1998 PLP 1043 (CLC)

Abdul Aziz Akhgar and Muhammad Shahzad for Petitioner No.2. Ch. Anayat Ullah Khan for Respondent No.3. Dates of hearing: 15th, 20th January and 24th November, 1997. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order, dated 31‑7‑1996 passed by the learned Additional District Judge, Lahore, whereby the appeal of the petitioner was dismissed and the order, dated 8‑4‑1996 passed by the learned Rent Controller, Lahore, was affirmed resultantly the application of respondent No.3 seeking restoration of possession of the property in dispute was accepted.

2. The facts forming background of this petition are that the petitioner No. l obtained an ex parte ejectment order' against respondent No. 3 and it was in the execution thereof that the possession of the disputed premises was delivered to the petitioner on 30‑5‑1988 by the Bailiff of the Court executing the said order. The respondent No.3 filed an application under Order IX, Rule 15, C.P.C., thereby praying that the above said ejectment order be set aside. This application of respondent No. 3 was, however, dismissed by' the learned Rent Controller vide his order, dated 9‑2‑1993. In result, the said respondent No.3 filed an appeal which was accepted on 12‑12‑1994 thereby setting aside the ex parte order and the case was remanded to the learned Rent Controller for the purpose of deciding the ejectment application on merits. The petitioner No. l filed second appeal before this Court but remained unsuccessful inasmuch the same was dismissed on 19‑1‑1993. The matter rested there in so far setting aside of the ex pane ejectment order is concerned, resultantly the 'learned Rent Controller proceeded to determine the ejectment application. It was during the course of post‑remand proceedings that the respondent No.3 filed an application under section 144, C.P.C., thereby praying that since the ejectment order has been set aside, therefore, the possession of the property in dispute taken over from him in the execution thereof be restituted and restored. The said application of respondent No. 3 was resisted by the petitioner No. L who in turn filed two applications i.e., one for the appointment of Local Commissioner thereby praying that the exact area sought to be restituted and restored to petitioner No. l be demarcated while the other was to the effect that the issues be framed in the case so that the matter be tried and determined. The learned Rent Controller proceeded to accept the application under section 144, C.P.C. thereby directing that since the ex parte ejectment order has been set aside, therefore, the petitioner is entitled to restoration of possession of the property in dispute. As far the two applications filed by the petitioner, the decision thereof was deferred till the next date of hearing i.e., 21‑4‑1996 for the case was adjourned till the date aforenoted for hearing arguments on the said applications. The petitioner No. l filed an appeal against the above said order thereby contending that the original mouse as it stood before the passage of ejectment order having been demolished and new construction raised at the site, the restitution and restoration of possession in regard thereto had not remained possible and that the same could not be ordered without first determining the applications of the petitioner whereby she had prayed that issues be framed in the case so that the trial of controversy could be made as also without appointment of the Local Commissioner to determine as to how much area is under the new construction and how much is in excess thereof. The said appeal of the petitioner was dismissed by the learned Appellate Court vide its order, dated 31‑7‑1996.

3. The orders passed by the learned Rent Controller and that of the learned Appellate Court have been assailed in the present Constitutional petition on somewhat similar grounds as aforenoted. It was during the course of pre admission stage that Mr. Abdul Aziz Akhgar, Advocate appeared on behalf of Mst. Samina Shamas with an application under Order 1, Rule 10, C.P.C., thereby praying that the said Mst. Samina Shamas being a co‑owner of the property in dispute be impleaded as party to this petition. He submitted that the anxiety of said Mst. Samina Shamas is to the extent that she be heard at the time of hearing of this writ petition as her interest is likely to be effected by the decision of this petition. This petition was actively contested by respondent No.3 on the ground that the same is mala fide, collusive and has been filed simply to complicate the restitution of possession of the property in dispute to respondent No.3 with the added ground that the intervener i.e., Mst. Samina Shamas had in fact filed a similar application before the learned Rent Controller as also the learned Additional District Judge but had remained unsuccessful and she having not availed further remedy could not file an independent application during the course of hearing of the present Constitutional petition. The petitioner No. l on the other hand conceded the application of the intervener and submitted that she shall have no objection to her being joined as co‑petitioner. This application of the intervener was allowed by me vide my order, dated 25‑11‑1996 whereby she was allowed to be joined as co‑petitioner. Needless to add that it was through the same order that this petition was admitted to regular hearing.

4. Mr. Elahi Bakhsh Vijdani, learned counsel for the petitioner No. l mainly contended that the order of restitution could not be passed without first determining the two applications filed by him i.e. one for framing of issues and the other for appointment of a local Commissioner and in this regard he referred to the judgment of my learned brother Mr. Fazal Karim, J. (as he then was) to contend that the demolition of old structure and construction of new building finds mention therein and that in these circumstances, it was really not possible for the learned Rent Controller to order restitution of possession without first determining the exact location of the property from where respondent No.3 was evicted. It was also submitted that the judgment of the learned Rent Controller as also that of the learned Appellate Court did suffer from jurisdictional defect inasmuch as the decision on the two applications filed by petitioner No. l could not be deferred as according to him the restitution of possession could not be made without first determining the exact location of the premises from where the respondent No.3 was evicted. It was lastly urged that in view of the new construction at the site, the restitution of possession had become almost impossible and that in any case new construction having been raised at the site it may not be possible to restore the possession of the property in dispute to the petitioner without determining the exact location of the said premises.

5. Mr. Abdul Aziz Akhgar, Advocate for petitioner No.2 while tracing the history of the property in dispute submitted that the site underneath the same is about 11 Marlas and 41 square feet which is about 12 Marlas which was owned by non‑Muslims who sold the same in favour of one Malik Allah Ditta vide sale deed, dated 12‑10‑1945. The said Malik Allah Ditta died in 1978 and his legal heirs sold the above said property in 3 parts in equal shares i.e. in favour of Mst. Arshad Begum, Mst. Umda Begum and Mst. Samina Shamas. The above said Mst. Arshad Begum and Mst Umda Begum in turn sold their shares in favour of Mst. Imtiaz Begum, who thus, became the owner of 2/3rd share in the above said property while Mst. Samina Shamas continued to be the owner of the remaining 1/3rd. It was submitted that at the relevant time the total property comprised of six shops in front and a residential portion on the rear thereof. Mr. Akhgar went on to argue that only residential portion was demolished and has since been reconstructed. It was submitted that Mst. Imtiaz Bibi, petitioner No. 1 had filed an application for ejectment against respondent No.3 but in the narration thereof no measurements of the property in dispute was given nor the same was shown in the site plan attached with the ejectment application. Again, it was maintained that no such area is mentioned in the application filed for seeking restoration of possession. To sum‑up the structural history of the property in dispute, it was submitted that presently the property is being shared by the two petitioners jointly and it is really not discernable from the record as to what is the exact portion for which the application for restitution has been filed.

6. In the background aforenoted, the learned counsel for petitioner No.2 also fell back upon the arguments raised by the learned counsel for the petitioner to submit that unless the application filed by petitioner No. 1 had been accepted and given a trial, the restitution could not be ordered.

7. Mr. Anayat Ullah, Advocate, appearing on behalf of respondent No.3 on the other hand maintained that it is manifest from the judgment of Mr. Justice Fazal Karim rendered in the earlier round of litigation between the parties that the cabins have been fabricated at the site while the roofs thereof are that of tin. It was then submitted that the respondent No.3 had also filed a suit for permanent injunction thereby seeking to restrain the petitioner No. l from raising construction at the site and it was during the course thereof that the learned Additional District Judge while hearing the appeal had observed that petitioner No. l may raise construction at her own risk and that being so, the construction having been raised at the site is no impediment in the way of the respondent No.3 to obtain possession of the premises from where she was evicted. It was then argued that the respondent No.3 is entitled under the law to be restituted to the possession of the premises as they existed prior to the execution of the ejectment order. It was also maintained that the petitioner No. l having raised construction at her own risk could not turn around to maintain that the restitution has become impossible. It was also submitted that the petitioner No. l having raised the construction at her own risk should in all fairness deliver back the possession of the disputed premises to respondent No.3, even if she has to demolish some portion of the construction raised at the site and should also restore the original construction as it stood prior to the execution of ejectment order otherwise the respondent No.3 would obtain the possession of the premises from where she was evicted through the execution of the restitution order and would raise her own construction. Reliance was placed on Amir Chand v. Chunni Lal and another (AIR 1990 Punjab and Haryana 345) to contend that doctrine of frustration being not applicable in cases of lease, a tenant evicted in the execution of ejectment order was entitled to restitution of possession even if the building had been demolished. Reliance was also placed on Hamejaddi Howladar and another v. Maminaddi Shaikh and another (PLD 1959 Dacca 304), Shaikh Abdul Hameed v. Hifazat Hussain Jafri (PLD 1994 Karachi 379), Khalid Rasool and 2 others v. Muhammad Sharif and 2 others (1987 CLC 253) and Sheikh Meraj Din v. Ghulam Muhammad (PLD 1965 (W.P.) Lahore 374). The pith and substance of the rule laid down in the judgments afore referred is to the effect that restitution is automatic; mandatory and must be ordered when the decree under which a party has obtained possession is varied or reversed by the same Court or the Appellate Court and that even the destruction of the subject matter is no ground to refuse restitution for it is duty of the Court to repair the injury done to a party by its act. As for the stand point of petitioner No.2, it was submitted that the same was mala fide and collusive with the rider that she being not a party to the ejectment proceedings could not possibly stand in the way of restitution of possession of the property in dispute particularly when the order under which the possession was delivered to petitioner No. l had been set aside by the learned Appellate Court.

8. The concept of restitution is as old as the law itself. It is automatic as it becomes operative the very moment when the order under which a party to the litigation is deprived of his possession is varied, modified or set aside for it is ordained that the Court must remedy the injury or the wrong done to a party because of order of the Court. Section 144, C.P.C. provides the procedure therefor, while the power to order restitution is inherent in Court. This being the position of law, the question which falls for determination in this particular case is that as to whether the restitution would become impossible by any act of the beneficiary of an order or for that matter, any intervener who has been benefited by the order itself or the execution thereof and the answer is not very difficult to find. The order of restitution is in the nature of mandate directing the party to the proceedings who is benefited by the order passed by the Court that he should surrender the benefit that he had received. May be that it is in the nature of possession of an immovable property or movable such as money, securities etc. The further question is can a party having obtained possession of the property under the order of the Court turn round to say that it has become impossible for him to restitute the said possession particularly when the difficulty or the impossibility is pleaded on the ground that it is by his own act that it has become on impossible to do so. The simple answer to the question aforenoted is in the negative for if such a course is allowed to be adopted by a party to the proceedings, the opposite party would be denied the fruits of the order passed in. its favour. Since the restitution is automatic, it takes place when the order itself is varied; modified or set aside. The direction in this behalf is to be complied with anon and the plea that some construction has been raised at the site, therefore, it is not possible to locate the exact area from where the respondent was evicted, hence the said area first be located by recording evidence and the restitution be ordered later on is absolutely misconceived. After all, the petitioner No. l does know the exact area from where the respondent was evicted and should surrender the same to the said respondent. Learned counsel for the respondent did rightly maintain that the construction, if any, was raised by petitioner No. l at his own risk as is evident from the order passed in the suit for injunction filed by the respondent thereby seeking to restrain the petitioner No. l from raising any construction at the site. The petitioner No. l having raised construction, if any, at his own risk could not be allowed the maintain that it has become impossible for her to restore the possession of the property in dispute to the respondent for it tantamounts to giving the premium to petitioner No. l for having raised the construction at the site in the face of the eminent threat that the order under which she had obtained the possession is likely to be set aside for the same was under the judicial scrutiny. The question whether the restitution could be ordered where the demised premises had been demolished when the order under which the possession of the premises was taken is varied, modified or set aside, fell for interpretation in the cases of Amir Chand and Sheikh Abdul Hameed noted supra when it was ruled that the destruction of the subject‑matter of the tenancy is no ground to refuse restitution for the site underneath the said structure was very much available and the same could be delivered to the party from whom the possession had been taken under the orders of the Court. This is the spirit of law as to restitution. The rule in the case of Amir Chand has even gone beyond for it is laid down in the said case that the party being asked to restitute the possession should reconstruct the structure in the manner so as to rehabilitate the other party evicted therefrom or in the alternative, the party being restituted may construct the same structure and the cost of construction thereof be adjusted from the rent to be paid to the landlord. It is, thus, obvious that the plea that an issue should be framed so as to locate the exact area from where the respondent was evicted arid for that purpose a local Commissioner be appointed is only a ruse to stall the restitution proceedings and petitioner No.l cannot be allowed to take advantage of her own conduct thereby maintaining that the structural possession of the property in dispute having been changed by her, it has remained no more possible to restore the possession thereof to the respondent.

9. Coming to the stand point of petitioner No.2, suffice it to say that she being not a party to the proceedings in which the initial order for the delivery of the possession to petitioner No. l was passed and is now being ordered to restitute the same, she has no right to object to the restitution of the possession. The plea that the property is jointly owned by the two petitioners, therefore, the order of restitution would also affect her title or interest to the property is not well‑based for the reason that the property would remain joint till such time that it is partitioned by leaps and bounds and for the added reason that it is now well accepted that one of the joint owners can evict the tenant as is the present case, therefore, if one of the joint owners can evict the tenant, he can also restitute the possession without joining the other for the real intent behind the same is to restore the position ante and for that matter, the landlord who had taken possession of the property in dispute in persuance of the order passed by the Court can be directed to restore the said possession if the said order is varied, modified or set aside.

10. For the reasons aforenoted, this petition is found to be meritless, therefore, the same is dismissed with costs. A.A./I‑43/L Petition dismissed