2001 PLP 1033 (MLD)

4. Accordingly, after the expiry of thet time granted by the Honourable Supreme Court for vacating the premises, the respondent landlord filed an Execution Application No.35 of 1998 the Court of VIIth Rent Controller (South) Karachi for execution of the order.

5. It appears that after the initiation of execution proceedings, the appellant filed an application under section 12(2), C.P.C. thereby challenging the ejectment order, allegedly having been obtained by way of fraud and misrepresentation as, according to him, the Power of Attorney on the basis of which rent application was filed by father of the respondents in respect of the premises owned by the respondents viz. his sons, was invalid. The learned Rent Controller after hearing the parties and perusal of record, dismissed the application under section 12(2), C.P.C. vide order, dated 23‑10‑2000. Consequently, the other applications namely, application under section 22 of the Sindh Rented Premises Ordinance, 1979 and application under section 20 of the Sindh Rented Premises Ordinance, 1979 for summoning the witnesses and stay of, proceedings respectively, were also dismissed, hence this appeal.

6. I have heard the learned counsel for the appellant at length and perused the impugned order.

7. It is an admitted position that the application for ejectment filed by the respondent/landlord was granted by the learned Rent Controller. The F.R.A. No. 195 of 1998 filed by the appellant/tenant was also dismissed by this Court in limine vide order, dated 9‑10‑1998. The petition for leave to appeal before the Honourable Supreme Court also met the same fate, thus, the order of ejectment attained finality, the appellant having exhausted all the remedies available to him.

8. The fats are also clear that certain time was granted to the appellant/tenant to vacate the premises. This fact has been mentioned by the appellant/landlord in his appeal, however, no copy of the judgment/orders passed by this Court as well as Honourable Supreme Court have been placed with the present appeal. Subsequently, when after the expiry of the time granted to the appellant by the Courts, the landlord filed an execution application in accordance with law, it appears, that as a counter‑blast, the appellant filed an application under section 12(2), C.P.C. alleging therein that the father of the respondents, who has filed ejectment application on behalf of his real sons i.e. the‑ respondents, who are said to be the owners of the said property, was not validly authorised person and the power of attorney was allegedly invalid.

9. The learned counsel has been heard at length with regard to the maintainability of the application under section 12(2), C.P.C. before the Rent Controller as well as on merits of the case.

10. The learned counsel has relied upon the case‑law reported in PLD 1983 SC 155 titled as Messrs Bambino Ltd. v. Messrs Selmor International Ltd., and another. In this authority the Honourable Supreme Court has held that the order passed by the Rent Controller in execution of order of ejectment was appealable before the High Court. There is no cavil with this proposition of law and I am bound to follow the principle enunciated in the said authority. However the question here will be whether the application under section 12(2), C.P.C. was maintainable before the Rent Controller at this stage of the case, in view of the fact that the order of ejectment passed by the learned Rent Controller has attained finality after the same having been affirmed by the Honourable Supreme Court. Accordingly, in my view, the judgment of the learned Rent Controller has merged into the judgment of the Honourable Supreme Court. This view is supported by the authority reported in 1986 CLC 1520 (Mst. Zaibunnisa v. Sultan Ahmad and another) wherein Mr. Justice Haider Ali Pirzada, as he then was, has observed as under:‑‑ "It is settled position of the law that the order, judgment of the lower Court merges into the judgment of the appellate Court. This, question has been considered by my learned brother K.A. Ghani, J. In his unreported judgment, dated 12‑6‑1985 in F.R.A. 313 of 1985 Shabbir Hussain v. Mr. Anwar Sultan, in which my learned brother has come to the conclusion after giving cogent reasons that the application under section 12(2), C.P.C. was not maintainable before the Rent Controller as he had no jurisdiction in the matter, after the order of the eviction application passed by him had been upheld by the learned Single Judge of this Court as well as by the Honourable Supreme Court of Pakistan. The principle laid down in the above case was also laid in the case of Muhammad Yaqoob v. Mst. Nooran 1983 CLC 1948. The principles laid down were also agreed by my learned brother K.A. Ghani, J. In the instant case the eviction order, dated 28‑3‑1982 was merged in the judgment, dated 31‑10‑1984 of this Court. The civil petition for special leave to appeal was also dismissed by the Honouable Supreme Court. In this view of the matter the application was not competent before the Rent Controller. "

11. Same view was taken by Mr. Justice Saleem Akhtar, (as he then was), in the case reported in the case of Sh. Muhammad Azim v. Basit Yar Khan and another reported in 1989 CLC 302.

12. I have also considered the case law reported as 1987 SCMR 1627 Mubarik Ali v. Fazal Muhammad and another) but I find that the facts in the said case are distinguishable as in the above case the petition for special leave to appeal was not finally adjudicated by the Honourable Supreme Court but was not pressed.

13. Even on merits, I find no substance' in this appeal which has been filed in order to protract the proceedings in a bad faith. As the appellant has, obviously, not been acting in a reasonable and proper manner inasmuch as that he did not vacate the premises even after the expiry. of the time granted by the Honourable Supreme Court, and consequently, when the execution proceedings were filed, these fallacious applications were moved. The learned Rent Controller has given detailed findings regarding the validity of the power of attorney and has passed a detailed and speaking order. In view of the above circumstances, I do not find any merit in the appeal which is accordingly dismissed in limine alongwith C.M.As. 2399 of 2000 and 2400 of 2000. Q.M.H./M.A.K./A‑92/K Appeal dismissed.