1982 PLP 223 (CLC)

This petitioner, Ahmed Hassan Khan, made an application for eviction of the respondent, Muhammad Arshad, from a khokha. On that application, an ex parte order of ejectment was passed against the respondent. In execu tion of that order, the respondent was also evicted from the khokha in dispute. Thereafter, he made an application for setting aside the ex parte order. The Rent Controller, who :vas seized of the matter, accepted the respondent's application, recalled the order of ejectment passed against hi and directed that possession of the disputed property be restored to the respondent. By then, the khokha had been removed from the site and, therefore, the learned Rent Controller allowed the respondent to re‑construe his khokha. This order of the learned Rent Controller was challenged by means of an appeal but without success. He has, therefore, come up in civil revision to this Court.

2. It was contended by learned counsel for the petitioner that it is only an existing property of which restitution can be ordered and since the khakha in dispute had seized to exist, the learned Rent Controller could not, while ordering restitution, permit reconstruction of the khokha.

3. It was not disputed by the learned counsel that while executing his order the learned Rent Controller bad acted as a civil Court Section 144 of the Code of Civil Procedure contains provisions relating to restitution. It reads as follows :‑ "

144. Application for restitution.‑(1) Where and in so far as a decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed ; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub section (1)." It is evident from the provisions of section 144 that in the process of restitution ordered by the learned Rent Controller the respondent was to be placed in the same position which he would have occupied but for the ejectment order which was re‑called by the learned Rent Controller. Before the order of eviction was passed by the learned Rent Controller the respon dent was in possession of the khokha which was demolished after the eviction of the respondent had taken place. If he had not been permitted to reconstruct the khokha the order of restitution would have been meaningless inasmuch as possession of the site only from where the khokha bad been removed was of little use to the respondent. In the circumstances of the present case, the object of section 144 of the Code of Civil Procedure could be achieved only by allowing the respondent to reconstruct the khokha a the site from where it had been removed. In this view of the matter, the learned Rent Controller did not commit any illegality in allowing reconstruc tion of khokha.

4. It was also urged by learned counsel for the petitioner that the respondent has since left the country and, therefore, order of restitution could not be passed in his favour. His prayer for restitution was not resisted by the petitioner on the ground that the respondent had gone abroad. Since the order of restitution was in favour of the respondent, its implementation can be sought by him personally or through an authorised agent. If it is sought to be made use of by anybody else, the petitioner would be at liberty to raise an objection in that behalf. Needless to say that if and when such an objection is taken by him, it shall be decided according to law.

5. There is no force in this petition. It is dismissed in limine. K. M. A. Petition dismissed.