1986 PLP 456 (CLC)

(2) Any transferee of the interest of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit. (3) Any auction‑purchaser may appeal from an order in execution setting aside the sale on the ground of fraud. (No person unless he is a party to the suit, is entitled to appeal under this section. But a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment and if it would be binding on him as res judicata, under Explanation 6 to section 11." The last statement seems to be supported by some of the decided cases and also the practice prevailing in several High Courts. This position also emerges from the decision of the Madras High Court in Indian Benck Ltd. v. Bansiram Joshamal Firm A I R 1934 Mad. 360, which was accepted as correct by a Bench of the Bombay High Court, in Bombay Province v. Western Indian Automobile Association A I R 1949 Bom. 141 to that extent. The position is stated in the Annual Practice (1963 Edition) Volume 1 at page 1658 thus: "Any party to the action may appeal, for example, one alone of several plaintiffs and also any person served with notice of the judgment or Order XVI, rule

40. But in addition, in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion, to the Court of appeal) if he could possibly have been made a party to the action by service. It does not require much to obtain leave, making out a prima facie case that he is a person interested, aggrieved or prejudicially affected by the judgment or order and should be given leave, will obtain it; but he cannot appeal without." To a similar effect is the passage contained in Halsbury's Laws of England (IVth Edition, Volume 37, page 520 (para. 679), which is as under:‑‑

"A person who is not a party and who has not been served with such notice of the judgment or order may obtain leave to appeal, as may a person who alleges that he is aggrieved by the judgment or order and who can make out a prima facie case why he should have leave, but leave will not be given to a person who could not have been a party." In leading case on the point. In re: Securities Insurance Company, (1894) 2 Ch. 410, Lindley, L.J; has stated the rule thus:

"Now what was the practice of the Court of Chancery before 1862, and what has it been since? I understood the practice to be perfectly well‑settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require such to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it, but without leave he is not entitled to appeal." The provisions as regards appeal in England are not materially different from those contained in the Civil Procedure Code or letter patent or Sind Rented Premises Ordinance. In neither of them is there any express mention of persons who could appeal. In my opinion the practice consistently followed by the English Courts is a just and equitable practice and is in no way inconsistent with the doctrine that a right of appeal can only be created by Statute. I agree with the learned Judges of the Bombay High Court that there is no reason why the practice should not be followed by Courts in Pakistan. It is needless to say that the appellant No. 2 was the party in the eviction application which was compromised and as a result thereof, he agreed to hand over vacant possession of the premises in dispute on or before 30‑11‑1978. The respondent filed execution application and obtained the possession of the premises in dispute through the bailiff of the Court. His case in the appeal is that the respondent obtained possession of the premises in dispute by committing fraud on the senior Civil Judge and Rent Controller. He ought to have filed application under section 12(2), C.P.C. But the appellant No. 2 did not file an application under section 12(2) of Civil Procedure Code and this plea cannot be considered in this appeal. All that I can say is that if there is such a plea of fraud, it is open to the appellant No. 2 to file a fresh application under section 12(2), C.P.C. and the present judgment by this Court will, in no way, stand in the way of appellant No. 2 starting such proceedings which certainly will be considered on its merits by the Senior Civil Judge and Rent Controller. He cannot file appeal as of right. I am of the view that he can file appeal with the leave of the appellate Court. In this case he did not seek leave of the appellate Court and no oral request was made to this effect as such the appeal filed on his behalf is not competent and the same is dismissed. On the question of limitation, the relevant dates are 15‑10‑1980 when the respondent got the possession of flat in dispute under the writ of possession issued by the Court or Rent Controller in Rent Case No. 3297 of 1974 and on 15‑3‑1981 when the appellant No. 1 presented an application under section 12(2), C.P.C. read with Order XXI, rule 100, C.P.C. Under Article 165 an application by a person dispossessed of immovable property and disputing the right of the decree‑holder or purchaser at a sale in execution of a decree to put into possession can be filed within thirty days from the date of dispossession. Under Article 181 an application for which no period of limitation is provided elsewhere in this Schedule or by section 48 of the Code of Civil Procedure, 1908 can be filed within three years. After hearing the matter at length and carefully considering the submissions made by the learned counsel, I agree with the proposition that the period of thirty days provided by Article 165 could be applicable. That being so, it could not be treated as an application for which no period of limitation is provided by the relevant law. The residuary Article in the Limitation Act in terms does not apply to this case. Admittedly, the learned Rent Controller correctly held that the application under Order XXI, rule 100, C. P. C. was time‑barred In the circumstances it was not necessary for the learned Senior Civil Judge and Rent Controller to go into other questions or frame issue or to take down evidence. Then there is the further question whether applying Article 165, the application presented on 15‑3‑1981 was within time under that article. As already stated` that .the respondent got the possession of the disputed premises on 15‑10‑1980 in pursuance of the writ of possession. If the starting point of limitation is the date of dispossession, then the application must be held to be barred, unless the period during which Suit No. 4141 of 1980 filed by the appellant No. 1 against the respondent on 1‑11‑1980 which is still pending, is deducted under section 14, Limitation Act. It seems that the appellant No. 1 did not file any application under section 14 of Limitation Act alongwith application under Order XXI, rule 100, C. P. C. I am of the view that under section 14 of the Act indulgence cap only be granted in cases of a mistake or error committed by a reasonable and prudent man exercising due diligence and caution. Where the mistake of the learned counsel is "unaccountable and the result of carelessness and total lack of due care and attention" the said conduct cannot be a ground for relief under section 14 of the Limitation Act. Mr. J.H. Rahimtoola, the learned counsel for the appellants has contended that application under Order XXI, rule 100, C. P. C. was competent. On the other hand Mr. Khurshid Anwar Shaikh, the learned counsel for the respondent has submitted that the application was incompetent. The question falling for determination in this appeal is, whether the Rent Controller had the jurisdiction to entertain and hear the application? The decision of this question largely depends upon the true interpretation of section 22 of the Sind Rented Premises Ordinance, 1970. According to the learned counsel for the appellants the ejectment order is executable by the Rent Controller and, therefore, all the equitable principles contained in C. P. C. are fully attracted. He heavily relied upon Messrs Bambine Ltd. v. Messrs Lelmor International Ltd. and another P L D 1983 S C 155 wherein the Hon'ble Supreme Court has taken the view that under section 22 an order passed by the Controller or 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. It, therefore, was vehemently argued, that the Rent Controller should have held an inquiry into the question of appellant No.l's tenancy right but he illegally declined to exercise the jurisdiction vested in her. It is advantageous to reproduce section 17 of the repealed Ordinance and section 22 of the Sind Rented Premises Ordinance, 1979 which read as under: "

17. Execution of orders‑‑ 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." "

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." There is a change in the forum entrusted with the execution of the ejectment order. Section 17 of the repealed Ordinance provides that an order shall be executed by a civil Court having jurisdiction in the area as if it were decree of that Court. The variation, is, not undesigned. It is indicative of the intention of the Law‑maker, to take away such execution from the civil Court and confer it on a special Tribunal, which was held in Khadim Mohyuddin v. Rehmat Ali P L D 1965 S C

459. Rules 99, 100 and 101 of Order XX, C. P. C., empower the Court to investigate the rights of a person other than the judgment -debtor who resists the decree‑holder, in obtaining possession of immovable property, against whom the decree is to be executed, or in execution of the decree is dispossessed after the enforcement of 1979 Ordinance, the 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. A close examination of these provisions of the C.P.C. and section 22 amply indicates that under this section the right of a third person to file objections to the execution of the ejectment order, before the forum executing it, is intended to be taken away. The language of the section is quite plain and clear. The existence of relationship of landlord and tenant is the foundation of the jurisdiction of the Rent Controller. If a person other than a tenant is, arrayed before him, his jurisdiction cannot be extended to adjudicate upon the rights of such person and give him a relief. In Haji Ahmed Haji Essa v. Rent Controller, etc. 1983 C L C 840, a Division Bench of this Court laid down the following dictum: "In this view of the matter we are inclined to hold that the learned Rent Controller cannot entertain objections, in which the objector claims a tenancy right in his favour as the same will be a question foreign to the rent proceedings, in which the ejectment order was passed. The question whether respondent No. 3 in fact had become tenant in April, 1977, is a question which may be agitated by respondent No. 3 before any other competent forum but in an execution proceeding, the learned Rent Controller is not entitled to adjudicate upon the status of respondent No. 3 as a tenant of the petitioner." The dictum is applicable to the facts of this case. I am of the view that the learned Rent Controller correctly held that the application is incompetent. There is another aspect of the case. The Suit No. 4141 of 1980 is still pending. In this view of the matter the application under Order XXI, rule 100, C. P. C. was rightly dismissed by the Rent Controller. The point about the maintainability of application under section 12 (2), C. P. C., the contention of Mr. Rahimtoola is that the application under section 12 (2), C. P. C. was maintainable. On the other hand Mr. Khurshid Anwar contends that the application was not maintainable. The grievance of the appellant No. 1 is that he was inducted by the respondent as a tenant in respect of Flat No. 1 at a monthly rent of Rs.650. According to him the respondent received from him two years' advance rent against two receipts issued by the respondent. His case is that he was dispossessed by the respondent. The case of the appellant No. 1 is that the appellant No. 2 had already surrendered the possession of flat in dispute to the respondent and thereafter the respondent rented out the flat in dispute to him. In these circumstances the grievance of the appellant No. 1 is that he was dispossessed from the lawful possession and he cannot plead cause of the appellant No.

2. In the circumstances I am of the view that the appellant No. l would not be permitted to file an application under section 12 (2),1 C.P.C. The Rent Controller is, in my opinion, right in holding that the application was incompetent. The last point about the scope of the powers of Court under section 73, Evidence Act. Mr. Rahimtoola, the learned counsel has contended that section 73, Evidence Act did not entitle the Court to assist a party to the proceedings. It entitled the Court only to assist itself for a proper conclusion in the interest of justice. His contention is that the order of the Senior Civil Judge and Rent Controller, in so far as it related to disposal of the application was not legal and was beyond the scope of section 73 of the Evidence Act. The appellant No. 1 in paras. 5 and 6 of his application under section 12 (2), C. P. C., stated that respondent agreed to his request and rented out the flat in dispute to him. The respondent took an advance rent of one year and thereafter sent a receipt Annexure 'C'. The respondent met him and demanded another one year advance rent. The appellant No. 1 being relative paid him another one year advance and thereafter the respondent sent him receipt. The photostat copy thereof was annexed as Annexure 'D' to the application. The respondent filed objections and stated therein that Annexures 'C' and 'D' are bogus, fictitious and forged documents. Section 73 of the Evidence Act, reads as under: "Comparison of signature, writing or seal with others admitted or Proved: ‑‑ In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words of figures alleged to have been written by such person. This section applied also, with any necessary modification to finger impressions." Evidence Act recognises two direct methods of proving the hand writing of a person: (i) By an admission of the person who wrote it. (ii) By the evidence of some witness who saw it written. These are best methods of proof. These apart, there are three other methods of proof of opinion. They are: (a) By the evidence of a handwriting expert (section 45) (b) By the Evidence of a witness acquainted with the handwriting of the person who is said .to have written the writing in question (section 47) (c) Opinion formed by Court on comparison made by itself (section 73). All these three cognate modes of proof involve a proof of comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned documents. The first paragraph of section 73 provides for comparison of signature, writing or seal purporting to have been written by a person) with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not say by whom suchl comparison may be made. It is clear that such comparison may be made by a handwriting expert (section 45) or by one familiar with the handwriting of the person concerned (section 47) or by the Court. A sample writing taken by the Court under the second paragraph of section 73 is in substance and reality, the same thing as admitted writing within the purview of the first paragraph of the section. Section 73 is, therefore, to be read as a whole in the light of section

45. Thus it is clear that a Court trying a suit or Controller trying an eviction application or holding an inquiry under Order XXI, rule 100 or section 12 (2), C. P. C. does not exceed its powers under section 73, if in the interests of justice, it directs the defendant/ respondent person appearing before it, to give his sample writing to enable the same to be compared by a handwriting expert chosen or approved by the Court/ Controller, because even in adopting this course, the purpose is to enable the Court/ Controller before which he is ultimately put up for trial to compare the disputed writing with his (defendant/ respondent's) admitted writing, and to reach its own conclusion with' the assistance of the expert. In the instant case, the Senior Civil Judge/Rent Controller, did not apply this test to the present case. The Senior Civil‑Judge did not direct the respondent to execute sample writing. The respondent in his objections stated that Annexures 'C' and 'D' are forged, fictitious and bogus but no attempt was made by him for sending the disputed documents and admitted documents to the handwriting expert. It is not apparent from the record that the admitted signature, writing was before the Senior Civil Judge except the signature of the respondent on this record. I am of the view that section 73 does not entitle the Court to assist a party to the proceedings. It entitles the Court to assist itself to a proper conclusion in the interest of justice. Mr. Khurshid Anwar Shaikh, the learned counsel for the respondent has fairly conceded that the observation of the learned Senior Civil Judge to the effect "I have compared the signature of the D/H with his signature on these receipts and find that there is a difference in writing the word 'R' 'G' and 'Hyder' be expunged. Therefore, in my opinion, these receipts have not been issued by the "D/H" be expunged from the record. In these circumstances, in the interest of justice, the observations of the learned Senior Civil Judge are expunged from the order. I refrain to express any opinion on the divergent contentions of the learned counsel for the parties regarding the relationship of landlord and tenant between the parties and the illegal dispossession appellant No. 1 or the same was outcome of fraud as it is likely to prejudice the case of either of the parties in Suit No. 4141 of 1980 pending adjudication. The F.R.A. No. 43 of 1984 is accordingly dismissed. In the circumstances of this case the parties will bear their costs. A. A. Appeal dismissed.