' By this C.M.A. Respondent/landlord under the provisions of Order XLVII, rule 1, C.P.C. Read with section 20 of the Sindh Rented Premises Ordinance, 1979 seeks an order to recall and review my order dated 12-3-1996 passed on C.M.A. No,760 of 1995 filed by applicant/intervenor under section 12(2), C.P.C. In the aforesaid order I had directed both the parties to adduce evidence in support of their respective contentions incorporated in paragraph 7 of the order.
2. The ground urged in support of this application are: firstly that there is a mistake apparent on the face of record and secondly that are sufficient reasons for review of the impugned order. During the course of arguments learned counsel has agitated that since the applicant/intervenor is not a tenant in the demised premises neither can an enquiry be ordered into the grounds urged nor can an application under section 12(2), C.P.C. Be maintained at her instance.
3. A counter-affidavit has been filed controverting the grounds taken.
4. At the very outset, Mr. Jhamat Jethanand, learned counsel for the applicant contended that the application for review is completely incompetent and not maintainable under the Sindh Rented Premises Ordinance as laid down in Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) expressing the view that right of review is a substantive right and is always the creation of a relevant statute on the subject. The assumption 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. This judgment was followed by Late Naimuddin, J. In Ainul Hague v. Shahid Ahmed Perwaiz (1984 CLC 47). In this judgment the view expressed was that in the absence of any provision in the Rent Ordinance the Controller or the Appellate Authority in the matter of procedure can follow the equitable principles contained in the Code of Civil Procedure but so far as the appeal or review is concerned, it is a substantive right and must be conferred by the Statute. Apart from the aforesaid judgment of the Supreme Court learned Single Judge who consequently rose to the office of Chief Justice of the Sindh High Court as well as Judge Supreme Court of Pakistan also referred to Hussain Bux v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1).
5. Confronted with this legal position, Mr. Memon, learned counsel for the respondent referred to two judgments of the Sindh High Court reported as Khalida Begum v. Mst. Amtul Bai (1988 CLC 306) and Mst. Rashid Jehan v. Muhammad Ashfaq (1991 MLD 2619), both decided under the provisions of the Sindh Rented Premises Ordinance. Being fully alive to the situation that power of review is not available to a Controller or the Appellate Authority, learned counsel placed reliance on the power of an authority under section 20 of the 'General Clauses Act (1956) to recall, vary and alter an order.
The view taken in both the cases is that under section 20 of the West Pakistan General Clauses Act 1956, an authority competent to pass an order is also competent to recall, vary and alter the same.
' In order to reinforce his contention, Mr. Memon vehemently contended that the impugned order suffers from an infirmity inasmuch as there is a mistake apparent on the face of record in that the applicant/intervenor is neither the tenant nor in occupation of demised premises through the tenant of the premises and in fact the original tenant namely Gul Muhammad being the real brother of the applicant had not only contested the eviction application but also filed F.R.A. No,44 of 1991, which however came to be dismissed for non-prosecution on 12-11-1992. Upon perusal of the impugned order it would appear that at no place I have taken the view that the applicant is a tenant or that she is in occupation of the premises through the admitted tenant namely her brother. The mistake as pointed out at the bar in fact is not apparent on the record and learned counsel seeks the review of the entire material available on record and proposed to be adduced in support of the application under section 12(2), C.P.C. This ground is, therefore, not available for recalling the order under the provisions of section 20 (supra). To my mind an order can only be recalled if it is incidental and ancillary or regulates the procedure of the Court or an authority or a tribunal but no judicial order can be recalled on such grounds under the special law.
7. For instance if the Rent Controller passes an ex parte eviction order without hearing the tenant and it is shown to the satisfaction of the Controller that the tenant was not duly served with the notice or that he was deprived of a right of hearing due to the mistake on the part of the Office of the Controller such order could always be recalled and reviewed. This view was taken in Evacuee Trust Property Board v. Sh. Hameed Elahi (PLD 1981 SC 108).
8. The next ground urged in support of the review application is that the applicant admittedly being not a tenant of the respondent is not entitled to agitate her right if at all any under the provisions of section 12(2), C.P.C.
9. Section 12(2), C.P.C. May be reproduced hereunder for the sake of advantage and convenience.
"Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
10. A complete answer to the contention is contained in the judgment reported as Mst. Fehmida Begum v. Muhammad Khalid (1992 SCMR 1908). In this case it has been held that a person in occupation of the rented premises in his own rights even though not as a tenant can assail an eviction order on the grounds of fraud and misrepresentation before the Controller or the authority under the provisions of section 12(2). It is further laid down that such a person can also file an independent suit to establish his right and to impugn an eviction order on the grounds of fraud and misrepresentation for the reason that the provisions of C.P.C. Are not strictly applicable to the proceedings before the Controller under the Rent laws. Zafar Hussain Mirza, J. (as his lordships then was) while concurring with the view taken by Ajmal Mian, J. Expressed the view that a stranger to the proceedings in a case of this nature has two remedies open to him. He can either go to the special forum with an application to recall or review the order, or file a separate suit. Once he acts to invoke either of the remedies, he will, on the general principles to avoid a conflict of decision, ultimately before the higher appellate forums, be deemed to have given up and forfeited his right to the other remedy, unless as held in Mir Salahuddin v. Qazi Zaheeruddin PLD 1988 SC 221, the order passed by the hierarchy of forums under the Sindh Rented Premises Ordinance, leaves scope for approaching the Civil Court.
11. Mr. Shamsuddin Memon, learned counsel for the respondent has relied upon paragraph sidelined F. In the aforesaid judgment by Zafar Hussain Mirza, J. Which has a reference to the earlier judgment by my lord in Civil Appeal No,29-K of 1987, Ismail v. Subedar Gul Inayat Shah expressing the view that the Rent Controller as a Tribunal of a limited jurisdiction is on the general principles recognized in our jurisprudence competent to recall or review an order obtained by fraud and misrepresentation. There can be hardly any cavil with this proposition of law which was laid down in the context of an application under section 12(2) of C.P.C. But the observation is really of no assistance to Mr. Memon seeking the review of an earlier order as no ground of fraud or misrepresentation in obtaining the earlier order has been advanced at the bar. It would rather support the view that the application made by the applicant/intervenor is maintainable at law which is pending decision.
12. Mr. Memon has referred to Muhammad Hussain Tahir v. Ashfaq Hussain 1989 SCMR 258 in which supreme Court declined to interfere with the decision of the High Court dismissing the application under section 12(2), C.P.C. For recalling order of eviction on the ground that he was real tenant of the demised premises and proceedings initiated by landlord were ab initio void and illegal as the same were allegedly started by landlord in collusion with the tenant joined as party to the proceedings. High Court had dismissed the prayer for the reasons that the proceedings were pending for last eight years and it was at execution stage that application had been filed without specifying as to how applicant came to know about proceedings for last eight years. I am afraid, the decision relied upon is hardly applicable at this stage of proceedings which are confined to the power of review vesting in the Controller or the Appellate Authority. Likewise reference to Muhammad Saeed v. Indico Paint Colour and Varnish Co. (PLD 1995 Karachi 25) is out of context and misconceived.
13. All other arguments advanced in support of the application tend to touch the merits of the application under section 12(2), C.P.C. Which cannot be decided at this stage of the proceedings and are, therefore, not touched by me.
14. For the foregoing facts and reasons, there is no merit in the C.M.A. Which is accordingly dismissed.