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Civil Appeals Nos. 14, 15 and 16 of 1962, decided on 4th December 1962.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated 20th July 1960, in Writ Petition No. 201 of 1959 connected with Writ Petitions Nos. 202 of 1959 and 203 of 1959).

S. 15(1) read with S. 12 (2), Limitation Act (IX of 1908) ‑ Application for Revision to Chief Judge, Small Causes Court, Karachi, against Controllers order‑Limitation‑Time spent in obtaining copies of order to be excluded‑Word "appeal" occurring in S. 12(2), Limitation Act, 1908, to be construed in broad sense so as to include a revision falling under S. 15 (1), Karachi Rent Restriction Act, 1953‑Civil Procedure Code (V of 1908), S. 115:

Held, that the word "appeal" occurring in section 12 (2), Limi tation Act, 1908 should be construed in a broad sense so as to include a revision under the Karachi Rent Restriction Act, 1953.

The time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the Court it was not necessary to obtain such copies.

An application by way of Revision is the only remedy provided by the Karachi Rent Restriction Act, 1953. Such a revision has all the characteristics of an "appeal". In other words the revisional power under this Act is not subject to any specified restrictions like those mentioned in section 115, C. P. C. It is, therefore, clear that the word "revision" in this Act has not been used in the same sense as what is technically known as a revision under section 115 of the Code of Civil Procedure, 1908.

The remedy which has been given to the aggrieved part by way of revision does not differ in essence from a right f appeal. Under the Code of Civil Procedure a distinction has been made between a "revision petition" and "an appeal". Under section 115 of the Code of Civil Procedure a revision petition only lies where an appeal does not lie. But here a revision petition had been filed under a special Act, namely, Karachi Rent Restriction Act, 1953. It cannot be said that the special Act deals with revision petitions in the same sense as it is used in the Code of Civil Procedure.

The Attorney‑General v. H. J. Sillem and others 11 E R X H L C 703 ; Nagendar Nath De v. Suresh Chandra De 59 I A 283 ; Raja of Ramnad v. Kamid Rowthen and others 53 I A 74 and Jijibhoy N. Surti v. T. S. Chettyar A I R 1928 P C 103 ref.

Story : "The Constitution" (Vol. II) rel.

Fakhruddin G. Ebrahim Advocate Supreme Court instructed by S.M. Hanif Attorney for Appellants.

Khalid M. Ishaque Additional Advocate‑General West Pakistan (Abdul Kader Shaikh Advocate Supreme Court with him) instructed by Shafiq Ahmad Attorney for Respondent No. 1.

Respondent No. 2: Ex parte.

Date of hearing: 4th December 1962.

.‑These consolidated appeals raise a question of law relating to limitation.

The appellants are the owners of a building known as Fort Mansion' at Frere Road, Karachi. Respondent No. 2 in each of these appeals is a tenant in respect of different shop rooms in the said premises. In June 1956, the appellants filed three separate petitions before the Rent Controller, Karachi under section 10 of the Karachi Rent Restriction Act, 1953 (hereinafter referred to as the Act) for ejectment certificates on various grounds. The Rent Controller heard the petitions together and by his order dated 7th June 1957, rejected all the three petitions, On the 18th June 1957, the landlords applied for a certified copy of the said order and the same was supplied to them on the 13th July 1957: Against the order of the Rent Controller they filed three separate petitions before the Chief Judge, Small Causes Court, Karachi to whom the power to act in revision had been delegated by the Central Government. Under subsection (1) of section 15 of the Act such a revision petition should be presented within 30 days from the date of the order sought to be questioned. Holding that the petitions were filed after expiry of 30 days which was prescribed by sub section (1) the Chief Judge dismissed all the three revision petitions. Thereupon the landlords moved 3 petitions before the High Court for writs of certiorari to quash the order of the Chief Judge. Their contention was that the time taken in applying for and obtaining a copy of the order of Rent Controller should have been excluded under subsection (2) of section 12, read with section 29 of the Limitation Act. If the time so taken was excluded, the revision petitions were admittedly within time. The Chief Judge refused to exclude the time taken to obtain a certified copy of the order of the Rent Controller on the ground that the revision petition did not fall within section 12 (2) of the Limitation Act. Section 12 (2) provides inter alia as follows:

"In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded."

Subsection (2) (a) of section 29 is in these terms:

"(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:

(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."

In view of the above provisions of section 29, the learned Judges of the High Court held that the Karachi Rent Restriction Act being a special Act, the provisions of section 12 (2) of the Limitation Act would apply. But in their view the petitions for revision under subsection 11 E R X H L C 703 of section 15 of the Act could not be regarded as being included within the terms "appeal or review of judgment" occurring in section 12 (2) and hence they held that the Chief Judge had not acted illegally in refusing to give the benefit of section 12 (2) to the landlords. In this view of the matter they dismissed the writ petitions.

It is not and cannot be disputed that the Rent Restriction Act is a special Act. The period of 30 days has been prescribed under subsection 11 E R X H L C 703 of section 15 of the Act as a period of limitation under the special law.

It was contended on behalf of the appellants that in view of the provisions of section 12 (2) of the Limitation Act, the time during which they were procuring a copy of the order of Rent Controller was not to be reckoned as part of the period of 30 days which was prescribed by subsection 11 E R X H L C 703 of section 15 of the Act. To this it was answered on behalf of the respondents that section 12 (2) was not attracted to revision.

Hence the short question for consideration in this appeal is whether the expression appeal' in section 12 (2) has been used in a restrictive sense so as to exclude a revision petition.

Upon construction of the word appeal' used in section 12 (2) there has been divergence of judicial opinion. Some of the Courts in India adopted a restricted construction of the word appeal' and laid down emphatically that it does not include revision. On the other hand some of the Courts construed the expression in a broader sense. There is, however, plainly no such preponderance in either direction so as to render it clear that there is any settled course of decisions on this question.

The word appeal' has not been defined in the Code of Civil Procedure. In Wharton's Law Lexicon appeal' has been defined as "The judicial examination of the decision by a higher Court of the decision of an inferior Court". In The Attorney‑General v. H. J. Sillem and others 11 E R X H L C 703 Lord Westbury described an appeal in these terms:

"An appeal is the right of entering a Superior Court and invoking its aid and interposition to redress the error of the Court below."

Story in his work on the Constitution, (Vol. II) has pointed out

that the characteristic of an appeal is a revision of a judicial proceeding of an inferior Court so that the mode in which the power is exercised is wholly immaterial.

In the case of Nagendar Nath De v. Suresh Chandra De (59 1 A 283) the question as to what amounted to an appeal' under Article 1252 (2) of the Limitation Act arose. The following obser vations of their Lordships of the Judicial Committee in that case are both suggestive and significant

"There is no definition of appeal' in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of a Subordinate Court, is an appeal' within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent."

This view also finds support from the observation of ire Judicial Committee in Raja of Ramnad v. Kamid Rowthen and others (53 1 A 74). Their Lordships while referring to civil revision Petition observed:

"From the judgment an appeal in the form appropriate to such a case from the Munsif's Court i.e. a Civil Revision petition was preferred to the High Court of Madras."

From the above it is clear that the remedy, which has been given to the aggrieved party by way of revision, does not differ in essence from a right of appeal.

It is true that under the Code of Civil Procedure a distinction has been made between a revision petition' and an appeal. Under section 115 of the Code of Civil Procedure a revision petition only lies where an appeal does not lie. But here we are dealing with a revision petition, which had been filed under a special Act, namely Rent Restriction Act, 1953. It cannot be said that the special Act deals with revision petitions in the same sense as it is used in the Code of Civil Procedure. In this Act, before the amendment of 1962, there was no provision for appeal. The only remedy available to an aggrieved party against the order of Rent Controller was to file a petition before the Chief Judge of the Small Causes Court, Karachi to whom the power of revision had been delegated by the Central Government.

At the relevant time subsection (1) of section 15 reads as follows:

"The Central Government may on an application to be made within 30 days of any order made by the Rent Controller under this Act call for the record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings, if any, in which the order was made, and may pass such order thereon as it deems fit, and may stay the order of eviction pending the hearing and disposal of the matter."

Thus the revision provided in the above subsection has all the characteristics of an appeal. In other words the revisional power under this Act is not subject to any specified restrictions like those mentioned in section 115, C. P. C. It is therefore clear that the word revision in this Act has not been used in the same sense as what is technically known as a revision under section 115 of the Code of Civil Procedure.

Such was the intention of the Legislature is also clarified by the recent amendment of the Act. By amendment of 1962 section 15 has been replaced completely, and the present sub section 15 (1) is as follows

"Any party aggrieved by an order passed by a Controller may, within 30 days from the date of such order, prefer an appeal in writing to the District Judge, Karachi or to such other judicial officer as may be empowered by the Provincial Govern ment to hear such appeals."

For the reasons stated above, we are of the opinion that the word appeal' occurring in section 12 (2) should be construed in a broad sense so as to include a revision under the Karachi Rent Restriction Act, 1953.

Lastly it was contended that subsection (1) of section 15 of the Act did not require that the application should be accompanied by a copy of the judgment and order and therefore, the exclusion provided by section 12 (2) did not apply.

A similar question arose in Jijibhoy N. Surti v. T. S. Chettyar (A I R 1928 P C 103) and it was held that in reckoning the time for presenting an application, the time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the Court it was not necessary to obtain such copies. For the reasons given in the above case we are also unable to uphold this contention of the respondents.

These appeals, therefore, should be allowed, and the cases remitted to the Chief Judge, Small Causes Court, Karachi to be heard on merits. The appellants will have the costs of these appeals.

A. H. Appeals allowed.

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