1998 PLP 659 (SCMR)

3. It was during the execution proceedings, succeeding the judgment of the Balochistan High Court dated 16‑5‑1993, that respondent made an "Objection Petition" which was dismissed by the learned Rent Controller on 18‑8‑1983. On the intervenor making an appeal under Rule 1 of Order XLI, C.P.C., seeking reversal of this order dated 18‑8‑1983, the learned Additional District Judge‑I, Quetta stayed the execution proceedings on 22‑8‑1983. Ultimately, respondent's appeal was dismissed on 31‑12‑1983. The revision filed before the Balochistan High Court against this order also met the same fate on 28‑11‑1988. The matter came up before this Court in case reported as Haji Abdul Wali Khan and another v. Muhammad Hanif and another (1991 SCMR 2457). The report of the precedent aforereferred deals with Civil Appeals Nos. 17‑Q of 1985 and 25‑Q of 1987 which were decided on I 1‑8‑1991. Panultimate paragraph of the precedent reads thus:‑‑ "For the foregoing reasons we accept both these appeals and set aside the impugned orders of the High Court in both appeals. The question now is what consequential orders should be passed. In view of our decision that appeal was competent under section 15 the position was that the appeal filed by Haji Abdul Wali Khan (Civil Appeal No. 17‑Q of 1985) was competent but not before the District Judge as under the amended provisions as then applicable, the Rent Controller's order section 13 was appealable before the High Court. Therefore, the proper order for the learned Additional District Judge, Quetta, who disposed of that appeal as not maintainable for reasons already mentioned, was to return the appeal for presentation before the High Court. In any case, the matter was brought before the High Court in revision, which could have been converted into appeal and disposed of as such. Therefore, in Civil Appeal No. 17‑Q of 1985 we direct that the Balochistan High Court shall treat the revision filed by Haji Abdul Wali Khan as pending and may convert it into appeal after hearing the objections of the respondent, if any, and if the same is treated as appeal dispose it of as such on merits according to law. So far as Civil Appeal No.25‑Q of 1987 is concerned the case is remanded to the Balochistan High Court to dispose of the appeal filed by appellant Jalal Khan under section 15 of the Ordinance on merits according to law."

4. It was in the above circumstances that the impugned judgment was made by the Balochistan High Court, Quetta "in Civil Miscellaneous Appeal No.9 of 1992." Observing that the learned Senior Civil Judge/Rent Controller, Quetta did not frame any issue to decide the "Objection Petition" and no evidence was called resulting in the intervenor being deprived of the reasonable opportunity to produce whatever evidence he wanted to, to establish his Objections and further holding that " .. it is bounden duty of the Executing Court which has the power to entertain an 'Objection Petition' as envisaged by section 47 of the C.P.C. which is admittedly applicable to execution proceedings of an order of ejectment passed under the Ordinance to examine such evidence and decide the Objection Petition", the appeal was accepted, orders dated 18‑8‑1983 of Senior Civil Judge, Quetta as also dated 31‑12‑1983, passed by the learned Additional District Judge‑I, Quetta were set aside and the cause was remanded back to Rent Controller, Quetta for its decision afresh, after affording fair opportunity of hearing to all concerned after framing issues and obtaining evidence, if considered essential for the disposal of the cause.

5. Raja M. Ibrahim Satti, learned counsel appearing in support of this petition, has contended that the impugned judgment dated 17‑3‑1996 is liable to be reversed for the sole reason that the matter brought before the Balochistan High Court in revision was not competent and its disposal after treating the same as an appeal without considering the question regarding the same being barred by time, helps the case of the petitioner in that behalf. The questions of law which form part of the 'proforma' of this petition read thus:‑‑ "(a) Whether the appeal filed by the respondent before the High Court of Balochistan, Quetta was within time? (b) Whether the High Court was not bound to examine before entering into merit of the case that the appeal is within time or otherwise.? (c) Whether the objection petition filed by the respondent was at all competent? (d) Whether the learned executing Court was bound to record evidence in the execution application and whether the order of the learned Senior Civil Judge/Executing Court could have been set aside on this short ground?

6. Syed Iftikhar Hussain Gilani, learned counsel for the respondent /caveator has controverted the arguments and contended that impugned judgment having been rendered in strict compliance with the judgment of this Court in Haji Abdul Wali Khan (supra), the same is not liable to be interfered with by this Court, in these proceedings.

7. Perusal of the excerpt from the report in the case of Haji Abdul Wali Khan (supra) shows that neither there was any plea raised on behalf of the petitioner regarding the appeal against order dated 8‑8‑1983 having become barred by time nor any such objection was raised before the Balochistan High Court, Quetta, during the pendency of proceedings there, in terms of the judgment of this Court in Haji Abdul Wali Khan (supra). It is not the case of the petitioner that the other side was beyond time in making the appeal against the order dated 18‑8‑1983 of the Rent Controller before the learned Additional District Judge. Further, the petitioner has failed to even so much as refer to the time spent by other side in pursuing their matter before the forums aforereferred i.e appellate forum and the revisional forum being, respectively, the Court of Additional District Judge‑I and the Balochistan High Court, Quetta. The latter forum was seized of the case strictly in accordance with the judgment dated d 11‑8‑1991 in the case of Hikii Abdul Wali Khan (supra). Looked at from this angle, it is absolutely clear that choice of forum/forums by the parties in this litigation being what it is, the disposal of the case by the Balochistan High Court, Quetta, as directed by this Court in its judgment dated 11‑8‑1991, does not suffer from any legal taint. The remand of the case by the High Court to the learned Senior Civil Judge, Quetta to resolve the "Objection Petition" of the respondent after providing opportunity to all concerned to lead whatever evidence they want to, in support of their respective claims, has not been shown to be falling beyond the appellate powers of the High Court in terms of section 17 of the Balochistan Urban Rent Restriction Ordinance (No.III of 1980).

8. No other point was raised on behalf of the petitioner.

9. Not finding any force in this petition, the same is hereby dismissed and leave is refused. A.A./M‑76/S Leave refused.