1997 PLP 1109 (CLC)

(a) Whether the plaintiff is the tenant of the defendant in respect of suit premises? (b) Whether the boundary wall around the area and the suit premises is the property of the defendant? (c) Whether the finding of the controller in respect of the title ownership of the suit premises is conclusive? (d) Whether the construction of the suit premises was made by plaintiff? (e) Any other relief. In support of their claim the respondent No. l examined himself and S. Akbar, Raja Muhammad Hanif, S. Mir Badshah, Khursheedul Hassan, S. Manzoor Hussain and Syed Faqir. While the applicant examined himself and witnesses Habibullah, Mr. Sharif, Din Muhammad and Abdul Razzak. After hearing the parties the learned Civil Court dismissed the suit vide judgment dated 8‑11‑1982 and decree dated 8‑12‑1982. The respondent No. l filed an appeal being Civil Appeal No.133/1985. The learned Appellate Court allowed the appeal and decreed the suit filed. by the respondent No.

1. This Revision Application is directed against that judgment. While assailing the impugned judgment learned counsel for the applicant contended that in view of section 15(5) of the Rent Restriction Ordinance, 1959. The prayer of the respondent No. l could not be granted and in view of statement made in plaint the Court ought to have rejected the plaint, as barred by law. The said subsection reads as follows:‑‑ "(5) No order passed by the Controller, the Appellate Authority of the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance." He relied upon the judgment of the Hon'ble Supreme Court reported as (Zahurul Hassan v. Mst. Ruqqia Begum and 4 others PLD 1981 SC 112) at page

116. He further contended that the learned Appellate Court did not take into consideration the rent receipts which are available on record. He further contended that the learned Appellate Court framed a new issue which is reflected at page 49 of the record and answered the same and such framing of issue and it was stated as to whether the applicant is owner is unwarranted. It was in fact the respondent No. l who had filed the suit and the issue should have been whether the appellant before the Appellate Court (before me respondent No. l) was owner or not. Against the above contentions Mr. Rashid Yousuf Zai, learned counsel appearing for the respondent contended that the only point which needs to be determined is whether the applicant is owner by virtue of gift or the respondent No. l owner by virtue of purchase from Salah Shah since 1953. According to him the judgment of the Appellate Court has taken into consideration the entire evidence available on record and the judgment passed by him is not assailable and no exceptions can be taken against the judgment. I have given anxious consideration to the various pleas urged by the parties and have gone through the record with the assistance of the learned counsel. Perusal of the plaint reveals that in paras. 3 and 4 the proceedings before the Rent Controller are mentioned. In para. 5 he mentioned that he filed appeal which was withdrawn. The order of Appellate Court is at page 63.This appeal against the order dated 31‑5‑1965 was withdrawn and the Court passed the following order:‑‑ "The appeal is allowed to be withdrawn. The appellant can file a civil suit if he wishes (Sd). Additional District & Sessions Judge, Karachi." In my, humble view the suit filed by the plaintiff in which declaration was sought in relation to the order passed by the Rent Controller dated 31st May, 1965 illegal, inoperative, misconceived and void was hit by the provisions of section 15(5) of the Rent Restriction Ordinance, 1959 and the plaint ought to have been rejected in terms of Order VII, Rule 11, C.P.C. as it is specifically barred under the law i.e. section 15(5) of the Rent Restriction Ordinance, 1959. , The plaint, therefore, is rejected. I also find that the permanent injunction could not be granted, as the respondent No. l has undertaken before the Magistrate that he shall abide by the decision in the rent case in paragraph No.2 of the compromise which is quoted I(3 in the earlier part of this judgment. In view of such statement prayer for injunction in terms of section 560) of the Specific Relief Act cannot be granted and would be hit by the principles of estoppel. Section 560) is reproduced hereunder:‑‑ "

56. An iniunction cannot be g‑ranted.‑‑‑ 0) when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the Court; Since I looked to the evidence and found that the respondent No.l is not entitled to the injunctions under section 560) of the Specific Relief Act, as C such I would agree with the trial Court and would dismiss the suit although for different reasons. The contention of the learned counsel for the respondent No. l is that the applicant has given no objection when his rent appeal was withdrawn which is apparent as such he is estopped from challenging the jurisdiction of Civil p Court. The jurisdiction of a Court is conferred and regulated by the law. The orders of the Court do not confer jurisdiction. There is no estoppel against the law nor there can be waiver against the statute. The contention of the learned counsel has no force. In view of the above discussion on the principles of law applicable to the case I find that the respondent No. l was not entitled to the relief prayed by him in the suit. His suit is barred by law and the plaint is rejected, and also suit p is dismissed. This revision application is allowed and impugned judgment of the Trial Court is restored dismissing suit. The parties are left to bear their own costs.; A.A./M‑169/K Revision accepted.