' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 4-4- 1989 passed by a Division Bench of the High Court of Sindh in Constitution Petition No,D-61 of 1989, filed by the appellant, impugning the revisional order dated 26-10-1988 passed by respondent No,1 fixing the annual rental value, hereinafter referred to as A.R.V. Of the appellant's building at Hyderabad at Rs,23,70,595.26, as being without lawful authority, dismissing the same and maintaining the above assessm ent order. leave to appeal was granted to consider, whether a revision in the present case was competent and if it was competent, whether it was barred by time.
2. The brief facts are that the appellants own a building situated on Plot No,50-B, Civil Lines, Hyderabad, within the jurisdiction of respondent No,2, hereinafter referred to as the building. The covered area of the building is approximately 60,800 sq. Fr. Out of which approximately 36,000 sq.
Ft., is under self-occupation of the appellant and the remaining area approximately 24,800 sq. Ft.
Has been rented out to the State Bank of Pakistan at Hyderabad. Upon completion of the above building in the year 1982, the same was assessed for the purpose of property tax for a period of three years commencing from 1-7-1982 to 30-6-1985 at Rs,10,00,000. It seems that upon the expiry of above period of three years, respondent No,2 issued a list for the assessment of A.R.V. For the next period of three years commencing from 1-7-1985 to 30-6-1988 at Rs,11,25,000 and published the same as required under the provisions of the Cantonments Act, 1924, hereinafter referred to as the Act. The appellants filed objections to the above proposed A.R.V. At Rs,11,25,000. The above objections came up for hearing before the Assessment Committee appointed by respondent No,2, which instead of reducing the amount, enhanced the same to Rs,44,45,964. Against the above proposed assessm ent, the appellants filed an appeal under section 84 of the Act before the District Magistrate, who was designated as the Appellate Authority under the above provisions of the Act, which was allowed and the above proposed A.R.V. Namely, Rs,44,45,964 was set aside and the original proposed A.R.V. i.e, Rs,11,25,000 was restored through the judgment dated 4-10-1987.
Thereupon, respondent No,2 preferred a review against the above judgment before the District Magistrate, Hyderabad, which according to the appellant, was time-barred. Be that as it may, the same was dismissed on 15-3-1988 by the District Magistrate. After that, on 11-4-1988 respondent No,2 filed a revision petition before respondent No,1 under section 277 of the Act, which was upheld by respondent No,1 through a judgment dated 26-10-1988 and A.R.V. Was assessed at Rs,23,70,595.26. The appellants filed the above Constitution Petition against the above revisional judgment, which was dismissed by a Division Bench of the High Court of Sindh on the ground that exercise of constitutional jurisdiction in matters of the nature was one of discretionary and that the impugned order did not seem to be unreasonable or arbitrary. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above question.
3. In support of the above appeal, Mr. Masoorul Arfin, learned counsel for the appellants, has urged as follows:--
(i) that no revision is competent against an order passed by the District Magistrate under section 84 of the Act, as the appellate order is final;
(ii) that, in any case, no revision is competent against an order passed in review under section 88 of the Act;
(iii) that the revision against the appellate order was hopelessly time-barred and neither there was any power vested in the revisional authority to condone the delay nor any such request was made by respondent No,2; and
(iv) that the Assessm ent Committee, while hearing objections against the proposed assessment in the notified assessm ent list, could not have enhanced the A.R.V. Under section 68 of the Act.
On the other hand, Mr. Azhar Ali Siddiqui, learned counsel for the respondents, has contended as follows:--
(i) that a revision under section 277 of the Act is competent against an appellate order as well as an order passed in review;
(ii) that since the revision was competent against the order passed in review, the revision was filed within time;
(iii) that the Assessm ent Committee, while hearing objection under section 68 of the Act, can enhance A.R.V.; and
(iv) That, in any case, since the impugned assessment order passed by respondent No,1 is fair inasmuch as it is based on the actual rent which appellant receives from the State Bank of Pakistan i.e, Rs,4 per sq. Ft. In respect of the portion let out and at a concessional rate of Rs,2/75 per sq. Ft. In respect of the building occupied by the appellant, the High Court was justified in declining to exercise discretionary jurisdiction.
4. Adverting to Mr. Mansoorul Arfin's first submission that no revision is competent against an order passed by the District Magistrate under section 84 of the Act as the appellate order is final, it may be mentioned that he has referred to section 88 which is contained in Chapter V of the Act and section 277 which is provided in Chapter XV of the Act, and has urged that since section 88 provides that the order of an Appellate Authority, confirming, setting aside or modifying any order in respect of any valuation or assessment or liability to assessment or taxation, shall be final but subject to review,. No revision is competent. To reinforce the above argument, he has further contended that since the provisions relating to appeal and review are contained in Chapter V, the provision of section 277 which is provided in Chapter XV, cannot be pressed into service. We are unable to subscribe to the above submission. The language employed in section 277 of the Act does not admit the above restriction which is sought to be placed by the learned counsel for the appellants, as it provides that "Where an appeal from an order made by the Board has been disposed of by the District Magistrate, either party to the proceedings may, within thirty days from the date thereof, apply, through the Officer Commanding-in-Chief, the Command, to the Central Government, or to such authority as the Central Government may appoint in this behalf, for a revision of the decision." Admittedly, the appellate order in the present case was passed by the District Magistrate and, therefore, a revision was competent against such an order.
5. As regards his second submission that, in any case, no revision is competent against an order passed in review under section 88 of the Act, it may be observed that, on the other hand, Mr. Azhar Ali Siddiqui, has submitted that though in section 277 of the Act, a revision against an appellate order is provided but an appellate order would include an order passed in review by the appellate authority. In this regard, it may be pertinent to refer to the case of Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94, in which this Court has held as follows as to the right of review and appeal:-- "8. Before proceeding further, it may be painted out that right of review is a substantive right and is always a creation of the relevant Statute on the subject. See Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, where at page 5, it was held 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 Bronwell, L.J., in the case of Sandhack Charity Trustee v. North Staffordshire Railway Co. (1877) 3 Q B D 1--"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, because both appeal and review, though they differ in scope, are substantive rights. As such, neither of them is available unless it has been conferred by law."
' Examining the present case in the light of the above principle, it will be evident that, in the Ordinance under consideration, there does not exist any express power of review of the judgment and order of the High Court passed by it in Second Appeal under section 15 (4). Learned counsel for the respondent herein could not refer to any express provision in the Ordinance which could suggest the existence of any such power in the High Court, and his arguments were of some indirect approach to this subject to which we shall presently attend.
' The second reasoning given in the above passage is that as an order passed in review is--(or to be more precise is to be deemed to be)--in continuation of the main Second Appeal, therefore, it follows that if the jurisdiction to hear the Second Appeal existed then the jurisdiction to hear its review must also continue to exist, implying thereby that the process of review is nothing but a continuation of the hearing of the Second Appeal itself. With due respect, this reasoning is also not correct. Aiyer in his Law Lexicon (1940 Edn.), page 1126, while describing a review states that-- "A review is a proceeding which exists by virtue of Statute. It is in the nature of a new trial of the issue previously tried between the parties. The cause of action being brought into Court again for trial by a new petition. The proceeding in some respect resembles a writ of error and also a new trial ' To the same strain is the view expressed in Corpus Juris Secundum at page 339, where it is stated that-- "The proceeding by way of writ of review, or, as it is sometimes called, a petition for review, or action of review, or a review, is a statutory remedy unknown to the common law. It is a civil action or proceeding, and is in its nature a new trial of the issues previously tried between the parties. In some respects it resembles, although it also is distinguishable from, a writ of error, as considered in Appeal and Error, and new trial, as discussed in New Trial. It is a separate proceeding from the action sought to be reviewed, commenced by a writ which is a new process, as considered infra, and is in one aspect a new and independent proceeding, and not merely a new hearing on an existing proceeding, or a continuation or further step in the action sought to be reviewed.
' The above discussion will show that the assumption on which the above passage was based, namely that a review in appeal is a continuation of the appeal, is not correct, with the result that the further corollary drawn therefrom in favour of existence of a right of review on that score will also consequently fall."
From the above-quoted portion of the judgment, it is evident that a review is a substantive right like a right to file an appeal, which cannot be claimed unless it has been expresslly provided for under the relevant statutes. Secondly, a review is not a continuation of the previous proceeding but it is in the nature of a new trial of the issue previously tried between the parties. It is not in continuation of an appeal. In this view of the matter, we are unable to accept Mr. Azhar Ali Siddiqui's contention that since there is a revision provided for under section 277 against an appellate order, revision would also be competent against an order passed in a review petition in respect of an appellate order. An appellate order cannot be equated with an order passed in a review. It must, therefore, follow that no revision was competent under the above provisions of the Act against the above order dated 15-3-1988 passed in review petition.
6. This leads us to the third submission of Mr. Mansoorul Arfin that the revision against the appellate order was hopelessly time-barred and neither there was any power vested in he revisional authority to condone the delay nor any such request was made by respondent No,2, it may be stated that it seems to be correct that section 277 of the Act provides a period of thirty days from the date of any appellate order. In the present case, the appellate order was passed on 4-10-1987, whereas respondent No, 2 filed aforesaid revision on 11-4-1988 and, therefore, it was patently time- barred. Mr. Azhar Ali Siddiqui is unable to point out any provision in the Act or in the Rules providing for condonation of delay in filing of revision nor he has been able to invite our attention to any application filed by respondent No,2 before respondent No,1 for the condonation of delay which was for a period of about four months. In this view of the matter, respondent No,2's above revision petition was liable to be dismissed on the ground of limitation. It is true that section 88 provides right of review but it does not mean that the period of limitation of thirty days is to be computed from the order passed in review petition keeping in view that no revision is competent against an order passed in review as held by us hereinabove. In a civil suit, a defendant has two remedies against an ex parte decree, (i) either to file an application under Order 9, Rule 13, C.P.C. For setting aside the ex parte decree by showing sufficient cause for his non-appearance, or (ii) to file an appeal against the ex parte judgment/decree. If a defendant opts to file an application under Order 9, Rule 13, C.P.C. He cannot, for the purpose of reckoning the period of limitation for an appeal, take the date of dismissal of his application under Order 9, Rule 13, C.P.C., as the terminus a quo for the period of limitation. The above analogy is equally applicable to the present case. Respondent No,2 had the option either to file a review or to come directly in revision 'under section 277 of the Act or to file both. They opted to file a review petition and, therefore, they cannot compute the period of limitation for revision from the date of order passed in review petition.
7. Adverting to Mr. Mansoorul Arfin's fourth submission that the Assessment Committee, while hearing objections against the proposed assessment in the notified assessment list, could not have enhanced the A.R.V. Under section 68 of the Act, it may be observed that section 61 of the Act contemplates framing of preliminary proposals and section 62 envisages inviting of objections to the above preliminary proposals. It may also be stated that section 66 provides for preparation of the assessm ent list, section 67 contemplates publication of such assessment list, and subsection
(1) of section 68 envisages giving of public notice of date not less than one month when the Board will proceed to consider the valuations and assessment entered in the list. It also provides that all cases in which any property is for the first time assessed or the assessment is increased, the Board shall give written notice thereof to the owner and to any lessee or occupier of the property, whereas subsections (2) and (3) of section 68 provide for filing of objections to a valuation list or assessm ent and hearing of the same by an Assessment Committee appointed by the Board. We are unable to spell out any power vested in the Assessment Committee to enhance the assessm ent suo motu while hearing objections of an assessee. We are, therefore, of the view that in the present case, the enhancement of A.R.V. From the proposed amount of Rs,11,25,000 to Rs,44,45,964 by the Assessm ent Committee was without jurisdiction as admittedly the Board had not filed any objection to the above preliminary proposal for the enhancement of the proposed A.R.V. At this juncture, we may observe that section 71 of the Act empowers the Board to amend the.
Assessm ent list at any time as follows:--
(a) by inserting or omitting the name of any person whose name ought to have been or ought to be inserted or omitted, or
(b) by inserting or omitting any property which ought to have been or ought to be inserted or omitted, or
(c) by altering the assessm ent of any property which has been erroneously valued or assessed through fraud, accident or mistake whether on the part of the Board or of the Assessment Committee or of the assessee, or
(d) by revaluing or re-assessing any property the value of which has been increased, or
(e) in the case of a tax payable by an occupier, by changing the name of the occupier: ' However, the above power is subject to the condition provided for in the proviso to subsection (1) of section 71, namely, no person shall by reason of any such amendment, become liable to pay any tax or increase of tax in respect of any period prior to the commencement of the year in which the assessm ent is made and subject to the conditions provided for in subsections (1-A) and (2), which contemplate serving of not less than one month's notice on a person affected by the amendment and granting him right of hearing. The power contained in the above section is of the nature of suo motu revisional power. Admittedly, no action was initiated against the appellant under the above provision of the Act.
8. As regards Mr. Azhar Ali Siddiqui's submission that, in any case, since the impugned assessment order passed by respondent No,1 is fair inasmuch as it is based on the actual rent which appellant receives from the State Bank of Pakistan i.e, Rs,4 per sq. Ft. In respect of the portion let out and at a concessional rate of Rs,2.75 per sq: ft. In respect of the building occupied by the appellant, the High.
Court was justified in declining to exercise discretionary jurisdiction, it may be observed that it is true that exercise of writ jurisdiction is a discretionary matter and the High Court, in a fit case, may decline to press the same into service. However, in the present case, as the revision of A.R.V. Was done through the proceedings, which were not maintainable and as there is no equity in favour of an illegal levy of tax, the High Court was not justified to decline to exercise the writ jurisdiction keeping in view the above facts. We would, therefore, allow the above appeal and set aside the judgment of the High Court and the order of respondent No,1 dated 26-10-1988, and would restore the judgment of the District Magistrate dated 4-10-1987. However, there will be no order as to costs.