P L D 2008 Lahore 57 (PLP)

C.M. NO.475-C OF 2007 MUHAMMAD JEHANGIR ARSHAD, J.

The facts in brief are that S.A.O. No.95-C/2006 against the ejectment order of the learned Rent Controller dated 13-12-2003 and of the learned Additional District Judge/appellate Court dated 12-6-2006 was dismissed by this Court on 30-2-2007. The instant Civil Miscellaneous application was filed with the A prayer to stay the execution proceedings of ejectment order for one month to enable the applicant to avail remedy of appeal before the Honourable Supreme Court. While issuing notice in this C.M. on 15-5-2007 this Court stayed the execution proceedings to enable the applicant to invoke the jurisdiction of the apex Court.

2. Today, the matter has been heard. The learned counsel for the applicant submits that although the applicant has filed CPSLA before the Honourable Supreme Court but due to heavy workload the same could not be heard by the apex Court nor the applicant was able to obtain the interim relief, therefore, the execution of the ejectment of the order be kept stayed till time the matter of interim relief comes up before the Honourable Supreme Court. In support of his contention, the learned counsel for the applicant has placed reliance on the provisions of Order XLI, Rule 5(2), C.P.C.

3. On the other hand, learned counsel for the respondents has opposed this application on the ground that since C.P.S.L.A. already stands filed by the applicant, therefore, this Court has become functus officio and cannot grant further time. It is next argued that in case the prayer of the applicant is allowed it would amount to sitting over the jurisdiction of the Honourable Supreme Court of Pakistan.

4. Arguments considered: Record perused.

5. There is a considerable force in the contention of learned counsel for the respondent and I am inclined to agree with the same that after filing of C.P..L.A. before the Honourable Supreme Court, this Court can no more exercise its jurisdiction conferred on it under Order XLI, Rule 5(2), C.P.C. and as after the filing of C.P.S.L.A. the matter comes within the jurisdiction of the apex Court and any order passed by this Court thereafter, would not only be an order in per incuriam but also in violation of the provisions contained in Order XX of the Supreme Court Rules, 1980 as reproduced below:- "The filing of a petition for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, but the Court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any case under appeal to this Court." In similar circumstances, the Honourable Supreme Court of Pakistan while disposing of C.P. No.48-L/2005 passed the following order on 28-3-2005:- "Perused the explanation furnished by Mrs. Kaneez Faiza Bhatti, Civil Judge 1st Class/Magistrate Section 30, Sheikhupura. It is not satisfactory. She is warned to be careful in future. She must proceed with the cases unless stay is produced before her. A copy of this order be sent to the Registrar, Lahore High Court for keeping it in her personal file. The provisions of Order XX of the Supreme Court Rules, 1980 be brought to the notice of the Registrar of all the High Courts for" strict compliance by all the Courts/Forums working under supervision control of the High Court." In view of the above circumstances, no further indulgence can be shown to the applicant and this application is dismissed holding that provisions of Order XLI, Rule 5(2), C.P.C. cease to apply after filing of appeal and once the appeal before the higher forum is filed, no further indulgence by way of staying the execution of a decree or order appealed against, can be shown. S.A.K./H-37/L Application dismissed.