1. NASIM HASAN SHAH, J.--This petition is directed against the order dated 23-10-1991 passed in SA.O.No.100 of 1991, whereby the second appeal filed by the petitioner herein was dismissed as not maintainable.
2. The facts which form the background to these proceedings are .That the respondents, Mst.Surrayia-un-Nisa and 9 others (hereinafter called as the landlord), submitted an ejectment application on 1-6-1989 before the Rent Controller against the petitioners (hereinafter referred to as the tenants) seeking their eviction from Shop No.2, situate in P/164, Rail Bazar, Faisalabad. The Rent Controller, after contest, found that the issues on the points that the tenant had committed default in payment of rent and caused damage to the demised property were established and, accordingly, were liable to ejectment which he, therefore, ordered vide order dated 6-4-1991. The tenants, aggrieved by this order of the Rent Controller, submitted an appeal before the District Judge on 5-5-1991 but failed and their appeal was dismissed by order dated 4-7-1991 of the Additional District Judge acting as appellate authority. A second appeal was, therefore, filed in the High Court by the petitioners on 20-7-1991. This appeal has been dismissed by the order of a learned Single Judize of the High Court, now impugned, on the ground that the second appeal was not maintainable. This view is questioned before us.
3. Appeals in ejectment cases were dealt with by section 15 of the Punjab Urban Rent Restriction Ordinance, 1951. The said section 15 (as substituted by Punjab Ordinance IX of 1979) restricted the right of the tenant only to one appeal. The relevant provisions under the Ordinance were as under: "15. Appeal.--(1) Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated:
(1) ..................................
(2) ..................................
4. (3)
5. (4)
6. (5)
7. (6)
8. (7)The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law, including the High Court, by suit, appeal or otherwise.
9. (8)The provisions of subsection (7) shall apply to every application under the Ordinance irrespective of whether it was filed before or after the commencement of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979 (IX of 1979) and all appeals filed in the High Court from the orders of the District Judge or the Additional District Judge passed after the said commencement, shall stand abated: Provided that this provision shall not be deemed to invalidate the judgments already delivered by the High Court in any such appeals.
10. Thus under the provisions of subsection (7) of section 15, quoted above, the order of the Controller subject to the result of the appeal before the District Judge was to be final and was not liable to be questioned in the High Court by an appeal or otherwise.
11. On 6-6-1990, however, a modification was brought about in this position by the promulgation of Ordinance XIII of 1990 [Punjab Urban Rent Restriction (Amendment) Ordinance, 1990] whereby the Punjab Rent Restriction Ordinance, 1959 was further amended and the right of a second appeal, to the High Court was conferred on tenants of "non-residential buildings". This change was effected by substituting the existing provisions of subsections (6), (7) and (8) of Ordinance IX of 1979 with the following new provisions:- "(6) In the case of a "non-residential building", a person aggrieved by an order passed on appeal by the appellate authority may, within 30 days from the date of the said order, prefer an at appeal in writing to the High Court.
12. Explanation.--An appeal under this subsection shall be heard and determined as -an appeal from an appellate order under section 100 of the Code of Civil Procedure, 1908 and the provisions of Part VI of the First Schedule to the said Code relating to appeals, shall, with such modifications as the context may require, apply to such proceedings.
(7) Unless it dismisses the appeal in limine, the appellate authority or the High Court, as the case may be, shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and if necessary, after making such further inquiry as it thinks fit.
13. (8)An order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance, shall not be called in question in any Court of Law by a suit or otherwise, except as provided under this Ordinance." (Underlining is ours)
14. This Ordinance was continued in force by Ordinance XXXI of 199b and Ordinance VIII of 1991 and by an Act of the Legislature namely Punjab Urban Rent Restriction (Amendment) Act, 1991 (Act III of 1991).
15. Reverting to the instant case, we note that the ejectment application was filed on 11-6-1989. On this date undoubtedly there was no right of second appeal before the High Court conferred on tenants of shops and that this right was conferred on them much later namely, on 6-6-1990 (by Ordinance XIII of 1990). The High Court, therefore, took the view that second appeal was not maintainable as the ejectment petition was riled long before the right of second appeal was conferred by the Punjab Urban Rent Restriction (Amendment) Ordinance, 1990. In coming to this conclusion, the learned Judge relied on his earlier judgment in Sh. Muhammad Sadiq and another v. I.A.Khan 1991 M LD 1205 wherein he had discussed this question in. Detail.
16. The learned Judge in the aforesaid judgment noted that a right of appeal is not a natural or inherent right attached to the lis but must be expressly conferred by the statute or the rules having force of law. Moreover, it is a substantive right and not a matter of mere procedure. Accordingly, a right of appeal if available at the time of commencement of a lis cannot be taken away except by express language and, therefore, even if the law providing for an appeal is repealed after the commencement of a cause, the right to file the appeal survives the repeal. On a parity of reasoning, if no right of appeal is available at the time of the commencement of lis any change in law made subsequently providing for an appeal cannot be made applicable to pending matters because the right of .,r, cal not being a matter of procedure but a substantive right and the instituteof a suit carries with it the implication that all rights of appeal then in force are, preserved to the parties concerned till the, rest of the career of the suit, which rights cannot be taken away except by subsequent enactment which so provides, expressly or by necessary intendment and not otherwise. Reliance in this behalf was placed on the well-known judgment of the Privy Council in Colonial Sugar Refining Company Limited v. Irving (1905 Appeal Cases 369) and the judgments of this Court in Sutlej Cotton Mills 'Limited v. Industrial Court PLD 19(0 SC 472 and Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553.
17. Mr. S.M. Masud, learned counsel for the petitioners, however, drew our attention to a judgment of another learned Single Judge of the same High Court wherein a view contrary to the view expressed in this judgment has been taken. (This judgment was delivered in SA.O. No.42 of 1991, decided on 14-10-1991). In this case, the question falling for consideration was the same namely whether a right of second appeal which was conferred in the course of pending proceedings can be availed of by the parties or whether this right can be availed of only by the parties to proceedings which commenced after the enforcement of Ordinance XIII of 1990?
18. The learned Single Judge in this case drew a distinction between the situation where a right of appeal or a right of further appeal which was hitherto non-existing or was earlier taken away is conferred or restored in the course of pending proceedings. The learned Judge considered that a distinction should be drawn between the case where the right of appeal is taken away and the case where a right of appeal or a further right of appeal is conferred because interference with the right of parties in the two cases, is of a different nature. He pointed out that the right of appeal is a positive and substantive right which accrues at the time of filing of suit or the commencement of like, but the absence of a right of appeal cannot be called a right at all. The prohibition of appeal by law existing at the time of the institution of the suit or of lis does not amount to a substantive or existing right accruing to the parties. It is a mere negation of such right. If the law chooses to give or confer such a right during the pendency of the case, there is no principle of law which prevents it from doing so and no rule of finality is interfered with. The above principle was expounded in the Full Bench judgment of the Oudh Chief Court in Debi Prasad v. Phundan Lal AIR 1942 Oudh 291. And further light was thrown thereon by Beaumont, C.J. In Govindram v. Commissioner of Income Tax AIR 1943 Bom.
122. Herein the leading judgment of the Privy Council in Colonial Sugar Mill's case (1905 Appeal Cases 369) was distinguished in these words: "The Privy Council held that. a man filing a suit is entitled to say `1 have a right to carry my grievance to the highest tribunal, that is a substantive right, not lightly to be taken away, and they held that it was not taken away by the statute in that case':'
19. But this situation was different when the right of appeal is conferred after the date of the institution of lis because interference with the right of the party is of a different nature in the two cases. If the right of second appeal is taken away while the first appeal was pending, both the parties can feel aggrieved, for here the grievance is far graver than they would have if the second appeal was added during the pendency of the first appeal. In fact, in this eventuality they would not feel a sense of grievance at all. In the first case, when the right of appeal is taken away during the pendency of the proceedings the parties could rightly feel aggrieved as a decision which they considered was still subject to appeal would now become final and they would have a feeling that they had lost a right, while in the second case they would feel that they had gained an additional right. Both parties would normally have such feelings in the matter, so long as the litigation was pending.. But the position would be quite different if under the law as it stood when the decision of the first appellate Court was given the parties had no reason, at that time to expect that the matter could be carried further and a second appeal was added after that decision. The unsuccessful party in such an eventuality gains and the successful party loses a right by the change in the law if it is held that a second appeal lies,, even in such a case. In other words so long as the matter is pending the addition of a second appeal is unobjectionable.
20. This view appears to be correct as the proposition that institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties concerned till the rest of the career of the suit and that these rights can be taken away only by a subsequent enactment provided it so provides expressly or by necessary intendment and not otherwise, is not negatived by adopting this view. Indeed the aforesaid proposition does not exclude the addition of the remedy of the second appeal, if the litigation is pending before the first appellate Court or any Court subordinate to it, when the second appeal is added.
21. The judgment of the Privy Council in the case of Delhi Cloth and General Mills Co. Ltd. AIR 1927 Privy Council 242 also does not negative this view. In this case by an amendment made in the Income Tax Act, 1922 on 1-4-1926 the right of appeal was allowed to the Privy Council from a judgment of the High Court delivered on a reference made to it under section 66 of the Income Tax Act in cases where the High Court certified it to be a fit one for appeal to the Privy Council. Their Lordships after reconfirming the principles laid down in the Colonial Sugar Co.'s case that :- "while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have, retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights." . went on to add:- '
22. "Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect." (Underlining is ours) on the contrary, they found "a clear suggestion in the amending provision that it did not apply to judgments delivered by the High Court before the 1st of April, 1926" because according to the amending provision the right of appeal was available to only such judgments which had been pronounced by two Judges of the High Court and this condition was fulfilled only when section 66-A itself came into operation i.e. With effect from 1-4-1926.
23. In the instant case, the situation is the opposite. There was no final order of the first appellate authority when the Amending Ordinance XIII of 1990 came into force 'on 6-6-1990. In fact, the proceedings on that date were pending before the Rent Controller. The Delhi Cloth and General Mills' case AIR 1927 Privy Council 242 clearly shows that the Privy Council dealt with an order actually made before right of appeal was given and they held that in the absence of the clear words, the statute should not be construed as giving right of appeal against the order which had become final. In the case being dealt with here the matter was still pending before the Rent Controller and both parties had the right of an appeal against the order (to be passed by the Rent Controller) before the appellate authority (District Judge) and, therefore, no right then enjoyed by the parties was affected when the right of second appeal was conferred on the parties through Ordinance X111 of 1990. The mere fact that this right was conferred after the institution of the ejectment petition did not affect the situation, as explained above.
24. We, therefore, hold that the contrary view taken by the learned Judge 'in the High Court in the case of Sh. Muhammad Sadiq and another v. IA. Khan 1991 M LD 1205 is not correct. Since the impugned order herein is based on the said erroneous view, the impugned order is indeed infirm and cannot be sustained.
25. The learned counsel for the respondents, who was present before us and was also fully heard, could not persuade us to agree with the view expressed by the )earned Judge in the High Court.
26. This petition, therefore, is converted into an appeal and allowed. The impugned order of the High Court dated 23-10-1991 passed in this case is set aside and the case remanded to the High Court for disposal of the second appeal on merits at an early date. No costs.