' AJMAL MIAN, J.--Since this was a mistake on the part of the learned counsel for the petitioner, the application is allowed. The correct date as stated in the application may be substituted in the order referred to in the application.
2. This is an application under section 151, C.P.C. For recalling the order, dated 5-5-1982 passed by a Divison Bench of this Court converting the present petition into first rent appeal in terms of the judgment in the case of Mst. Akhtar Nasimi v. Martial Law Administrator Zone 'C', Karachi reported in PLD 1982 Kar. 130, in which a Division Bench of this Court has held that this Court has power to convert a writ petition into a first rent appeal for the reasons recorded therein. In support of the above application Mr. Z.0 Ahmed learned counsel for the respondents 1 and 2 has advanced the following three contentions:-
(i) That after the enforcement of the Military Court (Validation of Orders) Ordinance, 1980 (hereinafter referred to as the Ordinance) on 19-1-1980, the above petition has abated as there was no Military Court order which could have been the subject-matter of the petition.
(ii) That in view of President Order No,1 of 1980 and P.C.O., the above petition stood abated automically and, therefore, above order, dated 5-5-1982 converting the above petition into an appeal should not have been passed.
(iii) That since the aforesaid judgment reported in PLD 1982 Kar. 130 was given on 16th February, 1981 and it was reported for the first time in PLD 1982 Kar. 130 the petitioner was not justified in making oral request for converting the above, petition into an appeal after the expiry of nearly 14 months from the date of passing of D.B. Judgment relied upon in the order in question.
' On the other hand Mr. Dareshani learned counsel for the petitioner has pointed out that on 5-5- 1982 the respondents' earlier application under section 151, C.P.C. (Miscellaneous Application No,2055 of 1981) was fixed for hearing , in which the above respondent had raised the question of maitainability of the petition in terms of the P.C.O and that since the learned counsel for the respondents had not appeared on the above date namely 5-5-1982, the learned Judges of the Division Bench disposed of the above application by granting the oral request of the petitioner's counsel. For converting the petition into an appeal in terms of the above judgment reported in PLD 1982 Kar.
130.
' At the outset it may be observed that this application was placed before D.B. I, which had passed the aforesaid order, dated 5-5-1982 but the above Division Bench by its order, dated 16-12-1984 had ordered that this application should be placed before a Division Bench of which Mr. Justice Ajmal Mian is a member. In view of the above order, this application has been heard by us.
3. Adverting to the first contention of Mr. Z.U. Ahmed that after the enforcement of the Ordinance, the above petition stands abated as there was no order passed by the Military Court in the field because of the operation of law, it may be pertinent to refer section 2 of the Ordinance which reads as follows:- "2.Validation of certain orders, etc.-- (1) Notwithstanding any order, judgment or decision of any Court, an order passed by a Military Court at any time on or after sixteenth day of August, 1977, in any proceedings under Martial Law Order No,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 were in force at the time when such order was passed and shall have, and shall be deemed always to have had, effect accordingly.
(2) Any person aggrieved by any such order as is referred to in subsection (1) may, within thirty days of the commencement of this Ordinance, prefer an appeal to the High Court."
A perusal of the abovequoted section indicates that an order passed by a Military Court at any time on or after 16th day of August, 1977 in any proceedings under Martial Law Order 20 made by Martial Law Administrator Zone 'C' was to be deemed to have been passed under the Sind Rented Premises Ordinance, 1979 and was to be deemtsd always to have had the effect. There is no provision dealing with the question that if a petition impugning such an order is pending, the same shall stand abated. In our view, abatement of a petition cannot be presumed in the absence of an express provision. However, it can be argued that the petition has become infructuous for the reason that the Military Court order for all intents and purposes and for all time by fiction of law was converted into an order passed by the Rent Controller under the Sind Rented Premises Ordinance.
4. As regards the second contention of Mr. Z.U. Ahmed that on account of President Order No,1 and the P.C.O. The above petition stands abated, it may be observed that in support of the President Order No,1 of 1980 by Z.U. Ahmed has referred to a Full Bench case of this Court namely Haji Abdullah v. Presiding Officer Summary Military Court No,9, Karachi in which majority view was that the High Court had no jurisdiction to examine the validity of an order passed by a Military Court.
Whereas the effect of the P.C.O. Was to abate all the petitions in which inter alia the order passed by any Military Court or by any Martial Law Authority was impugned. The above contention of Mr. Z.U. Ahmed would have force if on account of the enforcement of the Ordinance the impugned order passed under M.L.O 20 would not have been converted into an order passed by a Rent Controller under the Sind Rented Premises Ordinance. In our view, after the enforcement of Ordinance on 19th January, 1980 the impugned order in the instant petition ceased to be an order passed by a Military Court but in fact by fiction of law had become an order passed by a Rent Controller under the Sind Rented Premises Ordinance and, therefore, this contention also fails.
5. Reverting to the last submission that the petitioner was not justified in making a request for conversion of the present petition into a first rent appeal after the expiry of nearly 14 months from the delivering of the judgment in the above case of Mst. Akhtar Nasimi V. Martial Law Administrator Zone 'C' Karachi PLD 1982 Kar. 130, it will suffice to observe that the present petition was filed before the enforcement of the Ordinance and, therefore, the ratio of the reasoning given in para. 4 of the above judgment reported in PLD 1982 Kar. 130 on all fours will be applicable. It will be advantageous to reproduce the para. 4 of the above judgment which reads as follows:- "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 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 convass canversely. 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 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 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 hereinabove. However, petition No,341 of 1980, which was filed on 4-3-1980 i.e. After the expiry 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 of 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, 848/77, 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, 469/78, 38/78, 165/78,. 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 abovementioned 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 & P from the Military Courts."
6. For the aforesaid reasons we do not find any force in this application and, therefore, it is dismissed with no order as to cost. Office is directed to fix the above petition as first, rent appeal as already ordered by D.B.I on 5-5-1982 on a date by office.