AIMAL MIAN,.J.--These petitions involve some common questions of. Fact and law and, therefore, we intend to dispose of the same by this common order.
The brief facts leading to the filing of the above petitions are that the petitioners are the tenants/occupants of various tenements mentioned in the above petitions. Upon promulgation of M. L. O. 20 (hereinafter referred to as the M. L. O.) by Martial Law Administrator, Zone 'C' on 21-8-1977.
The landlords (i.e. the private contesting respondents) filed ejectment applica--tions before the Military Courts under the M. L. O. The above ejectment applications were granted by the Military Courts on the various date;; mentioned in the petitions. Some petitioners had also filed revision petitions against the ejectment orders as per, para. 8 of the M. L. O., but the same were dismissed.
The petitioners being aggrieved by the said ejectment orders have filed the above petitions.
In all the petitions the stay orders against the ejectment orders were granted by this Court. While the above petitions were pending for disposal, the Government of Sind, by the Military Courts (Validation of Orders) Ordinance, 1980 (Sind Ordinance No. 1 of 1980) (hereinafter referred to as the Validation Ordinance) gazetted on 19-1-1980 provided under section 2 that notwithstanding any order, judgment or decision of any Court, an order passed by a Military Court at any time after 16th August, 1977, in any proceeding under Martial Law Order, 20 made by the Martial Law Administrator Zone 'C' shall be deemed to have been passed under the Sind Rented Premises Ordinance, 1979 as if the said Ordinance was in force at the time when such order was passed and shall be deemed always to have effected accordingly. Subsection (2) of section 2 provides that an aggrieved person by any such order as is referred to in subsection (1) may within 30 days of the commencement of this Ordinance prefer an appeal to-the High Court. The above petitions have come up for hearing before us for regular hearing, learned counsel for the petitioners have submitted their arguments on the vires of M. L. O. 20 as well as on the merits of the ejectment orders and also on the question as to whether the above petitions can be converted into appeals. The leading arguments were advanced by Mr. Khalid M. Ishaque, who is appearing for the petitioners in some of the above petitions. The official respondents have been represented by Mr. Said A. Shaikh, learned Advocate- General, Sind, whereas the private respondents in some of the case are represented by some learned counsel.
2. (a) Mr. Khalid M. Ishaque has urged the following points:.--
(i) That M. L. O. 20 was ultra wires of the power of the Martial Law Administrator, Zone 'C' in view of Article 2 of the Laws (Continuance in Force) Order, 1977.
(ii) That since the orders of ejectment passed under M. L. O. 20 were without jurisdiction/void, the Validation Ordinance could not have validated the same. (Reliance has been placed on the case of The State v. Zia-ur-Rehman PLD 1973 SC 49.
On merits Mr. Khalid M. Ishaque as well as the other learned counsel for the petitioners inter alia have urged the following points
(iii) That no inquiry as contemplated under para. 5 of the M. L. O. Was conducted inasmuch as even a copy of the application was not furnished to the petitioners and no opportunity was provided to meet the private respondents' case.
(iv) That no finding as required under para. 6 of the M. L. O. Is recorded in the impugned orders on the points in issue.
(b) In some of the petitions, learned counsel for the petitioners have also urged the following additional contentions : . (t) That the private respondent's cases were not coveted by para. 2 of the M. L. O.
(ii) That even otherwise, the above M. L. O. Was not applicable in view of para. 9 of the same, as the rent cases in respect of some of the properties, which are the subject-matter of the above petitions were pending on the day of the issuance of the above M. L. O.
(c) Whereas Mr. Said A. Shaikh and the learned counsel for the private respondents have urged the following points
(i) That M. L. O. 20 was intra vires of the powers of the Martial Law Administrator, Zone `C'.
(ii) In any case the Validation Ordinance has validated the above orders and that they are deemed. To be orders passed under the Sind Rented Premises Ordinance.
(iii) That the above petitions have become infructuous, as after the pro--mulgation of the Validation Ordinance in Law no order of ejectment passed by a Military Court exists and that the remedy of the petitioners was to file an appeal under subsection (2) of Section 2 of the said Ordinance within 30 days from the commencement of the Ordinance.
(iv) That even otherwise, on merits it was urged by the counsel for the private respondents that the provisions of M. L. O. 20 were complied with before the passing of the impugned orders.
3. (a) After hearing some of the arguments of the learned counsel for the parties, we asked them to address the Court on the question as to whether the above petitions can be converted into rent appeals as provided for under subsection (2) of section 2 of the Validation Ordinance for the reason that while the above petitions were pending, the nature of the impugned orders was changed by fiction of law inasmuch as the Military Courts' orders have been converted into the orders passed by the Rent Controller under the Sind Rented Premises Ordinance, 1979. 1n all these petitions the petitioners were granted stay against the ejectment as pointed out hereinabove. In about 3 or 4 petitions, the petitioners have filed appeals provided for under subsection (2) of section 2 of the Validation Ordinance after the expiry of the limitation period, whereas the other petitioners could not file the same.
(b) It has been urged by the learned counsel for the petitioners that this Court has ample power to convert the above petitions into appeals in the end of justice inasmuch as the petitioners cannot file appeals for which 30 days period was provided for in the Validation Ordinance which since then has expired. It has been further urged that as per recent decision of this Court given by Naimuddin.
J. In the case of Saeed Muhammad v. Afazhar Ali Khan (PLD 1981 Kar. 76section 5 of the Limitation Act is not applicable to an appeal provided for under the Sind Rent Premises Ordi--nance, 1959, the petitioners have no other adequate/efficacious remedy. Reliance has been placed on the case of Tariq Transport Co. Lahore v. Sargodha Bhera Bus Service, Sargodha (PLD 1958 SC (Pak.) 437). The case of Saeed Hassan and another v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (1970SCMR44), the case of Muhammad Nazir and another v. Ghulam Muhammad etc. (PLD1979Note45atp.31), the case of Keramat Ali and another v. Muhammad Younus Ha/1 and others (PLD1963SC191), and the case of H. M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. (PLD1969SC65
(i) Reverting to the 1958 SC, it may be observed that in the above case a writ petition was converted into an appeal, however, there is no discussion on the above aspect.
(ii) With reference to 1970 SCMR, it may be stated that a writ petition filed against an order of the settlement authority at the request of the petitioner was converted into a revision under section 21 of the Displaced Persons (Land Settlement) Act, 1958 but after the matter was heard on merits, the High Court reconverted the revision into a writ petition. The above point was agitated before the Supreme Court in the petition for leave which was refused. In the above petition for leave, it was urged by the petitioner that the High Court having converted the writ petition into a revision petition under section 21 of the above Act, should have dismissed the same as it was barred by time and it had no jurisdiction to condone the delay as section 5 of the Limitation Act was not applicable. It was observed by the Supreme Court that the above conversion was subject to all just exceptions and the High Court was justified in reconvert--ing the revision into a writ petition when the aforesaid objection was canvassed before it, and, therefore, no exception can be taken to the procedure adopted by the High Court.
(iii) With reference to PLD 1979 Note 45 at p. 31, it will suffice to observe that according to the Note, it was observed by a learned Single Judge of the Lahore High Court that the remedy if open both by way of appeal and writ petition, an appeal can be treated as a writ petition and vice versa.
However, there is no discussion on the above question as the full judgment has not been reported.
(iv) Reverting to 1963 SC, it may be observed that the question before the Supreme Court was, whether at the appellate stage before the Supreme Court, the plaintiff could be permitted to amend the plaint. It was held by the Supreme Court that such amendment could be allowed even where legal right had accrued by the lapse of time to the other party if the special circumstances outweighed such consideration. Reliance was placed on the two cases of the Privy Council, namely, Muhammad Zahoor All v. Thakoranee Rutta Koer (11 M I A 468), and the case of Charan Das and others v. Amir Khan and others (AIR 1921 P C 50). The Supreme Court allowed the amendment at the appellate stage to the plaintiff and permitted him to include relief for 'Khas possession' upon payment of court-fee though a fresh suit for possession would have been time-barred by several years.
(v) As regards 1969 SC, it may be stated that the appellant, who was not a party to the suit filed an appeal against an interim order. The above appeal was resisted and inter alia it was urged that the appellant had no right to file the appeal but the above contention was repelled by the Supreme Court in the following words :- "A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed there--in. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition.
The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice.
The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers adminis--tration of justice is permissible even if there is no express provision permitting the same."
4. (a) From the above-cited cases, .It-is evident that the Court with the view to foster justice may take appropriate action or to adopt a procedure which is not provided for if it is not expressly prohibited by any provision of law. Since there is no express prohibition against the conversion of a writ petition into an appeal, the Court has inherent power to adopt above procedure in a fit case in the interest of justice. Mr. Said A. Shaikh, learned Advocate-General Sind, also submitted that this Court has requisite power to convert the above petitions into appeals. The learned counsel for the private respondents were unable to cite any case to canvass conversely. On the other hand, they conceded that this Court can convert a writ petition into an appeal. However, it was urged by them that since the limitation period for filing of an appeal provided for was 30 days under subsection
(2) of section 2 of the Validation Ordinance, the private contesting respondents have acquired vested right by virtue of the efflux of time as the petitioners have failed to file appeals within the above time provided for. It may be observed that it cannot be overlooked that in the above petitions the Military Courts' orders under the M. L. O. Were impugned, the execution of which was stayed by this Court. However, during the pendency of the above petitions, the nature of the impugned orders has been changed by the Validation Ordinance, namely, the Military Courts' orders have been converted into orders passed under the Sind Rented Premises Ordinance, 1979, by fiction of law subject to the right of an aggrieved party to file an appeal within 30 days. Since these petitions were pending on the day of the enforcement of the Validation Ordinance, in our view it will not be unjust and improper, but in fact it will be in furtherance of justice if the above petitions are converted into appeals as both the parties will have fair opportunity before a learned Single Judge of this Court under section 21 of the Sind Rented Premises Ordinance, 1979. It is true that the petitioners now cannot file appeals on account of the fact . That the limitation period has expired on the expiry of 30 days from the date of the commencement of the Validation Order, but the special circumstances of the instant cases are such that the principles inter alia enunciated by the Supreme Court in the aforesaid case reported in PLD 1963 SC 191 can be pressed into service. It may also be observed that the learned counsel for the petitioners have orally requested for the conversion of the above petitions into appeals, which request we are inclined to grant for the reason recorded herein--above. However, Petition No. 341/80, which was filed on 4-3-1980 i.e. after the expiry of about 39 days from the date of the commencement of the Ordinance cannot be converted into an appeal as it was filed after the expiry of the limitation period provided for under section 2(2) of the Ordinance for filing o:' an appeal.
(b) We, accordingly direct that Petitions Nos. 597/77, 619/77, 650/77, 658/77, 670/77, 679/77, 715/77, 720/77, 818/77, 819/77, 843/77, 883/77, 886/77, 887%77, 889/77, 890/77, 895/77, 902/77, 904/77, 906/77, 907/77, 908/77, 911/77, 923/77, 58/78, 161/78, 165/78, 469/78, 38/78, which were pending at the time of the commencement of the Validation Ordinance i.e. 19-1-1981 be converted into appeals. It may be observed that the payment of additional court-fee is not involved as the petitioners have paid court-fee namely, Rs. 100 for each petition, whereas Rs. 15 only are payable as court-fee on a rent appeal. The office is directed to send the files of the above-mentioned writ petitions to the Appellate Branch of this Court for taking further action. After registering the above petitions as appeals the same may be fixed for regular hearing within 6 months. The notice of the appeals may be issued to the respondents at the cost of the petitioners/appellants. The office may also send for R 8c P from the Military Courts.
Whereas Writ Petition No. 341/80 will be fixed for hearing before the Bench concerned on merits on a date in office.