MUHAMMAD ASLAM MIRZA vs Mst. KHURSHID BEGUM

MUHAMMAD AKRAM, J.-Briefly the facts, leading up to this reference to the Full Bench before us are these: On 14-9-1964 the respondent filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordi--nance VI of 1959 (hereinafter called the Ordinance), before the Rent Controller, Chakwal, for the ejectment of the appellant from the house in dispute. After the appellant was duly served, he filed his written reply contesting his liability for the ejectment. But on 21-7-1965, neither the appellant nor his learned counsel appeared at the hearing and ex parte pro--ceedings were taken for his ejectment from the premises. However, afterwards on 3-9-1965, the appellant applied to the learned Rent Controller under Order IX, rule 13 of the Code of Civil Procedure to set aside the ex parte order passed against him alleging that he had engaged Syed Zia-ul-Hassan Vakil, Chakwal, as his counsel and made the necessary arrangements for his representation in the case, but that on 30-7-1965, he had to leave for Lahore in connection with the illness of his son admitted to the hospital and that in his absence the order for his ejectment was passed ex parte. But he learned about the order for the first time on 3-9-1965. He asserted that in these circumstances there was sufficient cause for his absence at the hearing, and prayed that the ex parte order passed against him for his ejectment may be set aside. The respondent opposed the application, he raised the objections that it was barred by time and that there was no sufficient cause to set aside the ex parte order. After recording the evidence, the learned Rent Controller, on 12-10-1965, dismissed the application on the short ground of limitation, as barred by time, under Article 164 of the Limitation Act. He did not go into its merits to find out if there was a sufficient cause to set aside the ex parte order of ejectment passed by the Rent Controller.

2. The appellant filed an appeal to the High Court against this order. On 9-11-1965, a Division Bench of this Court, while admitting the appeal to a full hearing, formulated the following two questions; "(1) Whether the Rent Controller can set aside as ex parte order? The appellant relies on Syed Nafees Ahmad Zaidi v. S. M. Hussain PLD 1964 Lah. 536. It appears that attention of the learned Judge was not drawn to the concluding part of section 141, C. P. C.. . , . . . In proceedings in any Court of Civil Jurisdiction'. The authority is that a Rent Controller is not a civil Court.

(2) Whether Article 181 of the Limitation Act is applicable to the application for setting aside ex parte order under the West Pakistan Urban Rent Restriction Ordinance VI of 1959?" and recommended that in view of the above reported decision by another Division Bench, this case may be referred to a Full Bench. Accordingly this Bench was constituted for the disposal of this case.

3. At the hearing before us, Raja Muhammad Muzaffar ap--peared for the appellant and the respondent had failed to put in her representation. In these circumstances we had to call upon Mr. Aslam Riaz Hussain, Assistant Advocate-General, West Pakistan, Lahore, Khawaja Muhammad Tufail and Mr. Amar Raza A. Khan, Advocates amicus curiae, to assist us with their arguments and we are very grateful to them for the valuable services so willingly rendered to us.

4. It is well settled now that the Controller constituted under the Ordinance is not a Court, he merely acts as a persona designate and at best exercises quasi-judicial functions in the discharge of duties enjoined upon him by the law. In the Corpo--ration of City of Lahore v. Mst. Fehmida Begum (PLD 1952 Lah. 258), a Full Bench of the Lahore High Court held that the preponderating balance of authority was in favour of the proposition that the special tribunals created under the circumstances analogous to those obtaining under the Punjab Urban Rent Restriction Act VI of 1947 (corresponding to this Ordinance) are not Courts. In this connection, the Court observed that "The Controller does not appear to be armed with all the power of a civil Court under the Act and, therefore, does not seem to be bound by all the provisions of the Code of Civil Proce--dure.

Similarly, the Supreme Court of Pakistan, in Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another (PLD 1965 SC 459), after an examination of all the different provisions in the Ordinance, has held that though some of the functions of the Controller are judicial in character, yet he is not required to act judicially in discharging many of his functions and it would be difficult to hold that the Controller while performing his functions under the Ordinance acts as a Court. At best he acts in a quasi-judicial capacity. He is not bound in every case to follow the procedure laid down in the Code of Civil Pro--cedure. In this connection the Supreme Court observed that:- "He (the controller) has been given powers under sections 4, 10(3) and 12 to make orders after holding such enquiry as he thinks fit. 1n such cases the question of nature of enquiry is left to him.

That means that in such enquiries the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban Area the landlord may not convert a residential building into a non-residential building. The power thus conferred on the Controller would appear to be a purely executive. Then subsection (3), section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be 'satisfied' that the claim of the landlord is bona fide. But there is no express mention of any enquiry by the Controller. If the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure."

But in another case, in Ashfaq-ur-Rehman v. Ch. Muhammad Afzal (PLD 1968 SC 230), the Supreme Court observed that the determination of "all rent due", in sub-section (6) of section 13 of the Ordi--nance, by the Rent Controller is in the nature of an adjudication by a Court in a suit for recovery of arrears of rent and a "legal process is employed by the Rent Controller to recover rent which is closely akin to an action at law in a Court of Civil Jurisdiction." Nevertheless, it cannot be doubted that the Rent Controller Is not a Court, though it may still have some of the trappings of a Court attached to it.

5. The question that next arises is as to how far, if at all, the Controller is bound by the procedure laid down in the Code of Civil Procedure, 1908 during the course of his enquiry before him under the Ordinance. In this connection section 16(1) of the Ordinance in terms specifies that the Controller shall have the same powers of "summoning and enforcing the attendance of witnesses and compelling the production of evidence" as are vested in a Court under the Code of Civil Procedure.

Also section 17 lays down that every order made by a Controller under sections 10 and 13 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. Under section 14 the Rent Controller shall summarily reject any application under sections 13(2) and (3) which raises substantially the same issues as have been finally decided in a former proceeding under the Ordinance. According to the explanation to subsection (4) of section 15 of the Ordinance an appeal under the subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure if it is from the order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of an appellate authority and the provisions of Part VI of the First Schedule to the Code relating to appeals shall, with such modifications as the context may, required apply to such proceedings. It is only by virtue of these adaptations that some of these specified provisions of the Code are made applicable to the proceedings under the Ordinance and all the rest of the provisions in the Code are not in terms applicable to the proceedings before the Controller.

6. However, at places in the very Ordinance a bar minimum of the procedure has been laid down for the guidance of the Controller. For example, under section 13 of the Ordinance, the landlord is required to apply in writing to the Controller by means of an application for ejectment of the tenant. The Controller is bound to accord a reasonable opportunity to the tenant to show cause against the appli--cation under subsection (2) of section 13 of the Ordinance. He is expected to fix a date of hearing for the parties before him and to frame issues. Under subsection (6) of section 13 on the first date of hearing or as soon as possible, after that date before "issues are framed', the Controller shall direct the tenant to deposit the rent due from him and also to regularly posit future rent till the final decision of the case, before the 15th of each succeeding month. If the tenant makes default in compliance with such an order then his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings. These are some of the bare outlines of the procedure followed by the Controller in his enquiry. But there is nothing in the whole of this Ordinances corresponding to the provisions contained in Order IV of the Code for setting aside an ex parte order passed by him.

7. In general, and subject to all the enabling provisions contained in the Ordinance, the Controller is not bound by the procedure embodied in the Code of Civil Procedure or for the matter of that to follow any prescribed procedure in the course The enquiry before him. He can devise his own procedure in matter. At the same time there is nothing to prevent him adopting the procedure generally laid down in the Code embodying the essential principles of justice, equity, good conscience and fair-play.

8. There are a number of reported cases of our own High Court, brought to our notice, in which by reference to section 141 of the Cole of Civil Procedure, it was held that the procedure prescribed in the Code in regard to the suits must be followed, is far as it can be made applicable, in all proceedings before the Controller. One of them is the Division Bench case of Syed Nafees Ahmad Zaidi v. S. M. Hussain (PLD 1964 Lah. 536), noticed in the order of reference to the Full Bench.

Section 141 of the Code is as under:- "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceed--ings in any Court of civil jurisdiction."

This section, therefore, regulates proceedings in a 'Court' of civil jurisdiction. But as discussed above, and according to the law declared by the Supreme Court of Pakistan, in Khadim Mohy-ud- Din and another v. Ch. Rehmat Aid Nagra and another the Rent Controller is not a 'Court'. From this it necessarily follows that section 141 of the Code cannot be invoked and has no application to the proceedings before the Rent Controller. He is not bound by the procedure laid down in the Code in regard to the suits. In this view of the matter, and I say so with due deference and humility that the cases cited before us, reported in Sh. Muhammad Nawaz v. Muhammad Azeem and others (PLD 1961 Lah. 788), Saeed Nafeez Ahmad Zaidl v. S. M. Hussain and Dr. M. Fazil Zahir and others v. Mst.

Begum Jan and others (PLD 1966 Lab. 53). Do not lay down good law, they have all proceeded on the erroneous premises that a Rent Controller is a Court. In this connection recently in Siraj Din v.

Mst. Iqbal Begum (PLD 1968 Lah. 639), a. Division Bench of this Court has dissented from these reported cases and held that in view of the above dictum by the Supreme Court they do not lay down good law. Also in H. Q. Industries v. Mrs. Napai Kaikhusro (PLD 1968 Kar. 589). a learned Single Judge of this Court has held that section 141 of the Code is applicable only to Courts exercising civil jurisdiction and in so far as the Rent Controller under the Ordinance is not a Court, this section cannot be Invoked in order to regulate the proceedings under the Ordinance by the provisions contained in the Code of Civil Procedure, unless they are otherwise made applicable. Similarly another learned Judge of this Court in Ghulam Muhammad v. Khan Muhammad Sabar Lal (PLD 1969 Lah. 327) has held the provisions of the Code of Civil Procedure in terms do not apply to the proceedings and the Ordinance. He was further of the opinion that Order TV, rule 9 of the Code was not applicable to the proceedings under the Ordinance.

9. In general, an administrative tribunal is not bound by the procedure known to a Court of law. Nor Is It fettered by the rules of evidence for collecting the necessary Information required by the tribunal. It must, of course, always act fairly and conform to the fundamental principles of justice. In this connection, Viscount Haldane L. C. In Local Government board v. Arlidge (1915 A C 120), observed that "the decision roust become to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it did not follow that the procedure of every such tribunal must be the same. In the cave of a Court of law tradition in this country has prescribed certain principles to which in the main the procedure must conform. Bat what that procedure is to be the detail must depend on the nature of the tribunal." In R. v. Manchester Legal Aid Committee ((1952) 1 All E R 480) Parkar, J. Observed that an administrative body in ascertaining facts or law may he under a duty to act judicially notwithstanding that its proceeding have none of the formalities of and are not in accordance with the practice of a Court of law. In general this is also true about the Rent Controller constituted under the Ordinance.

10. But the precise question before as is not one of mare procedure: the substantive provisions embodied in Order IV of the Code of Civil Procedure to set aside the ex paste order or a decree are not merely procedural. They have the likely effect of interfering with the substantial right acquired by a party. In this connection in the Full Bench case of Gadi Neelaveni v. Merappareddiqarl Narayana Reddi (AIR 1920 Mad. 640) Seshagiri Aiyar, J, observed that "A right to set aside an ex parte decree belongs to the same category as an appeal or review. Because in either cage the effect of entertaining the proceedings is to vacate a decree which has been obtained by one of the parties to the suit."

11. This brings me to the discussion about the powers, if any, generally vested in the Courts and the tribunals to review and modify their judgments and orders. Strictly speaking review like an appeal, is a substantive right and it does not exist except under a statute, in general apart from the statute there is no inherent power in a Court to review, alter and rescind its orders. In this connection in Drew and another v. Willis ((1891) 1 Q B 450), Lord Esher M. R. Has observed:- "No Court has such a power of setting aside an order which has been properly made, unless it is given by statute . . . , Then it is suggested that there is inherent power in the Court, either at common law or under its equitable jurisdic--tion. Certainly there is no such power at common law, and that there is none in a Court of Equity was shown by the fact that, when asked to formulate an application to a Court of equity, the learned counsel omitted, and rightly omitted, from his prayer any request that the charging order should be set aside."

Similarly in Charles Bright & Co. Ltd. v. Sallar ((1904) 1 K B 6), Atkinson, L. J. Has declared that the power of review is not inherent in a Court. The same view was expressed in Hession v. Jones ((1914)

2 K B 421). In this connection in Lala Prayag Lal and others v. Jai Narayan Singh and another (I L R 22 Cal. 419), Prinsep, J. Has remarked that:-- "I cannot admit that such a power is inherent in every judicial or Revenue Officer, it is a power expressly given by law to Judicial Officers under certain conditions, and therefore, it cannot be assumed that when not so given it is inherent in every officer. If this had been so, there need not have been any legislation on the subject. We cannot hold that all this legislation was unnecessary."

These observations were cited with approval in Baijnath Ram Goenka v. Nand Kumar Singh (I L R 34 Cal. 677), upheld by the Privy Council in Baijnath Ram Gaenka v. Nand Kumar Singh (40 I A 54). In this case the Court found that under section 2 of the Bengal Land Revenue Act, 1868 the order of the Commissioner, upon an appeal to him, was final. The Privy Council repelled the contention that the Commissioner acting as a revenue officer has discretionary power to review his order. In Anantharaju Shetty v. Appu Hegade (AIR 1919 Mad. 244), the Court held that there was no explicit provision in the' Religious Endowment Act for review and that the power of review was not inherent in a Court and could only be exercised if permitted by statute. In this con--nection Seshagiri Aiyar, J., observed:- "The last argument related to the inherent power of a judicial officer to review his own judgment. It is settled law that a case is not open to appeal unless the statute gives such a right. The power to review must also be given by the Statute. Prima facie a party who has obtained a decision is entitled to keep it un-assailed, unless the Legislature has indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case.

There is at least as good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the trial Court unless such a power is given to it by the statute."

Also in the above-mentioned Full Bench case of Gadi Neelavent v. Marappareddiqarl Narayana Reddi. Seshagiri Alyar, J. Once again emphasised and observed that:- " ------------------------.a right of appeal must be given by the statute and should not be inferred from the inherent power of an appellate Court. In this Court and in the other High Courts it has been held that a right of review is not inherent in the Court but must be given by the statute."

He was definitely of the opinion that to interfere with the substantial right acquired by a party under an ex parte decree, it is not enough to invoke the inherent power of a Court. The jurisdiction in this respect can be exercised only if permitted by a statute. In M.J. Kutinha v. Mrs. Nathal Pinto Bai and another (AIR 1941 Mad. 272) the Court held that unless the statute provides a remedy, the Court cannot review its own judgment except in very exceptional circumstances. Similarly in Ramachandra Maradaraj Deo Garu v. Bearo Pollani and others (AIR 1936 Mad, 531) a Full Bench of the Madras High Court has held that generally no Court has the power to review unless specially conferred on it by the statute.

12. Under the Indian jurisdiction, in Debi Prasad and others v. Khelawan and others (AIR 1957 All. 67) a Division Bench of that Court has held that as a general rule no Court or Judge Las the power to re-hear, review, alter or vary any order or judgment after it has been entered or drawn up. In that case, it was held that the U. P. Land Reforms (Supplementary) Act XXXI of 1952, by itself did not make any provision for a review of an order of the Sub-Divisional Officer and the contention that he has the inherent power in this behalf to review his order, was repelled by the Court. In a Full Bench case, in Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another (AIR 1961 Bom. 21) the Court observed that it is well settled that a Court is not vested with a power of review unless such power is expressly conferred. In another Full Bench case, in Sampu Gowda Hanume Gowda and others v. State of Mysore and others (AIR 1953 Mys. 152) under section 210 of the Land Revenue Code, the Court held that there was no power of review of an order passed by the Government. In the opinion of the Court, review stands almost on the footing of an appeal, which is a substantial right. It involves a re-hearing of appeal and the judgment delivered cannot be altered. In P.

Swarajyalakshmi v. The State of Andhra Pradesh (AIR 1959 Andh. Pra. 321) the Court has held that an appal differs from a review in that the primary intention of review is the reconsideration of the subject by the same Judge under certain conditions, while an appeal is a re-hearing by another tribunal. The power to review is not an Inherent power of a judicial officer but must be specifically conferred by statute. There is elaborate discussion of this subject in V. Kesavan v. K. S. Raghavan and others (AIR 1953 Tra-Co. 439) and the Court has held that the power of review is not inherent but has to be conferred. Those observations were made in the context of the Travancore Building Rent Control Order. Similarly, in Anandram Ayaldas and others v. Damodardas and others (AIR 1956 Vind. Pra. 44) the Court has held that the right of review is not inherent. It does not exist unless granted by the Statute.

13. In this country, in this connection, a Full Bench of this Court in Jalal Din and another v. Major Muhammad Akram Khan and others (PLD 1963 Lah. 596) has held that:-- "In any case, an order made in exercise of a judicial power carries with it the incidents of finality so far as that forum is concerned, whenever rights accrue under that order. Unless it is provided that an order once made may be reviewed, it would not normally be capable of being reviewed."

In another case, in Mst. Maqsoodan Bibl v. Mst. Bhano (PLD 1965 Lah. 183), this Court bas held that:- "The right of review is like a right of an appeal-a substantive right, and it is not available unless it is expressly conferred by a statute."

Recently in Civil Appeal No. 30 of 1969, Hussain Bakhsh v. Settlement Commissioner and another, the Supreme Court of Pakistan has finally laid down in this respect that:- "The right to claim review of any decision of a Court of law, like the right to appeal is a substantive right and not a mere matter of procedure. An appeal, as observed by Dranwell L.C. In the case of Sandback Charity Trustees v. North Stafford--shire Railway Co. Does not exist in the nature of things; a right to appeal from any decision of any tribunal must be given by express enactment.

This is equally true in case of review, be--cause both appeal and review, though they differ in scope, are substantive rights. A9 such, neither of them is available unless it has been conferred by law."

It appears from the judgment that the inherent power of the Court in this respect extends only to the correction of errors apparent on the face of the record. In my opinion this principle is well settled and there can be no cavil about it. From what has been discussed above it follows that this principle is of general application and is not peculiar to the Courts alone. It is also applicable to the tribunals in general whose duty is to act judicial--ly though with a varying degree of rigidity.

"14. As a general rule, except by way of appeal no Court, Judge or master has power to rehear, review, alter, or vary any judgment or order after it has been entered or drawn up, res--pectively, either in an application made in the original action or matter, or in a fresh action brought to review such judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions."

This is at best the general rule. It is by no means rigid and is subject to a number of qualifications.

In this connection Halsbury has enumerated soma of the well-recognised exceptions. As for instance in certain cases an Act of Parliament, which alters the law retrospectively, has given express power to the Court to rescind, vary or grant relief against the previous judgment or orders given or made before the alterations. A Court will also treat as a nullity and set aside, of its own motion, if necessary, a judgment entered against a person, who was dead or a non--existent company (see Debi Bakhah Singh v. Habib Shah (I L R 35 All 331 (P C)), Lazard Brothers do Co. v.

Barque Indistrielle de moscou ((1932) 1 K B 617) and on appeal Lazard Brothers & Co. v. Midland Bank Ltd. (1933 A C 289). Similarly, when there has been some fundamental irregularity in the proceedings leading up to a judgment or order in question which ought to be treated as a nullity, then the Court will set it aside, for instance where the irregularity has caused a failure of natural justice (The Bolivier: (1916) 2 A C 203). The Judge has always the power to correct clerical or accidental slip, mistake or omission in judgments or orders and give effect to his meanings and intentions (1881) 7 A C 19). The Court will also set aside a judgment obtained by fraud (section 44.

Evidence Act). Before a judgment or order is delivered and signed the Court is competent to correct, modify, and even to withdraw the same Lawrie v. Less ((1881) 7 A C 19). In general the Court has a larger power of modifying or setting aside Inter--locutory orders than it has in respect of final orders Tafazzal Hussain Khan v. Raghoonath Parsad (14 M I A 40 (P C)). This list is by no means complete and exhaustive of the circumstance under which review can be ordered by a Court or the Judge in the exercise of his inherent powers. (Also see in this connection V Kesavan v. X. S. Raghavan (AIR 1933 Tra. Co. 439) and Debt Parashad and others v. Khelawan and others (AIR 1957 All. 67). However at best, these exceptions do not disprove the general rule.

15. In Debi Bakhsh Singh v. Habib Shah the Privy Connell observed that quite apart from section 151 of the Code of Civil Procedure, "any Court might have rightly considered itself to posses an inherent power to rectify the mistake which had been inadvertently made", and the judgment passed against a dead man wag held to be vitiated. Also in Jai Berham and others v. Kedar Nath Warwari and others (1922 P C 269), their Lordships of the Privy Council have bold that t "one of the first and highest duties of all Courts is to take cars that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used, it doe, not mean merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the Highest Court which finally disposes of the case" But these cases are distinguishable and even otherwise they fall within the exceptions to the general rule enumerated above.

15-A. In this connection the practice of the Judicial Committee and the House of Lords, was discussed in Rajunder Narain Rae v. Hijai Goving Singh ((1838) 2 M I A 181). The general principle remains as it was enunciated more than a century ago. No cause could be reheard and an order once made 4s considered final and could not be alter--ed. The Privy Council however, recognised that in exceptional circumstances, if by "misprison" in embodying the judgments, errors have been introduced, the Court possesses the power of rectifying the mistake which have crept in, and Lord Brongam in delivering the judgment of the Judicial Committee said:- "It is unquestionably the strict rule, and ought to be distinct--ly understood as such, that no appeal in this Court can be re--heard, and that an order once made, that is, a report submitted to His Majesty and adopted, by being made an Order-in-Council. Is final, and cannot be altered. The same is the case of the judgments of the House of Lords, that is of the Court of Parlia--ment, or of the King in Parliament, as it is sometimes expressed, the only other Supreme Tribunal in this country. Whatever, therefore, has been really determined in these Courts must stand, there being no power of rehearing for the purpose of misprison in embodying the judgments errors have changing the judgment pronounced nevertheless, if by misprison In embody--ing the judgments errors have been introduced, these Courts possess by Common Law, the same power which the Courts of Record and Statute have of rectifying the mistakes which have crept in. The Courts of Equity may correct the decrees made while they are in minutes when they are complete they can only vary them by re-heating; and when they are signed and enrolled they can no longer be re heard, but they must be altered, if at all, by appeal. The Courts of law, after the term in which the judgments are given, can only alter them so as to correct misprisons, a power given by the Statutes of Amend--ment. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however, gone a step further, and have corrected the mistakes introduced through inadvertence in the details of judgments, or have supplied manifest defect, in order to enable the decrees to be enforced, or have added explanatory matter, or have recon--ciled inconsistencies.

But with the exception of one case in 1669 (Lords' Journ, 46 Vol. 536) of doubtful authority, here and another in Parliament of still less weight in 1642 (which was an appeal from the Privy Council in Parliament, and at a time when the Government was in an unsettled state), no instance, it is believed, can be produced of a re-hearing upon the whole cause, and an entire alteration of the judgment once pronounced."

All the Courts of last resort have followed the salutary maxim interest reipullcae ut sit finis litium and in this connection their Lordships of the Privy Council in Venkata Narasimha Appa Row v. The Court of Wards and others ((1886) 131 A 115) observed that its strict observance may occasionally entail hardship upon individual litigants, but that "the mischief arising from that source must be small in comparison with the great mischief which would neces--sarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this." Also In Henry Hebbert v. The Rep.

John Purchas ((1871) L R 3 P C 664), the Lord Chancellor in delivering the judg--ment of the Judicial Committee said that having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finality of the decisions of the Judicial Committee, the expediency requires that the prayer for the re-hearing should not be allowed. Similarly, in this sub-continent, in Raja Prithwi Chand Lal Choudhry v. Sukhraj Rai arid others (AIR 1941 13 FC 1)) the Federal Court was of the considered opinion that it would be intolerable and most prejudicial to the public interest if cases once decided by that Court could be re--opened and re-heard. There is of course a natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame an error has inadvertently crept into its judgment. But by common concensus the great public mischief would far out-weigh these considerations in case its finality is allowed to be disturbed by re- opening it.

16. In the case of an administrative tribunal the emphasis on policy, expediency and discretion and the goal is to achieve the object for which it is established under the law. This doctrine of finality of the orders in the case of the administrative tribunals has got to be applied with a varying degree of rigidity depending upon their nature and character. This principle is very well illustrated in Sahibrai v. The Custodian of Evacuee Property, South Zone, West Pakistan, Karachi (PLD 1957 SC (Pak.) 63), almost an extreme case of its own kind. In that case the Supreme Court of Pakistan was examining the powers vested in a Custodian or an Additional Custodian of Evacuee Property to review their orders. The Court was of the opinion that they do not exercise purely judicial powers and the functions performed by them were essentially executive in nature for carrying out the purpose of law, namely the ascertainment, seizure and administration of evacuee property under abnormal and difficult conditions. In those circumstances, according to the Supreme Court, the Custodian, acting sue mota on the information coming to his notice, was competent to review his previous order. In this connection the Court has observed that:- "The principle of finality is applicable in full force only to matters decided in Courts of lax. It cannot with any degree of safety be imported for the purpose of rendering orders made by Custodians in the very difficult circumstances attending their duties, final and unchangeable for all time. That would amount in many cases to effecting changes of title in property, and barring all relief despite the existence of clear proof to the contrary."

17. It is true that the traditional doctrine of res judicata and finality operates at its best in its application to Courts dealing with "past facts which remained static", and the administrative agencies, have often to cope with "fluid facts and shifting policies." According to Professor Kenneth Culp Davis, in his invaluable "Treatise on Administrative Law'", the doctrine of res judicata is applicable bait with qualification only to administrative decisions. 1n this connection he has observed (Vol. 11, section 18.01):- "Administrative law must grapple not only with problems of res judicata familiar to the judicial system-identity of claims and issues, identity of parties final decisions on the merits, collateral attack jurisdiction-but also with special problems growing out of differences between the judicial process and the administrative process. Tile principle of res judicata is designed for adjudication, typified by a Court proceedings, and many perplexities of res judicata in administra--tive law concern, non judicial or unclassifiable functions. Courts normally apply law to past facts which remain static-where res judicata operates at its best but agencies often work with fluid facts and shifting policies. The regularized procedure of Courts conduces to application of the doctrine of res judicata; administrative procedures are often summary, parties are sometimes un-represented by counsel, and permitting a second consideration of the same question may frequently be supported by other similar reasons which are inapplicable to judicial proceedings."

To sum up his opinion on the problem of res judicata in its application to the administrative law, the learned author has remarked (Vol. 11, section 18.03). The doctrine in some areas of judicial action is strong and in other areas is weak, and the extent of the application of the doctrine to judicial action is often doubtful or variable." In his opinion this doctrine of res judicata is closely connected with and merges into the allied rules and practices about reopening, rehearing the reconsidera--tion.

After discussing the subject at length, the learned author has briefly summed up his opinion and observed (Vol. II, sec--tion 18.09): "Sometimes a specific limitation on reopening is desirable, sometimes the limitation should be indefinite and admit a wide margin of discretion, and sometimes a limitation is undesirable." According to him, every tribunal, judicial or administrative, does possess some power to correct its own errors or otherwise appropriately to modify its judgment, decree or order: The problems of the extent to which administrative agencies have and should have continuing jurisdiction to reverse or to modify their own orders is often complex and difficult. Sometimes the answer is found in express statutory provisions---.--- But, in the opinion of the learned author (Vol. II, section 18.09):- "When statutes are silent and legislative intent unclear, agencies and reviewing Courts must work out the practices and the limits on reopening. The considerations affecting reopening to take account of new developments or of new evidence of old developments often differ from those affecting the correction of mistakes or shifts in judgment about law of policy. Usually the search for a basic principle to guide reopening is futile; the results usually must reflect the needs that are unique to each administrative task. Factors to be weighed are the advantages of repose, the desire for stability, the importance of administrative freedom to reformulate policy the extent of party reliance upon the first decision, the degree of care or haste in making the earlier decision, the general equities of each problem."

In this connection to sum up he has said:- "But when the need for such flexibility is absent when a case involves nothing but application of law to past facts the agency may be held without power to reopen in some circumstances."

So that there cannot be any hard and fast rule about rehearing and review by the administrative tribunals and agencies. Much depends upon the unique characteristics of the tribunal, the law under which it operates the nature and character of the rights and obligations on which it impinges and the circumstances in which it has to function. The distinction also lies in the policy behind the particular statute under which it has to operate

18. In Aijaz Ahmad v. Nazirul Hasan and another (AIR 1935 All. 868), lqbal Ahmad, J. Has held that there was no difference in this connec--tion between a Court and an authority acting judicially under the law, and in the interest of justice, both are vested with the inherent powers to correct the judicial orders In this connection he has remarked:- "On principle there is no difference between an order passed by a Court and an order passed by an officer acting judicially. The orders passed by both are judicial orders, and if a Court has inherent power to correct its judicial orders there seems no justification for holding that an officer acting judicially has not similar powers. If a Court has power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, an officer acting judicially must on principle have similar powers."

These remarks were made in connection with an order passed by the Collector for the sale of a property in the execution of the decree under section 68 of the Code of Civil Procedure. His order was found to be vitiated by the fraud practised upon him. In those circumstances the Court held that the Collector was not functus officio and divested of his inherent jurisdiction to review and correct his judicial order procured by fraud. The above remarks were cited with approval by a Full Bench of the East Punjab High Court, under the Indian jurisdiction, in Jagir Singh Sobha Singh and another v. Settlement Commissioner, Pepsu and others (AIR 1959 Pb. 457), and the Court held that every tribunal has inherent powers to correct its own errors in the interest of justice. Dulat, J. In his leading judgment remarked t- "I say this because it seems to me essential to affirm that every tribunal has inherent power to correct its own error, provided, of course, the circumstances are such that the correction of that error is necessary in the interest of justice. Such inherent power is necessarily implied in the setting up of any authority on whom the responsibility of deciding any matter rests and it seems to me that a denial of such power to any tribunal would render that tribunal incapable of properly deciding the matters entrusted to it."

In these two reported cases, they have proceeded on the assumption that the Courts of law are possessed of the undefined inherent jurisdiction to rectify any errors in their judgments and orders and likewise a judicial tribunal must be bestowed with a similar power in the interest of justice. But in my respectful opinion this is a far too broad and sweeping assumption to make and it has its own qualifications. As discussed above the general rule is that except by way of appeal, no Court, Judge or master has the power to rehear, review, alter or vary any judgment or order on the merits after it has been entered and drawn up. The power of review, if any, in this respect, must be found in the statute and there is nothing inherent about it in a Court. This rule is no doubt subject to the qualifications already discussed above. The reported case from the Allahabad High Court, Aijaz Ahmad v. Nazirul Hasan, is distinguishable and was covered by one of those recognised exceptions inasmuch as the previous order of the Collector was vitiated by fraud. Moreover, for the reasons discussed above, I cannot equate the powers of a tribunal irrespective of its constitution and the functions it has to perform, with those of a Court of law in this behalf. One basic reason for this difference is that, as pointed out by the Supreme Court in Sahibrat v. The Custodian of Evacuee Property (PLD 1957 SC (Pak.) 63), the principle of finality of their decisions is not applicable with equal force to the tribunals.

19. With these broad principles in mind, let me now advert to the first question before us. From what have said above an endeavour must be moue in the first instance to find the answer to the question, if possible, in the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959.

The preamble to the Ordinance shows that it was designed in public interest to restrict the increase of rent of certain premises within the limits of the urban areas and the eviction of tenants. It regulates and controls the relationship between a landlord and his tenant. Sections 4, 10, 12 and 13 are some of the more important provisions in the whole of this Ordinance. Under section 4, the Controller shall, on an application by the tenant or landlord of a building or rented land, fix the fair rent for it, after holding such enquiry as he thinks fit. Under section 5, after the fair rent is fixed, no further increase is it is permissible, except in case of addition, improvement or alteration made to the premises at the landlord's expense. As laid down in sec--tion 10, a landlord cannot disturb any convenience, easement and amenities annexed to the premises. The tenant may make an application against his landlord to the Controller complaining about any contravention in this respect. Under subsection (3) of section 10, if the Controller, on enquiry, finds that the tenant has been in enjoyment of the amenities which were cut off or withheld by the landlord without sufficient cause, he shall make an order directing the landlord to restore such amenities. Section 12 lays down that if a landlord fails to make the necessary repairs other than structural alterations, to a building, it shall be competent for the Controller to direct, on an application by the tenant and after such enquiry as he may think necessary, that such repairs may be made by the tenant and the costs thereof may be deducted from the rent due from him. By far the most important provision in the whole of this Ordinance is section 13 which regulates the eviction of tenants by their landlords. A landlord, who seeks to evict his tenant, may apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that the conditions laid down in the section in this behalf are fulfilled, he may make an order directing the tenant to put the landlord in possession of the premises, and if the Controller s not so satisfied he shall reject the application.

The orders passed by the Controller under sections 4, 10, 12 and 13 of the Ordinance are subject to a right of first appeal to the District Judge concerned and a second appeal to the High Court in accordance with section 15 of the Ordinance. Subsection (4f of section 15 lays down that the decision by the High Court shall be final. Subsection (5) of this section further lays down that:- "No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise except as provided under this Ordinance."

There is a two-fold inhibition contained in this subsection. Firstly, there is the mandatory bar to the effect that the orders passed by the authorities under the Ordinance shall not be called in question by a suit or otherwise. Secondly, the only remedy available to an aggrieved party is this one provided "under this Ordinance" and ate has no other recourse open to him. Under the Ordinance, the Rent Controller is not at all vested with any powers to review, and recall any order passed by him after he has become functus officio and already discharged the duty enjoined upon him under the Ordinance. On a plain reading of this subsection it is difficult to conclude that the finality which attaches to these orders is for the purposes only of saving them from being called in question In a Court of law or otherwise, and that section 15 (5) does not operate as a bar against the reopening and review. Under the Ordinance the Controller is mostly required to apply the law to the past facts.

The different provisions in the Ordinance are meant to regulate tine relationship between a landlord and his tenant. They have a great impact upon their mutual rights and liabilities in the immovable property. The policy behind this law is to confer finality on the orders passed under the Ordinance, to simplify and shorten the litigation between the landlord and his tenant and to discourage rehearing reopening and review.

20. But, in my opinion this principle of finality embodied in subsection (5) of section 15 of the Ordinance presupposes that the Controller must have acted in accordance with the law, within the ambit and the scope of the jurisdiction vested in him under the Ordinance. For instance section 13

(2) of the Ordinance lays down that on an ejectment application made by the landlord, the Controller is bound to give a reason--able opportunity to the tenant of showing cause against ft.

This is of fundamental importance, any failure on the part of the Controller to comply with it shall effect his jurisdiction in the matter and precludes him from ordering the ejectment of the tenant without complying with this condition precedent. This is also in keeping with the fundamental principles of natural justice. In Muhammad Swaleh and another v. M/s, United Grain & Fodder Agencies (PLD 1964 SC 97), the Supreme Court has held that an order passed in contravention of the principles of natural justice would render the proceedings coram non judice and "ii an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. In Ganeswa r Singh v. Ganesh Das (I L R 33 Cal. 1178) the Judicial Committee remarked that:- "Their Lordships entirely agree with the learned Judges of the High Court that it is an elementary principle, which is binding on all persons, who exercise judicial or quasi-judicial powers, that an order should not be made against a man's interest without there being given to him an opportunity of being heard."

In that case the lower Court was of the opinion that it was unnecessary to hear the purchaser of the property but their Lordships of the Privy Council disagreed with this finding and observed that he was effected by the adverse order and should have applied for a "rehearing."

In my opinion in case there has been some fundamental irregularity in the proceedings leading up to the order which ought to be considered as a nullity, the Rent Controller constituted under the Ordinance, is bound to set aside the same and rehear the case before him. But this does not detract from the general rule against rehearing and re-opening and is at best a mere exception.

21. There is still another aspect of this question argued before us. In this connection reliance was placed on section 20 of the West Pakistan General Clauses Act, VI of 1956. It lays down that where, by a West Pakistan Act, a power to issue notification, order, scheme, rule, form or bye-law 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, or bye-laws so issued. It was, therefore, contended before us that by virtue of this provision under the law, the power vested in the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance to pass an order, necessarily includes within it a like power to add to, amend, vary or rescind the order in the like manner. This section is pari materia with section 21 of the General Clauses Act X of 1897, applicable to the Central Statutes. In interpreting that section, Niyogi, J., in his order of reference to a Full Bench of Nagpur High Court, in Venkatesh Yeshwant Deshpande v.

Emperor (AIR 1938 Nag. 513) observed that it was a well recognised rule of construction that the words used in a statute must be interpreted according to their context. Section 21, General Clauses Act must therefore, be read in the light of sections 14 to 20 which precede and sections 22 to 24 which follows. It occurs among sections which are grouped under the heading "provisions as to orders, rules, etc. Made under enactments". The relevant words in section 21 are: "Whereby any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred." In the context in this section, the word "order" is used along with "notifications", "rules" and "bye-laws", and means a "legislative or statutory order, that is an order having the force of law" and that an order passed by the Government under section 401, Cr. P. C. Granting remission of punishment did not fall in this category. But the Full Bench did not express any opinion of its own in this connection these remarks were again noticed by the Nagpur High Court in Gopal Jairam v. State of Madya Pradesh (AIR 1951 Nag. 181) and the Court observed that it was not quite necessary to decide whether the word "order" in this section of the General Clauses Act should be interpreted to mean an order of a legislative kind or whether it was applicable to any order. In another decided case from the Indian jurisdiction, in Bherumal v. Motumal and another (AIR 1956 Ajmer 67) a learned Single Judge has held that the word "order" occurring in section 21 of the General Clauses Act has reference to "subordinate legislation and not to the judicial orders" which by their own nature are incapable of revision amendment or alteration; by the same Court unless permitted by some express provision in the Statute. Similarly in Bachchu Lal and another v. State (AIR 1951 All. 836), a Division Bench of the Allahabad High Court has held that the words "notifications, orders, rules or bye-laws", have no reference to judicial orders the passing and cancellation whereof is subject to and regulated by the procedural law of the land. The words, "notifications, orders, as associated must be deemed to restrict the scope of this word to "non-judicial orders" only and it must be construed by applying the "ejusdem generis rule" so well known in the English and Indian law. In a number of other reported cases under the Indian jurisdiction in Raj gishore v. State of Uttar Pradesh (AIR 1954 All. 343), Bapurao Dhondiba Gagtap v. The State (AIR 1956 Bom. 300), P. Raman Nair v.

State (AIR 1957 Trav. Co. 220) and Kanta Devi etc. v. The State (AIR 1957 Raj. 135), this power under section 21 of the General Clauses Act was invoked to set aside, rescind, recall and modify the administrative and executive orders.

22. In this country, S. A. Rehman, C. J. (as he then was) of the Lahore High Court, in Ch. Ghulam Hussain v. Municipal Committee, Sialkot City (PLD 1952 Lah. 209) examined a similar provision in section 19 of the Punjab General Clauses Act I of 1898. In this connection he observed that there were no words of limitation in the enactment and that the language of the section was not conned merely to orders of a "legislative kind" and covered all kinds of orders. He found that a Municipal Committee was competent to cancel and recall its sanction to construct a building accorded under section 193 of Punjab Municipal Act. However, this judgment was afterwards reversed by a Division Bench on Letters Patent Appeal in Ch. Ghulam Hussain v. Municipal Committee, Sialkot (PLD 1956 Lah. 4), though on a different point without even adverting to this interpretation. Once again in Shahbaz v. The Crown (PLD 1955 Lab. 65) S. A. Rahman, C. J. Has held that section 21 of the General Clauses Act was not confined to the orders of legislative kind only. In this connection he observed as under:- "The learned Advocate-General, on behalf of the Provincial Government, has on the contrary strenuously contended that section 21 of the General Clauses Act covers all kinds of orders whether legislative or otherwise. He has drawn my attention to section 15 of that Act, which deals with the powers to appoint a person to fill any office or execute any function and section 22 which, inter alia, refers to orders of establishment of any Court or office or the appointment of any Judge or officer. It is obvious that such orders could not be properly described as legislative in character, and they are all covered by section 21 of the Act. There appears to be authority available in favour of this view. .

I have no doubt, therefore, that an order passed by the Pro--vincial Government under section 401 of the Criminal procedure Code is subject to modification or recall by virtue of section 21 of the General Clauses Act provided that the previous order has not yet been acted upon. If, however, the previous order has been given effect to, so that no locus poenitentiae is left, there will be no occasion for the exercise of the power mentioned in section 21 of the General Clauses Act."

22-A. The matter was also considered by Full Bench in Pir Illahi Bakhsh v. Muhammad Ayoob Khuro (PLD 1956 Sind 101). In that case the Governor-General, in the exercise of his powers under section 3 of the Public and Representative Offices (Disqualification) Act, 1949, had passed an order disqualifying the opponent and declaring him ineligible, in terms of that section, for a period of six years: But, afterwards upon a petition by the opponent, the Governor-General amended his previous order and reduced the period of his disqualification. The question arose that the Governor-General having passed an order under section 3 of the Act was functus officio and had no power to amend the order once passed. In that connection, in interpreting section 21 of the General Clauses Act, Constantine, C. J. Has observed:- "At first sight it would appear that "order" were ejusdem generis with "rules" and "bye-laws". And thus to have, as in section 9 of the Indian Independence Act, 1947 or as in the Civil P. C., a connotation of subordinate legislation. Section 21. However, occurs in the group of sections 20 to 24 headed Provision as to Orders, rules etc., made under enactment'"; in section 22 we find "order with respect to the establishment of any Court or office or the appointment of any Judge or officer thereunder or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees for which anything f9 to be done under the Act", while in section 23 regarding previous publication rules and bye-laws only are mentioned. I may mention that in section 24 there is the phrase "appointment, notification, order, scheme, rule, form or bye-law'", but the words "appointment, notifica--tion" are later insertions, and from their inclusion no convincing inference appears possible.

The word "order" in section 22 is not used in restricted sense of legislation, and is divorced from rules and bye-laws in section 23. It is true teat the orders in section 22 are limited and defined, but even so the sense of the word in administrative, and presumably the word is used elsewhere in the group in the same sense. This view is supported by authority. It is true that Niyogi, J. In his referring order in Venketesh v. Fmperor (AIR 1938 Nag. 513) considered that the meaning of "order" was restricted but the Full Bench left the matter open. No other case was cited to us in favour of the restricted meaning. On the other hand an order of detention (AIR 1954 Pat. 44, an order postponing an election (AIR 1927 All. 959) have been held to fall within the mean--ing of order in section 21 of the General Clauses Act or an identical section of the Provincial Act. The learned Chief Justice of Lahore in PLD 1955 Lah. 61 recently by a considered judgment and on similar reasoning came to the same conclusion that the meaning of "order" in section 21 is not confined to legislative "orders". In that case the order upheld was one under section 401, Criminal P. C. Revoking the unconditional remission of a sentence, and It appears to follow that the qualification which Mr. Brohi thought necessary to insert-that the amendment shall not operate to the detriment of a person affected-is unjustified; on general principles also it appears that if a power to amend is given by statute in general terms it is not competent for a Court to curtail the generality of that power.

I am not prepared to dissent from the authorities which have refused a restricted meaning to the word "order" in section 21."

In conclusion, however, the Court held that the General Clauses Act was not applicable to the Public and Representative Officers (Disqualification:) Act passed by the Constituent Assembly.

Nonetheless it was contended that the principles embodied in section 21 of the General Clauses Act should be applied in construing section 3 in the parent Act. But in repelling this contention Constantine, C. J. Was of the opinion that there was nothing under the common law or in the rule of justice, equity and good conscience to show that "a power to make an order is presumably intended to include a power to amend that order'". In this connection he observed that:- "The primary rule is that the plain grammatical meaning shat: be observed, and this is undoubtedly firmly established as a rule of justice, equity and good conscience. We have been cited no case to show that a power to make an order is presumably intended to include a power to amend that order: it is true that the Indian Legislature adopted this rule in section 21, but there is no presumption that the statute either is declaratory of the common law or has altered the common law. It may be observed that in England this device of abbreviation in section 32(3) of the Interpretation Act is limited to rule-, regulations and bye-laws."

In dilating upon this aspect of the case the learned Chief Justice further observed:- " The plain meaning is that once the Governor-General's Order is publicly notified the person shall be disqualified for the period mentioned in the order. The statute has declared what shall be the result of an order once passed by the Governor-General: it has not provided that any different result should ensue upon variation or rescission of the order. The same order which notifies disqualification is to contain the period of disqualification; there is no provision for variation of the period. Certainly therefore there are no express words authorising a second order by way either of amendment or of rescission. But, it is argued, the Governor-General's order is administrative (it has been so held in Hamid-ul-Haq's case (PLD 1953 FC 279), and every administrative order is impliedly open to variation. No authority for this proposition has been cited. In this case the order which PRODA empo--wered the Governor-General to make bears a close resem--blance to the sentence which a Judge pronounces upon a finding of guilty: such an order, a solemn act, is made with all due regard to the facts and circumstances of the case, and like a sentence is presumably by the authority which has made it. Non-appealable sentences are by no means unknown to the law, and I can see no reason why the Legislature should be presumed to intend a power of review or revision rather than finality."

In his opinion, therefore, except for section 21 of the General Clauses Act, there was no authority for the proposition that on general principles an administrative order of the kind was open to variation.

23. Shahbaz's case discussed above went up in appeal to the Federal Court, and in Shahbaz v. The Crown (PLD 1956 FC 46) the Federal Court has remarked that:- "Section 21 of the General Clauses Act is to the effect that power conferred under a Central Act or Regulation to issue any notification, order, scheme, rule, form or bye-law includes power to vary or rescind the same. The argument of Mr. Mahmood Ali, the learned Advocate for the appellant is that the expression `order' in this section applies only to matters of the kind to which the other expressions in the section such as rule, scheme, form or bye-law relate, that those expres--sions do not apply to cases of particular persons and so 'order' cannot be said to apply to the order of remission pissed in this case. This interpretation is in accordance with the rule that the coupling of words together shows that they are to be understood in the same sense. (Brooms Legal Maxims, 396). The learned Advocate-General agreed with this con--tention.

But in the opinion of the Federal Court it was not necessary in that case to decide as to whether section 21 of the General Clauses Act was applicable o an order passed under section 401 Criminal Procedure Code or not. On behalf of the Government, It was argued before the Court that quite apart from section 21 of the General Clauses Act, there was the general principle that an authority empowered to issue an order has also the power to vary or cancel that order unless carried into effect or there was a bar in the law to its modification or cancellation. In this con--nection their Lordships of the Federal Court observed:- "Similarly it does (not) seem to us necessary in this case to decide whether section 24 of the General Clauses Act applies to orders passed under section 401, Criminal P. C. For apart from that provision, Government must, in the nature of things, possess power to recall its own orders. In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation arid that is apparently the reason why in order to give finality to judicial orders provisions greatly restricting the use of this power had to be introduced in the Civil and Criminal Procedure Code. Wherever there is no such restriction imposed on Governments there is no reason to deny them the power of correcting even the errors of judgments. In several cases this power of correc--tion is necessary for the proper discharge of their functions.

This is by contrast to what the Full Bench in the case of Pir Illahi Bakhsh Muhammad Ayoob Khuhro has held that on general principles even an administrative order was not open to variation, except in accordance with the statute. With utmost respect and deference these remarks by the Federal Court must be construed as confined to the case before it relating to the powers of the Government in the nature of things, to grant remission and to rescind or modify such an order. Any general observations in this connection are obiter dicta. As discussed by me above, there is the overwhelming authority by the highest Court in the realm, for the proposition that there is no inherent power in a Court or tribunal to review, recall, modify and rescind their orders, unless such a power is conferred by the statute. This is particularly true about the judicial orders passed by them.

In my humble opinion, whatever the true scope and interpretation of section 21 of the General Clauses Act IV (corresponding to section 20 of the West Pakistan General Clauses Act VI of 1956) that section has no application to an order which is judicial or quasi-judicial in nature passed after ex post facto investigation into facts. In their very nature such orders are final and are not liable to be reviewed in general. In none of the cases brought to my notice this section was made applicable to any judicial order for its review. In my opinion, anti I say so with due deference and profound respect, the fore--going observations by the Federal Court in Shahbaz's case were made with reference to the executive powers vested in the Government for the remission of a sentence and those remarks must be construed in that context above.

24. At any rate in my opinion at best, this section 21 of the General Clauses Act embodies a mere rule of construction and it does no more. Kamala Prasad Khotan etc. v. Union of India (AIR 1957 SC 676), Harendra Nath Bose v. Judge etc. (AIR 1958 Cal. 208) and Gopi Chand v. Delhi Administration (AIR 1959 SC 609). Resort cannot be made to this section with a view to modify, amend or alter any law and it cannot be used to nullify the effect of any of the provisions in the parent statute. I cannot, therefore, construe this section to mean that it can be used so as to destroy the finality attained by an order passed under a statute. In this connection in D. N. Ganguly and others v. State of Bihar anus others (AIR 1956 Pat. 449), the Court has held that sec--tion 21 of General Clauses Act is only a rule of construction and the question as to the existence of an implied power of cancellation must be determined: with reference to the context and the "Subjecta materies" of the statute.

Similarly in another reported case in Sudhirdra Kumar Deb and others v. The State of Assam and others (AIR 1959 Assam 1), the Court held that section 21 of the General Clauses Act cannot be used in such a way as to nullify in effect any of the other provisions of the Statute. In the instant case, after discussing the different provisions of the West Pakistan Rent Restriction Ordinance, 1959.

I have already held that an order passed by the Rent Controller in accordance with the law was final and cannot be called in question, except as provided therein. Therefore, section 21 of the General Clauses Act or, for the matter of that the corresponding provisions, section 20 of the Nest Pakistan General Clauses Act, VI of 1956, has no application to such an order under the Ordinance.

25. In the Indo-Pak. Sub-continent there is a divergence of opinion among the different High Courts about the powers of the lent Controller in this behalf to set aside, an ex parte order passed by him.

As already mentioned in Syed Nafis Ahmad Zaidi v. G. M. Hussain (PLD 1964 Lah. 536), this Court, on reference to section 141, C. P. C, was of the opinion that the Rent Controller constituted under the Ordinance was competent to set aside his ex parte order under Order IX, rule 13, C. P. C. Similarly in Din Mohammad v. Abdul Aziz (PLD 1967 Lah. 653), it wits generally observed that the proceedings on an application for ejectment of a tenant under section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 are in parimateria with a suit and Order IX, rule 13, C. P. C. Was applicable to them. But with due deference, I am unable to subscribe to this view for the simple reason that section 141 of the 1. P. C. Is not at all applicable to the proceed--ings under the Ordinance. In Ghulam Muhammad v. Khan Muhammad Sabar Lal (PLD 1969 Lah. 239), a learned Single Judge of this Court has refused to apply the principle underlying rule 9 of Order IX, C. P. C. To the proceedings under the Ordinance.

26. In another recent case, in N. Q Industries v. Mrs. Babai Kalkhusro, a learned Single Judge of this Court has rightly held that it is now settled that the Rent Controller does not act as a civil Court, that section 141 of the Code of Civil Procedure cannot be invoked for regulating the proceedings under the Ordinance by the provisions of the Code, unless they are expressly made applicable, and that the provisions in Order IX, rule 13, C. P. C. Were not available to the Controller to set aside his ex parte order. But despite these conclusions, in the opinion of the learned Judge, the Rent Controller was competent to recall, review, cancel, vary, and amend his order passed under the Ordinance. In this connection he has observed:-- "The question then arises whether the Controller and the First Appellate Authority under the West Pakistan Urban Rent Restriction Ordinance are competent to recall, review--- cancel, vary, alter or amend their order. This question may he approached in three ways, that is:-

(i) Section 20 of the West Pakistan General Clauses Act, VI of 1956, provides that where, by any West Pakistan Act, a power to issue notifications, orders, 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.

(il) Apart from section 20 of the West Pakistan General Clauses Act, there is a general principle that an authority empowered to issue an order has also the power to vary or cancel that order.

(iii) An order refusing to set aside an ex parte order of eviction approximates in nature to an order of eviction, and is therefore an order under section 13 of the Ordinance and so is appealable under section 15(1)(b) of the Ordinance. No doubt, the view has been taken in some decisions that the word `order' in section 20 of the West Pakistan General Clauses Act refers only to matters of the kind to which the other expressions in the section, such as `rule', `scheme', `form', or `bye-laws', relate, and that the word 'order' may not apply to particular cases. In my opinion, however, the rule of ejusdem generis should not apply to the ascertainment of the meanings of the words and expressions used in this section. But apart from this provision, the tribunals under the West Pakistan Urban Rent Restriction Ordinance, like any other statutory authority, should be deemed to possess powers to recall their own orders, or to vary or add to, such orders. If authority for this proposition is needed. I would refer to the decision of the Federal Court in Shahbaz v. The Crown in which it was observed, with regard to the power of the Government to recall an order of remission under section 401, Criminal Procedure Code (V of 1898), that existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation and that is apparently the reason why in order to give finality to judicial orders provisions greatly restricting the case of this power had to be introduced in the Civil and Criminal Procedure Codes", and that "wherever there is no such restriction imposed on Government, there is no reason to deny them the power to correcting even the errors of judgment", and, further, "this power of correction is necessary for the proper discharge of their functions." Thus, the power to make orders under the West Pakistan Urban Rent Restriction Ordinance, includes the power to recall and correct such orders, including ex parte orders of evicion. Section 15(5) of the Ordinance, which makes the order of the Controller, an appellate authority of' the High Court, final would not operate as a bar to the exercise of this power, because the finality which attaches to the orders referred in this subsection is for the purposes only of saving these orders from being called in question in a Court of law by suit or otherwise."

I have already discussed in detail all these aspects in my above judgment. With great deference, I regret that I am unable to share this view. In para. 19 above I have already repelled the contention that under section 15(5) of the Ordinance the finality of the orders of the Rent Controller attaches only to save them from being called in question in a Court of law by suit or otherwise and that it does not operate as a bar against review and rehearing. As discussed above section 20 of the West Pakistan General Clauses Act is not applicable to the orders passed by the Rent Controller under the Ordinance which are essentially judicial in nature and there are no general and inherent powers of review in a judicial tribunal except under the statute. After the Rent Controller has passed his order under the Ordinance he becomes functus officio in the matter.

26. Under the Indian jurisdiction, in N. K. Sagu Abdul Khadir Hadjlar v. A. K. Murthy (AIR 1948 Mad.

235), a reported case under the Madras Buildings (Lease and Rent Control) Act, 1946, the facts were that the tenant was not personally served in the appeal. But tile Appellate Authority holding that the service on him was, sufficient, proceeded to pass an ex parts order for his ejectment. However, afterwards, on an application by the tenant, the Chief Justice found on facts that he was not aware of the date of hear--ing in the appeal and was prevented by a sufficient cause from appearing at the hearing. The Court, therefore, set aside the ex parte order for the ejectment of the tenant. But the order was eventually quashed by the High Court by issuing a writ of certiorari the Court remarked:- "In my opinion, since the rules of procedure made under the Act have teen followed and service which those rules require was effected and as was held by the learned Judge to have been effected, he had no jurisdiction to set aside his order because he was later impressed and accepted that the respondent did not know of the date or of the fact of the hearing of the appeal. If the material provisions of the Code of Civil Procedure had been made applicable to proceedings under the Control Act, or if there had been a rule corresponding to Order IX, rule 13, or Order XLI, rule 21 contained in the Control Act Rules then the learned Chief Judge would have had jurisdiction and authority to set aside his order. I have already expressed the view that in the absence of incorporation of the provisions of the Code of Civil Procedure in the rules of proce--dure for the tribunals under the Control Act, there is no justifica--tion for the application of the principles of those provisions, otherwise it would mean applying those provisions when they are not made applicable. In my opinion, the learned Judge acted without authority or jurisdiction wben he purported to set aside his previous order."

This case was followed with approval in Ruplal Sitaram Bhagat v. Shea Shankar Awasilal and others (AIR 1953 Nag. 191) and the Nagpur High Court held that a Rent Controller under the C. P. And Berar Letting of Houses and Rent Controller Order, 1949 was not vested with any inherent power to set aside an `ex parte' order, such power being excluded by Clause 21 of the Order to the effect that an order of the Rent Controller shall be final subject only to the decision of the Deputy Commissioner in appeal. Similarly in S. J. S. Fernandas v. Ranganeyakub (AIR 1953 Mad. 236) under the Madras Buildings (Lease and Rent Control) Act. It was held that the Act itself is a self-contained one and the provisions of the Code of Civil Pro--cedure do not apply to the proceedings under that Act. The Court further observed that it has been repeatedly held and it is now well-settled that the power to review is not an inherent power of a judicial officer but such a right must be conferred by the statute. In Khaja Ghulam Ghous Saqalain v. Collector, Dist. Medak and others (AIR 1958 Andh. Pra.

442) the Andhra Pradesh High Court has held that a right to set aside an ex parle decree belongs to the same category as an appeal or review. These powers cannot be inferred but must be given by the statute, and that there was no remedy against an order passed by the Rent Controller except by way of appeal to the Collector under the Hyderabad Houses (Rent, Eviction and Lease)

Control Act, 1954. Section 19 of that Act shows that so much of the procedure relating to trial of suits as is prescribed in the Code of Civil Procedure, is made applicable to the enquiries under the Act.

But it makes no reference to the other remedies which are open to a litigant under section 20 of the Act and therefore Order IX, rule 13 of the Code was not applic--able to a proceeding before the Rent Controller.

27. But in Manohar Lal L. Nadarchand v. Mohan Lal Gian Chand (AIR 1957 Pb. 72), a learned Single Judge of the East Punjab High Court has dissented from the above-reported cases from Madras and Nagpur. He observed that a Rent Controller appointed under the Punjab Urban Rent Restriction Act, 1948 cannot be regarded as a civil Court although he was entrusted with a number of functions which are analogous to those performed by judicial officers. He is only a persona designate brought into existence for the specific purpose of performing certain functions savouring of a judicial character but which are in reality only quasi--judicial. In the absence of any express provision in the statute or in a statutory rule, he is at liberty to devise his own procedure in ascertaining the facts on which he is to act or decide. There--fore, in the opinion of the Court, the Rent Controller has inherent power to set aside an ex pane order passed by himself. In this connection the Court observed that:- "He can at best be regarded as a quasi-judicial officer and the proceedings taken by him partake of the nature of a judicial proceeding. He has the same power of summoning and enforcing the attendance of witness and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, and every order made by him under certain sections of the statute is required to be executed by a civil Court as if it were a decree of that Court. He is under a statutory obligation to follow the procedure prescribed by law, but he is not bound to follow the technical rules of procedure which apply to trials in a Court of law. He is expected to observe the elementary and fundamental principles of a judicial enquiry to comply with the rudimentary require--ments of fair-play, and to safeguard the fundamental constitutional rights of the citizens. In the absence of an e-press provision in the Statute or in a statutory rule, he is at liberty to devise his own procedure in ascertaining the facts on which he is to act or decide."

From this the learned Judge has jumped to the conclusion that the Rent Controller has the necessary inherent powers to set aside an ex parte order, passed by him for sufficient cause shown. Similarly in Haji Zikeria Suleman v. The Collector, Yeotmal and others (AIR 1963 Bom. 233) the Bombay High Court has held that in the discharge of his functions under section 13(3) of the C.

P. And Behar Letting Houses and Rent Control Order, 1949, the Rent Controller acts in a quasi- judicial manner and even though there is no express provision in the Order regarding dismissal for defaults or restoration of applications under it must be held by necessary implication that such a power exists in him and consequently the Rent Controller has power to dismiss for default an application of a landlord and to restore the same to file, if he is satisfied that good cause exists for such restoration. In this connection the Court has remarked that if a statute is passed for the purpose of enabling something to be clone but omits to mention in terms some detail, which be of great importance (if not actually essential), try the proper and effectual performance of the work which the statute has in contemplation, tile Courts are at liberty to infer that the statute by implication empowers that detail to be carried out. (Craies on Statute Law, Fifth Edition; page 105)

Also in Nimai Charan Kamila v. Sham Mohan Mandi (AIR 1953 Orissa 254), a learned Single Judge of the Orissa High Court has held that it may be assumed that in the absence of any special directions to the contrary, the rules of natural justice which are embodied in the C. P. C. Should apply, and on this reasoning the provisions corresponding to Order IX, C. P. C. Were imported into the proceedings under the Orissa House Rent Control Act, 1947.

But for the reasons already discussed by me above, I arcs rot prepared to assume that the Rent Controller is vested with any such power, either by necessary intendment or otherwise to set aside an ex parte order. This would tantamount to legislating into the matter and tinkering with the law by the Courts.

28. As a result of the above discussion I tied and my answer to the first question referred to us is in the negative. In general and subject to what has been said above, the Rent Controller has no power to set aside an ex pane order passed in accordance with the Ordinance after he has become functus officio. The Rent Controller is not a Court and section 141 of the Code of Civil Procedure is not applicable to the proceedings before him and in this connection Syed Nafis Ahmad Zaidi v. S. M. Hussain does not lay down good law.

29. I shall now turn to the second question referred to us. In the instant case before us, the learned Rent Controller, Chakwal, has held that the application of the appellant made after more than 30 days, on 3-9-65 under Order IX, rule 13, C. P. C., to set aside the ex parte order dated 30-7-1965 for his ejectment from the premises in question, was barred by time under Article 164 of the Limitation Act, 1908. The learned counsel for the appellant has challenged this finding on the ground that this Article was not at all applicable to the case. He has instead relied on the residuary Article 181 of the Limitation Act to contend that the Limitation prescribed for such an application was at least three years and not merely 30 days.

30. Under Article 164 of the Limitation Act an application by a "defendant", for an order to set aside a "decree" passed ex parte, must be made within 30 days, from the date of the "decree" or where the "summons" was not duly served, when the applicant has knowledge of the "decree". According to section 2(10) of the Act, a "suit" does not include an appeal or an "application". Strictly this Article is applicable to a "defen--dant" on his application to set aside a "decree" passed ex parte against him in a suit. In Kanji Shivji v. Vasanji Shivji & Co. (120 I C 833) it was held that this Article is applicable to a "decree" passed ex parte. An order granting leave to execute a decree against any person on the ground that he is a partner, under Order XXI, rule 50, sub-clauses (2) and (3) Civil Procedure Code, is not a "decree" and Article 164 of the Limitation Act is not therefore, applicable to an application to set aside an ex parte order made under the said sub-clauses. Also in construing a cognate provision in Article 163 of the Limitation Act in Raja Ram v. Lakshmi Narain (AIR 1958 All.

149), the Allahabad High Court has held that it was applicable to a case where a "plaintiff" applied for setting aside the dismissal of a "suit" and prima facie it has no application where the applicant is not the "plaintiff" or where the dismissal is not that of a "suit". Similarly in Najam Ali v. Lal Khan and 8 others (PLD 1968 Kar. 59), this Court has held that strictly speaking Article 163 of the Limitation Act is for the benefit of the "plaintiff" and not an applicant. But in this connection, in Messrs Fleming Shaw & Co. v. Mangalchand Dwarkadas (AIR 1924 Sind 56) it was held that Article 164 of the Limitation Act is not necessarily restricted to applications to set aside a decree passed in a suit and that it was equally applicable to an applica--tion under Order IX, rule 13 read with section 141 of the Code to the proceedings other than the suit, Be that as it may, in the instant case, as discussed above, even section 141 of the Code is not at all applicable to the proceedings before the Rent Controller. In my considered opinion, therefore, Article 164 of the Limitation Act is not at all applicable to an application made by an "applicant" to set aside the ex parte order passed by the Rent Controller. On this view of the matter, in my opinion, in this case, the Rent Controller was not at all justified in holding that the application was barred by time under Arti--cle 164 of the Limitation Act. There is no other provision brought to my notice prescribing a shorter period of limitation in this respect, I am, therefore, fully convinced that the order under appeal cannot be supported on this ground.

31. However, the second question posed before us is as to whether Article 181 of the Limitation Act is applicable to the application for setting aside the ex-parte order of ejectment passed under the West Pakistan Urban Rent Restriction Ordinance VI of 1959. The residuary Article 181 of the Limitation Act, prescribes a period of the three years as the limitation. I find that there is a great divergence of opinion among the Courts on the true scope and extent of this Article. In Udit Upadhia and another v. Imam Bandi Bibi (I L R 24 All. 402) a Full Bench of the Allahabad High Court has held that the Limitation Act, being (as described in the preamble) an Act to amend the law relating to tee limitation of suits, appeals, and certain applications to "Court", it cannot possibly apply to a District Registrar in the discharge of his functions under the Registration Act. This view was adopted by the Bombay High Court in Charles E. Ring v. The Collector of Bombay (AIR 1948 Bom. 387), and the Court held that the Limitation Act was not applicable to an application for review under the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act (VII) of 1944, because the Rent Controller exercising his powers under the Act was not a Court. There is also the further question as to whether Article 181 of the Limitation Act is confined in its application to the petitions under the Code of c Civil Procedure only. In this connection, their Lordships of the Privy Council In Hansraj Gupta and others v. Dehra Dun-Mussoorie Electric Tramway Co. (AIR 1933 P C 63) observed that:- "It is common ground that the only Article in that schedule which could apply to such an application is Article 181; but a series of authorities commencing with Rai Manekbaf v. Manekil Kavasji (1833) 7 Bom. 213 has taken the view that Article 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for, the application. "

Similarly in Mian Abdul Aziz v. Punjab Government (AIR 1942 Lah. 186), a Division Bench of the Lahore High Court remarked that it was doubtful whether Article 181 should be held to include only those applications which are made under some definite provision or rule of the Civil Procedure. In Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd, Salem (AIR 1953 SC 98), the Supreme Court of India has referred to this great divergence of opinion and the latest trend of the authorities under Article 181 of the Limitation Act. But the Court did not express any final opinion in the matter.

31-A. On a further consideration, I find that in this case before us, it is not at all necessary to go into this larger con--troversy. I have already held that the application made by the appellant on 3-9- 1965, after 35 days, to set aside the ex parte order of ejectment dated 30-7-65 was not barred by Article 164 of the Limitation Act or by any other Article prescribing a shorter period of limitation. On this view of the matter, there--fore, it is not at all necessary to go into the question as to whether Article 181 of the Limitation Act is applicable to the application for setting aside the ex parte order passed under the Ordinance. This question is, therefore, returned unans--wered.

32. I find that the whole of this case was referred to us for disposal. In this connection the facts are not disputed before us. The appellant was personally served on the application made by the respondent before the Rent Controller, Chakwal, for his ejectment from the premises in question. He even appeared before the Controller to file his written reply contesting his liability for ejectment from the premises. But during the course of the proceedings pending before the Rent Controller, on 21-7-65 neither the appellant nor his counsel appeared and ex parte proceedings were taken against him. Eventually, on 30-7-65, the learned Rent Controller, after recording the ex parte evidence, passed the order for his ejectment. This order became final and the appellant did not tile any appeal against it in time. But afterwards on 3-9-65, the appellant filed, the application before the Rent Controller to set aside the ex parte order of his ejectment from the premises. The learned Rent Controller had passed the ejectment order under the Ordinance in accordance with the law.

There was no fundamental error involved in the exercise of his jurisdiction and as such in my opinion, as discussed above, he had no jurisdiction and authority under the Ordinance to reopen, rehear, review and set aside his previous order. Under the circumstances, the application of the appellant before the Rent Controller to set aside the ex parte order was Incompetent and liable to be rejected on this short ground alone. I have, therefore, no hesitation in rejecting that application and this appeal must, therefore fail. But there shall be no order as to costs under the circumstances of this case.

K. E. CHAUHAN, J.-I have gone through the able and exhaustive judgment of my learned brother Muhammad Akram. J., for whose knowledge of law and experience I have always had a great admiration. However, with great humility and utmost respect, I am not in a position to subscribe to the view taken by my learned brother with regard to question No. 1 referred to the Full Bench and also to the decision as given in paragraph 32 of his judgment. My reasons for taking a contrary view and differ--ing from him on the various points and arguments hereinafter mentioned are as follows:-

(a) Legislature is supposed to know the Rules of Natural Justice and where no contrary procedure is prescribed, it is to be assumed that the Legislature intended that the procedure of natural justice is to be followed. See (i) Commissioner of Income-tax, E. Pakistan v. Fazlur Rahman PLD 1964 SC 410; Abdur Rahman v. Collector etc. PLD 1964 SC 461(Kaikaus, J.), Messrs Faridsons Ltd., Karachi and another v. The Government of Pakistan and another PLD 1961 SC 537; The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmad PLD 1965 SC 90; Laliteswa r Singh v.

Mohunt Ganesh Das 33 I A 134 and Syed Abut A'la Maudoodi and others v. The Government of West Pakistan and another PLD 1964 SC 673. Proceeding in this way, it is to be noticed that in the West Pakistan Urban Rent Restriction Ordinance V1 of 1959 (hereinafter called the Ordinance), there is no indication as to what procedure is to be followed by a Rent Controller in conducting the proceedings and deciding the matters and cases coming up before him. The rules of Civil Procedure Code do not apply per force of any Statute to a Rent Controller, though it is open to him to follow them. This was so held by a Division Bench of this Court in Siraj Din v. Mst. Iqbal Begum PLD 1968 Lah. 639, where I had the occasion to dilate on this matter in a little detail. On this point, the view of my learned brother is also the same, and therefore, I need not reiterate or develop it any further. Coming back to the subject in hand, what I was saying was that since the Legislature has not prescribed any particular procedure t-- be followed by a Rent Controller, on the principle which I have quoted hereinbefore, it is, therefore, to be assumed and held that the Legislature intended that he was to follow the procedure and rules of natural justice gnat, "both sides should be heard or audi alteram parten." H. H. Marshall, in his Book "Natural Justice (1959) Edition at pages 4-5 under the heading "Statement of the principles", writes as follows:-- "There are numerous other dicta in many other reported cases, some of which will be referred to in their proper place later on, but the above extracts from judgments of the highest authority are sufficient to summarise and explain the two essential elements of natural justice which are in modern times usually expressed in the following form:

(a) no man shall be judge in his own cause; and

(b) both sides shall be heard, or and alteram parten.'

Other principles which have been stated to constitute elements of natural justice are e. g., that the parties must have due notice of when the Judge of tribunal will proceed, that the tribunal should not act under the dictation of other persons who have no authority and that if the tribunal consists of several members all must sit together all the time. It is, however, hoped to show that these and many other rules are merely extensions or refinements of the two main principles stated above."

On pages 56-57, under the heading, "the principle of audi alteram parten as applied in other Courts," the learned Author writes as follows:- "The principle of audi alteram parten has most recently been restated in Grimshaw v. Dunbar (1953) 1 Q B 408, at page 416 by Jenkins L. J., in the following words:- " . . . . a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses and he is entitled to call his own witnesses and give his own evidence before the Court, prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the Court and present his case-no doubt on suitable terms as to costs as was recognised in Dick v. Piller (1943) K B 497. "

The case of Grimshaw v. Dunbar, was under rule 37 of the County Court Rules, 1936 Ordinance where there existed a provision of ordering a retrial but the passage quoted above is based upon a larger concept of common justice.

The facts of the case were that the plaintiff (as landlord) brought an action against the defendant as tenant of certain rent restricted premises to recover possession on the ground that the tenant was in arrears with his rent. On June 30, 1952, three days before the hearing of the summons, the tenant attended on the County Court and paid the arrears of rent in full in Court and an official at he Court then told him that it was not necessary for him to attend at the hearing since the summons would be dismissed by reason of the payment. On the summons coming on for herring on July 3 in the tenant's absence, the Judge after hearing the landlord's evidence made an order for possession on November 3, 1952. Notice of that order having been served on the tenant he applied under the County Court Rules, 1936 Order XXXVII, rule 2 for a new trial. That application was dis--missed on October 28. The tenant then appealed and there Jenkins L. J., held as has been reproduced in the passage quoted above. At another place, while dealing with question as to what con--siderations are to be kept in view, while exercising a jurisdiction of this kind it was held (as summarised in the head-note of the report), that;- ------------------------------.. To order a new trial, the County Court Judge should be influenced by the following considerations: First, the reason why the party famed to appear when the case was heard. Secondly, whether there has been any undue delay by the absent party in launching his proceedings for a now trial; delay in itself would not be important, but delay prejudicing the other party, or delay enabling rights of third parties to intervene, would be material.

Thirdly, whether the other party would be prejudiced by a new trial in any respect which could not be adequately compensated by suitable award of costs. A new trial should seldom, if ever, be refused on the ground that the applicant's case was a weak one."

The above case amply supports the view that it is the right of an absentee defendant to claim a new trial on the basis of common justice which is also called natural justice. Reference at this stage may also be made to Muhammad Farooq Imam v. Claims Commissioner, Lahore and another (PLD 1964 SC 585), headnote (b) of which reads as follows:- "(6) Natural Justice-(Opportunity of being heard)-Case remanded where party was absent on account of a 'miss-apprehension' and so had missed an opportunity of being heard-Registration of Claims (Displaced Persons) Act (III of 19561, S. 7(3)."

The actual passage in the report appears at pages 592-593 and following portions thereof are important:- "We come now to the question whether the appellant had a proper opportunity of bring heard.

According to the Claims Commissioner on the 19th February he had fixed the 20th February as the date for hearing and on that date the appellant had disappeared."

Then after examining the facts and giving a finding that the ex parte order was not due to a default of the appellant, their Lordships held as follows:- "We are unable to hold that the ex parte decision of the case is due to default on the part of the appellant. Under the circumstances, we are of the opinion that the appellant is entitled to an opportunity of being heard before the case is decided."

The above passage will clearly show that in the oppor--tunity to be heard is also included an opportunity to be heard if due to misapprehension or some sufficient cause, a party concerned remains absent.

(b) A distinction is to be maintained (a) in filing an applica--tion for claiming a rehearing of a case, ex parte decided on the one band, and (b) filing an application for review of setting aside the ex pate judgment itself on the other hand. The points of distinction are that (i) in the former type of proceed--ings the defendant-petitioner claims a re-hearing on the ground (to put it broadly) that he was prevented by some sufficient cause from appearing on the relevant date of hearing and taking part in the proceedings of the case, while in the latter types of cases, he challenges the ex parte decree itself on its own merits including the errors of procedure in the trial of the case. (ii) In the former case, the merits of the ex parte decision or judgment are not to be taken into consideration, see Firm of Ghutitanmal Khatoomal v. Secretary of State for India and another AIR 1926 Sind 249. (iii) The latter types of cases partake some of the character of a review while the applications for claiming a rehearing on the ground of earlier absence due to some sufficient cause are not in the nature of a review. See Santu and others v. Mahant Arjan Das 131 P W R 1912=13 1 C 318 where Johnstone, J., observed as follows:- "Turning to Order XLVII, rule 1, sub-rule (1), it is clear that if there is any round for review at all, it must come under the words "any other sufficient reason," for none of the previous phrases can possibly be applied to the present application. It seems to me that a party can ask for a review of judgment on the ground of "other sufficient reason" only if he is able to show that the judgment is incorrect.

Here the judgment was obviously correct, for the appellants appeared before me and the respondents who were all duly served did not, and, therefore, the only course open to me was to hear the case ex parte. Nothing urged by the petitioner now could make it right to say that that proceeding of mine was wrong, and, therefore, in my opinion, there is no case for review at all. I would also note that the Legislature has expressly provided a means where--by a party aggrieved by an ex parte decree can get justice, and it seems to me highly improbable that the Legislature intended to give such a person also another remedy by way of review. If this had been the intention of the Legislature where would have been the use of Article 169 aforesaid at all, for a party would be able to turn the flank of Article 69 on every occasion and It would become a dead letter?"

Reference can also be made to Haji Fateh Muhammad v. Maula Bux and others (PLD 1963 SC 311) where earlier there had been passed an ex parte order but later on after hearing both sides a new order was passed. This was to the same effect as the earlier order. It was held that the new order was not an order passed in review. (iv) Cases of the kind in which fraud is alleged in serving a defen--dant, may overlap, when application for claiming re-hearing or suit to set aside ex parte decree is filed on such a ground, but even then in application to claim a rehearing, fraud will be confined merely to service matters while in suit the fraud may extend to the merits of the case as a whole. See Ashraf v. Karim Bux and another (AIR 1949 All. 198), decided with reference to Radha Raman Shaha and others v. Pran Nath Roy and others (I L R 28 Cal. 475 (P C)). The obvious effect of these points of difference is that whereas a review may not be available unless so provided for in statute, an application to claim a rehearing (as is being desired here) being in the nature of a prayer to claim natural justice will always be available.

(c) It is well settled that the powers of the Appellate Court are the same as are possessed by the trial Court. A relief, which the trial Court cannot give, the same cannot be given in appeal by the Appellate Court. On this principle, if the Rent Controller, as suggested by the learned counsel for the landlady, has no jurisdiction to set aide an ex parte order of ejectment, on the ground of even a good cause being shown by the tenant for his absence, I wonder how can the Appellate Court grant that relief. To hold, therefore, that a Rent Controller has no jurisdiction to grant a re-hearing to a defendant who may have even a sufficient cause to show for his absence, but that the Appellate Court has that jurisdiction, is a contradiction in terms. This can be demonstrated by a further example. Suppose the Appellate Court instead of deciding this matter itself, sends the case back to the Rent Controller, to attend to the pleas of the defendant---tenant in that behalf, and then dispose of the matter of setting aside the ex parte order or decree himself. It is obvious that on the plea advanced by the learned counsel for the landlady, the learned Rent Controller will not be in a position to accept that application. In this behalf, even the order of remand will also be of no avail; because by remand an Appellate Court cannot confer a jurisdiction on a Rent Controller which he does not otherwise possess. This will show that the contention of the learned counsel for the landlady that the remedy of claiming a re-hearing in such matters from a Rent Controller is barred, to say with respect, is not correct.

(d) The theory of finality of orders and judgments has no effect on the right of a defendant to claim a re-hearing of matters which have been decided against him ex parte, if he can show a good or sufficient cause for his absence on the relevant date. This right or procedure has been racognised even by the Privy Council. In `The Bolivar" (AIR 1916 PC 85), it was held as follows:- "Where substantial injustice would otherwise result, the Prize Court has an inherent power to set aside its own judgments of condemnation so as to let in bona tide claims by parties who have not in fact been heard, and who have had no opportunity of appearing. This power in discretionary and should not be exercised except where there would be substantial injustice it' "the decrees in question were allowed to stand, and where the application for relief has been promptly made."

Then there are cases in which re-hearing of appeals was granted by the Privy Council itself. See Rajunder Narain Rae and another v. Bijal Govind Sing (2 M I A C 181), which was a case where an appeal was heard in default of appearance of the appellant and was dismissed, affirming the judgment of the Court below. Its rehearing was allowed because the party concerned showed good cause for absence, namely, negligence of his guardian ad litem (to defend his interests etc., and) who had abandoned the case. Reference may also be made to Special Reference in the matter of certain questions relating to the payment of compensation to Civil Servants under Article 10 of the Articles of Agreement for a Treaty between Great Britain and Ireland (AIR 1929 P C 84), where it was held after a survey of the various case-law as follows, at page 89:- "The result of these decisions is (1) that there is no inherent incompetency In ordering a rehearing of a case already decide by the Board, even when a question of a right of property is involved, but

(2) that such an indulgence will be granted in very exceptional circumstances only. It is of the nature of an extraordinarium remedium. "

In Debt Bakhsh Singh v. Habib Shah, it was held as follows:- "In their Lordships' opinion such abuse has occurred by the course adopted in the Court of the Judicial Commissioner. Quite apart from section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. But section 151 could never be invoked in a case clearer than the present, and their Lordships are at a loss to understand why, apart from points of procedure and otherwise, it was not taken advantage of."

'It was a case where the plaintiff was dead when a suit was dismissed in default and the Judicial Commissioner, Oudh refused to allow the son of the plaintiff to apply for revival of suit or being impleaded as his legal representative. This was not approved by the Privy Council and they referred to inherent power as one which could always be used to rectify a situation of that kind.

Another Privy Council case which may be referred to is Ram Narayan Singh v. Adhindra Nath Mukherji and others (44 I A 87), where an appeal was heard by the Privy Council ex pate. The respondent on coming to know of it applied to the Privy Council pleading that he had instructed an agent of the Solicitor to defend him, which agent actually turned out to be an impostor having no connection with the Solicitor. The Privy Council finding the cause of absence, as sufficient, allowed the re-hearing of the matter in the presence of the party concerned, I have referred to these Privy Council cases in particular because from the side of the landlady an impression has been given that Privy Council's view is against re-hearing of matters altogether. I may reiterate that rehearing is of two types, namely, (a) re-hearing in the form of just a review on merits; and (b) re-hearing on the ground that the petitioner was not present and could not be heard earlier on account of some circumstances beyond his control and could not lead evidence or defence. Cases of one type should not be confused with the other. The authorities cited by the learned counsel for the landlady are mostly of a different type whereas we are concerned in the present case with an altogether different category, namely, original side matters. Anyhow, the case---law hereinbefore quoted by me shows that jurisdiction of the Privy Council to re-hear in various ways was always there though now that jurisdiction was to be exercised was a different matter, namely, liberally or strictly. (e) The contention of the learned counsel for the landlady that subsection (5) of section 15 precludes the re-hearing of a matter or setting aside the ex parte order of the Rent Controller even when the defendant was precluded by a sufficient cause from appearing on the relevant date is, on the proper interpretation of the subsection, with respect, not correct. The said subsection reads as follows t "(5) No order passed by the Controller, the appellate authority of the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance."

A perusal of the above will show that all that it says is that, "no order of a Rent Controller shall be called In question, in any Court of law, by suit or otherwise, except as provided, by this Ordinance."

The key to the understanding of this subsection lies in the words "called in question" The prohibition against calling in question, in my humble opinion, is against calling the said order in question on merits and it does not preclude as for example suit for declaration that the order of a Rent Controller is ultra vires or without jurisdiction or that it was passed in bad faith and suffers from mala fides. See Rahmatullah v. Maqbool Alam (PLD 1949 Sind 22), S. M. Yaqoob v. Messrs Mahomedi Furniture Manufacturing Co. (PLD 1958 Kar. 621), Mst. Waheedan and others v.

Muhammad Yousuf Khan (PLD 1960 Kar. 333), M. M. Ispahani Ltd. v. Haji Muhammad Sultan and others (PLD 1961 SC 76) and Abdul Qadir and others v. Seth Byramji D. Mama (PLD 1963 Kar. 300).

To me it appears that the phrase "calling in question" has a special connotation, and proceedings where an order of a Rent Controller is not called in question on its merits, but all that a tenant desires therein is to obtain a right of re-bearing of a matter or of allowing him an opportunity to defend himself, are not such, proceedings as will be hit by the mischief of the above subsection it is well settled that in applications for claiming a re-hearing praying that setting aside of the ex parte decree or order on the ground of existence of a sufficient cause for absence --the merits of the case are not to be taken into consideration. Firm of Ghumanmal Khatoomal v. Secretary of State for India and another. If, therefore, an application is filed before a Rent Controller to set aside an ex parte order or claiming a re-hearing on the ground that on the relevant date, the tenant was precluded V by a sufficient cause from appearing in Court, then such an application is not hit by the provisions of subsection (5) of section 15 of the Ordinance and in my respectful opinion will not, be barred.

(f) That such an application will not be barred is proved from another point of view as well and that is that in sub--section (2) of section 13, it is laid down that, the application or, ejectment is to be decided by the Rent Controller, "after giving-- a reasonable opportunity to the tenant to show cause", against the same. In my opinion granting of a reasonable opportunity will include in it are opportunity to claim a re-hearing if Orr any earlier date the tenant was precluded on account of a: sufficient cause to appear in Court in order to defend himself.

(g) Apart from the fact that the scope of appeal, under the Ordinance, as pointed out by me in an earlier sub-paragraph (c) of this judgment is limited, still even under general law also it is doubtful as to whether the sufficiency or the cause of absence of a defendant can be gone into in appeal by him against an ex parte decree. In M. Mumi and another v. Aziz-ud-Din (AIR 1917 All. 475); Ganesh Das Parma v. Hari Chand and others (AIR 1934 Oudh 131 (1)); Raj Chundra Dhar v. Messrs D.

O. C. Ray (AIR 1924 Rang. 137); Jonardan Dobey v. Ramdhone Singh and others (I L R 23 Cal. 738); Badvel Chinna Asethu and others v. Vattipalli Kesavayya and others ((1920) 39 M L J 697); Jadunath Vasak and others v. Ram Narayan and another (1 I C 329); Syed Mrzhar Hussain and another v. Sheikh Rafiq Hussain and another (AIR 1925 Oudh 645); Modi Shah v. Dher Shah and another (AIR 1917 Lah. 362). It was held that this matter could be examined. While in other set of cases it was held that it could g be examined in appeal. These cases are Sadho Krishna Ayyar v.

Kuppan Ayyangar and others (I L R 30 Mad. 54); Perumbar Nayar and others v. Subrahmanian Pattar and others (I L R 23 Mad. 445); B. Lerai Sahib and others v. Ammeanammal and others (AIR 1924 Mad. 107); Brojeswa r Banerjee and another v. Syama Charan Mandal and others (AIR 1919 Cal.

727); Jnanendra Mohan Bhadhury and another v. Profulianananda Goswaml and others (AIR 1928 Cal. 812); Jethalal Giadhar v. Yarajilal Bhaishankar (AIR 1922 Bom. 267); Kodumal v. Aga Khan Sultan Mahmed Shah (AIR 1916 Sind 34); Ghulam Haidar and others v. Jiwan and others ((2) (16) AIR 1922 Lah. 439); S. N. Mullick v. Ganga Gope and others (AIR 1925 Pat. 534) and Ram Lal Gope and others v. Kali Parasad Sahu and others (AIR 1929 Pat. 609). In this doubtful state of affairs, with regard to the appeals under the Civil Procedure Code, It cannot be held with certainty that such a matter is open in appeals under the Ordinance, especially, when in appeals to the District Judge C.

P. C., does not apply, while in appeals to the High Court the said Code does apply, but again with such modifications as the context may require. See "Explanation" to subsection (4) of section 15 of the Ordinance which reads as follows :- "Explanation.-An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings."

This "Explanation" came up for examination by the Supreme Court in Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali (1968 SCMR 828), and it was held as above while interpreting the same. I am, therefore, not in a position to hold with certainty that the only remedy in orders of the present kind was to self relief from the Appellate Court and that the remedy to apply to the Rent Controller was in any manner barred.

My study of the above case-law, however give me an impression that where for example a defendant had no notice of the date of hearing or where he prayed for an adjournment which was refused and he was pr seceded ex parte or where the record of the trial Court can itself show that there was no justification to proceed ex parte against the defendant or that there has taken place an error, defect or irregularity in the matter of proceeding ex parts against him or in the procedure or the trial in that behalf, there a defendant can always raise all these points in the appeal, but in cases where this is not the situation, there the defendant-appellant will be in a great disadvantageous position; because the Court of appeal will not be in possession of the materials which prevented his appearance. In these cases, such grounds will not be available for being taken in appeal either. What then is to be done? The only reasonable view, therefore, is to hold that the defendant will have a right to approach the Original Court to claim an opportunity to show cause for his absence and demand a re-trial of the matter.

(h) Taking up the question from the point of view of "inherent powers" so far as the Code of Civil Procedure is concerned, there is a conflict of views among the various High Courts of India and Pakistan. In the Civil Procedure Code, there exists an express statutory provision in the form of Order IX, rule 13, which gives a remedy of filing an application for setting aside an ex parte decree.

Keeping that in view, some High Courts have held that where the Legislature has provided an express remedy, a party must avail of that and that alone and if his case is not covered by that provision then resort to inherent power cannot be made. On the other hand, some High Courts have held that Order IX, rule 13 is not exhaustive of all the situations or powers of a Court to do substantial justice between the parties and that relief can in suitable cases be given under the inherent powers also. It is very difficult to make a resume of the said case-law as it is very large in number, but one thing which can be said is that these are all cases where C. P.C, applies in one fashion or the other. As regards Forums or Tribunals to which C. P. C. Does not apply, there the question of the curtailment or exclu--sion of inherent powers on the ground of existence of a statutory rule like Order IX, rule 13 cannot hold good in such cases, on the principle of natural justice, equity, good conscience, fair-play or fair-trial, there will always be jurisdiction to attend to situations of the kind which are the subject-matter of debate before us, namely, to allow an opportunity to a defendant who for some sufficient cause, was precluded from defending himself or his case. Suppose on the relevant date, the defendant---tenant is kidnapped along with his witnesses, while coming to Court, or is encountered by a bus-accident, or some similar calamity befalls, can it be said that he is not entitled to an opportunity even if he proves the above facts and can it be said that a Rent Controller has no jurisdiction to relieve a tenant from such a situation, or to allow him an opportunity? My answer iv, he has ample jurisdiction; power and authority in the name of Justice and fair-play to attend to this matter and can recall or set aside the earlier ex parte order or suspend it to see whether in view of the evidence or material, which the tenant may product, his eviction should still be maintained or not. For implied powers of recalling an order in such and a like situations, reference may be made to Manohar Lal L. Nadrachand v. Mohan Lal Gian Chand (AIR 1957 Ph. 72), N. Q. Industries v. Mrs. Bapal Kalkhusro (PLD 1968 Kar. 589) and Debt Bakhsh Singh v. Habib Shah (1 I A 151=I L R 35 All. 331). That there as no restriction on the power of a Rent Controller to follow any procedure, was laid down by the Supreme Court in Khadim Mohy-ud- Din and another v. Ch. Rehmat Ali Nagra and another (PLD 1965 SC 459); where it was held as follows at pages 463-464:- (the important portions in the following passages have been underlined by me): ---First we must consider the precise character of the office of the Controller, namely, whether he is acting as a Court in respect of matters that he is required to perform under this Ordinance.

From the provisions of the Ordinance, it appears that though under section 16 the 'Controller' has been given powers 'of summoning and enforcing the attendance of witnesses and compelling the production of evidence', he is not bound in every case to follow the procedure as laid down in the Code o Civil Procedure. He has been given powers under sections 4, 10(3) and 12 to make orders after holding such enquiry as he thinks fit. In such cases, the question of nature of enquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence which they desire to adduce, in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban Area the landlord may not convert a residential building into a non-residential building. The power thus conferred on the Controller would appear to be a purely executive. Then subsection (3) of section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be satisfied that the claim of the landlord is bona fide.' But there is no express mention of any enquiry by the Controller. If the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure.

We, therefore, conclude from the foregoing examination of the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act Judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most, it may be said that he acts in a quasi judicial capacity."

Also see Hajl Zakeria Suleman v. The Collector, Yeotmal and others (AIR 1963 Bom. 233), Aijaz Ahmad v. Nazirul Hassan and another (AIR 1935 All. 868), Muhammad Hanif and others v. Ali Raza (AIR 1933 All. 783) and Manohar Lal L. Nadarchand v. Mohan Lal Gian Chand (AIR 1957 Pb. 72) for the proposition that there always exists an implied and inherent power in every tribunal to set aside orders passed in default of appearance of the parties. In view of the above, I do not want to take a different and narrow view so as to hold that the Rent p Controller had no jurisdiction to recall an ex parte order where the party concerned can show a formidable case for non-appearance on the relevant date. If as laid down by the Supreme Court in the case of Khadim Mohy-ud-Din and another v. Ch Rehmat Ali Nagra and another, that a Rent Controller is not bound to follow any particular procedure, then to say that he can proceed ex parte but cannot recall ex parte order, will be binding him down to such a restricted procedure which, it is obvious, in view of the Supreme Court verdict, cannot be possible. The method and manner of making enquiries have been left to the good judgment of the Rent Controller and no restrictions or checks can be placed in that respect. If after making an ex parte order he is satisfied that the tenant was precluded by a sufficient cause, or circumstances beyond his control to attend or defend himself, his action of recalling his previous order for affording a reasonable opportunity to the tenant cannot be in any manner called to be an excess of his jurisdiction or power but will be quite within the ambit of his implied or inherent power of deciding squarely and fairly.

(i) Continuing the subject of inherent and implied powers, first of all a question arises as to whether matters under the Ordinance can be decided in the absence of the parties. A perusal of the Ordinance will show that there is no provision in anywhere for dismissing a matter in default or to proceed ex part if, therefore, any such recourse is adopted by a Rent Controller. It is obvious that he adopts it by virtue of the inherent power vested in him to choose any procedure lie likes. If once he has chosen such a procedure, then to carry the matter to its logical end, be must retain the power to recall or set aside orders passed ex parte or In default.

(j) I may attend to another argument that sine there is no express provision in the Ordinance providing a remedy of this kind contained in Order IX, rule 13, C. P. C. i.e., for filing an ,application to set aside an ex parte order on the ground that the defendant was prevented for a sufficient cause on the relevant date .Of hearing from attending, therefore, such a remedy vas not available. At this stage I may refer to a very recent ruling of the Supreme Court reported in H M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65). In that case, the question was as to whether a stranger who was not a party in the Courts below could file an appeal . . . . . .(it may be noted that filing of appeal is a much stronger right than the one under .Consideration at the moment). The Supreme Court held as follows:-- '------A stranger to a suit or a proceeding is not prohibi--ted by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act an 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 administration of justice is permissible even if there is no express provision permitting the same." "the above passage clearly states that he omission of a parti--cular kind of procedure cannot be understood to amount to a prohibition of the procedure, and that a Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. It was emphasised that to give such a meaning to the omission would result in grave -injustice and that the Court should proceed on the principle that every procedure which furthers administration of justice is permis--sible even if there is no express provision permitting the same. Respectfully following the above law, I would hold that the mere fact that there is no provision or procedure Laid down for filing an application for setting aside ex parte orders such an applica--tion is not barred, because, if it is allowed to be filed, it will further that administration of justice in the name of fair- play and natural justice.

(k) An application for setting aside an ex parte decree is not, strictly speaking, an application to claim a re-hearing. It may, if 4t is accepted, have the effect of causing a re-hearing but strictly speaking its real aim is to get the earlier order recalled. This was so observed in Parvatishankar v.

Ishwardas Jagjlvandas and Raghunathjt Nichhabhal (I L R 19 Bom. 208). It was held in Abdul Aziz v.

Punjab National Bank Limited (AIR 1929 Lah. 96) while considering the provisions or Order 111, rule 4(2), C. P. C. For examining as to whether the authority of a counsel comes to an end when suit Is dismissed in default or an ex parte decree is passed against a party, that :- "The provisions of Order III, rule 4(2), C. P. C. Are wide enough to cover the case of an application for restoration of a suit dismissed in default, as all proceedings in the suit are not ended so far as regards the party, merely by its dismissal in default or by an ex parse decree, which part of proceedings is liable to be set aside on an application and the case restored to its original number."

In Bachubhal Jhivad v. Ibrahim Isak Motiwala and others (AIR 1922 Bom. 207) (Macleod, C. J. And Kanga, J. At page 208) there occurs a passage which is instructive and useful for the point under discussion, in this passage, the learned Judges first quoted the view which had been taken by the District Judge, and which was to the following effect:- The learned District Judge said "Now an application to set aside a decree is not like an application to execute the decree, but is an entirely new proceeding, outside that of the suit. This is the natural view of the case and is supported by the authorities cited by the learned Sub-ordinate Judge, especially, page 158 of the High Court Manual of Civil Circulars, where it is expressly stated that an applica--tion to set aside an ex parte decree is to be included in the proceedings which do not form part of the suit."

Thereafter, the learned Judges, made the following comments on the above view:- "No doubt Chapter IV of the Manual of Civil Circulars is headed `Miscellaneous Proceedings required judicial inquiry' and included under para. 1 are proceedings on applications under Order IX, rule 13 to set aside an ex parte decree. It may very well be that for administrative purposes proceedings on such an application may be filed under the heading `Miscellane--ous proceedings' but they are nonetheless proceedings connected. With the suit and whether the suit is restored or not, certainly such proceedings would have to be considered with the proceed--ings in the suit if the matter came before a higher Court. We do not think, therefore, that the passage in the Manual of Civil Circulars really decides the question before us."

To the same strain are U Oak and others v. Ma Khin and others (AIR 1941 Rang. 314), Mst. Boro Bai v.

Ramsunder Prayagdutt Brahmin (AIR 1938 Nag. 272) and Pannalal and another v. Firm Ballaram Basia (AIR 1957 Raj. 391), where It was held that application to set aside ex parte decrees, or to restore suits dismissed in--default are part of proceedings in the suit. In view of this abundant case-law on the subject the contention of the learned counsel for the landlady therefore, that such proceedings are note proceedings in the suit or have no connection with the suit in my honourable opinion is not a correct enunciation of the legal position. The concept that on passing of an ex parse decree or on dismissing a suit in default, the suit has ended for all purposes so far as regards the ex pane defendant or defaulting plaintiff is concerned is not correct. Each matter will have to be decided with reference to its own facts. I need not expand this subject by quoting examples of other situations, and to confine the discussion in hand to the subject under consideration, I am of the opinion that to deny the right to a person to apply for restoration of a case, dismissed in default or for setting aside an ex parte order . . . . On the ground that the suit has ended and, therefore, the Court has become functus officio, for all purposes is not a correct view. The Court may be in a state of suspense to touch the merits of the case until the suit is revived but for the purposes of revival of the case, since, these proceedings are part of the suit, the Court is very much there and so also its authority and jurisdiction.

(1) As regards the applicability of section 20 of the West Pakistan General Clauses Act VI of 1956, it reads as follows:- "Where, by any West Pakistan Act, a power to issue notification, orders, 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 "

In Shahbaz v. The Crown (PLD 1956 FC 46), it was held as follows: . . . In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation and that is apparently the reason why in order to give finality to judicial orders provisions greatly restricting the use of this power had to be introduced in the Civil and Criminal Procedure Codes. Wherever there is no such restriction imposed on Governments there is no reason to deny them the power of correcting even the errors of judgments. In several cases this power of correction is necessary for the proper discharge of their functions.

It was argued by the learned counsel for the landlady that the above observations of the Federal Court are obiter dicta and therefore, have no application to the orders of a Rent Controller. In my opinion, the observations of the Federal Court were with regard to the interpretation of the relevant section of the General Clauses Act and as such must bold the field. Moreover, as held by the Supreme Court in Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and, another (P L D1965 SC 459), if the Reno Controller is a persona designate and is not a Court and the nature of enquiries conducted by him are "such as maybe conducted by an Executive Officer", and, it cannot be said that in holding such an enquiry he will be bound by any particular procedure," then to hold that section 20 of the General Clause Act does not apply to him, is not correct. Learned counsel then argued that section 20 of the West Pakistan General Clause; Act can never apply to judicial or quasi-judicial orders. With respect, this is too broad a proposition. The reason for no applying is not that It is not capable of being applied but as was put by the Federal Court in Shahbaz's case, "in order to giving finality to judicial orders; provisions greatly restricting the us of this power had to be introduced in the Civil and Criminal Procedure Code", and, "wherever there is no such restriction imposed . . . . . There is no reason to deny them the power of correcting even the errors of judgments. In several cases this power of correction is necessary for the proper discharge of their functions". Relying on this principle, and interpretation of section 20 of the West Pakistan General Clauses Act` I would, therefore, hold that It is capable of being applied to a Rent Controller. This is, however, not the end of the matter. The next question to be seen is that, is there any restriction to the use of this power in the West Pakistan Urban Rent Restriction Ordinance itself. In my view, subsection (5) of section 15 is a restriction in that behalf, but that is only a limited restriction and is confined merely to challenging the merits of the previous order of a Rent Controller. Where the merits of the previous order are not challenged, there that section is no bar and section 20 of the West Pakistan General Clauses Act v-ill operate and will clothe the Rent Controller with ample jurisdiction to set aside an order passed ex parte on the ground that the tenant was prevented by a sufficient cause from attending on the relevant date.

(m) As regards Syed Nafis Ahmad Zaidi v. S. M. Hussain, (PLD 1964 Lah. 536) it was a case there it was held that Civil Procedure Code applied to a Rent Controller and so also the provisions of Order IX, rule 13 thereof and that he had, as such, jurisdiction to set aside as ex parte decree on the ground that a tenant was precluded by a sufficient cause from attending on the relevant date. This case followed Sh. Muhammad Nawaz v. Muhammad Azeem and others (PLD 1961 Lah. 788), which in turn endorsed Muhammad Azeem and others v. Muhammad Nawaz and others (PLD 1961 Lah.

137). I had the occasion to examine this aspect of the applicability of C. P. C. In Siraj Din v. Mst. Iqbal Begum (PLD 1968 Lah. 639), where I held as follows in paragraph 7 of the report:- "Learned counsel for the contesting landlady referred to us to Muhammad Azeem and others v.

Muhammad Nawaz and others, PLD 1961 Lah. 137, Sh. Muhammad Nawaz v. Muhammad Azeem and others PLD 1961 Lah. 788 and Syed Nafis Ahmad Zaidi v. S. M. Hussain PLD 1964 Lah. 536, to show that in those authorities it had been held that Civil Procedure Code applied by virtue of the provisions of section 141, C. P. C. To proceedings before a Rent Controller. We will refer to these authorities later on but we may observe at this stage that if it is suggested that these authorities say that Civil Procedure Code applied per force of its section 141 then in view of the Supreme Court's ruling reported in khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another, this will not be a correct law any longer. Moreover, a general reading of these authorities shows that m none of them the point was considered that the Rent Controller is not a Court and as to what should be its impact on the provisions of section 141, C. P. C., which apply only to Courts. In view of the dictum of their Lordships of the Supreme Court in Khadim Mohy-ud--Din's case that a Rent Controller is not a Court, the aforesaid authorities, which impliedly proceeded, on the contrary assumption, can no longer be held to be a good law. If there was scope for any further debate we might have considered the advisability of referring this point to larger Bench, but in view of the authority of tire Supreme Court Khadim Mohy-ud-Din and another v. Ch. Rehmat All Nagra and another, this is not any more necessary; because the observations in the said case are sufficient to support the view which we have taken"

On page 653, then I said:, "We want to make it clear that when we have said that Civil Procedure Code does not apply to a Rent Controller per force of section 141, C. P. C., we do not intend to lay down that if the Rent Controller so chooses he cannot adopt the 'pro--cedure' Lald down in the said Code with such modifications as the circumstances warrant. This will be the choice of the Rent Controller "

Taking the same view, therefore, I bold that Civil Procedure Code, is not applicable to a Rent Controller per its own force and so also is not applicable Order IX, rule 13, C. P. C. And a view to the contrary in Syed Nafis Ahmad Zaidi v. S. M. Hussain is not correct only to this extent. But on general plane a Rent Controller is not precluded on the basis of natural justice to recall an order made ex parte against a tenant on the ground that he was precluded on the relevant date from appearing due to a sufficient cause. All the learned counsel who appeared amicus curaie supported this view.

2. For the reasons enumerated above, my answer to the first question referred to this Full Bench is that a Rent Controller can set aside an ex parte order where the tenant shows that he was precluded from attending the relevant date of hearing on account of a sufcient cause.

3. As regards the second question, I am in respectful agree--ment with my learned brother that the application filed by the tenant before the Rent Controller has not been shown to be barred by limitation under any law for the tine teeing in force. This, however, is no answer to the problem passed in the second question referred to the Full Bench, namely, whether Article 181 of the Limitation Act, is applicable to the application for setting aside ex parte order under the West Pakistan Urban Rent Restriction Ordinance VI of 1959. Since the application has not been shown to be time-barred, the question whether Article 181 of the Limitation Act applies or not, need not be answered.

4. As regards the merits of the application, which was filed by the tenant, for setting aside the ex parte order of the Rent Controller, these have not been discussed by my learned brother and he has in paragraph 32 of his judgment rejected it simply on the following ground by holding than:- he had no jurisdiction and authority under the Ordinance to reopen, rehear, review and set aside his previous order. Under the circumstances, the application of the appel--lant before the Rent Controller to set aside the ex parte order was incompetent and liable to be rejected on this short ground alone. I have, therefore, no hesitation in rejecting that application and this appeal must, therefore, fall. But there shall be no order as to costs under the circumstances of this case."

The facts which are necessary to be mentioned in this behalf are that on the 14th of September 1964, the landlady filed an application for ejectment of the appellant on the ground of default in the payment of rent; damage to the property and personal need. This application was dismissed In default on the 12th of December 1964, under Order IX, rule 8, C. P. C. On the 14th of December 1964, the landlady filed an application for restoration of the main case. This was opposed and on the pleadings of the parties the learned Rent Controller framed an issue. "As to whether some sufficient cause exists there to restore the appli--cation on file? O. P. P." This application was conceded to by the counsel for the tenant in the Court below on the 10th of May 1965, on receipt of costs. Thereafter the tenant filed a written statement on the 29th of May 1965, to which a counter-reply in the form of replication was filed by the landlady on 12-6-1965, when the following preliminary issues were framed:--

(1) Whether the relationship of landlord and tenant between the parties exists? (O. P. A.).

(2) If so, whether a valid notice under section 30 of the Dis--placed Persons Settlement Act, 1958 has been given? (O. P. A.)

The case was adjourned for evidence to the 8th of July 1965. On the said date, the evidence of the landlady was recorded but since the evidence of the tenant was not present, he was given a date for further proceedings as 21-7-1965. On the said date, again the tenant did not appear and proceedings were ordered ex parte against him. Thereafter on the same date, the Court decided the preliminary issues in favour of the landlady and framed the following issues on merits:--

(3) Whether the respondent is a defaulter?

(4) Whether the respondent has damaged the said property?

(5) Relief.

An order was passed on the said date that a notice should be issued to the tenant and his counsel that he should appear on the 30th of July 1965, to produce his evidence on the issues herein-- before mentioned. (There is no indication on the file as to whether any such notice was issued, or sent as ordered by the Rent Controller). On the said date, neither the tenant nor his counsel was present. The landlady produced her ex parte evidence, where after the Rent Controller passed an ex parte order of eject--ment directing the tenant to put the landlady in possession before the 15th of September 1965. On the 3rd of September 1965, the tenant filed an application under Order IX, rule 13, C. P. C. Pleading that he had engaged Syed Zia-ul-Hassan Zaidi, Vakil, Chakwal, for conducting his case. It was averred that on the 30 of July 1965, the tenant had gone to Lahore in connection with the illness of his son who had been admitted in a hospital there. It was also stated that since the counsel for the tenant also did not appear, therefore, proceedings were conducted and orders were passed against him ex parte, of which he learnt only on the 1st of September 1965.

Pleading that his absence was not intentional but was due to a natural and sudden event of the illness of his son, for which he was not to blame, he prayed that the ex parte order may be set aside and the case may be decided on merits. Notice of this application was issued and on the pleadings of the parties the learned Rent Controller framed the following issue:-

(1) Whether the application to set aside the ex parte order is within time?

The tenant appeared as his own witness and made a statement on oath supporting the pleas taken by him in the application. No evidence in rebuttal was led by the landlady. The learned Rent Controller by means of his order, dated 12-10-1965, held that the application was time-barred and, therefore, dismissed the same. All this will show that so far the learned Rent Controller has neither framed an issue regarding the existence of the suffi--cient cause in the case nor has he allowed the parties to lead evidence thereon. He simply struck a preliminary issue regarding the point of limitation and holding the same in favour of the landlady dismissed the application. This will show that so far neither the parties nor the learned Rent Controller have adverted to the existence of the sufficient cause in this case nor the parties have been directed to produce evidence thereon. Since we are holding that the application tiled by the tenant, for seeing aside the ex parte order was within time. I think there is no option but to set aside the order of the learned Rent Controller whereby he dismissed that application solely on the ground of limitation, and the only course thereafter to follow is to remit the case to the learned Rent Controller for decision of the same on merits after allowing the parties an opportunity to lead evidence thereon. The order of the learnedth Rent Controller dismissing the applica--tion on the ground of limitation tentamounts to refusal to exercise jurisdiction vested in him by law. My order in the case while accepting this appeal will be that the learned Rent Controller should decide the application of the tenant afresh after framing an issue as to the existence of the sufficient cause for which the parties should be given due opportunity to lead evidence. The parties will bear their own costs.

FAZAL-E-GHANI, J.-I entirely agree.