1995 PLP 857 (MLD)

Habibullah Samo for Respondent. Dates of hearing: 10th, 12th and 13th October, 1994. The facts leading to this appeal are that property in question was transferred to Saeed Ahmed by Settlement Authorities by virtue of PTO on 13-1-1961 Appellants Nos.l to 3 are his sons, 4 to 6 are his daughters and appellant No.7 is his wife. He filed Rent Case No.1488 of 1963 against Muhammad Siddique and Haji Muhammad for ejectment. During the pendency of this rent application, the PTO in favour of Haji Saeed Ahmed was cancelled, as such the ejectment application was dismissed. Against the cancellation of PTO Muhammad Saeed preferred, an appeal and ultimately PTO was restored. In the meantime, Saeed Ahmed expired leaving behind appellants as his legal heirs. Appellants filed Rent Case No.2344 of 1972 against Muhammad Siddiq and Haji Muhammad. Their ejectment application was allowed on 31-5-1988. Appellants then filed Execution Application No.33 of 1988 against Muhammad Siddique and Haji Muhammad. In the meantime Shaikh Akbar Ali son of Haji Muhammad Ali, Zohra Rafique d/o Muhammad Ali wife of Shaikh Rafique filed Rent Appeal No.334 of 1989 in the High Court of Sindh at Karachi, which was ultimately dismissed on 16-3-1992 for non -prosecution as well as for non-deposit of arrears of rent. After dismissal of the F.RA. the appellants moved the lower Court for issuing writ of possession of premises in question, and the writ of possession was issued. In the meantime respondent moved an application under section 12, subsection (2), C.P.C. read with Order 21, Rule 99 and order 1, Rule 10, C.P.C. After hearing the parties, the impugned order was passed. Other two F.R.As. Nos.117 of 1993 and 118 of 1993 were also filed by the appellants in respect of similar premises in the same building on the same facts. Both these matters were put up before my learned brother Wajihuddin Ahmed, J. On 19-4-1993 at Katcha Peshi he passed an order with consent of the appellant's Advocate relevant part thereof is reproduced as under:

"On reflection, however, Mr. M. Akram Zuberi says that if a period of time is fixed with which the learned Controller is required to hold an inquiry and to conclude it as to the objections raised before him, such a course may satisfy the requirements of justice in the case. With this I agree. Further it seems desirable that with a view to forestall any other third parties cropping-up at a later point of time the learned Controller should ensure that at very outset a responsible person acceptable to `both contestants should be appointed as a Commissioner to go and visit the site and to report about the position of actual possession at the site. This of course would be part of the proceedings before the learned Controller. At this stage, Mr. Akram Zuberi says that in the same context perhaps the issues framed by the learned Controller may have to be recast. If that be required by law there can be little doubt that the learned Controller can do it." Learned Advocate for the appellant has conceded that the appeal be disposed of in terms of order of my learned brother Wajihuddin Ahmed, J. dated 19-4-1993 and four months' time be fixed for holding inquiry and concluding the matter and that he may be allowed to argue on the maintainability of application under order 12(2), C.P.C. at the time of final argument before the learned Rent Controller. Learned Advocate for the respondent Mr. Habibullah Samo has also no objection. This appeal is disposed of in terms of order passed by my learned brother Wajihuddin Ahmed, J. in F.R.A. Nos.117 and 118 of 1993. It is further ordered that the learned Rent Controller should dispose of the application within four months. H.B.T./F-236/K Order accordingly.