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First Appeal from Order No. 138 of 1966, decided on 17th April 1967.

S. 15 (4) read with Explanation‑Order passed "on appeal"‑Order passed by Appellate Authority refusing to set aside his appellate ex parte order, held, not passed "on" appeal‑Such order not appealable to High Court under S. 15(4)‑Distinction drawn between order passed "on" appeal and order passed in exercise of "appellate jurisdiction"‑Civil Procedure Code (V of 1908) applicable only in so far as "procedural" provisions are concerned and not in respect of "substantive" provision like the "right" of appeal‑Controller and Appellate Authority not Courts‑[Ramaswami Udhayar and others v. Sevu Rama Aru Ramanathan Chettiar A I R 1942 Mad. 357 fol., Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another P L D 1965 S C 459 ref.‑Case‑law exhaustively examined].

Abdul Karim Saggu for Appellant.

Ghulam Muhammad Bhatti for Respondent.

Date of hearing: 27th March 1967.

Hidayat Hussain (hereinafter called the landlord) filed an application under section 13 of the West Pakistan (Urban) Rent Restriction Ordinance VI of 1959 (hereinafter called the Ordinance or Ordinance), against (i) Abdur Rashid whom, he described as the main tenant and (ii) Din Muhammad who was alleged to be the sub‑tenant without the permission of the landlord. The head tenant did not appear and the proceedings in the Court of the learned Rent Controller were taken ex parte against him. The case was contested solely by Din Muhammad the alleged sub‑tenant. The learned Rent Controller dismissed the application on the 3rd of January 1966.

2. On the 22nd of February 1966, the landlord filed an appeal in the Court of the learned District Judge, Lahore, as an Appellate Authority under the Ordinance. The appeal was admitted to a regular hearing on the 23rd of February 1966, and it was directed that notices should issue to the head tenant and the sub‑tenant for the 28th of March 1966. No service could be effected for the said date and the case was adjourned to the 4th of May 1966. On this date, the head tenant had been served but as he did not appear the proceedings against him were ordered to be taken ex parte and the case was adjourned to the 6th of June 1966, for effecting service on the sub‑tenant. It was further directed that if he was not served personally or refused to receive the summons, then the service may be effected by affixation. The service was effected on the sub‑tenant by affixation on the 4th of June 1966, and when the case was taken up on the 6th of June 1966, the sub‑tenant was absent. The learned District Judge directed that proceedings against the sub‑tenant will also be taken ex parte and adjourned the case to the 30th of June 1966. On this date, the learned District Judge heard the arguments and adjourned the case for orders to the 1st of July 1966, on which date a judgment against the head tenant and the sub‑tenant was given and it was directed that they should hand over the possession of the disputed premises to the landlord within two months; failing which the landlord would be entitled to take possession by the execution of the aforesaid order.

3. The sub‑tenant (hereinafter called the appellant) filed an application on the 14th of July 1966, to set aside the aforesaid ex parte order of the learned District Judge. In the said applica tion he took up the plea that he had never been served and that the landlord had obtained the order of eviction by misrepresentation to the Court. This application was contested and the learned District Judge framed the following issue:‑--

"Whether Din Muhammad was not properly served with a notice of the appeal "

In support of this issue, the sub‑tenant (Din Muhammad) appeared as his own witness as (P. W. 1) and deposed that the proces s server had never contacted him nor effected any service by affixation on his house. He further deposed that he had been making enquiries from the trial Court to find out as to whether any appeal has been filed against him or not but he was always informed that there was no such appeal. He stated that when he learnt about the ex parte decision against him, he filed an application for setting aside the same two days thereafter. In rebuttal, the landlord produced Mumtaz Ali process‑server as R. W. 1. The process‑server deposed that he was entrusted with the notice (Exh. R. 1) for effecting service on the sub‑tenant. He effected service by affixation vide his report (Exh. R. 2) which was supported by an affidavit (Exh. R. 3). The landlord himself did not appear to make any statement. The learned District Judge gave a verdict against the sub‑tenant and holding that he had been properly served dismissed the application on the 28th of October 1966. Din Muhammad the sub‑tenant has come up in appeal against the aforesaid order of the learned District Judge refusing to set aside the ex parte order which he had passed against him on the 1st of July 1966.

4. Before dealing with the case on merits, learned counsel for the contesting respondent, namely, the landlord has raised an objection that the present appeal is not competent. He refers to section 15 of the Ordinance which on the relevant date stood as follows:‑--

"15 (1) Any party aggrieved by an order made by the Controller under section 4, section 10, section 12, or section 13, 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‑A) On such appeal being preferred, the District Judge may himself hear it or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated.

(1‑B) The District Judge may recall an appeal made over by him to an Additional District Judge and either hear it him self or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection (1‑A); provided that the District Judge shall not so recall or make over an appeal which is part‑heard.

(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal Provided that no stay order shall be made in respect of the payment or deposit of rent determined by the Controller:

Provided further that the Appellate Court may direct that instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of rent shall be furnished by the tenant.

(3) The appellate authority 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 either personally or through the Controller.

(4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection. (1), and if an appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final.

Explanation‑An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings.

(5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance."

Learned counsel submits that according to subsection (4) of section 15 of the Ordinance, an appeal lies from an order of the District Judge passed "on appeal". He submits that the order dated the 28th of October 1966, whereby the learned District Judge refused to set aside his own ex parse ejectment order, dated the 1st of July 1966, had not been passed by him "on appeal" but was rather passed after the appeal had already been disposed of and, therefore, the said order was not appealable. I think there is a considerable force in the objection raised by the learned counsel for the contesting respondent and my reasons for uphold ing the same are as follows:

(a) To constitute appellate jurisdiction there must exist the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. Both these elements are obviously essential; for instance, an application before a Judge to discharge or vary an order made by himself is not an appeal but a rehearing, because the relationship of superior and inferior Court is absent; again the order of the inferior Court may not be at all liable to be challenged before superior tribunal; the exercise of the appellate jurisdiction in such a case is impossible. In the instant case, the order refusing to vacate the earlier order is an order made by the identical Court which passed the earlier order. In other words, the first element essential to constitute the appellate jurisdiction, namely the existence of the relationship of superior and inferior Court is absent in this case. The principle which I have enunciated well‑known but if authority is needed, reference can be made to Rajah Enaet Hossein v. Ranee Roshun than (1868) 10 W R 1 decided by five Judges. In that case a question cropped up as to whether an order of rejection made by that Court on an application to review its judgment in a case of appeal was an order made on appeal within clause 39 of the Charter so as to enable the Court to admit an appeal against such an order to Her Majesty in Council. It may be mentioned that according to the aforesaid clause, the High Court had the jurisdiction to grant leave to appeal with regard to orders passed by it on appeal'. Sir Barnes Peacock, who wrote the leading judgment, drew distinction between an appeal and review with reference to a case of the Privy Council reported as Maharajah Moheshur Singh v. The Bengal Court, 7th Volume of Moore's Indian Appeals, page 283 C, and held that review was distinct from an appeal inasmuch as in review the matter is reconsidered by the same Judge while in appeal the matter is heard by a different Tribunal. On this view of the matter, the learned Judges held that the order involved before them had not been passed "on appeal."

A similar question came up for consideration in Secretary of State for India in Council v. British India Steam Navigation Company (13 C L J 90) It was a case in which a point arose as to whether a judgment given in revisional jurisdiction could also be called a judgment on appeal' within the meaning of section 109, C. P. C. and whether the word "appeal" was wide enough to cover "revision" as well. (We are not concerned with this aspect of the matter and nothing herein written should be construed as to adopt the view that orders passed in revision are also orders in essence passed "on appeal", because there is a clear authority to the contrary in jay Chand Lal Babu v. Kama‑Laksha Chaudhury and others (P L D 1949 P C 114). However, the points brought out by the learned Judges in 13 C L J 90 with regard to the incidents of an appeal are useful. Some of the relevant portion touching the subject in hand is as follows:‑--

"Now the term appeal' is defined in the Oxford Dictionary, Vol. 1, p. 398, as the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modify ing the decision of the former. In the Law Dictionary by Sweet, the term appeal' is defined as a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court or Court of Appeal, and it is added that the term, therefore, includes, in addition to the proceedings specifically so called, the cases stated for the opinion of the Queen's Bench Division and the Court for Crown Cases, Reserved, and proceedings in error. In the Law Dictionary by Bouvier, an appeal' is defined as the removal of a cause from a Court of inferior to one of superior jurisdiction for the purpose of obtaining a review and retrial, and it is explained that in its technical sense it differs from a writ of error in this, that it subjects both the law and the facts to a review and retrial, while the latter is a Common Law Process which removes matter of law only for re‑examination; it is added, however, that the term appeal is used in a comprehensive sense so as to include both what is described technically as an appeal as also the Common Law writ of error; in other words, as put by Lord Westbury in Attorney‑General v. Sillem (1894) 1.0 H L C 704 the right of appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below; or, as Mr. Justice Sabramania Ayyar observes in Chappan v. Moidin 1898 I L R 22 Mad: 68 at p. 80 the two things, which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior Court, and the power, on the part of the former, to review decisions of the latter. Both these elements are obviously essential; for instance, an application before a Judge to discharge or vary an order made by himself, is not an appeal but a rehearing; because the relationship of superior and inferior Court is absent; again, the order of the inferior Court may not be at all liable to be challenged before a superior tribunal the exercise of the appellate jurisdiction in such a case is impossible. The matter is put lucidly and concisely in the Commentary on American Jurisprudence by Andrews, Vol. II, p. 1510, where it is pointed out that appellate procedure embraces two distinct modes of its exercise, namely, first, the record of the inferior tribunal may be brought to the superior tribunal and the decision reviewed, affirmed, reversed or modified, or secondly, the superior tribunal may check the exercise or usurpation of power in inferior tribunals exercising judicial or quasi judicial power, or direct the mode in which they shall proceed without controlling the manner of doing that which is the result of judicial deliberation. Substantially, to the same effect is the exposition given by Story in his work on the Constitution (Vol. II, sections 1760 to 1776), where that learned jurists points out the distinction between the original and the appellate jurisdiction of a Court, and observes that the characteristic of an appeal is the revision of a judicial proceeding of an inferior Court so that the mode in which that power is exercised is wholly immaterial."

The same principles were re‑affirmed in Srinivasa Prasad Singh v. Kesho Prasad Singh (13 Cal. L J 681) and Harish Chandra Acharjee v. Nawab Bahadur of Moorshidabad (13 Cal. L J 688). To the same strain are Sh. Haji Wahid‑ud‑Din through M. Sharafat Ali v. Lala Makhan Lal and another (A I R 1944 Lah. 458), Pye and others v. Minister for Lands for New South Wales ((1954) 3 All E R 514). Applying these principles to the facts and the circumstances of the present case, it will be appreciated as indicat ed in the earlier portion of this sub‑paragraph that the learned District Judge did not pass the order, dated the 28th of October 1966, on appeal.

(B) There is a difference between (a) an order made or a judgment passed on the appellate side of a Court or in appeal on the one hand, and (b) an order or judgment passed 'on appeal'; on the other hand. The latter may be included in the former but the former is not necessarily the same as the latter. This was so held in various authorities some of which are as follows.‑

In Purnendu Nath Tagore v. Kanailal Ghoshal (I L R (1948) 2 Cal. 202), Sharpe, J., while sitting with Mitter, J., held (at page 206) as follows:-----

"Our view finds further support from the decision Sunder Koer v. Chandishwar Prasad Singh 19031 L R 30 Cal. 679 which followed the earlier decisions Soudaminee Dossee v. Mohatab Chand (1866) B L R vol. 585 and Enaet Hossein v. Roushun Jehan (1968) 1 B L R 1, and referred to the observations of Sir Barnes Peacock in regard to the distinction to be drawn between orders of the High Court made or passed 'on appeal' and those passed in the exercise of its appellate jurisdiction."

In Krishna Chandra Deb v. Rajendra Narayan Bhanj Deo and another (A I R 1936 Pat. 465). Wort AG. C. J and Dhavle, J., held as follows: as per head note (c) which is comprehensive enough to bring out this point:

"There is a vast difference between an order made or a judgment passed on the appellate side of a Court and the final order passed 'on appeal'. The latter may be included in the former but the former is necessarily not the same as the latter."

In Rukmangal Prasad and others v. Mst. Durga (A I R 1946 Oudh 101) it was held as follows:‑--

"There is a difference in the meaning of the expression 'passed on appeal' and 'made in exercise of appellate jurisdiction'. All orders passed on appeal are obviously passed in the exercise of appellate jurisdiction, but it does not necessarily follow that every order made in exercise of such jurisdiction is an order passed on appeal."

In Kunwar Jagdish Kumar Singh v. L. Harikishen Das (A I R 1942 Oudh 362) it was held at page 365 as follows:‑--

"The next point for consideration is whether the order complained of is a final order passed on appeal. All orders passed by a Court in its appellate jurisdiction cannot be considered to be orders‑passed on appeal: vide Jai Pratap Narain Singh v. Rabi Paratap Narain Singh 1933 A L J 255. It was held by the late Court of the Judicial Commissioner of Oudh in 13 O C 59 Radha Kishen v. Jamna Prasad, that an order rejecting an appeal for failure on part of the appellant to furnish security for costs is not a final order passed on appeal. In this case it was also held that the words 'final order passed on appeal' are not equivalent to 'final order passed in the exercise of final appellate jurisdiction' and that the words 'final order passed on appeal' have always confined to orders disposing of an appeal at the hearing. In the present case the appeal was dismissed for non‑prosecution. It was held by this Court in Karim Jehan Begum v. Girdhari Lal 1935 O W. N 1252 that an order rejecting an application under section 5 and refusing to admit an appeal on the ground that it was time‑barred is not a final order passed on appeal within the meaning of section 109(a), Civil P. C. The ruling in 13 O. C. 59 was referred to with approval in this case. After quoting that case, the learned Judges observed that the observations made in that case applied with full force to the facts of the case before them and that they did not decide the appeal on the merits but had merely rejected the memo randum of appeal as being time‑barred. It was held in Abdul Majid v. Jawahir Lal 36 All. 350 that an order of His Majesty in Council dismissing an appeal for want of prosecution does not deal judicially with the matter of the suit and can in no sense be regarded as an order adopting or confirming the decision appealed from and it merely recognizes authoritatively that the appellant has not complied with the conditions under which the appeal was open to him and, therefore, he was in the same position as if he had not appealed at all. Applying the principle laid down in these cases, we are of opinion that the order complained of was not a final order passed on appeal."

It may be mentioned that the distinction aforesaid was pointed out by Sir Peacock as early as 1868 in Raja Enaet Hossein v. Ranee Roshun Jahan ((1868) 10 W R 1), and has throughout been maintained in the case‑law on the subject. In a recent case reported in Ghulam Hussain and another v. Ghulam Mustafa and others (P L D 1967 Lah. 439) I have while sitting in a D. B. with the Hon'ble C. J., given a good deal of case law to show as to when can an order be said to have been passed in appeal or in the exercise of appellate jurisdiction. I have there quoted Ram Adhar Misra v. Parshotem Misra and others (A I R 1950 All. 226) and Muhammad Shafi and others v. Din Muhammad and others (P L D 1951 Lah. 397) cases of an order refusing to set aside an ex parte appellate decree for the purpose of illustrating that such an order is an order which can be said to have been passed in the exercise of appellate jurisdiction. I need not again reproduce the same set of case law in detail and for my purpose at the present it is enough to hold that though I concede that the order refusing to set aside appellate ex parte order was passed in the exercise of the appellate jurisdiction of the District Judge, but it is not an order passed "on appeal". The case‑law mentioned above will further show that the Legislature was well aware of the meaning of the phrase "on appeal" and of the orders which can be said to have been passed "on appeal", as distinct from those which are considered to be simply in the exercise of appellate jurisdiction. If the Legislature intended that the phrase "on appeal" should be considered to cover such orders as well as which are simply in the exercise of appellate jurisdiction, it could have used an appropriate language for that purpose. Since in the instant case the phraseology used by the Legislature in section 15(4) of the Ordinance is "on appeal", I cannot substitute it by another sentence like "order passed in the exercise of the appellate jurisdiction", so as to enlarge the scope of appealable order. This will tantamount to doing violence to the language of the statute which is not permissible. Even otherwise this will defeat the aim and the policy of the Ordinance which is to bring only limited matters in appeal to the High Court. The High Court has no revisional jurisdiction under section 115, C. P. C. over the orders of the appellate authority under the Ordinance. If the purpose of not giving such jurisdiction to the High Court was to avoid challenge to extraneous or interlocutory orders of the appellate authority, then the same purpose could not be achieved in an indirect way by enlarging or twisting the meaning of the phrase "on appeal".

(c) Orders passed on appeal' will be those which decide the matter appealed against and not interlocutory or extraneous matters coming up for adjudication during the course of the appeal or after the disposal of the appeal. This may be illustrated by some examples with reference to section 109 of C. P. C. or clause 39 of Letters Patent of Calcutta Bombay and Madras and corresponding clause 29 of Letters Patent, Lahore, where it was laid down that an appeal could lie to the Privy Council from the final order or decree passed on appeal' by a D High Court. It was held in the following cases that the orders mentioned below do not constitute orders passed on appeal':----

(i) Order rejecting application for review with regard to judgments passed in appeal. Dwarka Das‑Kedar Bux v. Gajanan Jagannath and others A I R 1946 Cal. 10, Mahabir Bakhsh Singh v. Sheoraj Singh and another A I R 1914 Oudh 41, Soudamanoe Dasse v. Maharaj Dheraj Mahatab Chand Bhadoor (1866) 6 W R (Misc. Rep.) 102 and Rajah Enaet Hossein v. Ranee Rowshun Jahan (1868) 10 W R (1).

(ii) Order of the High Court refusing stay of execution of a decree appealed against Srinivasa Prasad Singh v. Kesho Prasad Singh 13 Cal. L J 681;

(iii) Order refusing to restore an appeal dismissed for default. Mst. Bismillah Begum v. Hira Lal and others A I R 1917 All. 313; Pt. Krishna Kant Malaviya v. Lala Amernath and others A I R 1937 All. 566 and B. Jaipratap Narain Singh and others v. B. Rabi Pratap Naraan Singh and another A I R 1933 All. 453;

(iv) Order rejecting an application for amendment of an appellate decree Sunder Koer v. Chandishwar Prasad Singh (1903) 1 L R 30 Cal. 679;

(v) Order rejecting an appeal for failure of furnishing security for costs under Order XLI, rule 10, C. P. C. M. A. Ghafoor Khan v. Secretary of State and others, A I R 1914 All. 54 and Radha Kishan v. Jamna Prasad and others 5 I C 940 Contra view is contained in Mahadeo Shahi v. Secy. of State and others A I R 1932 All. 312 but leaving aside the point at the moment as to which view is correct, the broad fact remains that the Courts have been making distinction between the orders passed on appeal' and those passed in the appellate jurisdiction;

(vi) Order dismissing an application to deposit court‑fee on rejection of an earlier pauper application by the High Court. Mst. Barfa v. Kishorilal and others A I R 1919 All. 331 (1);

(vii) Order refusing to set aside ex parte decree Ramaswami Udayar and others v. Sevu Rama Aru Ramanathan Chettiar A I R 1942 Mad. 357 (1); and

(viii) Where High Court passed a decree in pursuance of the directions of the Privy Council the High Court's decree cannot be said to have been passed on appeal' by the High Court. Bai Mangu v. Bharatkand Cotton Mills Co. Limited A I R 1932 Born. 90 and S. Gangaju Bahadur and others v. Ramachandra Deo Maharajulum A I R 1925 Mad. 187.

On the other hand, some examples can be given of orders which can be held as orders passed "on appeal". See the following:‑

(i) Refusing to appeal as time‑barred is an order passed on appeal. His Highness Brij Indar Singh Chief of the Farid Kote House v. Lala Kansi Ram, etc., A I R 1917 Lah. 448;

(ii) Dismissing an appeal for default is an order passed on appeal. Chuni Lal Tulsi Ram v. Amin Chand and others A I R 1933 Lah. 690. Contra view is contained in Ganesh Prasad v. Makhna and another A I R 1948 All. 375. 3ut leaving aside the controversy on the point, the broad fact again remains that the Courts have been making efforts to draw a distinction between the orders passed on appeal and those passed in the exercise of the appellate jurisdiction.

(iii) Order of High Court on appeal refusing to set aside a sale in execution of a final order is order on appeal' within the meaning of section 595 of the C. P. C. (Act XIV of 1882) which corresponds to section 109 of the present C. P. C. (Act V of 1908) and was appealable to Privy Council as such. See Tekait Krishna Prasad Singh Minor by his Guardian Lachmi Kumari v. Moti Chand, 40 I A 140; and

(iv) Dismissal of appeal as having abated is an order on appeal'; Chuni Lal Tulsi Ram v. Amin Chand and others A I R 1933 Lah. 690.

From the examples given above, it will transpire as laid down in Ramaswami Udhayar and others v. Sevu Rama Aru Ramanathan Chettiar (A I R 1942 Mad. 357) that refusal to set aside an ex paste decree is not an order passed on appeal', though it may be an order passed in the exercise of the appellate jurisdiction. Respectfully following that view. I hold that the order of the District Judge in the instant case, whereby he refused to set aside his earlier ex parte order, is not an order passed 'on appeal' and, therefore, was not appealable to this Court under section 15 (4) of the Ordinance.

5. When confronted with the above propositions, the learned counsel for the appellant argued that even though the present appeal may not be maintainable under subsection (4) of section 15 of the Ordinance, it was competent under the "explanation" attached to the said subsection as read with provisions of the Civil Procedure Code. The said "explanation" to reproduce it once again, reads as follows:‑--

"Explanation.‑An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings."

Learned counsel for the appellant argues that this explanation so far as relevant for the subject in hand, does two things.

Firstly, it says that with such modifications as the context may require.

(i) the provisions of Part VI of the Civil Procedure Code shall apply to appellate proceedings; and, secondly.

(ii) so shall apply to these proceedings the provisions of the 1st Schedule of the Civil Procedure Code relating to appeals.

Part VI of the Civil Procedure Code consists of only two sections, namely, sections 94 and 95 which read as follows:

"94. In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed‑

(a) issue warrant to arrest, the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient."

"95‑(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section:‑‑

(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same,

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him:

Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction."

The learned counsel for the appellant says that the provisions of the First Schedule relating to appeals are contained in Order XLI, Civil Procedure Code which regulates the hearing and disposal, etc., of appeals from original decrees. Order XLI, rule 17(2) states that when a respondent does not appear the appeal shall be hoard ex parte. Order XLI, rule 21 states that when an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to rehear the appeal; and if he satisfies the Court that the notice was not duly served or that he was prevented by a sufficient cause from appearing when the appeal was called for, hearing, the Court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. Order XLIII, rule I (t) then inter alia states that an appeal shall lie from an order of refusal under Rule 21 of Order XLI to re‑hear an appeal. The learned counsel for the appellant argues that if the provisions of the C. P. C., relating to appeals, are made applicable to the appeals, before the District Judge (which he is to regulate with the aid of the provisions of Order XLI of C. P. C.), then he will pass various orders which will fall within the provisions of Order XLI. When these orders are passed under Order XLI, it is argued that they will carry the incident of appealability along with them under Order XL111, C. P. C. In this way, the orders of the District Judge, from which second appeals will lie to the High Court, according to the learned counsel for the appellant, can be of two types, namely:‑

(a) those which are passed on appeal' by the District Judge as explained in the discussion of this phrase earlier, and

(b) those which are not passed on appeal' but are Such which are passed by virtue of the applicability of the provisions of the Code of Civil Procedure.

When these orders are passed under the Civil Procedure Code, then these orders, it is argued carry with them the incident of appeal ability under that Code. It is thus submitted that if those orders are appealable under O. XLIII, C. P. C., then a person aggrieved from those orders will have a right of appeal under the said Code. I am afraid, I cannot accept this contention. The "explanation" which applies the provisions of the 1st Schedule of the said Code contains a caution that those provisions are to apply with such modifications as the context may require. In the instant case, the provisions regarding the appealability of various orders mentioned in O. XLIII cannot apply to the orders of District Judge because if they are so applied, then they will violate the caution contained in subsection (5) of section 15 of the Ordinance, which, when put in a proper form so far as relevant for the purposes of the present case, reads as follows:‑-

"No order passed by‑an Appellate Authority‑under the provisions of this Ordinance, shall be called in question in any Court of law by suit or otherwise except as provided under this Ordinance.

If the appeals are allowed to be preferred with reference to the provisions of the Code of Civil Procedure, then it will tantamount to allowing appeals and challenging orders of the Appellate Authority in a manner contrary to the one provided under the Ordinance. Secondly, if on the one hand, the intention was to make only such orders of the District Judge appealable which are passed by him on appeal', then it will be defeating that provision when orders other, than those which are passed on appeal' are also made appealable. Thirdly, the provisions allowing appeal under the Civil Procedure Code, apply to Courts and it is well settled that neither the Controller nor the District Judge while dealing with matters under the Rent Restriction Ordinance is a Court. See Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another (P L D 1965 S C 459). Fourthly, all that the explanation' means is to apply the procedural provisions of the C. P. C. and not the substantive provisions like the right of appeal, which is a matter specifically dealt with and controlled by the Ordinance itself. Rules of the C. P. C., will have to be placed under this modifica tion; because in the context in which those rules are made applicable to appellate proceedings they should not be allowed to enlarge the scope of appeal‑a subject elaborately controlled by the Ordinance itself.

6. The upshot of the above discussion is that the preliminary objection raised by the contesting respondent prevails and the present appeal is dismissed with costs. Since I have disposed of the appeal on the preliminary objection, I need not give my views on the merits of the case.

A.H. Appeal dismissed.

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