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Second Appeal from Original Order No. 103 of 1979, decided on 22nd December 1979.

(a) Civil Procedure Code (V of 1908)-

- S. 115-Revision - Revisional powers not expressly conferred on a Court or authority by statute to which such Court or authority owes its existence, held, cannot be exercised.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

-- S. 13-Revision-No provision of Ordinance, held, authorises District Judge or Additional District Judge to revise an order made by Rent Controller-Additional District Judge setting aside, in revision, ex parte order of ejectment made by Rent Controller, order of Additional District Judge hence void ab initio and without jurisdiction.-[Revision (civil)].

Haji Hayat Gul v. Azlzul Haq and another P L D 1966 Pesh. 118 ref.

Faqir Muhammad v. Dr. Muhammad Yasin and 2 others P L D 1964 Lah. 686 rel.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

---- S. 13-Rent Controller passing ex parte order of ejectment-Additional District Judge revising order of Rent Controller in revision petition-Power of revision being not available to Additional District Judge and order assailed being not appealable, Additional District Judge, held, could not pass impugned order even by treating revision petition as an appeal.

Mian Manzar Bashir and others v. M. A. Asghar & Co. P L D 1978 S C 185 rel.

(d) Civil Procedure Code (V of 1908)

Ss. 9 & 115 and West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13-Rent Controller not a Court much less a civil Court-Provisions of S. 115, C. P. C.-Held : Not available to Additional District Judge for setting aside order of Rent Controller.[Court].

rel. Khadim Mahy-ud Din v. Ch. Rehmat Ali Nagra P L D 1965 S C 459

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- S. 13-Proceedings held by Rent Controller based on an illegal order of Additional District Judge-Held, not sustainable.

Since the proceedings held by Rent Controller in consequence of order made by Additional District Judge on revision petition were based on that order, which was a nullity and of no legal effect, the said proceedings are not sustainable. Needless to say that if the foundation gives way the superstructure cannot stand. The order made by Rent Controller dismissing the appellants' application for setting aside ex parte order being the outcome of the above proceedings, that order also, cannot be upheld.

S. Manzoor Hussain Bukhari for Appellant.

Haji Fazalur Rehman for Respondent.

Date of hearing : 22nd December. 1979.

The facts giving rise to this regular second appeal are that the respondent, Mst. Mehraj Begum, made an application for ejectment of one Mistri Abdul Ghafoor, from a shop, on various grounds, Mistri Abdul Ghafoor was proceeded against ex parte as he had not appeared before the Rent Controller despite service. The learned Rent Controller, therefore, ordered his ejectment on the basis of the evidence produced by the respondent. In execution of that order, Mistri Abdul Ghafoor was ejected from the disputed shop, on 1st April 1976, thereafter, he made an application for setting aside the ex parte order which was recalled by the learned Rent Controller, vide his order dated the 23rd July 1976. Feeling aggrieved by the last mentioned order of the learned Rent Controller the respondent filed a revision petition before an Additional District Judge, Sh. Muzaffar Hussain. That revision petition was accepted by the learned Additional District Judge, on 13th November 1976, with the result that the order of the learned Rent Controller was set aside and the case remanded to him for fresh decision on the application for setting aside the ex parte order. When the case was received back in the office of the learned Rent Controller, it was represented by Mistri Abdul Ghafoor that the revision petition filed before the learned Additional District Judge was not competent and, therefore, the order passed thereon was a nullity. This plea did not, however, find favour with the learned Rent Controller and he proceeded to act in compliance with the order of the learned Additional District Judge. Eventually, it was held by him, vide order dated 23rd July 1976, that there was no ground for recalling the ex parse order and, therefore, he dismissed the application of Mistri Abdul Ghafoor for setting aside the same. On this, he filed an appeal before another Additional District Judge Mr. Ayub Hasan, but without success. He, therefore, came up in second appeal to this Court.

2. During the pendency of this appeal, Mistri Abdul Gharoor bad died therefore, his legal representatives, Mst. Shah Jehan and others, were brought on the record.

3. Learned counsel for the legal representatives of Mistri Abdul Ghafoor hereinafter referred to as the appellants, .contended that the order passed by Sh. Muzaffar Hussain, Additional District Judge, on 13th November 1977, was a. nullity inasmuch as the revision petition on which that order was made was not legally competent. The argument proceeds that since the subsequent proceedings held by the learned Rent Controller, which had culminated in the dismissal of tenant's application for setting aside the ex pcrte order, were based on the aforesaid order of the learned Additional District Judge those proceedings were also of no legal effect. It was, therefore, urged by him that the original order passed by the learned Rent Controller on 23rd August 1976, recalling the ex parte order of ejectment, was still operative and the learned Rent Controller was obliged to rehear the ejectment application and decide it on merits. He cited Haji Hayat Gul v. Azizul Haq and another (1) and Faqir Muhammad v. Dr. Muhammad Yasin and 2 others (2) to support his arguments.

4. In reply, learned counsel for the respondent submitted that the revision petition before the learned Additional District Judge was competent and, therefore, the order made by him on that petition as well as the proceedings held by the learned Rent Controller in pursuance of- that order were not open to any valid exception. According to the learned counsel for the respondent, the order of the learned Rent Controller, which was challenged in revision, was an order of civil nature and, therefore, the revision lay before him, in view of the provisions of section 115 of the Code of Civil Procedure. He did not cite any other law or authority in support of his contentions.

5. It is a matter of common knowledge that a Court or authority cannot exercise revisional powers unless ,these powers are expressly conferred by the statute to which such Court or authority owes its existence. There is, however, no provision in the west Pakistan Urban Rent Restriction Ordinance, t 1959, authorising the District Judge or the Additional District Judge to revise an order made by the Rent Controller. I am, therefore, of the view that the learned Additional District Judge who had, in the instant case, revised the order, dated 23rd July 1976, passed by the learned Rent Controller was not competent to do so and as such his (Additional District B Judge's) order setting aside the order of the Rent Controller is void ab initio and without jurisdiction. In taking this view, I am fortified by the cases of Faqir Muhammad and Haji flayat Gul cited by the learned counsel for the appellants.

6. It may also be noted here that the learned Additional District Judge could nut pass the impugned order even by treating the revision petition as an appeal because the order assailed before him was not appealable. if any authority were needed for the aforesaid proposition, I would, with respect, refer to Mian Manzar Bashir and others v. M. A. Asghar & Co. (3).

7. As for the contention of the learned counsel for the respondent that the order of the learned Rent Controller re-calling the ex parte order of ejectment was an order of civil nature and, therefore, it could be revised by the Additional District Judge, under section 115 of the Code of Civil D Procedure, I am unable to agree with him because even if the said order is treated as an order of civil nature in the sense that it related to a civil matter as distinguished from a criminal matter the fact remains that it was not passed by a civil Court. There is ample authority for the proposition that the Rent Controller is not a Court much less a civil Court. Some of the precedent cases in point are Khadim Mohyud Din v. Ch. Rehmat Ali Nagra (1) and the aforementioned cases of Haji Hayat Gul and Faqir Muhammad. The provisions of section 115 of the Code of Civil Procedure were not, therefore, available to the learned Additional District Judge for setting aside the order of the learned Rent Controller.

(1) P L D 1966 Pesh. 118 (2) P L b 1964 Lah. 686

(3) P L D 1978 S C 185

8. Since the proceedings held by the learned Rent Controller in con sequence of the order made by the learned Additional , District Judge on the revision petition were based on that order, which was a nullity and of no legal effect the said proceedings are not sustainable. Needless to say that if the foundation gives way the superstructure cannot stand. Since the order, dated 23rd July 1976, made by the learned Rent Controller dismissing the appellants' application for setting aside the ex parte order is the outcome of the above proceedings, that order also cannot upheld.

9. Resultantly, I accept the appeal with costs, set aside the order, dated the 23rd July 1976, made by the Rent Controller, and the order, dated the 13th November 1977, passed by the learned Additional District Judge (Mr. Ayub Hassan), affirming the order of the learned Rent Controller, and remand the case to him (Rent Controller) with the direction that he shall proceed with the case from the stage at which he had, in the first instance accepted the application for setting aside the ex parte order of ejectment.

< [if supportLists]>M. Y. V Appeal accepted,

< [if supportLists]>N. (1) P L D 1965 S C 459 .

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