1986 PLP 2997 (MLD)

This appeal is directed against the order, dated 18‑11‑1984 passed by the VIIth Senior Civil Judge and Rent Controller, Karachi whereby the application, under Order XXI, Rule 100, C . P. C . filed by the appellants was dismissed. The brief facts which give rise to this appeal are that Fazal Din son of Peers filed ejectment application bearing No.804 of 1966 against Yakoob Ali son of Jaffar. The ejectment application was allowed by the Rent Controller and the said Yaqoob Ali was directed to hand, over vacant possession of the disputed premises to the respondent No.1. It seems that the respondent No.2 did not hand over possession of the disputed premises to the respondent No.1, therefore, the respondent No. l filed Execution Application No.50 of 1982 against the said respondent No.2. That during the pendency of the execution application the present appellants filed an application under Order XXI, Rule 100 read with section 151, C.P.C. praying for dismissal of execution application filed by respondent No.1 stating therein that they are in possession of the disputed property being owners as the same property is inherited by them from their inheritance since long. The appellants also averred that the respondent No.1 obtained the ejectment order against the respondent No.2 by way of committing fraud as the respondent No.1 is not owner or landlord of the disputed property and had never remained in possession thereof. The respondent No.1 filed counter‑affidavit wherein he denied the averments made by the appellants in their application and further disclosed that the ejectment case was filed against the respondent No.2 which was decided in his favour on 22‑12‑1975 by the Senior Civil Judge and Rent Controller, Karachi. The respondent No.2 had preferred appeal which was also decided in his favour by learned IInd Additional District Judge, Karachi by his judgment, dated 9‑12‑1979. He also stated therein that the respondent No.2 had preferred second appeal before this Court which was also decided in favour of respondent No.1 by judgment, dated 12‑10‑1981. The respondent No.1 had also further stated in his counter‑affidavit that the present appellants forcibly occupied the premises vacated by their tenants namely Jan Bai and raised Katcha construction and for which the respondent No.1 approached S.D.M. (Central), Karachi under section 145, Cr.P.C. It is also averred in the counter‑affidavit that the respondent No.1 had filed Civil Suit No.485 of 1982 in this Court under section 9 of Specific Relief Act against appellant which is still pending. The learned Civil Judge and Rent Controller, after considering the arguments of the Advocates of the parties, passed order, dated 18‑2‑1984 by which the application was dismissed. The appellants being aggrieved by the aforesaid order have preferred this first appeal on the grounds mentioned in the memo. of appeal. In support of the appeal Mr. Zafar Hadi Shah, learned counsel for the appellants, has contended that the appellants are the owners of the premises and not tenants in respect of the disputed premises. On the other hand Mr. Syed Amjad Hussain, learned counsel for the respondent No.1, has contended that the ejectment application was filed against respondent No. 2 who is the tenant in respect of the disputed premises and the respondent No.1 has not committed any fraud on the Hon'ble Court as alleged. I have considered the respective submissions of the learned counsel for the parties and also perused the impugned order of the learned Rent Controller. I have also perused the copy of application under Order XXI, Rule 100, C.P.C. filed by the appellants. As stated above, the plea taken by the appellants in the application is that they are in possession of the premises in their own right. In my opinion the learned Rent Controller :has not fairly adjudicated upon the issue. A perusal of provisions of Rule 103 of Order XXI, C.P.C. would show that all questions arising as to title, right or interest in, or possession of immovable property under Rule 100 are to be adjudicated upon by proceedings under Rule 103 and the proceedings under Rule 103, are not mere summary proceedings but are as if were trial in the suit and the provisions of the Code relating to the trial of the suit shall apply to the proceedings under these Rules 100, 101 and 103 and issues shall be framed in the proceedings. Parties shall be given opportunity to lead both documentary an oral evidence. It seems that this has not been done in this case. The learned counsel for the parties jointly submit that the case be remanded to the learned trial Court for deciding the case in accordance with law. The learned counsel for the parties also framed issue in the instant case. I consider the request is appropriate. In view of the circumstances detailed above, it is just and proper to give opportunity to the parties to adduce evidence on the consent issue filed by them. I direct the Rent Controller to record evidence of the parties and after giving his findings on the consent issue decide the case in accordance with law. The learned Rent Controller should give priority to this case and give his findings after recording evidence and after hearing arguments of the learned counsel for the parties within a period of two months from the receipt of this order and consent issue. The office is directed to send the copy of order and the issue to the learned Rent Controller forthwith. The above appeal is disposed of accordingly. H.B.T. Order accordingly.