' Review Application No. 2/84 is a petition for "review or recalling judgment, dated 29th November, 1983 under section 151, C.P.C. and Order XLVII, rule 1, C.P.C. read with section 21 of General Clauses Act". In the rent case between the parties, a preliminary issue had been framed about the relationship of landlord and tenant between the parties. The Rent Controller decided the preliminary issue in favour of the respondent holding that the relationship of landlord and tenant existed between the parties. After the enactment of the Sind Rented Premises Ordinance, 1979, the respondent filed an application under section 16(1) of the Ordinance and by order, dated 4th October, 1980 the Rent Controller passed an order under section 16(1) of the 1979 Rent Ordinance as follows:-- "The rent order in this case could be passed at the rate of latest assessment but the applicant has failed to produce any documents in respect of the latest assessment of the property in dispute to my satisfaction, therefore, I pass this tentative rent order and direct the opponent to deposit Rs.745 being the arrears of rent from May, 1968 to September, 1980 at the rate of Rs.5 p.m. in Court before Ist December, 1980."
' A further direction was also given by order, dated 4th October, 1980 for deposit of future monthly rent at the rate of Rs.5 p.m. A first rent appeal was filed against the order, dated 4th October, 1980 by the appellant and the same was dismissed in limine by this Court on the ground that no final order had been passed by the Rent Controller and the appeal was not maintainable. An application was filed by the respondent for striking off the defence of the appellant on account of non-compliance with the rent order. By order, dated 14th January, 1982, the Rent Controller allowed the application and struck off the defence of the tenant on the ground that rent of December, 1980, was deposited late and ordered his ejectment. The deceased tenant filed this first rent appeal.
During the pendency of this appeal, the appellant, Muhammad Haroon died and his legal heirs had been brought on record. By judgment, dated 29th November, 1983, I allowed the appeal of the tenants holding that the rent order, dated 4th October, 1980 of the Rent Controller under section 16(1) of the 1979 Rent Ordinance cannot be sustained and, therefore, it was set aside and it was further held by me that as a consequence the defence of the tenant/appellant could not be struck off, as he could not be penalized for violation of an illegal order passed under section 16(1) of the 1979 Ordinance. The present review application has been filed in which various grounds have been taken for review of my judgment, dated 29th November, 1983.
2. A preliminary objection has been taken by the learned counsel for the appellant that the present review application is not maintainable. According to the learned counsel for the appellant, neither under section 21 nor under any other section of the 1979 Rent Ordinance there is any provision for review by this Court of an order finally disposing of a rent appeal under section 21 of the 1979 Rent Ordinance. Learned counsel for the appellant had relied upon the judgment of the Supreme Court in the case of Muzaffar All v. Muhammad Shah. reported in PLD 1981 SC 94. In that judgment the Supreme Court was dealing with the question of maintainability of a review application made before a learned Single Judge of the Lahore High Court, who had, while disposing of the second appeal under section 15(4) of 1959 Rent Ordinance, had remanded the case to the Rent Controller.
A review application filed by the landlord before the learned Single Judge of the Lahore High Court was dismissed as incompetent. Against this order of the learned Single Judge, the landlord filed a letters patent appeal, which was accepted by a learned Division Bench of the Lahore High Court on the ground that the learned Single Judge was not correct in holding that he had no jurisdiction to review his order under the law relevant on the subject. Then the matter was taken to the Supreme Court. After referring to the relevant provisions of the law and certain decisions including PLD'1970 SC 1. Hussain Baksh v. Settlement Commissioner, Rawalpindi, in para.19 of their judgment, the Supreme Court held as follows:-- "The upshot of the above discussion is that looked at from whatever angle the conclusion is inescapable that as the 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 Restrictions Ordinance, 1959. We hold accordingly."
3. The law laid down by the Supreme Court in PLD 1981 SC 94 is binding on me. That judgment of the Supreme Court related to the powers of the High Court to review their judgment passed while disposing of a second appeal under section 15(4) of the 1959 Rent Ordinance. In the instant judgment has been passed by me under section 21 of the Sind Rented Premises Ordinance, 1979, but the ratio decidendi in PLD 1981 SC 94 will be applicable in relation to the provision of section 21 of the 1979 Sind Rented Premises Ordinance. In the 1979 Rent Ordinance, neither section 21, which gives power to parties to come in appeal against the orders of the Rent Controller to the Sind High Court, nor any other provision of the 1979 Ordinance, gives any power to the High Court to review its orders disposing of first rent appeals under section 21(3) of the Ordinance, 1979. Following the law laid down by the Supreme Court in PLD 1981 SC 94, I hold that the High Court cannot review a final decision given by it disposing of a first rent appeal on merits under section 21(3) of the 1979 Sind Rented Premises Ordinance, 1979. In the circumstances, if the present petition is a review petition, it is not maintainable.
4. Faced with the decision of the Supreme Court in PLD 1981 SC 94, learned counsel for the respondent attempted to distinguish the same. It was first argued that the decision in PLD 1981 SC 94 is distinguishable on facts. However, para 19 of the aforesaid judgment of the Supreme Court has laid down the law very clearly.
' Learned counsel for the respondent then relied upon the following reported judgments:--
(i) Muhammad Ramzan v. Rent Controller, Kar. 1985 CLC 553.
' In this case an order for deposit of tentative rent was passed ex parte and without taking into consideration facts on record and in the circumstances when an application was made for recall of such order on the application of the tenant, the contention that Controller had no jurisdiction to pass impugned order as he had not been vested with power to review his order, this Court held that though Controller has no power of review, he may pass an order recalling his earlier order, if the proper application is made under section 16 of the 1979 Rent Ordinance. The facts of this case are clearly distinguishable. What was under consideration was not a final judgment in appeal but a tentative rent order was passed ex parte and without taking into consideration the facts on record.
In fact his earlier ex parte order had been re-called by the Rent Controller. It was not a case of review.
(ii) Muhammad Hanif v. Muhammad Ramzan PLD 1983 Kar.
126.
' In this case it was held by a learned Single Judge of this Court that for the mistake on the part of the Court the party involved should not suffer. This decision does not help the contention of the learned counsel for the respondent that High Court can review its final decision on appeal under section 21 of the 1979 Rent Ordinance.
(iii) Basham Khan v. Shafi Shah 1983 SCMR 183.
Neither the facts nor the principle laid down in this decision has any bearing on the point in issue in the instant case.
(iv) Muhammad Aman v. Atta Muhammad 1982 SCMR 270.
' In this case it was held by Supreme Court that if by an order, a tribunal had recalled an order which was passed without affording opportunity of hearing to the other party, recall of such order in reality does not amount to a review. This case also does not help the learned counsel for the respondent, as the present is a case where I had passed the judgment after hearing both the parties.
4. In the alternative it was argued by the learned counsel for the respondent that the present, in fact, is a petition for recall of the judgment, dated 29th November, 1983 and not for review, as no hearing had been granted to the respondent by me in this matter. I find no merit in this contention, as my judgment, dated 29th November, 1983 will show that the hearing of this matter had taken place on four dates i.e. 19th October, 1983, 13th No ember, 1983, 15th November, 1983 and 21st November, 1983 and secondly I have decided the appeal on merits. The present application cannot be treated as the application for recall of the judgment on the ground that the respondent had not been heard. It is in fact a review application and as observed earlier, the review application is not maintainable. Review Application No. 2/84 is dismissed but with no order as to costs.
' Review .