1991 PLP 494 (SCMR)

S. USMAN ALI SHAH, J.‑‑‑This is a petition for leave to appeal filed by the petitioner against the judgment of the Lahore High Court, whereby civil revision of the respondent No.1 was partly accepted. Briefly, the facts are that the disputed built up plot No.1813, measuring 5 marlas 4 sarsais, bearing Kliasra No.4106, Mohallah Miterpura, Chah Sultan, Rawalpindi was purchased by the respondent No.1 through a registered deed dated 17‑2‑1985, from one Malik Abdul Majeed. The respondent No.1. served Raja Muhammad Razzaq tenant/judgment‑debtor with a notice under section 13‑A of the Rent Restriction Ordinance to pay the rent to him. This notice was not replied positively by the said tenant. Thereafter, the respondent No.1 filed an ejectment petition against the tenant who denied the relations of landlord and tenant which was allowed by the learned Rent Controller on 22‑12‑1986. Appeal of Muhammad Razzaq was dismissed by the Additional District Judge on 10‑3‑1988 and his subsequent writ petition in the High Court also failed on 10‑5‑1988. Mehboob Hussain Shah, the present petitioner and as an Objector in meanwhile filed a declaratory suit to the effect that he is the owner with possession of the premises and his nephew Shujaat Hussain was in its possession on his behalf, doing business therein, through his employee Muhammad Razzaq and the sale‑deed executed in favour of Syed Muhammad Iqbal Gilani respondent is fictitious and of no legal effect; with a consequential relief of injunction, restraining the said respondent from interfering with his right. The suit was rejected under Order 7 Rule 11 of the C.P.C., by the trial Judge on 27‑4‑1988. On appeal of the petitioner before the Addl. District Judge the case was remanded to the lower Court for decision on merits and the execution proceedings were stayed till the decision of the suit, vide order dated 24‑6‑1989. At the time of dismissal of the suit and pendency of the appeal the Objector filed an objection petition under Order 21, Rules 97 and 99, C.P.C. in the executing Court which was rejected by the trial Judge on 22‑9‑1988. His appeal before the Addl. District Judge also failed on 25‑9‑1988. He also filed writ petition No.570/88 against this order. The petitioner also filed an application under section 12(2), C.P.C. before the Addl. District Judge, which was dismissed on 3‑9‑1988 and thereafter he filed Civil Revision No.3(K) of 1988 which was withdrawn by him vide order dated 21‑3‑1939. He then filed C.M.No.820 of 1989 in Writ Petition No.209 of 1988. The respondent No.1 filed Civil Revision No.189/89 against the order of the Addl. District Judge dated 24‑6‑1989 before the High Court which was disposed of by the learned Single Judge, vide his order dated 21‑10‑1989 in the following manner:‑‑ "The upshot is that the Civil Revision partly succeeds. The order of remand of the civil suit is upheld but as to stay of execution proceedings set aside. The writ petition and the Civil Misc. stand dismissed in limine. It is also ordered that the civil suits filed by the Objector be heard by the same Court and disposed of simultaneously." The main grievance of the learned counsel for the petitioner is that the direction of the High Court that the suit could proceed only, if the petitioner delivers possession to the respondent No.1 is unwarranted and unjustified and according to him the petitioner being not party to the ejectment proceedings thus not bound by the order of the Rent Controller and the condition imposed on petitioner for the delivery of possession before contesting the suit is uncalled for. These are the legal points involved in this case and need further consideration of the this Court. Leave to appeal is, therefore, granted. The proceedings of the suit are to continue and the order of setting aside of the stay of execution proceedings stands vacated. Security Rs.2,500. Appeal shall be made ready on the present record, however, the parties are at liberty to file additional documents. A.A./M‑1371/S Leave granted.