P L D 1976 Karachi 918 (PLP)

Sabir Hussain Rehmani for Respondents. Dates of hearing : 17th, 24th and 29th March 1976. This appeal is directed against the Judgment dated 7th April, 1969, passed by the learned Additional District Judge, Karachi, in Appeal No. 103 of 1969, filed by the respondent No. 1 against the appellant whereby he set aside the order of the learned Rent Controller dated 11th March, 1969.

2. The brief facts giving rise to this appeal are that the respondent No. 2 who is a landlord filed an application for ejectment of the appellant on the ground that the appellant had ceased to occupy the premises for more than four months and that he was also a defaulter in payment of rent. Soon after filing the application for ejectment he applied to the court for substituted service upon the appellant as the premises was locked. On 31st January, 1968, the learned Rent Controller ordered on that application "attempts to be made." Subsequently on 4th March, 1968, after receiving the report of the bailiff that the disputed premises was locked, he passed an order for substituted service and on 20th April, 1968, the respondent No. 2 furnished ex parte proof in support of his ejectment application and on 23rd May, 1968, he obtained ex parte ejectment order from the learned Rent Controller. On 3rd August, 1968, the ex parse order was executed by breaking open the locks of the disputed premises. It was on that day that the appellant came to know of the proceedings which had been initiated against him by respondent No.

2. After obtaining the necessary copies the appellant filed an application on 7th August, 1968, for setting aside the ex parte eviction order. On 11th February, 1969, the ex parte order was set aside and a further direction was made that the possession may be restored to the appellant. Against this order the respondent No. 2 as well as respondent No. 1 who is a new tenant inducted in the building in question after its possession was taken over by the appellant filed Appeals Nos. 83 of 1969 and 103 of 1969. The new tenant was aggrieved of the fact that if the possession was restored to the appellant he would be ejected for no fault of his because according to his claim he was a tenant in his own right. The respondent No. 2 obviously felt aggrieved of the order whereby ex parte decree had been set aside and therefore he too filed an appeal. Both these appeals were disposed of by the learned Additional District Judge, Karachi, vide a common order which has been impugned in this second appeal. The respondent No. 1 before this Court is the new tenant. He was the appellant before the lower Court also vide his Appeal No. 103 of 1969. The respondent No. 2 has not preferred appeal and therefore he has been impleaded as a respondent in this second appeal.

3. The main contention of the learned counsel for the respondent No. 1, is that he was in possession of the premises in dispute in his own right, because it was in pursuance of the execution proceedings that the possession of the premises was obtained by the respondent No.

2. The respondent No. 2, after obtaining the possession entered into an agreement with the respondent No. 1 and inducted him as his tenant, therefore, it could not be said that he was liable to bb ejected alongwith the respondent No.

2. The question requiring determination therefore is whether the respondent No. 1's possession was liable to be disturbed in pursuance of the proceedings for restitution of possession or not. The learned counsel for the respondent No. 1 has placed his case at par with a bona fide purchaser and argued that since the respondent No. 1 had come into possession of the premises in question in his own right therefore he was not liable to be disturbed. I am unable to agree with this contention because any person who obtained possession through respondent No. 2 would be liable to be ejected in pursuance of an order of ejectment passed against respondent No.

2. Therefore once the ex parte ejectment decree was set aside the original tenant shall have to be restored the possession of the building and that possession can only be restored if the respondent No. 2 or any person put in possession by him is ejected from the premises. Since it was in A pursuance of the execution proceedings that the respondent No. 2 obtained the possession and he in turn inducted the respondent No. 1 as a tenant in his premises therefore when the decree under which respondent No. 2 had obtained possession was itself set aside the person put by him into possession would also be liable to be ejected from the premises. In this view I am supported by A. S. Latif v. J. B. Dubash and 5 others (P L D 1970 Kar 220). The following observation in this case may be quoted here for convenience of reference:- "As for the third contention that the appellant has acquired tenancy rights which he claims independently of any background, we are of the view that this contention is also misconceived. Admittedly, the appellant was inducted as a tenant in a portion of the premises in dispute after partial execution of the decree. The decree was reversed in first appeal and or reversal of the decree the position was altered and by operation of law respondents Nos. 3 to 6 continued to be the tenants of that portion as well. If we are to accept the contention of the learned counsel for the appellant it would create an anomalous position. The appellant cannot be said to occupy the position of a tenant vis-a-vis respondents Nos. 1 and 2 after the reversal of the order of ejectment as the tenancy of respondents Nos. 3 to 6 continued. The right of the appellant to continue in possession was subject to the appellate order and on the reversal of the order of ejectment the appellant ceased to be a tenant. His possession cannot, therefore, be sustained as he cannot continue to remain as a tenant of respondents Nos. 1 and

2. In view of that we have observed earlier this contention is also of no consequence"

4. Keeping in view the observations in the above case if it is held that the respondent No. 1 came into possession of the disputed premises in his own right the position would become anamolous because in that case the very purpose of reversal of the decree would be completely defeated. The main consequence which flows from the setting aside of the ex parte decree is that the parties should be placed in the same position in which they were before the application for ejectment was filed. That position can only be restored if any such person who has come into possession through respondent No. 2 is also ejected from the premises. The appellant's possession of the building was subject to the results of any appeal or application which could be filed for the reversal of the ex parse decree. Since the decree was reversed therefore the learned Rent Controller rightly ordered that the possession should be restored to the appellant. The learned District Judge has erred in ordering that respondent No. 1 has an independent right to occupy the disputed premises and therefore without hearing him examining his claim for possession the learned Rent Controller could not have made an order for the restitution of the possession. The legal position is that as soon as the decree was reversed the appellant was entitled to restitution of the possession of the building and in this connection the order of the learned Rent Controller was legal and valid.

5. As a result of the above discussion I find that the impugned order is legally untenable and the same is therefore set aside. The appeal is allowed. The parties are however left to bear their own costs. The appellant shall be put into vacant possession of the disputed premises within two months. S. Q. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ????????????????? Appeal allowed.