P L D 1980 Lahore 675 (PLP)

This revision calls in question the orders dated 15-9-1978 and 19-1?-1978 respectively passed by a Civil Judge, First Class, Lahore and the Additional District Judge, Lahore. This case has a chequered history and the facts necessary for the purpose of this revision, briefly stated, are as under,

2. The dispute relates to a property bearing No. SE-27-R-I, situate Egerton Road, Lahore. This was an evacuee property in occupation of the Punjab Association Club, Lahore as tenant under the Rehabilitation Department. Respondent No. 2 being successful in the drawing of lots in the earmarking scheme was transferred this property some time in 1960. After transfer of the property to respondent No. 2 he made an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) for ejectment of the petitioner, inter alia, on the grounds of default in the payment of rent .and requirement of the premises in dispute bona fide for his personal use and occupation. This application for ejectment as also appeal before the Lower Appellate Authority and the second appeal .in the High Court failed. Respondent No. 2 then filed a Civil Petition for Special Leave to Appeal in the Supreme Court, which on grant of leave, was converted .to Civil Appeal No. 47/76. During the pendency of this Civil Petition for Special Leave to Appeal in the Supreme Court, respondent No. 2 entered into an agreement with respondent No. l for sale of the property for a consideration of Rs.9.00,

000. This agreement is dated 29-6-1974. It appears that respondent No. 2 was negotiating some settlement with the petitioner-club for obtaining possession of the premises in dispute. Respondent No. I after entering into the aforesaid agreement with respondent No. 2 wrote a letter to the latter to continue negotiations with the petitioner for obtaining possession and that be would pay a sum of Rs. 2,00,000 to the club for surrender of the possession. As a result of the negotiations an agreement dated 3-7-1974 was entered into between the petitioner and respondent No.

2. Copy of this agreement is available on the record of the case. The salient features of the agreement are contained in clauses (2) and (3) thereof which tun as under : -; "(2) On the presentation of the joint application before the Su army Court of Pakistan, a representative of Pirzada Nazir Hasan, n dated Maj. Ijaz Ahmad Khan, will hand over P. O. No. 312170? dated 3-7-1974 for Rs. 2,00,000 only in favour of the Punjab Association Club to Mr. Dilawar Hussain Qureshi and Mr. Mumtaz A. Sheikh. This amount of Rs. 2,00,000 paid to the Punjab Association Club for surrendering its right to remain in possession and to deliver the vacant possession and the expenses incurred in connection with construction of annexe, replacement of roofs, tube-well and repairs, etc. for the last several years will satisfy the Club; (3) that the Punjab Association Club will thereby concede the ejectment of the Club in the proceedings pending before the Rent Controller, Lahore in a suit filed by Pirzada Nazir Hasan for default for payment of rent by the Club and make a request for a consent decree for ejectment." '

3. Another facet of this litigation is that differences arose between respondents Nos. 1 and 2 regarding the sale agreement of the property dispute as a result of which respondent No. 1 instituted a suit in the court? of Senior Civil Judge, Lahore on 7-x0-1974 for possession of the property dispute through specific performance of the contract of sale. In this suit his suit respondent No. 2 and the petitioner-Club were made defendants. This was decreed by judgment and decree of the learned Senior Civil Judge, dated 22-11-1974.

4. Respondent No. I preferred an appeal in this Court (It. F. A. No. 5/75) against the aforementioned judgment and decree of the civil Court dated 22-11-1974. By judgment of this Court dated 18-2-1977, the Regular First Appeal was decided, the decree for specific performance of the contract was maintained with the clarification that respondent No. 1 (plaintiff before required to pay all taxes and fees as mentioned in the agreement to se the sale-deed could be got registered.

5. Being still not satisfied, respondent No. 2 filed a Civil Petition for Special Leave to Appeal (C. P. S.. L. A. No. SIR/77) in the Supreme? Court against the judgment and decree of the .High Court dated 18-2-1974 made. Some? time in the latter part of 1976 the petitioner-Club and respondent No

2. I.e. the a joint application in the Supreme Court in Civil Appeal No. 47/76,? the appeal which . had arisen out of the ejectment proceedings initiated by respondent No. 2 against the petitioner praying for passing of a consent decree of ejectment against the petitioner-Club and for handing over possession of?? the property in dispute in terms of the agreement dated 3-7-1974'n order application came up before the Supreme Court when on 24-11-1975 n was passed as under : "`The proposal-appears to be a fair settlement of the dispute between the parties. The appeal is adjourned for six months. In case the appellant fails to pay the amount of Rs. 2,00,000 to the respondent within six months from the date of this order the appeal shall stand dismissed with costs. In the alternative, if he makes the Qayment, the appeal will succeed and the respondent will deliver possession,, to the appellant forthwith,".

6. Subsequently both Civil Appeal No. 47/76 filed by respondent No. 2 against the petitioner as well as Civil Petition for Special Leave to Appeal (C. P. S. L. A. No. 51-R/77) filed by respondent No. 2 against respondent No. 1 and the petitioner were taken up together and disposed of vide order dated 20-4-1977. - The Civil Petition for Special Leave to Appeal filed by respondent No. 2 against respondent No. 1 was dismissed on merits, whilst Civil Appeal No. 47/76 was disposed of in terms of the. agreement reached before the Supreme Court and incorporated in the order dated 24-11-1976 which was to the effect that on payment of Rs. 2,00,000 the petitioner-Club shall hand over vacant possession of the premises. It may be pointed out here that the sum of Rs. 2,00,000 was deposited by respondent No. 1 and a Pay Order pertaining thereto was handed over in the Court which was directed to be received by the petitioner-Club. The amount has since been admittedly received by the petitioner-Club.

7. Now commences the third phase of the case. After the disposal of the appeals in the Supreme Court as stated above, respondent No. 2 filed an Execution Application in the Court of a learned Civil Judge, Lahore. In this execution application filed on 6-6-1977 respondent No. 1 made an application for substitution of his name in place of respondent No. 2 on the basis that he had by then paid the total sale-price; the Supreme Court had dismissed the petition filed by respondent No. 2 against the decree passed against him for specific performance and delivery of possession of the property in dispute; and that respondent No. 1 had also paid the sum of Rs. 2,00,000 to the petitioner-Club for obtaining vacant possession.

8. On 16-10-1977, the petitioner-Club submitted an application before the Executing Court in the above execution proceedings stating that, on the one hand, respondent No. 2 was claiming possession of the property from the petitioner whilst, on the other, respondent No. 1 was claiming the same. It was also prayed therein that in view of the position that respondent No. 2's interest in the property had come to an end on account of the decree of specific performance passed against him, his execution application may be dismissed, or in the alternative, it be decided as to whom the petitioner Club should deliver the possession so that the Club does not commit the contempt of the High Courts.

9. Seven days after the filing of this execution application by respondent No. 2 in the ejectment proceedings, respondent No. 1 also filed an execution application against respondent No. 2 and the petitioner-Club in the Court of the Senior Civil Judge in pursuance of the decree for specific performance and possession of the property passed in his favour. In these execution proceedings also the petitioner-Club made an application on 15-10-1977 to the same effect which in essence prayed for a decision on the point as to whom the petitioner-Club should deliver the possession. In this execution application, respondent No. 1 also claimed the vacant physical possession of the property in the light of his having paid Rs. 2,00,000 to the petitioner-Club for surrender of the latter's right to remain in possession . It may also be pertinently stated here that the application filed by the petitioner-Club on 15-10-1977 in these execution proceedings though in the beading mentions as having been filed under sections 47 and 151 of the Code of Civil Procedure nowhere objects to the execution of the decree itself but only prays for decision as to the party to whom the possession may be delivered by the petitioner-Club.

10. All the objections of respondent No: 2 in these later execution proceedings were dismissed on 20-7-1978 by the learned Civil Judge who approved the draft of the sale-deed to be executed and got registered by the Court if respondent No. 2 failed to do the same. The draft sale-deed contained the stipulation of respondent No. 1's entitlement to obtain vacant physical possession of the premises in dispute and to this stipulation no objection was raised by the petitioner-Club although it was a party to the proceedings and had notice thereof. The sale-deed was ultimately executed and registered by orders of the Court on 26-7-1978.

11. Respondent No. 1 thereafter made an application on 30-7-1978 for issue of a warrant-of-possession. On this application again notice was directed to be issued to the petitioner-Club for 13-9-1978. This notice war returned to the Court duly served and appears at page 287 of the file. It was received by Mr. Mumtaz A. Sheikh on 31-7-1978. The learned Civil Judge seized of the matter passed an order on 13-9-1978 to the effect that the notice on the petitioner-Club had been served but no one appeared on its behalf and that since the execution had been filed within time warrant of possession be issued for delivery of possession to respondent No. 1 to be returned by 19-10-1978:

12. It appears that on the same date, viz. 13-9-1978 after the aforementioned order had been passed by the learned Civil Judge the petitioner Club made an application under section 151 of the Code of Civil Procedure for withdrawal of the warrant-of-possession issued against it and for decision of the matter in the light of the orders of the higher Court. It seems that on the same date when this application was taken up by the Court the couns-1 for respondent No. 1 also appeared and 14-9-1978 was fixed as the date filing of reply to the application of the petitioner-Club. This application of the petitioner-Club was dismissed by the learned Civil Judge by his order dated 14-9-1978.

13. Before concluding the facts, it may be observed that the warrant. of possession issued by the Court was executed and possession of the main building of the Club was delivered to respondent No. 1.

14. The petitioner then preferred an appeal to the learned Additional District Judge against the order of the learned Civil Judge dated 13-9-1978 whereby he had issued warrants for delivery of possession of the disputed property. It was prayed therein that the order dated 13-9.1978 passed by the learned Civil Judge may be set aside and the possession delivered in consequence of the said order be directed to be restored to the petitioner. This appeal was dismissed by the learned Additional District Judge, by his judgment dated 19-12-1978. It was, inter alia, held that not only the appeal was maintainable against the order of the Civil Judge dated 13-9-1978 but that the petitioner had no case on merits as well as it had surrendered the right to remain in possession of the property on receipt of Rs. 2,00,000 which sum it had admittedly received. Hence this revision. It may also be pointed out here that in this revision. in the prayer clause, what has been assailed are the orders dated 19-12-1978 and 13-9-1978 passed by the Additional District Judge and Civil Judge respectively whilst in the opening sheet of the civil revision, in the column of date of decision of the original suit, the date of the order as typed is 13-9-1978 but the figure 3 in 13 has been overwritten in ink so as to read

14. Again, in the same opening sheet, against -the column "order o? . first -Court- and state", it is stated as under; "Issued warrant-of-possession-on 1-3-9-1978.

15. The learned counsel for the petitioner contended;- ?Firstly, that there being no assignment in writing by respondent No. 2 decree-holder in favour of respondent No. I of the decree passed in ejectment proceedings in favour of the former, the decree could not be executed for the latter's benefit. It was urged that Order XXI, rule 16, C. P. C. in mandatory terms provides that the assignment has to be in writing. Reliance in this regard was placed on Ahmad - Shah and others v. Faujdar and others A I R 1920 Lab. 324, Shibcharan Dos v. Ram Chander and others A I R 1922 All. 98 and Mathurapur Zamindary Co. Ltd. v. Bhasaram Mandal acrd others A I R 1924 Cal.

661. Secondly, that the execution having been carried out without notice to respondent No. 2 is illegal and without jurisdiction even if no objection may have been taken by him. It was contended that the absence of notice renders the whole proceedings void. In support of this contention . the following cases were cited : Umamoyee Dosava and another v. Jatan Bewer and others A I R 1927 Cal. 781 and Partap Singh v. Gurditta Mal A I R 1917 Lab.

195. Thirdly, that the decree of ejectment passed in favour -of respondent No. 2 was on the ground of requirement of the premises in dispute .for personal bona fide use and occupation and the property having been sold to another persons and the order of ejectment being for the benefit of the .decree-holder the decree could not be made available for use and benefit of the successor of the decree-holder ; Fourthly, that service had been effected on the petitioner regarding issue of warrant-of-possession and as such the order proceeding Ex parte against the petitioner passed by the Civil Judge and directing issue of warrant-of-possession was based on Incorrect report and wag thus illegal.

16. In reply, the, learned counsel, for respondent No. I made the following submissions : (i) The warrant for delivery of possession had been issued by the Executing Court in the execution proceedings in the decree passed in favour of respondent No. I and against the petitioner and respondent No. 2 in the suit for possession through specific performance of the agreement of sale. It was urged that the Court executing the decree for specific performance of the agreement to sell can competently grant possession even though no relief of possession may have been asked for in the plaint or awarded by the decree as putting the plaintiff in possession is merely incidental to the execution of a document of sale. Reliance in support of the above contention was placed on the following cases : Birgis Man Bajiga Malik v. Muhammad Hussain and others P L D 1964 Dacca 202 ; Atal Behary Acharya v. Baroda Prasad Banerjee A I R 1931 Pat. 179 ; Arjun Singh v. Sahu Maharaj Narain A I R 1950 All. 415 ;. Sri Janardan Kishore Lal Sing Deo and another v. Girdhari Lai Sunda A I R 1957 Pat.. 701 ; Pt. Balmukand v. Veer Chand A I R 1954 All. 643 and Subodh Kumar Banerjee v. 8ira Mont Dasi and others A I R 1955 Cal. 267,. (ii) Applications dated 15-10.1977 filed by the petitioner in both the execution proceedings do not object to the delivery of possession as such or to the execution proceedings but merely seek a direction from the Court as to whom to find over the possession. The petitioner therefore cannot agitate against the warrant-of-possession once the Court had directed that possession be delivered to respondent No.. 1. (iii) The petitioner-Club in any case has no locus standi to object to the delivery of possession having admittedly received Rs. 2,00,000 from respondent No. I for surrendering its right to remain in possession as per terms of agreement dated 3-7-1974. It was argued that in view of the conduct of the petitioner revisional jurisdiction should not in any case be exercised in its favour ; it having benefited by the agreement cannot be allowed to retract from a part thereof. In support of this contention an unreported case titled Ata Mohyuddin v. Muhammad Nazir C. R. No. 78/75 decided by this Court was cited. (iv) No appeal lies against issuance of warrant-of-possession under Order XXI, rule 35, C. P. C. Reliance was placed on All Hussain v. Rafiquddin and 9 others P L D 1977 Lab. 418. (v) In the case in hand, execution having been taken out in the decree passed in the suit for specific performance in which respondent No. 1 was the decree-holder the question of notice under Order XXI, rule 16, C. P. C. did not arise. In any case, the petitioner and respondent No. 2 had due notice even if it be assumed that execution was in the rent case as they participated in proceedings all along, respondent No. 2 applied for being paid the sale price deposited in the Court and received the amount without raising any objections, both of them were before the Court when the draft of sale-deed containing the stipulation that physical possession was to be handed over to respondent No. 1 was submitted and did not raise any objection to said stipulation in the draft of sale-deed which was subsequently executed and got registered by the Court. In these circumstances there was otherwise also sufficient assignment of the decree in the rent case and the petitioner in any case is precluded to raise objection in this regard.

17. In so far as the contentions "firstly" .and "secondly" raised by the learned counsel for the petitioner are concerned, suffice it to say that those are based on erroneous assumptions. The basis of the contentions is that the execution as a result of which the petitioner had been dispossessed from the premises in dispute was taken out in the case filed by respondent No. 2 against the petitioner for the latter's eviction under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). A perusal of the record shows that the execution where-under the warrant-of-possession was issued for dispossession of the petitioner' was taken out in the suit for possession through specific performance filed by respondent No. I against respondent No. 2 and the petitioner. As indicated above, the, record further shows that after the culmination of proceedings in both Civil Appeal No. 47/76 and C. P. S. L. A. No. 5-1-R/77 which respectively arose out of the rent case. and the civil suit aforementioned by order of the Supreme Court dated 20-4-1977 whereunder the petitioner had received Rs: 2,00,000 from respondent No. 1, respondents Nos. I and 2 filed separate execution applications in the decrees passed in the civil suit and the rent case.

18. In the -execution application filed by, respondent No. 1, both the petitioner and respondent No: 2 who were defendants in the suit were made parties ; they were duly served and the petitioner was represented through a counsel also, the petitioner, itself filed an application on 15-10-1977 in these proceedings seeking a direction from the Court that since both respondents Nos. 1 and 2 were independently asking for physical possession of the premises in dispute it should be clarified as to whom the petitioner should deliver possession to avoid violation of the orders of the superior Courts. This application though made under sections 47 and 151 of the Code of Civil Procedure raised no objection as such to the taking out of the execution but essentially sought the clarification as stated above.

19. Again in these execution proceedings, respondent No. 1 submitted u draft of the sale-deed sought to be executed from respondent No. 2 in favour of respondent No. 1, and in the alternative, execution and registration thereof through the agency of the Court was prayed for. To this draft deed, which inter alia contained a stipulation that in view of the payment of Rs. 2,00,000 made by respondent No. I to the petitioner as consideration for surrender of latter's right to possession of the premises in dispute respondent No. 1 is entitled to actual physical possession thereof, the petitioner did not raise any objection though it was a party in the execution proceedings and was not only served therein but also represented by a counsel. It was respondent No. 2 alone who raised certain objections to the draft sale deed which were rejected by the Executing Court on 20-7-1978 and only thereafter notice for delivery of actual physical possession was given to the petitioner for 13-9-1978 by the Executing Court and the petitioner despite receipt of notice having not appeared on the date fixed, the warrant-of-possession was . issued. The petitioner, however, on the same date, viz. 13-9-1975, after issue of the warrant-of-possession, made an application under section 151 of the Code of Civil Procedure for withdrawal of the order directing issue of warrant-of-possession. This application was in continuation of the earlier application filed by the petitioner on 15-10-1977. It was dismissed by order of the Executing Court dated 14-9-1978.

20. In the context of the above factual position of the matter it is apparent that the question as to the assignment of decree or notice to respondent No. 2 would not arise as it was respondent No. 1 who himself was the decree-holder and could take out the execution proceedings. Both the contentions therefore have no force and being based on. a factually incorrect premises are repelled.

21. As regards the contention "thirdly", it may be observed that this also is covered by the above discussion and must necessarily fail on the above reasoning. It may, however, be additionally pointed out that this is also factually incorrect that the ejectment of the petitioner under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was directed in a case based on the ground of requirement of the premises-in dispute for personal bona fide use and occupation. The agreement entered into between the petitioner and respondent No. 2 dated 3-7-1974 whereunder the petitioner 'vas to receive the sum of Rs. 2,00,000 as consideration in full satisfaction of the latter's right to remain in possession itself mentions that the proceedings for eviction .of the petitioner taken by respondent No. 2 were based on the ground of non-payment of rent. Photostat of this agreement is available at page 31-33 of File No. 43/10.

22. Adverting, now, to the only other contention raised on behalf of the petitioner that no service had been effected on the petitioner regarding the execution taken out by respondent No. 1, one cannot resist saying that it appears that no effort was made to go through the record before making the submissions. - The record shows that after having the sale-deed executed in his favour, respondent No. I made an application on 30-7-1978 for issue of a warrant for delivery of actual physical possession to him in view of the petitioner having already received the sum of Rs. 2,00,000 and having surrendered his right to remain in possession. On this the Executing Court passed an order on 30-7-1978 directing issue of notice to the judgment debtor club (petitioner herein) for 13-9-1978. On this application, notice was issued to the petitioner-Club, which was duly served on Mr. Mumtaz A. Sheikh, Secretary of the petitioner-Club who received it under his signature on 31-7-1978 at 10 a. m. The served notice appears at page 287 of the file. When the petitioner did not appear despite having received notice obviously the Executing Court was competent to proceed ex parte against the petitioner and was justified in issuing warrant-of-possession on 13-9-1978 which it did with the further direction for return of the execution report by 19-10-1978. The fact that the petitioner had been served for 13-9-1978 also finds support from the fact that it moved an application on the same date, viz. 13-9-1978 under section 151, C. P. C., which as already stated above, was heard and disposed of by order of the Court dated 14-9-1978. It may pertinently be mentioned here that this application is dated 31-7-1978 but was kept and not filed till 13-9-1978 which further strengthens the position that the petitioner knew about the execution proceedings all along. This contention also being factually incorrect must also fail.

23. Apart altogether from the above position that the contentions raised on behalf of the petitioner have all failed, it may also be pertinently observed that the revision is liable to be dismissed for the following two reasons as well.

24. Firstly, that the revision against the order of the Additional District Judge dated 19-12-1978 is wholly misconceived. The learned Additional District Judge had dismissed the appeal of the petitioner preferred before him against the order of the Executing Court dated 13-9-1978 whereby it issued warrant-of-possession, both on merits as also on the ground of the appeal being not maintainable. No fault can be found with the order of the learned Additional District Judge in holding the appeal incompetent. The warrant-of-possession in this case had been issued under Order XXI, rules 32 and 35, C. P. C. Any order passed under the above provisions is not appealable under Order LXIII, rule 1, C. P. C. That being so, no appeal was competent and it was rightly dismissed as not maintainable.

25. The petitioner filed an application under section 151, C. P. C. with reference to its earlier application dated 15-10-1977 purportedly filed under sections 47 and 151, C. P. C. before the Executing Court. This application was dismissed by order of the Executing Court dated 14-9-1978 against which order the petitioner did not prefer any appeal. Had the petitioner filed at! appeal against this order it could be said that appeal was preferable under section 104, C. P. C. as an order passed under section 47, C. P. C. was appealable under the first-mentioned section. This is borne out amply from the record that no appeal was filed against this .latter order dated 14-9-1978 passed by the Executing Court.

26. The present revision, 4lso has been filed against the order dated 33-9-1978 of the Executing Court and the order dated 19-12-1978 of the learned Additional District Judge. Attempt made -by overwriting 13 in the opening sheet of the revision petition so as to make it 14 - is of no consequence when the prayer clause seeks setting aside of orders dated 13-9-1978 and 19-12-1978. Again even if it be assumed that the revision has been filed against the aforementioned order dated 14-9-1978 passed by the Executing Court, it does not lie as this was an appealable order. The revision is therefore liable to be rejected on this ground also.

27. Yet another reason for rejecting this revision is that the petitioner has not come to this Court with clean hands and has all along been using dilatory tactics to keep in abeyance the delivery of possession of the premises in dispute. There appears no justification to perpetuate the possession of the petitioner on the premises in dispute it having admittedly received the sum of Rs. 2,00,000 as consideration for surrender of its right to remain in possession. In Civil Revision No. 78/75 titled Khan Ata Mohiuddin v. Ch. M. Nazir decided by this Court on 3-6-1976, it was held that even if there be an illegality or irregularity committed in the orders of the Courts? below the revisional jurisdiction against such an illegal order will not be exercised in favour of a party who has drawn a benefit under some arrangement. It may also be pointed out that the decision in Civil Revision No. 78 of 1975 afore cited was upheld by the Supreme Court of Pakistan, by its judgment dated 6-4-1977, passed in Civil Petition for Special Leave to Appeal No. 538 of 1976. I am in respectful agreement with the principle laid down in the judgment dated 3-6-1976 passed by the High Court in Civil Revision No. 78 of 1975 and hold that the revisional jurisdiction should not be exercised in favour of a party by making fetish of a technicality especially where the party invoking the jurisdiction does not come to the Court with clean hands. The petitioner in the present case having received the sum of Rs. 2,00,000 cannot therefore be shown the latitude and indulgence to perpetuate its possession over the disputed property by taking shelter behind technicalities. In view of the foregoing discussion, there is no merit in. this revision: which is dismissed with costs. S. Q. Petition dismissed.