by that order application under section 13 was dismissed and thus disposed of finally. Obviously also it was not passed in absence of a party and therefore, it was not an ex parte order. In the order, dated 23-11-2009 itself the learned Court has referred to section 27(1) and then made specific observations. That means that learned Court re-examined the issue. Thus it could not have done because it did not have conferred upon its power of review.
26. ' However learned counsel for respondent placed heavy reliance on section 20 of the West Pakistan General Clauses Act, 1956. That section 20 is in the following words:-- "(20) Power to make to include, power to add to, amend, vary, or rescind orders, rules or bye-laws.- Where by any West Pakistan Act, a power to issue notification, order, rules, scheme, form or bye- laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form, bye-laws so issued,"
27. ' This section came up under examination before the Honourable Supreme Court of Pakistan in Pakistan through the Secretary Ministry or Finance v. Muhammad Himayatullah Farukhi, PLD 1969 SC 407, and the full Court (at that time the Supreme Court had five Judges only) had authoritatively laid down the law in the following words:-- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus penitential, i.e,, the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
28. Therefore power under section 20 of the West Pakistan General Clauses Act, 1956 or section 21 of the General Clauses Act, 1897 is available only as long as the order has not taken legal effect and vested rights have not been created in favour of any individual. Order, dated 24-10-2009 took effect moment it was passed. Legal right was created in favour of present petitioner in that case against the landlord was dismissed. Therefore, the order could-not be called back even in the garb of section 20.
29. ' There is another aspect of the matter. The Court, moment it passes an order, becomes focus officio. Thereafter as far as any order is concerned, unless law has specifically conferred power on the Court (such as to correct clerical mistakes and slips under section 152, C.P.C., to recall ex parte order under Order IX Rule 9 or to review an order under section 114 C.P.C.) the Court, as far as that order is concerned, becomes functus officio and cannot do anything to modify, amend or change that order.
30. ' Therefore, order passed by the Court below on 23-11-2009 is an order without authority, without jurisdiction and is therefore without lawful authority and of no legal effect. Consequently order, dated 23-11-2009 is set aside.
31. ' Regarding maintainability of the constitutional petitions, it is now well settled law that if an order is passed by a Court below without jurisdiction or the Court below is coram non judice, Superior Courts can, in any case, interfere with that order. If any authority is needed, the latest pronouncement by this Court is in Shaikh Abdul Sattar's case (supra).
32. ' As far as case-law regarding maintainability of writ petition relied upon by the learned counsel for respondent No,1 is concerned, I may refer to it. Muhammad Shafi's case is a case, in which tentative rent order was challenged. In the present case it is not a tentative order has been challenged. It is an order reviewing an earlier final disposal order. Same is position in Muhammad Tajs case, in which case it was again a tentative rent order, which had been challenged. As far as question of coming to the Court with clean or unclean hands is concerned, I fully subscribe to the case-law cited by the learned counsel, but the same does not help the learned counsel because in this case what is involved is only of a question of law. Muhammad Saeed's case was also relied upon by learned counsel of respondent No,
1. This case again is one relating to a tentative rent order and is therefore clearly distinguishable. Normally an interim order cannot be challenged in writ petition.
33. But this is a case in which a final order has been reviewed through a subsequent interim order. It is an exceptional case and in view of principles laid down by the Supreme Court in Ahasan Akhtar's case (1998 SCMR 68) writ petition is held to be maintainable.
34. ' Constitutional jurisdiction is to be exercised to foster justice and no person should be left remediless. Respondent No,1 has a business to run. Whether it is responsibility of the petitioner in C.P. No,S-898/2009 or the petitioner in C.P. No,S-899/2009 to provide electricity etc. And whether petitioners in C.P. Nos.S-898 and 899 of 2009 are separate legal entities cannot be decided in this jurisdiction. It is due to mistaken view that instead of challenging order, dated 24-10-2009 in appellate proceeding provided in law. Respondent No,1 filed a misconceived application under section 20 of the General Clauses Act. However, this act has been obviously done in good-faith.
35. Therefore respondent No,-1 is allowed a period of thirty days from the date of this order to challenge the order passed by the Rent Controller on 24-10-2009 in appellate proceedings in accordance with law. Result of the above discussion is that order, dated 23-11-2009 is set aside and the writ petitions are disposed of in the above terms.