JUDGMENT SHARIF HUSSAIN BOKHARI, J. - in this Constitutional dated 22.6.1994 passed by learned Additional Rent Conroller. Cantt. Board,Lahore has been chailened. The brief facts of the case are that respondent No. I filed petition under Section 17 of the Cantt. Rent Resriction Act, 1963 against the writ petitioner before the Additional Rent Conroller, Cantt. Board, Lahore (respondent No. 3) for ejectment fromrProperty No. 113-A, Tufail Road, Lahore Cantt; inter alia, on the grounds of causing damage to the demised premises and personal use. The present petitioner filed wirtten statement on 6.7.1993. On 14.7.1993 the respondent No. 3 passed the order under sub-section (8) of Section 17 of the said Act observing that the relationship of landlord and tenant and the monthly rent of Rs.
23,000/- was admitted and that the rent was paid up to June, 1993. Accoridngly he directed the tenant,' the writ petitioner, to continue depositing rent by the 3th of each month at the said rate and also allowed him to adjust rent if it was already paid by him. A preliminary issue was also framed and the case was fixed for evidence of the landlord on 9.9.1993. On 6.4.1994 the respondent landlord submitted an application (Annexure ' F') to the learned Additional Rent Controller for amendment of the order dated 9.9.1993. (which in fact was passed on 14.7.1993). The amendment was sought to the effect that Rs. 23,000/-, which the tenant was directed to depsoit as monthly rent, was not correct amount as in fact the tenant was liable to pay Rs. 40,230/- per month as rent for the demised premises. This was replied by the tenant, writ petitioner, wherein he denied the basis of the claim of the landlord for enhanced rent and maintaned that the order for depsoit of Rs.
23,000/- as monthly rent was correct which was pased in the presence of both the parties without any objection. However, on 22.6.1994, this application was disposed of by the respondent No. 3 and the order dated 14.7.1993 which contained a direction for depositing monnthly rent of Rs. 23,000/- was recalled and modified in the following terms:- "In view of the above legal and factual aspects of the case the Rent Deposit Order dated 14.7.1993 being legally and factually defective is therefore re-called and modifiied to the extent that the respondent is directed to deposit Rs. 1,65,000/- as arrears of rent due for the fittings and fixtures of suit property @ Rs. 15,000/- per month for the period 1.7.1993 to 30.5.1994 before 1st September, 1994.
The respondent is directed to depsoit future rent with effect from 1.6.1994 onwards @ Rs. 38,000/- per month instead of Rs. 23,000/- per month before the 5th day of each month as monthly rent which subsequently becomes due till the final decision of the case.
This order of the learned Additional Rent Controller (respondent No. 3) has been assailed in the present writ petition.
2. The writ petition was admitted to regular hearing on 4.8.1994. Subsequently on 12.9.1994 Syed Nayyar Abbasi Rizvi, Advcoate filed power of attorney on behalf of respondents No. 1 and 2.
3. Leamed counsel for the writ petitioner states that respondent No. 3 passed order under subsection (8) of Section 17 of the Cantt. Rent Restriction Act, 1963' for depositing monthly rent of the disputed premises. The amount of monthly rent was fixed at Rs. 23,000/- which was not objected to by the parties and the same was given effect to. In any case the determination of the monthly rent under section 17(8) of the said Act is approximate and tentative. He accordingly contended that since no power to review the order passed under section 17(8) of the said Act vests in the Rent Conttroller (respondent No. 3) the impugned order dated 22.6.1994 is without jurisdiction and a nullity in law. The learned counsel for the petitioner further contended that under sub-section (9) of Section 17 of the said Act the penal consequence in striking off the defence of the tenant/present petitioner can follow and* thelandlord can be put into possession of the premises in dispute without any further proceedings.
4. The aforesaid provisions of sub-sections (8) and (9) of Section 17 of the said Act are reproduced hereunder:- "(8) On the first hearing of proceeding under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to depsoit in his office before a specified date, all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately.
(9) If the tenant fails to deposit the amount of rent therefore the specified date or, as the case may be, before the 5th day of the month, his application, if he is a petitioner, shall be dismissed, or his defence, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any futher proceedings."
5. iNo doubt if the tenant fails to deposit the amount of rent as determined under Section 17(8) of the said Act his defence shall be struck off by the learned .Rent Controller and he can be evicted from the disputed premises without anv further proceedings as to the proof of the allegations made and grounds taken in the ejectment petition. In this way the scope of the appeal before the appelalte authority under the said Act against the order of eviction passed under sub-section (9) is limited. In any case acording to the learned counsel for the petitioner, the impugned order being without jursidetion and a nullity in law can competently be chalenged in the present Constitutional petition and this Court has the power under ARticle 199 of the Constituion of Islamic Republic of Pakistan, 1973 to set aside the same.
6. It is admitted position that under the Cantonment Rent Restriction Act, 1963 the power of review has not been conferred on the Rent Controller/Additional Rent Controller. The power of review being the creation of statute, same cannot be. Exercised by a Tribunal unless specifically provided under the law applicable to the proceedings. The reliance was placed on Muzaffar Ali v. Muhammd Shafi (PLD 198l Supreme Court 94) and Mst. Yasmin v. Rashid Ahmad (PLD 1986 Pehsawar 172). In the case of Mst. Yasmin (Supra) the learned Peshawar High Court observed "....That Rent Controller was not empowered to review the order of his predecessor determining the rate of rent approximately as Rs. 1,000/- P.M.
7. In the case of Muzaffar Ali the Hon'ble Supreme Court held as follows: "l2. Again the theory of continuation of trial or proceeding is not conclusive of the existence of a right to make a previous judgment open for scrutiny whether by a higher Court in the form of appeal or the same Court in the form of a review. For example it will be appreciated that an appeal is regarded as a continuation of trial, but is well settled that a jurisdiction or right of appeal does not exist merely on this theory but is to be created or granted by a Statute. If so granted and if so invoked or exercised, the proceedings in an appeal are considered as a continuation of the trial, but the basic fact remains that this jurisdiction is to be bestowed by a Statute and Statute along. If this is not done then the aforesaid theory by itself will not create any right or jurisdiction of appeal.
Coming back to the subject in hand, in the alternative, assuming without conceding, that a review is also a continuation of the previous proceedings--(t.Hough our positive finding is that it is not so and that it is a new trialj-Even then before the proceedings are allowed to further then before the proceedings are allowed to further continue, in the form of a review, a jurisdiction to do so in this case also must-be similarly conferred by a Statute just as it is to be done in the case of grant of. a right of appeal. If there is no statutory conferment of jurisdiction of review, like jurisdiction of appeals, the theory of continuation of proceeding will be of no avail. Similarly this theory-(i.e. Theory of continuity)-will not be helpful in crossing over the finality to the main judgment rendered in Second Appeal, because sub-sections (4) and (5) of section 15'of the Ordinance make that order final with a further emphasis that shall not."be called in question in any Court of law by suit of otherwise. ." It is well-settled that in review, you do call in question the original order on its merits and it is precisely this very exercise which is prohibited to be done and will be covered by the words "called in question otherwise."
Against in paragraph 19 of this judgment it was held that:- "....As the Ordinance neither expressly nor by reference bestows any power of review, the High Court has no jurisdiction to review its orders passed in Second Appeal under the West Pakistan Urban RentRestrictionOrdinar.Ee, 1959."
X. In the case of Muhammad Tufail v. Abdul Ghafoor and others (PLD 1958 Supreme Court 201) it was held that:- . "Secondly, the power to review could only be exercised for the. , specific purpose of "correcting any error or supplying any omission" which appears on the surface of the record and could be detected without a further elaborate inquiry or investigation. This might apply to accidental or arithmetical mistakes due to human forgetfulness, not involving a mental process of reasoning or the appreciation of any law or the facts already proved or admitted. Any other view would eliminate the real distinction between the exercise of powers on appeal where the entire subject-matter is open to re-assessment and re-decision by the higher authority,.And on review, where the matter has already been finally decided and 1 cannot be re-opened but for the very narrow object of correcting some errors which had occurred in spite of intention to the contrary. Further, the removal of any error will not confer power of "review"; it must be of a character that without correcting it the rights to which the parties may be entitled, cannot be adjusted."
9. In the case of Mst. Zainab Khatoon v. Mian Ghulam Shabhir etc. (PLD 1965 Supreme Court 55) it was held by the Hon'ble Supreme Court that "A power of review is a creature of the statute and it cannot be said that a delegatee "exercising revisional powers under sub-section (2) of Section 20 of the Act has inherent power to review orders passed in his capacity as a delegatee."
10. In the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 Supreme Court 1) the Hon'ble Supreme Court held that:- This is equally try in case of review, because both appeal and review, though differ in scope, are substantive rights. As such, neither of them is available unless it has been conferred by law."
11. On the contrary, the learned counsel for respondents 1 and 2 contended that order impugned in the writ petition is interlocutary/interim which will merge into the final order and the final order, that may be passed by the learned Addl. Rent Controller, shall be subjfct to appeal before this Court under the Cantonments Rent Restriction Act, 1963, and that the interlocutary order passed by the learned Additional Rent Controller, Lahore Cantt.-21.6.1994 cannot be challenged in this Constitutional petition. He further stated that the order impugned was a clarificatory' order which rectified the clerical error that had crept in the order dated 14.7.1993. He relied upon the judgments in the cases of Ikram-ud-Din y. S. Mahoob Ali (NLR 1978 (Civil) 96 at page 97) and Khair Muhammad Nizamani v. Abdul Quddus (PLD 1965 Karachi 367).
As observed above the Cantonment Rent Restriction Act, 1963 does not confer power of review on the Rent Controller/Additional Rent Controller, nor provision of Section 114 or Order 47 C.P.C, are made applicable to the proceedings before the Rent Controller under the said Act. Therefore, order dated 21.6.1994 passed under sub-section (8) of Section 17 of the Act is without jurisdiction and a nullity in law. The contention of the learned counsel that the impugned order dated 21.6.1994 is clarificatory order and has only rectified the clerical mistake which crept into the previous order dated 14.7.1993 is untenable. The impugned order is a detailed order which has been passed afresh under Section 17(8) on the application of respondent-landlprd. The learned Additional Rent Controller has observed in the impugned order that "In view of the legal and'factual aspect of the case the rent deposit order dated 14.7.1993 being legally and factually defective is, therefore, recalled and modified------ ". The impugned order clearly shows that under the previous order dated 14.7.1993 the present petitioner/tenant was directed to pay arrears of rent as well as monthly rent at the rate of Rs. 23,000/- per month whereas under the impugned order the present petitioner is required to deposit Rs. 1,65,000/- as arrears of rent due for the fitting and fixtures of said property at the rate of Rs. 15,000/- per month and also to deposit future rent with effect from 1.6.1994 at the rat of Rs. 38,000/- per month instead of Rs. 23,000/- per month. This has totally changed the previous order dated 14.7.1993. Such an order cannot be called a clarificatory order which rectified the clerical mistake only.
Thus the position which emerges is that the impugned order is without jurisdiction and a nullity in law. It is also not subject to appeal under Section 24 of the said Act, inasmuch as the said Act provides that no appeal is competent against *an interim order. The final order is, no doubt, appealable to this Court under section 24 of .The Act. However, when the final order is passed under sub-section (9) of Section 17 of the Act, for non-compliance of the order passed under subsection (8) of Section 17 the scope of the appeal would be limited because the case is. Not decided on merits. To avoid such an eventuality, if the interim order like the impugned order is found to be without jurisdiction and a nullity in law, this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution can interfere and set aside the same, In a similar case, the learned High Court of Sindh (Karachi) held in Muhammad Riaz v. Mst. Begum Jan and another (1984 CLC 2970) that interlocutory order passed by a tribunal in excess of jurisdiction can be interfered with and set aside by the High Court in exercise of its jurisdiction under Article 199 of the Constitution. Similarly the Hon'ble Supreme Court has observer J;, many cases that where the defects of jurisdiction are apparent on the .'face of the record, it would attract certiorari jurisdiction of the High. Court and the proceedings initiated in such circumstances can be quashed. Reference may be made to Sindh Employees' Social Security Institution.v. Dr Mumtaz Ali Taj and another . (PLD 1975 SC 450); Muhammad Amir Khan v. Controller of Estate Duty.t etc. (PLD 1961 SC 119) and Murree Brewery Co.
Ltd. v. Pakistan (PLD 1972 SC 279). l2. In the light of the < >ove discussion 1 accept this Writ Petition and set aside the impugned order lated 22.6.1994 passed by the learned Addl. Rent Controller, Lahore Can"., leaving the parties to bear their on. Costs.