ORDER.
IHSAN-UL-HAQ CHAUHDRY, J.- This is second appeal filed by the tenant against an ejectment order passed by appellate authority. The relevant facts are that the respondent let out an open piece of land measuring 5' x 5' out of its -premises situated at 4-Lytton Road, Lahore. The land was let out at a monthly rent of Rs.25/- for cycle repair purposes. The respondent filed an ejectment petition under Punjab Urban Rent Restriction Ordinance 1959 (hereinafter to be referred as Ordinance of 1959) in respect of this 'rented land'.
The appellant resisted the same. The learned Rent Controller framed issues, recorded evidence and after hearing the arguments dismissed the ejectment petition vide order dated 4.1.1990. The respondent impugned this order through an appeal before the appellate authority. The same was accepted vide order dated 8.7.1990. The appellant has challenged this last order through this second appeal.
2. The learned counsel for the appellant was directed to show how the second appeal is competent. The learned counsel for the appellant submitted that sub-sections (6),(7) and (8) of Section 15 of the Ordinance of 1959 were substituted by Punjab Ordinance XIII of 1990. The appeal is competent under section 15 sub-section (6), which reads as under:- "(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 appeal in writing to the High Court."
3. It is evident from bare reading of the above noted provision that argument advanced on behalf of the appellant in support of the proposition that appeal is competent is without any njerit. The proposition becomes further clear if the reference is made to the legislative changes brought in the Ordinance and more particularly Section 15 are taken into consideration. The Ordinance originally provided for a second appeal to the High Court but Section 15 was redrafted and as a result thereof two major amendments were introduced:- Firstly, right of second appeal was taken away; and Secondly, the interim order under sub-section (6) of Section 13 determining approximately the amount of rent due or the rate of rent were made non-appealable.
The amended provision remained in force till promulgation of Ordinance XIII of 1990, through which Sections 4 and 5 were amended while Section 5-A was added and sub-sections (6), (7) and (8) of Section 15 were substituted. It is clear from this Ordinance that all the amendments were brought in respect of "non- residential building" whereas the Restriction Ordinance deals with following four categories of the properties: - i) , 'Non-residential building', which has been defined in Section 2(d); ii) 'Rented land', which has been defined in Section 2(f); iii) 'Residential building', which has been defined in Section 2(g); and iv) 'Scheduled building', which has been defined in Section 2(h).
The 'scheduled building' is infact a species of 'residential building' but for ejectment grouped with Non-residential building. It is clear from the Ordinance XIII of 1990 that the amendments have been brought only in respect of the 'non- residential building'. The same is the position of sub-section (6) of Section 15 as reproduced above. The key words are 'non-residential building', which have been underlined by me to make it prominent. This is in-contradiction to sub-section (4) of Section 15 of the original statute, according to which second appeal was competent without any specification of the property.
4. The grounds of ejectment for all sorts of properties covered by the Ordinance are detailed in Section 13 of the Ordinance of 1959. It is clear from the clause (vi) of sub-section (2) and sub- section(3)(ii) or the Ordinance 1959 that 'rented land' has been separately dealt with. It is not part of Non-residential Building, therefore, a tenant of a rented land cannot maintain a second appeal in the High Court on the force of amended sub section (6) of Section 15 of the Ordinance of 1959.
5. It is settled law that the appeal is a creature of statute until and unless it is specifically and clearly provided by law, the same cannot be maintained. The right of appeal must be established within four corners of law and cannot be assumed. I am fortified in my view by the judgment of Hon'ble Supreme Court in the case of Ibrahim Vs. Muhammad Hussain (P.L.J. 1975 S.C. 331).
Incidently this was a case under Rent Restriction Ordinance, where the tenant denied the relationship and accordingly Rent Controller framed preliminary issue as to the existence of relationship of landlord and tenant. The issue was decided in favour of the landlord. The first appeal of the tenant was dismissed by the appellate authority while second appeal was dismissed by this Court. The Hon'ble Supreme Court dismissed the petition of the tenant holding that no appeal was competent against the decision of the preliminary issue. The relevant portion reads as under:- It is well settled principle that right of appeal is a creature of the statute and it is not to be assumed that there is right of appeal in every matter brought before a court for its consideration. The right is expressly given by a statute or some authority equivalent to a statute such as a rule taking the force of a statute. Therefore, existence of right of appeal cannot be assumed on any a priori ground. This is in sharp contrast with the right to sue. A litigant has a general right to institute a suit of civil nature, independently of any statute, unless such general right is expressly or by necessary implication barred by a statute to the contrary. Therefore, in respect of any order made in . proceedings before the Rent Controller, right of appeal will have to be clearly established within the four Corners of sub-section (1) of section 15 of the Ordinance."
A reference in this behalf also can be made to the cases of Bahadur Vs. Mirza Abdul Oawum and another (P.L.D. 1969 Lahore 636)1 Dr.Kishan Singh Vs. Bachan Singh and others (A.I.R. (29) 1942 Lahore 201), Ohene Moore Vs. Akesseh Tavee (A.I.R. 1935 Privy Council 5), Abdul Rehnjian Vs. Abdul Rehman (A.I.R. 1925 Allahabad 380) and Smt, Ganga Bai Vs. Viiav Kumar and others (A.I.R. 1974 S.C.
1126)
6. The upshot of this discussion is that this hppeal is dismissed as incompetent. However, the appellant is at liberty to impugne the order of the apellate authority through Constitutional petition