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Petitioner: LAJWANTI VS Respondent: ABDUL GHAFOOR
1987 S C M R 1744
1987 S C M R 1744
Present: Abdul Kadir Shaikh, S. A. Nusrat and Zaffar Hussain Mirza, JJ
Mst. LAJWANTI and another‑‑Petitioners
versus
ABDUL GHAFOOR and another‑‑Respondents
Civil Petition No.19‑Q of 1986, decided on 5th April, 1987.
(From the judgment of the Baluchistan High Court dated 7‑12‑1985, passed in F.A.O. No.52 of 1984).
Constitution of Pakistan (1973)‑‑
‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 15 & 16 [after amendment and omission of Explanation by Baluchistan Urban Rent Restriction (Amendment) Ordinance, 1960]‑‑Civil Procedure Code (V of 1908), O.1, R. 10‑‑Appeal against order of ejectment‑‑Civil Procedure Code, applicability of‑‑Leave to appeal granted to examine whether after omission of Explanation to S. 15 of Ordinance of 1959 by Baluchistan Amendment Ordinance, 1960, application of provisions including 0.1, R.10 of Civil Procedure Code, save as provided in S. 16 of Ordinance of 1959, stood specifically excluded for all practical purposes‑‑Petitioners directed not to be evicted from disputed premises till decision of the appeal provided rent was regularly deposited in terms of Rent Controller's order.
Khalid Malik, Advocate Supreme Court and Yaqoob K. Eusufzai, Advocate‑on‑Record for Petitioners.
Basharatullah, Advocate Supreme Court and S.A.M. Quadri, Advocate‑on‑Record for Respondents.
Date of hearing: 5th April, 1987.
ORDER
S.A. NUSRAT, J.‑‑The dipute in this petition relates to shop bearing No.l‑25/8, Shahra‑e‑Iqbal, Quetta. The shop in question was rented out by the respondents/ landlords to Poorandas, the predecessor‑in‑interest of the appellants, in 1974. The respondents made an application for ejectment of Poorandas under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the ground that the premises were required for the sons of respondent No‑1 namely Abdul Qayyum and Abdul Qadir. The application was contested by Poorandas and was dismissed by the learned Rent Controller on 13‑6‑1984. Poorandas died on 6‑7‑1984. The respondents challenged the Order of the Rent Controller by filing appeal under section 15 of the Ordinance in the High Court on 29‑7‑1984. The said appeal was filed against petitioners Nos.l and 2 alone. Alongwith the memo of appeal the respondents also moved an application requesting that the petitioners No. 1 and 2 may be directed to disclose the names of the other legal representatives of the deceased Poorandas, so that they may be joined as parties. The names of the other heirs d of deceased Poorandas, namely petitioners No.3 to 11 were disclosed by the first two petitioners on 5‑11‑1984. An amended memo of appeal was thereupon filed by the respondents on 10‑11‑1984 joining the petitioners No.3 to 11 as co‑respondents. The appeal was allowed by the learned High Court as per impugned judgment dated 7‑12‑1985 and hence this petition.
2. The learned counsel for the petitioners invited our attention to section 15 of the Ordinance which was amended by Baluchistan Urban Rent Restriction (Amendment) Ordinance 1960 w.e.f. 9‑3‑1980. Section 15 of the Ordinance before it was amended, contained an Explanation which read as follows:‑
"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 Controller and as an appeal from the appellate order under section 103 of the 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."
However, such explanation is not contained in the amended section 15 of the Ordinance. It was, therefore, contended by the learned counsel that the application of the provisions of the Code of Civil Procedure, 1908, save as provided in section 16 of the Ordinance, stand specifically excluded for all practical purposes, including the provision of Order I, rule 10, CIvil Procedure Code. It was then contended that the respondents' appeal against the petitioners No.3 to 11 had become barred by time when they were impleaded on 10‑11‑1984. The petitioners No.3 to 11 had thus acquired a vested right of not being proceeded against in the matter and in any case the judgment of the High Court was not executable against the petitioners.
3. It was further contended that the findings of the Rent Controller on the issue of bona fide requirement were not specifically adverted to and set aside by the learned High Court. Lastly, it was contended that the respondents had other commercial premises in their possession within the same urban area and as such the provision of section 13(3)(ii)(b) was not satisfied and this aspect of the case was not considered by the learned High Court.
4. After hearing the learned counsel for the petitioners and the learned counsel for the caveator, leave is, however, granted to examine the first above‑noted contention alone. Security Rs.500. The appeal will be heard on the same record. The petitioners will not be evicted from the disputed premises till the hearing of the appeal provided rent is regularly deposited in terms of the order of the Rent Controller passed in the case.
S.Q./L‑4/S?????????????????????????????????????????????????????????????????????????????? Leave to appeal granted. ?