1989 PLP 4521 (MLD)

Muhammad Altaf Khan for Respondent No.1. Mian Jamil Ahmed for Respondents 2 and

3. Date of hearing: 11th December, 1988. In this Constitutional petition, legality of order, dated 9‑6‑1987 passed by Civil Judge 1st Class/Rent Controller Faisalabad has been called in question.

2. Through the impugned order, the learned Rent Controller has issued temporary injunction on the application of respondents 2 and 3 who had filed an objection petition in the execution proceedings regarding an ejectment order, obtained by the petitioner against the' alleged tenant. It was prayed by respondents 2 and 3 that during the pendency of their objection petition, the present petitioner be restrained from alienating the properly and from raising any construction thereon.

3. Learned counsel for the petitioner argued that under section 17 of the Rent Restriction Ordinance, 1959, the Rent Controller is to execute an order of ejectment whereas previously the law was that an order of ejectment passed by Rent Controller was to be executed by a Civil Court as if it was a decree passed by Civil Court, as such the Rent Controller has no jurisdiction to exercise jurisdiction vested in a civil Court while trying a suit under Order 39 Rules 1 and 2, C.P.C. because such a jurisdiction is vested only in a Civil Court. He also maintained that if any construction was raised by the petitioner and ultimately the respondents 2 and 3 succeeded in their objection petition, the property may be restored to them alongwith the additional construction for which the petitioner undertakes not to claim any compensation and he would raise the construction at his own risk. About alienation, he submitted that the jurisdiction has been exercised against law whereas law specifically secures the rights of respondents 2 and 3 against any alienation made during the pendency of proceedings which shall not affect the rights of respondents 2 and 3, if ultimately they succeeded as the alience shall be bound by the order on the principle of lis pendens.

4. Learned counsel for respondents 2 and 3 conceded that regarding additional construction they would not suffer irreparable loss due to the undertaking given by the learned counsel for the petitioner, that if the said respondents succeeded and they are given possession of the property, they shall get the same with additional construction if any raised by the petitioner. About the applicability of rule of lis pendens he also as a matter of principle conceded the legal position that any alienation if made by petitioner during the pendency of the objection petition shall be hit by principle of lis pendens and any person getting the property shall be bound by the order. In view of this legal position, on the two points on which the order for temporary injunction has been passed, I am i not called upon to decide in these proceedings whether the Rent Controller while executing an ejectment order has the jurisdiction to issue temporary injunction. Suffice it to say, that in this case the impugned temporary injunction order has been passed against the principles of law settled by the superior Courts i.e. existence of prima facie case, balance of convenience and irreparable loss. Unless se three necessary ingredients are present no injunction order could be passed the visions of Order 39 Rules 1 and 2, C.P.C. are held to be applicable. In even if pro view of the undertaking given by the learned counsel for the petitioner for not claiming any compensation for additional construction and that against alienation rule of lis pendens is applicable, these ingredients can safely be held to he not present in this case as no irreparable loss could be held to accrue.

5. For the foregoing reasons, this writ petition succeeds. It is accepted. The impugned order, dated 9‑6‑1987 is hereby declared to have been passed without lawful authority and quashed. It is however made clear that if during the pendency of the objection petition filed by respondents 2 and 3, the petitioner raises any additional construction over the property and the objection petition is allowed and respondents 2 and 3 are found entitled to the possession of property, the petitioner shall deliver the property with additional construction without claiming any compensation from the said respondents. The parties are left to hear their own costs. The learned Rent Controller is directed to dispose of the objection petition finally before 30‑6‑1989 positively and report compliance of this direction. M.Y.H./M‑1161/L Petition allowed.