1. ' MUNAWAR AHMED MIRZA, J.--This petition challenges eviction preceedings initiated by respondent (landlord) whereby petitioners (tenants) have been ejected from business premises in dispute vide judgment and decree, dated 9-3-1987 passed by Civil Judge Loralai, and later upheld by District Judge Loralai through judgment an decree, dated 30-8-1987.
2. Facts briefly stated are that in June, 1985 respondent file an application under section 7(3)(a) and (g) of Regulation No,II of 1945 before Civil Judge, Loralai seeking ejectment of petitioners from Shop No,203 Station Road, Muslim Bagh where presently they are running their restaurant.
2. Petitioner filed detailed written statement on 17-7-1985 wherein all the averments were repudiated.
3. Allegation regarding default in payment of rent and landlord& requirement for their own occupation were expressly denied. Considering pleadings, trial Court on 12-10-1985 framed following five issues:--
(1) Whether this Court has no jurisdiction to adjudicate upon the matter in view of preliminary objections of the written statement?
(2) Whether the parties have executed any agreement according to which the respondents cannot be evicted from disputed premises?
(3) Whether the respondents have failed to tender rent since 1980?
(4) Whether the disputed premises is required by the applicants, in good faith for personal bona fide use and occupation?
(5) Relief.
4. ' Record indicates that respondents (landlords) examined three witnesses namely (I) Paind Khan,
(ii) Rozi Khan and (iii) Jamal Khan apart from attorney Kamal Khan to substantiate claim for ejectment of petitioners. Whereas petitioners adduced (RW-1) Abdul Khaliq, (RW-ii) Akhtar Muhammad, (RW-iii) Shah Noor, (RW-iv) Janan; and (RW-v) Abdullah Jan besides petitioner No,3 Karam Khan for himself and attorney for petitioners 1 and 2 to rebut claim in suit. Learned Civil Judge Loralai evaluating available evidence by means of judgment, dated 9-3-1988 granted decree for ejectment directing petitioners to and over vacant possession of the premises to respondents within 60 days. Petitioners preferred an appeal before District Judge Loralai on 21-3- 1987 challenging aforementioned ejectment which was also dismissed vide judgment and decree, dated 29-4-1987. Petitioners feeling dissatisfied from aforementioned judgments and decree passed by both the Courts below, on 23-5-1987 filed Civil Revision No,63/87 under section 115, C.P.C.
5. In the High Court, which was disposed of vide judgment, dated 4-7-1987; which is reproduced below:-- "After hearing the learned counsel for the parties at length it was proposed by me that in the situation it would be in the interest of parties that the case may be remanded to the learned District Judge, Loralai for deciding the dispute between the parties afresh on the ground that whether appeal or revision is competent against the order of Court under the British Baluchistan Rent Regulation 1945. In fact I had in view judgment of this Court in case of Haji Sheikh Merajuddin v.
6. Seth Abdul Ghafoor Rishi reported in PLD 1979 Quetta 118 and section 12(3) of the Regulation II of 1945. The learned counsel for the both parties candidly conceded to such proposal.
(2) In such situation I set aside the order of the learned District Judge and remand the appeal to him for deciding it afresh on merits but keeping in view of the authority referred to herein above and subsection (3) of section 12 of the Regulation II of 1945. But no order as to costs.
(3) The parties are directed to appear before the learned District Judge, Loralai on 15-8-1987."
7. ' Accordingly case was remanded and parties were directed to appear before District Judge, Loralai. It may be seen that learned District Judge after considering question of maintainability of appeal has observed that no appeal was maintainable. However considering the merits of case within the scope of revisional jurisdiction, the petition was dismissed vide judgment, dated 30-8- 1987, reproduced below for ready reference:-- "This appeal was filed against the decree, dated 9-3-1987 passed by Civil Judge, Loralai against the present appellants."
8. ' On merits of this appeal, it was dismissed through an order of this Court on 29-4-1987.
9. ' The case has been remanded by his Lordship to decide the case afresh on merits of the appeal, which is not provided under Regulation 1945. This appeal is treated as Revision. In Revision, although the learned counsel has argued the case at length on merits of the case, the point has already been determined on question of personal bona fide occupation in negative.
10. ' On the point of payment of rent/default, therefore, it was held that the petitioners have defaulted in payment.
11. ' With reference to the case-law PLD 1979 Quetta 118 Merajuddin v. Abdul Ghafoor Rishi a decree of eviction under this Regulation, but Revision lies as there cannot be a legal lacuna, therefore, the scope of the argument of the learned Advocate for petitioner, becomes all the more limited.
12. ' As such since no illegality as to the jurisdiction of the lower Court has been pointed out therefore, the revision merits dismissal only."
13. ' Petitioners have now challenged legality of ejectment decree passed by Civil Judge Loralai, dated 9-3-1987 as well as judgment of District Judge, Loralai, dated 30-8-1987 referred to above.
3. Mr. Tahir Muhammad Khan, learned counsel for petitioner pointing out vires of judgment and decree of both the Courts below has raised following objections;
(i) Appeal is provided under Regulation II of 1945 because section 12(3) of said Regulation expressly adopts provisions of appeal, revision etc. For the institution of suit. Therefore, principle enunciated in Haji Sheikh Merajuddin v. Abdul Ghafoor Rishi PLD 1979 Quetta 118 does not lay down correct law and needs reconsideration in view of earlier unreported judgment of S.C.A. No,37 of 1967 Dr. Muhammad Ali v. Dr. Muhammad Yaqub decided on 23-6-1967.
(ii) Principle of casus omissus need to be applied for ascertaining real intent of legislature, especially when none of the provisions appears to be inconsistent with right to prefer an appeal.
(iii) Beneficial construction for interpretation of enactment need to be given, therefore meanings which are closer to the object of law and tend to promote interest of justice be adopted.
(iv) Right of appeal is presumed to be available in the modern jurisprudence. Therefore, right of appeal normally available to affected party must be strictly construed.
(v) Regulation II of 1945 in addition to mere default contemplates unwillingness of tenant to pay, as such no cause of action for filing eviction application was available.
(vi) Similarly own occupation connotes, intentions of having physical possession of demised premises.
(vii) Notice under clause 7(1) (g) of Regulation II of 1945 was mandatory which has not been given thus rendering eviction application, incompetent.
14. ' Whereas Mr. S.A.M. Quadri, learned counsel for respondents opposing the petition had made following submissions:
(i) Where legislature intentionally desires to limit right of appeal, same cannot be provided by the Courts because right of appeal is creation of statute and gap/omission in this behalf cannot be filled through interpretation.
(i) Rahmatullah Khan and others v. The State PLD 1965 Pesh. 162;
(ii) Khizar Hayat and others v. Commissioner Sargodha Division and another (PLD 1965 Lah. 349)
(ii) Appeal is a vested right and not a matter of mere procedure. Same therefore must be conferred by statute and cannot be assumed by implication or principles of adoption or through decisions of the Courts. Reliance is placed on the following judgments:--
(i) Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others (PLD 1970 SC 1).
(ii) Mst. Zaibunissa v. Muhammad Mozammal (PLD 1972 Kar. 401).
(iii) Mian Manzar Bashir and others v. M.A. Asghar & Co. (PLD 1978 SC 185).
(iv) Haji Sheikh Merajuddin and another v. Haji Seth Abdul Ghafoor Rishi (PLD 1979 Quetta 118).
(v) Sayeedur Rehman v. Chief Election Commissioner, Dacca and others (PLD 1965 SC 157).
(vi) Allah Rakha etc. v. Additional Deputy Commissioner (G), Lahore and others (1980 CLC 1386).
(iii) Filing of previous Rent Application constituted sufficient notice thus requirement of clause 7(i)
(g) would be deemed to have been duly met (a) Abdul Latif Niazi v. Punjab Province through Collector, Multan (1985 SCMR 27), (b) Major (Retd.) Muhammad Yousuf v. Mehraj-ud-Din and others (1986 SC MR 751).
15. ' We have gone through the available record and considered' the arguments addressed by learned counsel for parties, at length. Bare reading of Regulation II of 1945 shows that appeal has not been provided under said enactment. It was however emphasised that since decision of Rent Controller under Regulation II of 1945 is executable as decree of Civil Court within the purview of section 2(2), C.P. C., therefore, automatically appeal would lie under section 96 of Civil Procedure Code. Besides principle of adoption and beneficial construction of law enunciated in following reports was relied:-
(i) Province of West Pakistan v. Sharafatullah and others (PLD 1970 SC 514).
16. (ii)' Province of West Pakistan and another v. Mahboob Ali and others (PLD 1976 SC 483).
(iii) Shafique Ahmed Butt v. Punjab Labour Appellate Tribunal (1983 CLC 1352).
(iv) Dost Muhammad Khan v. Mst. Bibi Rukia and others (PLD 1986 SC 353).
(v) Dur Muhammad v. The State (PLD 1983 Lah. 24).
17. ' Attempt was made to suggest that lacuna and ambiguity existing in the statute could be removed by giving liberal construction.
18. ' It is well settled principle of law that appeal is a substantive right which can be conferred only by statute itself. Non-existence of remedy by way of appeal may be harsh, but Courts of law have no jurisdiction to amend the legislation or provide those remedies which otherwise are not intended or specified in the enactment. Though modern society stresses for right of appeal yet jurisdiction of Court is sufficiently restricted as such right of appeal cannot be merely assumed by implication, inference, propriety, desirability or adoption unless expressly provided by the Statute. Evidently, there does not exist any ambiguity in the provisions of Regulation II of 1945 which needs to be resolved. On the contrary examination of various provisions of said enactment clearly indicates that legislature never intended to provide right of appeal. Effect of relevant provisions of law has been exhaustively discussed by Single Bench of this Court in case Hail Sheikh Merajuddin v. Haji Seth Abdul Ghafoor Rishi (PLD 1979 Quetta 118).
19. ' Mr. Tahir Muhammad Khan, learned counsel for the petitioner brought to our notice a contrary view in S.C.A. No,37. Dr. Muhammad Ali v. Dr. Muhammad Yaqub decided on 23-6-1966 by earstwhile High Court of West Pakistan whereby second appeal was found to be maintainable. It may be seen that question concerning non-existence of the provisions of appeal was not agitated in aforementioned unreported judgment therefore, obviously main objection concerning maintainability of appeal was not specifically determined. For the above discussion, we are not persuaded to follow the same. However we are in respectful agreement with the conclusions of Single Bench judgment of this Court reported in case PLD 1979 Quetta 118 consequently we have no hesitation to hold that appeal against the order of Rent Controller under Regulation No,II of 1945 is neither provided nor maintainable.
4. As regards competency of Revision learned counsel for respondent in the light of aforementioned reported judgment of Quetta did not dispute the same. It may be mentioned that provisions of Law Reforms Ordinance, 1972 have not yet been extended to the tribal areas, therefore, Revisional jurisdiction under section 115, C.P.C. Would only lie to High Court and not to the concerned District Judge. Record indicates that previously Civil Revision Petition No,63/87 was filed before this Court wherein vide judgment, dated 4-7-1987 case was remanded to learned District Judge, Loralai as a consequence whereof finally impugned order, dated 30-8-1987 has been passed.
20. ' Since for the foregoing reasons we have observed that Revision Petition before District Judge, Loralai is not competent accordingly orders, dated 29-4-1987 and 30-8-1987 passed by him are obviously without jurisdiction as such are set aside. Resultantly Petition filed by Petitioner before District Judge Loralai is directed to be returned for presentation before High Court for decision on merits according to law. In view of above direction other points concerning merits need not be discussed.
21. ' This petition is disposed of in the above terms with no order as to costs.
22. ' The petition was decided by short order, dated 20-12-1988, and here are reasons for the same.