1990 PLP 1689 (MLD)

Mr. Muhammad Salim Qureshi, learned counsel appearing for the respondent has contended that the application under section 12(2) C.P.C. was not maintainable in law and, therefore, the learned Rent Controller has rightly dismissed the said application. As far as the other contentions of Mr. Maroof Ali were concerned, the same could be adjucated upon only by the learned Rent Controller, if the application was held to be maintainable. In support of his contentions, he has relied upon:‑‑ (1) P L D 1974 Kar. 426 (2) P L D 1982 Lah. 702 (3) 1986 C L C 2471 I have considered the contentions of the learned counsel. Since the application filed by the applicant under section 12(2) C.P.C. has been dismissed by the learned Rent Controller, on the ground that it was not maintainable and he has not gone into factual aspect of the application, I agree with Mr. Muhammad Salim Qureshi that it is not necessary for me to go into the factual aspect of the application and to decide the same one way or the other. As far as the question regarding maintainability of the application was concerned, Mr. Maroof Ali Khan has relied upon the following cases:‑‑ (1) Shabbir Hussain v. Mst. Anwar Sultana through her legal heirs 1986 C L C 903 wherein it was observed that:‑‑ "Where the order of the Rent Controller directing ejectment was confirmed by the High Court and Civil Petition for Leave ‑to Appeal had also been dismissed by the Hon'ble Supreme Court, application under section 12(2), C.P.C. could be riled only before the Court which passed the final judgment, decree or order. Even a separate suit after the amendment, introduced by Ordinance X of 1990 by incorporating subsection (2), of section 12, C.P.C. could not be filed." (2) Shafi Muhammad and 13 others v. Muhammad Farooq and others 1989 C L C 937; wherein the various orders passed by the learned Rent Controller were challenged by way of application under section 12(2) C.P.C. on the ground of fraud and misrepresentation. However, since the plea of fraud was not raised at an early stage but was taken at belated stage, it was held that:‑‑ "The present application was not maintainable in law, is without any basis and appears to be frivolous with a motive to deprive respondents Nos.1 to 3 of reaping fruit of the order dated 28‑5‑1985 as long as possible and the application was dismissed." (3) Ismail v. Gul Anayat Shah 1983 S C M R 1421; wherein leave was granted by their Lordships of the Supreme Court on the ground that the question whether the provisions of section 12(2) C.P.C. are applicable to cases decided under Sindh Rented Premises Ordinance requires examination. (4) Haji Abdul Rashid v. Chaudhry Fateh Muhammad 1986 S C M R 237; wherein the appeal was decided by the High Court by compromise of the parties by which the tenant was granted time for handing over possession. However, when, after the stipulated period, execution application was filed, the tenant filed an application under section 12(2) C.P.C. challenging the compromise order of eviction on the sole ground that the counsel, who entered into compromise was not authorised by him to do so. The High Court was pleased to dismiss the application on the ground that the tenant had taken benefit under compromise and had filed application only after execution application was filed and, therefore, the application was dismissed. The tenant filed petition before the Hon'ble Supreme Court for Leave to Appeal but the same was dismissed on the ground that the learned Judge in the High Court has rightly observed that he was not satisfied by the delay which showed that after enjoying the benefits under the order, the petitioner thought it fit to challenge it only when he was obliged to vacate the premises. Mr. Muhammad Salim Qureshi, learned counsel appearing for the respondent has relied upon the following cases:‑‑ (1) Saify Development Corporation Karachi v. M.A. Karim P L D 1974 Kar. 426; wherein it was observed that:‑‑ "It is well established that an executing Court cannot go behind the decree and, if it is claimed that the decree is wrong or even that it is fraudulent or for any other reason nullity executing Court cannot entertain any such objection. (2) Malik Muhammad Shari v. Muhammad P L D 1982 Lah. 702 it was held that:‑ "In view of the words `suit', `Court', `Code', `judgment' and `decree' used in section 12, it appears that it is a provision which applies to suits and not to application made to the Rent Controller under the Rent Restriction Ordinance:' (3) Muhammad Yousuf v. Wali Muhammad and another, 1984. C L C 1690; it was held that: "The provisions of section 12(2), C.P.C. do not apply to the rent proceedings and if the ex parte judgment or order was obtained by practising fraud, suit was maintainable under section 9 C.P.C. There are two more decisions which support the learned counsel for the appellant that section 12(2), and Order IX C.P.C. could be applied in ejectment matters. In the case of Mamoor Khan v. Nasiruddin alias Nasir Muhammad and 5 others 1985 C L C 130, it was held by this Court that: "By now it is well settled that the provisions of section 12(2) C.P.C. as well as Order IX C.P.C. can be availed of by the parties litigating before Rent Controller." In the case of M/s. Bambino Ltd. v. M/s. Selmor International Ltd. and another P L D 1983 S C 155, it was observed by their Lordships that: "Although the Civil Procedure Code was not applicable in terms to proceedings before 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:" From the above decisions relied upon by the learned counsel appearing on both sides, it is clear that although the earlier view taken by this Court as well as Lahore High Court was that section 12(2), C.P.C. was not applicable to the rent proceedings but subsequent decisions of this High Court go a long way to show that section 12(2), C.P.C. was applicable to the cases decided under the Sindri Rented Premises Ordinance 1979. Even in the case of Haji Abdul Rashid, their Lordships of the Supreme Court did not say that the application under section 12(2), C.P.C. was not maintainable under the law but the leave was refused because stand taken by tenant was unconscionable inasmuch as he had! filed the application after reaping the fruits of the compromise. As far as the case of Ismail was concerned, the leave was granted to consider the question whether the provisions of section 12(2), C.P.C. was applicable to the cases decided under the Sindh Rented Premises, Ordinance, 1979. In the case of M/s. Bambino Ltd. v. M/s. Selmor International Ltd. and another P L D 1983 S C 155, it was observed by their Lordship of the Supreme Court that : "The Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure." In view of the above factual as well as legal position, I allow this appeal and set aside the impugned order. The matter is remanded back to the learned Rent Controller to decide the application on merits, after allowing the parties to a lead evidence if any within two months from the date of receipt of this order. The learned counsel appearing for the parties are present in Court and they are directed to appear before the learned Rent Controller on 6‑5‑1990. Mr. Muhammad Saleem Qureshi learned counsel appearing for the respondent/landlady is further directed to file objections if any regarding factual aspect of the application under section 12(2), C.P.C. A.A./M‑1123/K Appeal allowed.