2022 PLP 1296 (CLC)

JAWAD HASSAN, J.

The Petitioner through this writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") has impugned the order dated 30.06.2021 and 27.01.2021, passed by the Respondents Nos.1 and 2 respectively, whereby his Application under Section 47 read with Order XIII, Rule 10, C.P.C. was dismissed.

2. Mr. Babar Shahzad Hashmi, Advocate inter alia argues that the ejectment Petition filed by the Respondent No.3 was accepted and during the pendency of execution Petition warrant of possession was issued. He adds that the Petitioner filed the aforesaid Application under Section 47 read with Order XIII, Rule 10, C.P.C., with the contention that the suit property measuring 03 kanal is situated in joint khewat and no specific boundary or number of the property is mentioned in the ejectment petition, therefore, the same cannot be identified without demarcation, which has wrongly been dismissed by both the learned Courts below without appreciating the facts of the case. Further states that the learned executing Court has gone beyond the decree by passing the order regarding removal of structure and machinery installed on the property in question. He relied on the judgments cited as "Mst. Sanobar Sultan and others v. Obaidullah Khan and others" (PLD 2009 SC 71) and "Allah Ditta v. Ahmed Ali shah and others" (2003 SCMR 1202).

3. Conversely learned counsel for the Respondents objected to the maintainability of this writ Petition by stating that the Respondent is a landlord and after getting decree from the Court of law filed execution Petition, wherein the Petitioner filed the aforesaid frivolous application with mala fide intention by changing his stance that the property in question is situated in a joint khata/khewat which cannot be identified without demarcation, hence, the same has rightly been dismissed by the learned Courts below. He submits that there is no ambiguity about the description of the property in question. Hence, the petition is liable to be dismissed. Learned counsel relied on the judgments cited as "President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others" (2020 SCMR 260) "Mst. Noor-un-Nisa and others v. United Bank Ltd." (PLD 2021 Lahore 90) and "Mst. Azra Riaz v. Additional District Judge and others" (2021 CLC 623).

4. Arguments heard. Record perused.

5. From perusal of record it reveals that the learned Appellate Court has rightly observed that the order dated 23.04.2018 passed by this Court in W.P. No.200594 of 2018 titled as "Shahzad Abbas and others v. Faiz Muhammad Faiz", is very much clear wherein it has been held that Petitioner has to return the possession of the property which was given to him on rent and it is not relevant whether the property is part of joint khata or not. In the presence of the aforesaid order of this Court, there is no controversy left which has to be resolved by the learned executing Court. The relevant part of the judgment of learned Appellate Court is as under: "As far as, the question regarding description of the property is concerned order of the Hon'ble Lahore High Court Lahore dated 23.04.2018 is very much clear wherein it has been held that petitioners/present appellants have to return the possession of the property which was given to them on rent. It is not relevant whether the property is part of joint khata or not. In the presence of the said order there is no controversy left which has to be resolved by the learned executing Court by invoking provision of Section 47, C.P.C. The appellant is bound to comply with the order of the court by vacating the premises which was taken by him on rent."

6. Both the Courts below have rightly dismissed the Application under Section 47 read with Order XIII, Rule 10, C.P.C., which does not suffer from any legal infirmity. This Court is also not ordinarily inclined to interfere with the findings of the learned Courts below, particularly when no controversy left in the matter to be resolved by the executing Court by invoking provision of Section 47, C.P.C. or Order XIII, Rule 10, C.P.C. The Petitioner is bound to comply with the orders passed by this Court as well as the Courts below regarding vacation of rented premises. This writ Petition being devoid of merits is dismissed accordingly. SA/A-100/L Petition dismissed. ***