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Petitioner: Mst. FEHMIDA BEGUM VS Respondent: MUHAMMAD KHALID and another
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Ajmal Mian, Zaffar Hussain Mirza Title: Mst. FEHMIDA BEGUM vs MUHAMMAD KHALID and another Case No.: Civil Appeal No,8-K of 1989 Date of Judgment:1991-04-10 Reported As: 1992 SCMR 1908 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.--- This is an appeal with the leave of this Court against the judgment dated 8-1- 1987 passed by a learned Single Judge of the High Court of Sindh in Civil Revision Application No, 147 of 1986, filed by the appellant, dismissing the same and maintaining the judgment dated 18-1- 1986 of the learned IVth Additional District Judge, Karachi (South), whereby the judgment dated 23- 8-1986 passed by the learned Vlth Senior Civil Judge at Karachi, rejecting the plaint of the respondents' suit under Order 7, Rule 11, C.P.C. On the ground that the suit was barred by Order 21, Rules 100 and 103 C.P.C. Was set aside. Leave to appeal was granted to consider the questions, whether the suit was barred by section 12(2), C.P.C., and whether the only authority which was competent to adjudicate upon the question arising between the parties relating to execution, discharge or satisfaction was the authority mentioned in Section 22 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance. 2. The facts to be noted are that the appellant purchased from Riasat Ali Khan, through his Attorney Rao Shakir Ali Khan, house bearing No, 51 S-889 KMC No, 979 MAC-II, situated in Mahmoodabad No, 4, Karachi-44, through a sale agreement dated 3-12-1979 for a sum of Rs, 13,000. The above house was in occupation of one Khadim Hussain, hereinafter referred to as the tenant. After the above purchase, the appellant served a notice dated 11-5-1980 upon the tenant under Section 18 of the Ordinance. It is the case of the appellant that since the tenant had not paid or tendered the rent, she filed ejectment proceedings (Rent Application No, 3760 of 1980) in the Court of VIIth Senior Civil Judge and Rent Controller at Karachi against the tenant on the grounds of personal requirement and default. As nobody had appeared after the service of notice of the above rent application, the learned Rent Controller, by his order dated 26-11-1980, granted the ejectment order on both the
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above grounds. Pursuant to the above order, a writ of ejectment was issued which was executed on 30-4-1981. Thereupon, on 5-5-1981 the respondents filed Suit No, 2182 of 1981 for possession, mesne profits and permanent injuction, averring therein that House No,889 situated in Street No,16, Mahmoodabad No, 4, Karachi, which originally belonged to Riasat Ali s/o Deedari Khan, consisted of two units; one unit comprising two big rooms, kitchen, bath room, latrine and a small courtyard, herginafter referred to as Unit No,1, and the other unit consisting of two big rooms and three, small rooms alongwith kitchen, bathroom, lavatory and a courtyard, hereinafter referred to as Unit No, 2. It was further averred that the respondents were the tenants in Unit No, 2 for the last several years of Riasat Ali and that they, through a sale agreement dated 5-10-1978, purchased the same for a sum of Rs, 15,000 from Riasat Ali through his duly constituted attorney, Rao Shakir Ali Khan. It was also averred that the Unit No, 1 was in occupation of the tenant. It was also asserted that the appellant, by playing fraud by concealing the material facts from the Court, obtained ex parte ejectment order and the possession on 30-4-1981 by filing the aforesaid rent application against the tenant instead of Unit No, 1 for Unit No, 2 and that the respondents' belongings were still lying outside the house pursuant to the ejectment order. 3. Upon the service of the summons of the above suit and the stay application which was also filed alongwith the suit, the appellant inter alia filed an application under Order 7, Rule 11, C.P.C. On the ground that the suit was barred under Order 21, Rules 100 and 103, C.P.C.. The above plea found favour with the learned trial Court inasmuch as by its judgment dated 23-8-1981, rejected the plaint under Order 7, Rule 11, C.P.C. For the following reasons :- "The legal position as advanced by the Advocate for the defendant is. That all such questions arising as to title and or interest in possession of immovable property between the applicant, and opposite party shall be adjudicated upon and determined by the Court and no separate suit shall lie for the determination of any such matter. Now it is well-settled law that all questions arising as above shall be adjudicated upon by the Executing Court and not by separate suit. Thus the plaintiffs' present suit under the circumstances is not maintainable in law and the plaint is rejected under Order 7, Rule 11, C.P.C. With costs of the suit." 4. Thereupon, the respondents filed Civil Appeal No, 296 of 1985 against the above judgment, which was heard by the learned IVth Additional District Judge, Karachi (South), and who, by his judgment dated 18-1-1986, allowed the appeal by holding that the suit was not barred under Order 21, Rule 103, C.P.C. Or under Section 12(2), C.P.C. The operative portion of the judgment reads as follows :- "Under. Section 17 of Urban Rent Restriction Ordinance, 1959, ejectment order passed under said Ordinance was to be executed by the Controller as if it was a decree of Civil Court. In Section 22 of Sindh Rented Premises Ordinance, 1979, it is not written in this section that the ejectment order under said Ordinance is to be executed as a decree of a Civil Court. Previously relying on section 17 of Urban Rent Restriction Ordinance, 1959, it was held in so many authorities that all provisions of C.P.C. Were applicable in executing proceedings. In section 20 of Sindh Rented Premises Ordinance, 1979, the powers which are available to the Rent Controller under the Code of Civil Procedure are given. Under those powers, the executing Court is not competent to adjudicate upon and determine the question, whether the ejectment order was obtained by fraud and concealment of facts. Therefore I am of the view that suit filed by the appellant was competent before the trial Court and was not barred under Order 21, R. 103 C.P.C. Or under Section 12(2), C.P.C. I am supported in this view by 1984 CLC 1690." 5. Against the above judgment, the appellant filed aforesaid Civil Revision Application, which was dismissed by a learned Single Judge of the High Court of Sindh through a judgment dated 8-1-1987, for the following reasons:-- "A perusal of the provisions of section 12(2) shows that they are applicable to suits. This is on account of the use of the words "judgment", "decree" in section 12(2). Similarly, Rule 103 of Order 21
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shows that it refers to the decrees of the Civil Courts, executable under the Code of Civil Procedure. Admittedly, the proceedings which were challenged by the respondents before the learned Civil Court were pending under section 22 of the Sindh Rented Premises Ordinance, 1979. The said section at the relevant time and before its amendment by Sindh Act I of 1986 read as follows:-- "22. Execution of orders.- -An order made by , the Controller or the appellate authority shall be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority. ' Section 22, therefore, shows that execution of the orders passed by the Controller was to be governed purely by the said Ordinance of 1979 and not by Order 21 of the C.P.C. In any manner. Such intention appears to be more clear if the language of section 22 is compared with that of section 17 of the Sindh Urban Rent Restriction Ordinance, 1959, according to which an order for eviction of a tenant is to be executed by the Controller "as if it were a decree of a Civil Court". Consequently, a party seeking to challenge such proceedings on the ground of fraud does not appear to be precluded under section 12(2) of Rule 103 of Order 21 of the C.P.C., to file a suit in this regard since the proceedings before the Rent Controller are not covered by the language of the above said provisions of the C.P.C." ' After that, the appellant filed a petition for leave in this Court, which was granted to consider the above questions. 6. In support of the above appeal, Mirza Abdur Rashid, learned ASC appearing for the appellant, has contended that the order of the learned trial Court rejecting plaint under Order 7, Rule 11, C.P.C. Was legal and proper and, therefore, the learned first appellate Court was not justified in reversing the same, and that the High Court failed to correct the error of law committed by the appellate Court by dismissing the revision. On the other hand, Mr. Faizanul Haq, learned A.O.R. Appearing for the respondents, has urged that fraud has been committed by the appellant in ejecting the respondents from Unit No, 2 though the appellant had purchased Unit No,1 . His further submission was that the learned first appellate Court was justified in reversing the order of the learned trial Court, which was not in consonance with law. 7. I may observe that prior to the enforcement of the Ordinance in Sindh in November, 1979, the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, was in force, which contained certain provisions which made the provisions of the C.P.C. Applicable inter alia for execution of the ejectment order, disposal of objections arising therefrom, and the disposal of the appeals. In this behalf, reference may be made to clause (h) of section 2 which defines "Controller", Explanation to subsection (4) of Section 15 and Section 17 of the late Ordinance, which read as follows:-- Clause (b) of Section 2 of the late Ordinance:- "(b) "Controller" means a judicial officer who is appointed by the Provincial Government to perform the functions of a Controller under this Ordinance." Explanation to subsection (4) of Section 15 of the late Ordinance "Explanation.--An appeal under the 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." ' Section 17 of the late Ordinance:- "17. Every order made under section 10 or section 13, and every order passed on appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court."
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8. It may be noticed that under the late Ordinance, a judicial officer was to be appointed as a Controller, whereas under the Ordinance, there is no such requirement. ' It may further be noticed that the abovequoted Explanation to subsection (4) of Section 15 of the late Ordinance provided that an appeal under the above subsection (4) was to be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it was an order of the Controller and as an appeal from the appellate Court under section 100 of the said Code if it was from an order of the appellate authority and the provisions of Part VI of First Schedule to the said Code relating to appeals were to apply with such modifications as the context may require. ' Whereas under section 17 of the late Ordinance, every order made under section 10 or section 13 and every order passed on appeal under section 15 was to be executed by Civil Court having jurisdiction in the area as if it were a decree of that Court. It may be pointed out that by the above section, jurisdiction was conferred on the existing Civil Courts for executing inter alia the ejectment orders passed by the Rent Controller or by the appellate authority without any qualification, the effect of which was that it would be implied that the ordinary incidents of the procedure of that Court were to attach and also that any general right of appeal or review or other remedy from its decision likewise would be attracted to. In this behalf, reference may be made to the following cases :-- (i) National Telephone Company Limited (In Liquidation) and another v. His Majesty's Postmaster- General (1913 AC 546); (ii) Secretary of State for India v. Chellikani Rama Rao and others (AIR 1916 PC 21); (iii) Maung Ba Thaw v. Ma Pin (1961 IA. 158); (iv) Hussain Bakhah v. Settlement Commissioner and others (PLD 1970 SC 1); (v) In re : Sao Motu Shariat Review Petition No, 1-R of 1989 (PLD 1990 SC 865 Shariat Appellate Bench). 9. It may be stated that so long the late Ordinance remained in force with the above section 17 in the original form, there was no controversy on the question as to how the objections to the ejectment order were to be dealt with, as the provisions of section 47 and Order 21, Rules 97 to 103, C.P.C. Which provided for dealing with such a situation, were very much applicable to an execution proceeding in respect of an ejectment order. However, the above Section 17 was substituted in Punjab by the Punjab Ordinance No, 9 of 1969 as follows :- "17. Execution of orders.--Every order made under section 10, section 13, section 13-B and every order passed in appeal under section 15, shall be executed by the Controller as if it were a decree of a Civil Court." 10. It may be pointed out that the change brought about by the above substitution was that under the original Section 17 inter alia an ejectment order was to be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court, whereas after the above substitution, an ejectment order was to be executed by the Controller as if it were a decree of a Civil Court. At this juncture, it may also be pointed out that subsection (2) to Section 12, C.P.C. Was added by Ordinance No, X of 1980 in March, 1980, which provided as follows :- "(2) 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." 11. I may now revert to the provisions of the Ordinance. Section 4 provides that the Government may appoint one or more Controllers in any District and if more than one Controller is appointed in the same District, Government shall define the local limits within which each of such Controller shall exercise jurisdiction. It may again be pointed out that there is no requirement under the above Section that a judicial officer is to be appointed as a Controller, as was contemplated under Clause
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(b) of Section 2 of the late Ordinance. It may also be observed that Section 20 confers power of Civil Court on the Controller and the appellate authority under the Code of Civil Procedure, 1908, in respect of only the 'matters mentioned therein, namely :-- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) compelling production or discovery of documents; (c) inspecting the site; and (d) issuing commission for examination of witnesses or documents. It may also be observed that section 22 originally read as follows:- "22. Execution of orders.--An order made by the Controller or the appellate authority shall be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority." 12. The above section was substituted by Act No,1 of 1986 in May, 1986, providing as follows:- "22. Execution of Orders.--Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separtate suit." ' It may be noticed that under the original section 22, it was not provided that all questions arising between the parties and relating to the execution, discharge or satisfaction of the order, shall be determined by the Controller and not by a separate suit. In the original section 22, it was laid down that an order made by a Controller or the appellate authority shall be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority. There was also no explanation to the above section. 13. Since the suit in the present case was filed on 5-5-1981, the original section 22 of the Ordinance was applicable, which did not provide for adjudication upon the dispute arising between the parties and relating to the execution, discharge or satisfaction of the ejectment order. Keeping in view the above state of law, it is evident that at the relevant time the provisions of the C.P.C. Were not made applicable to the rent proceedings under the Ordinance except what was provided in section 20 therein and, therefore, the provisions containing in section 12(2), C.P.C. Which provides that where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, 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, was not applicable on its own force. Similarly the provision of Rules 101 and 1W of Order 21, C.P.C. Could not have been pressed into service in respect of execution of an ejectment order by their own force. It may be pointed out that Rule 101, C.P.C. Provides for the restoration of the possession of the property upon an application of a person other than the judgment-debtor, whereas Rule 103 lays down that "All question's arising as to title, right or interest in, or possession of immovable property between an applicant under rule 97 and the opposite-party, or between an applicant under rule 100 and the opposite-party, shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter. 14. I may now refer to the case-law on the subject. First I intend to take up the cases decided by this Court: (i) Messrs Bambino Ltd. v. Messrs Sehnor International Ltd. And another (PLD 1983 SC 155); ' In which the facts were that the petitioners filed ejectment proceedings in July, 1976, against respondent No, 1, who were the tenant of Room No, 27 in the building in question, in which ex parte ejectment order was passed on 30-11-1977. The petitioners filed execution application in February, 1978, of which they got the notice served by publication through newspaper. They obtained order of police aid. However, before the above ejectment order could be executed, the petitioners received the possession of the room in which they inducted respondent No, 2 as a tenant under a lease deed and started recovering rent. However, they did not drop the above execution application
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when respondent No, 2 came to know that the writ of ejectment issued by the Rent Controller would be executed against them, they obtained a stay order from the Rent Controller but by the time the stay order could be served by the Court official, the process of eviction had already been completed. Being dissatisfied in execution of an order passed against the first respondent, the 'second respondent filed an application under section 151 read with section 141, C.P.C. For restitution of possession of above room. The Rent Controller dismissed the same on the ground of lack of jurisdiction in view of the provisions of section 19(2) of the Ordinance, which prohibits Rent Controller from rescinding an ejectment order. Thereupon, respondent No, 2 filed first rent appeal before the High Court, which was allowed by a learned Single Judge, who ordered that the possession be restored. Against the above order, the petitioners filed aforesaid petition for leave, in which it was urged that since the C.P.C. Was applicable to the proceedings under the Ordinance, the High Court was not justified in restoring the possession, but this Court repelled the above contention and observed as follows:-- "5. In regard to the first contention, learned counsel referred us to the provisions of section 20 of the Sindh Rented Premises Ordinance, 1979, and submitted that since specified powers relating to summoning of witnesses, compelling production of documents, inspecting the site and issuing commission for examination of witnesses, vesting in Civil Court under the Code of Civil Procedure, have been conferred upon the Controller and the appellate authority, it follows by necessary implication that the rest of the powers enjoyed by a Civil Court were not available to these authorities under the repealed enactment i.e, Urban Rent Restriction Ordinance, 1959 (vide section 16) was identical and the settled view in this Court has been that although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller by its own force, the Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure. There is no reason, therefore, to take a different view so far as the provisions of the Sindh Rented Premises Ordinance are concerned, which governed the proceedings for execution of the order in this case. Under the repealed Ordinance of 1959, the order passed by the Controller or in appeal by the appellate authority was to be executed under section 17 of the said Ordinance, by a Civil Court having jurisdiction in the area as if it were a decree of that Court. However, under section 22 of the Sindh Rented Premises Ordinance, 1979 an order passed by the Controller or the appellate authority has to be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority. Plainly, therefore, the Controller was competent to adopt any procedure deemed by him suitable for the purpose of execution of his order. Order XXI, rules 100 and 101 of the Code of Civil Procedure amply authorised an executing Court for investigating and adjudicating upon the matter of disposession from immovable property by the holder of a dercree for possession of such property of a person other than the judgment-debtor. If the Court is satisfied upon such enquiry and determination, that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, the executing Court has the jurisdiction to direct that the applicant be put into the possession of the property. It is a rule of procedure based on equitable principles and on the principle that a decree passed by Court, ordinarily binds the parties to the suit or their assignees and persons claiming through them. We, therefore, agree with the learned single Judge that the Controller and the appellate authority had the jurisdiction to pass orders for the restitution of possession in favour of respondents No, 2. As regards the second contention that no appeal lay from the order passed by the Rent Controller in execution of the order of ejectment it may be. Stated that a plain reading of section 21 of the Sindh Rented Premises Ordinance, 1979, shows that such an order not being an interim order, was appealable before the High Court. There is, therefore, no substance in this contention as well." (ii) Ch. Jalal Din v. Mst. Asghari Begum and others (1984 SCMR 586);
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' In the above case, the facts were that the petitioner had entered into an agreement with one Mst. Amir Begum for purchase of property bearing Nos.332, 332-A and 333 situated at Shahrah-e- Sarwar, Lahore, for consideration of Rs, 75,000 out of which he paid her Rs, 40,000 in advance, but before the contract of sale could be finalised and a sale-deed, could be executed, Mst. "Amir Begum expired without leaving behind any heir. According to the petitioner, the above property escheated to the Government. He filed a suit, against the Province of .Punjab for specific performance and possession, which was decreed ex parte on 20-3-1979 and a sale-deed was executed through the Court on 15-12-1979. Respondents Nos. 1 and 2, claiming themselves to be the daughters of Mst. Amir Begum, moved an application for setting aside said decree under section 12 (2) and Order 9, Rule 13, C.P.C. On the ground that the petitioner had obtained it by practising fraud upon the Court. The reliance was placed by them on the factum that the Lahore Cantonment Authorities had on 20-9-1978 mutated the property in their names as the legal heirs and that the petitioner concealed the above facts. The above application was contested by the petitioner and inter alia it was pleaded that respondents Nos. 1 and 2, had no locus standi to file the above…
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