P L D 1978 Lahore 441 (PLP)

O. XXXIX. rr . 1 & 2-Injunction, temporary-Balance of convenience-No order of ejectment existing against respondents on date of issuance of injunction and dismissal of appeal -Respondents could not, in circumstances, be said to suffer any irreparable loss and injury by any refusal of issuance of injunction order-Balance of convenience, held, could not, therefore, be in favour of issuance of injunction.-[Injunction]. Muhammad Siddiq Chaudhry for Appellant. M. M. Saeed Beg for Respondent. Date of hearing : 14th September 1977. The dispute between the parties is about portion 'A' of property No. S.W.111.5-S-3, Street No. 5, Ram Nagar, Lahore. This property comprised of two portions which were earmarked by the Settlement Department for the purpose of transfer as portions 'A' and '1i'. Portion 'A' was transferred to the petitioner while portion 'B' was transferred to Farzand Ali, deceased, predecessor of the respondents. The case of Abdul Aziz is that a room and a portion of the land form a part of portion 'A' and the same has been in possession of Farzand Ali and after his death, in possession of the respondents.

2. The petitioner filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against some of the legal representatives of Farzand Ali for ejectment from the above portion comprised of a room and portion of the lane. This application was contested Inter alia on the ground of want of relationship of landlord and unapt between the parties. The issue about relationship was decided in favour of the petitioner, but the application was dismissed on 8-7-1969 on account of .Absence of some of the legal representatives who were considered to be necessary party. Thereafter a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is staid to have been served by the petitioner on the other legal representatives also. He filed a fresh application for ejectment of all the legal representatives of Farzand Ali from the same portion. The respondents again took objection to the existence of relationship of landlord and tenant, but this issue was decided by the Rent Controller against them on the 19th of April 1975 on a finding that the above portions stood transferred as a portion of portion 'A' to Abdul Aziz. An appeal against this finding was dismissed by the learned Additional District Judge as incompetent.

3. Without waiting for any final order of the Rent Controller, the respondents challenged by way of a civil suit the finding of the Rent Controller dated 8-7-1969 given in the proceedings of the first application fop ejectment in regard to lane and the finding dated 19-4-1.975 given by him in the proceedings of the second application for ejectment in regard to the same property. They also filed an application for temporary injunction which was allowed by the learned Civil Judge on the 4th of September 1976. By this injunction order the petitioner was restrained from ejecting the respondents from only the portion of the lane in dispute. The petitioner filed an appeal against this order which was dismissed by Ma. Jacob Issac, Additional District Judge, Lahore on the 28th of February 1977.

4. To say the least the judgment is quite confused. It was argued before the learned Additional District Judge that the suit was premature since the dispute about the ejectment was still pending in the Court of Sheikh Qadeer Ahmad, Rent Controller. The learned Additional District Judge repelled this contention with an observation that "this is a case which has got nothing to do with their suit which is pending in the Court of Sheikh Qadeer Ahmad, Rent Controller which is the ejectment petition." It is conceded that this ejectment petition is the same petition in which the impugned order dated 19-4-1975 was passed. It was not a difficult case. It is clear, therefore, that the learned Additional District Judge did not appreciate the paint which was urged before him. lie has thus acted illegally aced with material irregularity In the exercise of his jurisdiction.

5. The learned counsel for the respondents who was called upon by me to justify the order of ejectment argued, in favour of the civil Court's jurisdiction on the ground that the qucsi-ion'r7hef'ter t4era vans a relationship of landlord and tenant between tire parties is dependent upon jurisdictional facts which can be reviewed by the civil Court in exercise of its plenary jurisdiction whenever such a fact is decided by a tribunal of limited jurisdiction.

6. It is unnecessary to consider this point since the matter can be decided on a more important objection taken on behalf of the petitioner. The main objection which vas urged before-a the learned Additional Dist riot Judge also was that the suit was premature and no loss and injury could accrue to the respondents since no order of ejectment had been passed against them by the Rent Controller. It is now stated that such an order has been passed during the tenancy of this revision petition on the :filet of July 1977, but it is conceded by the learned counsel fox the respondents that an appeal against the order is pending before the learned Additional District Judge. It is, therefore, clear that the matter of ejectment is sub judice before the learned Additional District Judge. It is open at least to those respondents who were not a party to the application for ejectment decided earlier by the Rent Controller on 8-7-1969 to challenge in this appear the finding of the learned Rent Controller about the issue of existence of relationship of landlord and tenant. There being no final judgment so far in regard to this matter by the hierarchy of Courts about whom provision has been made fn section 15 of the Ordinance, there is substance in the argument that the suit is premature. I am of the view that a suit to challenge an order of" a tribunal cannot be filed in a civil Court without exhausting all the remedies provided by the law with which the said tribunal is governed unless it is proved that the tribunal has not acted in conformity with fundamental principles of judicial procedure or has acted patently without jurisdiction. This exception has been recognized not only in Mian Muhammad Latif v. Province of West Pakistan (P L D 1970 S C 180), bur nom- roux other cases dealing with exercise of writ jurisdiction of the High Court. In Mian Muhammad Lady v. Province of West Pakistan, it was held that "there is no doubt that under section 11 of the Sind Revenue Jurisdiction Act, 1876, ordinarily a party in revenue maters should exhaust all his remedies by way of appeal by invoking the aid of the civil Court," but the jurisdiction of the civil Court is to be barred if it is proved that the jurisdiction of the Revenue Authority was excluded or the tribunal had not acted in conformity with the fundamental principles of judicial procedure. Although this authority is based upon the wordings of the section in the Sind Revenue Act, but the principle embodied there, is a principle of general law. The suit is not therefore prima facie competent.

7. The exception recognized in Muhammad Latif's case would .lot apply to the decision of a tribunal which under the law governing the tribunal cars be corrected by the Courts (as distinguished from tribunals) in appeal or revision. The Ordinance of 1959 has made an order under section 13 appealable before the District Judge or the Additional District Judge arid further appealable to the High Court. If any mistake is committed by tile Rent Controller legally or factually, or in regard to a jurisdictional fact, it sin be corrected in an appeal or a second appeal by these Courts. It may be stated that a District Judge or Additional District Judge while dealing with the appeal is no more a persona designata, he acts as a Court. There ere thus provisions in the Ordinance itself, which is a self-contained statute, for correction. even of procedural defects or defects of exercise of jurisdiction not vested in the Rent Controller, by two Courts successively i.e. she District or Additional District Judge and the: High Court. In these circumstance it will be anomalous for t a civil Court to deprive those Courts of their jurisdiction by stepping in to correct jurisdictional errors which there Courts have the power to correct. I am of the view that the suit is not prima facie competent for this reason also.

8. Moreover no suit would be competent merely to assail a mere findings when no ultimate order had been passed against the respondents by the Rent Controller. The possibility is always there that although the Rent Controller may have given a finding on the point of jurisdiction against the plaintiff, but he might dismiss the ejectment application. In these circumstances no cause of action would accrue to the respondents.

9. Another important point which arises In this case is of balance of convenience. There can be no doubt that there being no order of ejectment against the respondents on the date of issuance of injunction and the dismissal of appeal, they could not be said to suffer any irreparable loss and injury by any refusal of issuance of injunction order. The balance of convenience could not, therefore, be in favour of issuance of such injunction.

10. It can be urged that this Court in exercise of its discretionary jurisdiction under section :15, C. P. C. can refuse to set aside the older of the learned trial Court arid the appellate Court since during the pendency of this petition, an order of ejectment has been passed. But this point will be of no help to the respondents since they can apply to the Court in which their appeal against the order of ejectment is pending, for staying tile operation of that order.

11. The learned Additional District Judge has not considered these points. He has consequently acted illegally and with material irregularity in the exercise of his jurisdiction. Tae revision petition is, therefore, allowed with costs throughout, the two impugned orders of the learned trial Court and the Additional District Judge dated. 4-9-1976 and 28-2-1977 are set aside and the application for temporary injunction is dismissed. S. A. H. Revision allowed