P L D 1960 (W (PLP)

MUHAMMAD SHAFI, J.‑

This revision petition is directed against an order dated the 7th February 1958 passed by Mr. Hamidullah, Civil Judge, 1st Class, Lahore, dismissing the peti tioner's application under section 151 and Order XLVII, Rule 1 of the C. P. C. The facts giving rise to that application may briefly be stated as follows.

2. The petitioner Malik Bukhsh alias M. B. Sheikh was in possession of a house described as 2‑14, Shalamar Road, Lahore. The respondent Mst. Shamim Qasar was the owner of the house. and on the 1st December 1950 she obtained an order of ejectment against her tenant M. B. Sheikh. She took out execution proceedings but was destructed by the present petitioner and in proceedings under Order XXI, Rule 97 of the C. P. C. it was held by Syed Mohsin Tirmazi, Civil Judge and Rent Controller, Lahore, by his order dated the 31st January 1952 that the petitioner was in possession of the property on his own account. Consequently the petitioner continued in possession, until on the 16th March 1953 he was ejected by the Military authorities during the imposition of Martial Law in Lahore in that year. The respondent again took out execution proceedings against her tenant M. B. Sheikh and obtained a warrant for possession on the 13th July 1953 from Sh. Ashfaq Ali, Civil Judge, Lahore. This warrant was sent to the Military authorities. On 14th July 1953 the following endorsement was made on the back of the warrant by an officer of the 10‑Division Headquarters, Lahore: "This House No. 2 Shalimar Road Lahore was requisitioned by the order of the Commissioner Lahore in favour of Army. Possession will be handed over to the owner/decree‑holder when the house is no longer required by the Army."

3. The Military authorities released the premises on 14th June 1955 and handed over its possession to the respondent. The petitioner thereupon moved an application on 11th July 1955 under Order XLVII, Rule b read with section 151 of the C. P. C., by alleging that the petitioner really stood dispossessed vis‑a‑vis the respondent with effect from the 14th June 1955, in pursuance of the orders of ejectment and the execution warrant obtained by the respondent. As already stated, this application was dismissed by Mr. Hamidullah, Civil Judge, who observed that‑-- "Order XLVII, Rule 1, C. P. C. deals with the grounds on which a decree or an order can be reviewed. The petitioner was not ejected in execution of any order passed by any Court and the question of review does not, therefore, arise."

4. Mr. Saeed Akhtar, the learned counsel appearing for the petitioner, has in the first place contended that the learned Civil Judge acted with undue haste, thus causing prejudice to the petitioner, inasmuch as that the matter had come up before the learned Judge on 7th February 1958 only for the appearance of the parties after transfer from another Court, and that the date in question was not fixed for evidence or arguments. It is further pointed out that the previous Court had allowed the parties to lead evidence on the issues framed in the application, but Mr. Hamidullah denied such an opportunity to the petitioner by proceeding to decide the matter on the first date of appearance of the parties. It is, however, conceded by Mr. Saeed Akhtar that the question involved is really one of law, and there was hardly any necessity of producing evidence in the matter. It is also apparent from the record that the petitioner was represented by a counsel, although it is now stated that the counsel actually appearing on that date was the junior counsel, but he did not raise any objection before the Court that the arguments should not be heard. It seems to me, therefore, that this is not a case where it can be held that the petitioner was prejudiced in any manner by the mere fact that Mr. Hamidullah, Civil Judge, proceeded to bear the arguments on the very first date the parties appeared before him.

5. The next contention raised by Mr. Saeed Akhtar is that the Court was not justified in rejecting the petitioner's application simply for the reason that the correct law applicable was not cited, and that it was the duty of the Court to proceed to consider the application as if it was made under the provisions really applicable to the case, namely, Order XXI, Rules 100 and 101 of the C. P. C. In support of this proposition he has relied on Ananda Prosad Ghose v. Ronendra Lal Choudhry and another (A I R 1936 Cal. 342) and Ankayya v. Subhadrayya (A I R 1932 Mad. 223). In the former case it was held that where legislature provides a procedure of a summary nature by an application without expressly barring any suit in that behalf, it is always within power of Courts when instead of application the suit is filed to treat the suit as an application and proceed as an application. In the latter case it was observed that Courts should not consider an application only with reference to the section under which it is purported to be filed. If Courts have got inherent power to entertain an application and grant the relief prayed for therein, the circumstance that a wrong section is quoted should not be taken too much into account when the High Court is asked to exercise its powers of revision in such matters.

6. Mr. Aftab Hussain, who represents the respondent before me, has pointed out that it was the duty of the petitioner to apply to the lower Court that the application be treated as one under Order XXI, Rule 100, C. P. C., but this wag not done at all and, therefore, lower Court rightly decided the matter in the light of Order XLVII, Rule 1, C. P. C. under which the application had been made. It seems to me, however, that the view contended for by Mr. Aftab Hussain is much too technical in nature and I agree with the learned counsel for the petitioner that the Court should have looked at the substance of the application irrespective of the law cited in the application itself. On this view of the C matter I consider that the High Court can interfere in revision for the reason that the lower Court has failed to exercise jurisdiction vested in it by not treating the application as being one under Order XXI, Rule 100, C. P. C.

7. I now proceed to consider whether this is a case where relief could be granted to the petitioner under Order XXI, Rule 100, C. P. C. For our present purpose Sub‑rule (1) is directly relevant and may be reproduced as follows :‑- "100. (1) Where any person other than the judgment‑debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the Court complaining of such dispossession."

8. It is common ground between the parties that the physical dispossession of the petitioner took place on' 16th March 1953. The Military authorities have reported that they took possession in pursuance of a requisitioning order passed by the Commis sioner, Lahore Division. It is clear, therefore, that in the first instance the petitioner was dispossessed not by the decree‑holder but by an outside agency, namely, the requisitioning authority. It is, however, contended by Mr. Saeed Akhtar that if the respondent‑decree holder had not taken out an execution warrant from the Court of Sh. Ashfaq Ali and arranged to send it to the Army Headquarters, the possession would have been restored to the petitioner when the premises were released by the Army on 14th June 1955 but, as it is, the possession was delivered to the respondent because of the execution taken out by the decree holder. It is the contention of the learned counsel that the date of dispossession of the petitioner should, therefore, be regarded as 14th June 1955 and further that the dispossession must be directly attributed to the decree‑holder. In this connection he has also referred to the provisions contained in section 4 of the Requisitioned Lands (Continuance of Powers) Act, 1947 in order to show that the requisitioning of the property has no effect on the respective legal rights of the parties. The relevant portions of this section may be reproduced here :‑ "4. (1) Where any requisitioned land is to be released from requisition, the appropriate Government may, after making such inquiry, if any, as it considers necessary, specify by order in writing the person to whom possession of the land shall be given. (2) The delivery of possession of the requisitioned land to the person specified in an order made under subsection (1) shall be a full discharge of the Government from all liability in respect of such delivery, but shall not prejudice any rights in respect of the land which any other person may be entitled by due process of law to enforce against the person to whom possession of the land is so delivered."

9. The requisitioning order has not been placed on the record, but we may take it that it was an order passed in pursuance of the Requisitioned Lands (Continuance of Powers) Act, 1947. In accordance with subsection (2) of section 4, re produced above, the delivery of possession of the requisitioned property to the respondent in this case is not to prejudice any t rights in respect thereto which the present petitioner or any other. person may be entitled by due process of law to enforce against her. The right of the petitioner to proceed under Order XXI, Rule 100, C. P. C. will come into play only if it is shown that the petitioner was dispossessed of the property by the decree holder. I have already stated that the physical dispossession of the petitioner took place on 16th March 1953 and it was in pursuance of a requisitioning order passed by a Government official. It is alleged that the respondent is the wife of an ex- Army Officer who has manoeuvred to obtain the order in question, The allegation, however, is not proved on the record and must, therefore, be ignored. There is no doubt that the respondent did take out an execution warrant from the Court of Sh. Ashfaq Ali on 13th July 1953, but it is admitted that the execution proceedings were dismissed in August 1953, and it is, therefore, difficult to hold that the delivery of possession to the respondent in June 1955 was in pursuance of the warrant obtained by the respondent in July 1953. The delivery of possession to the respondent was an act of the requisitioning authority which had to make such enquiry as it considered necessary to determine the person to whom possession should be delivered. If the' requisitioning authority decided to deliver the possession to the respondent, it cannot be said for that reason that the petitioner was dispossessed on that date by the decree‑holder. It seems to me that in this case what took place in June 1955 was not the dispossession of the petitioner but only the restoration of possession to one party or the other. That being so, the pro visions of Order XXI, Rule 100, C. P. C. will not be attracted by the event which took place in June 1955, namely, the delivery of possession to the respondent. There is no doubt that this delivery of possession is without prejudice to the legal rights of the petitioner, but the legal right under Order XXI, Rule 100, C. P. C.IF arises only if the dispossession is by the decree‑holder. The dispossession being by a third party in this case, the provisions of Order XXI, Rule 100, C. P. C. will not come into play. It may be that the petitioner has a remedy by way of filing a suit for the recovery of possession, but that is not a question which I am called upon to decide in this case.

10. For all these reasons I have come to the conclusion that although the petitioner's application can be and should have been treated as being one under Order XXI, Rule 100, C. P. C., the relief claimed cannot be granted as the dispossession was not by the respondent‑decree holder but by the requisitioning authority, and the fact of delivery of possession to the respondent does not amount to dispossession by the respondent, as dispossession had already taken place in 1953. The revision application, therefore, fails and is hereby dismissed with costs. K.M.A. Petition rejected.