1979 PLP 109 (CLC)

This second appeal purportedly filed under section 100, C. P. C. calls in question concurrent decisions of two lower Courts upholding the claim of the respondent for restitution of possession of a portion of house No. 2 Praim Gali (4), Railway Road, Lahore.

2. The facts relevant to the disposal of this appeal are that Mst. Zubeda Begum appellant herein filed application before learned Rent Controller Lahore for an order of ejectment against Mehraj Din respondent on several grounds which need not be recounted here. Pausing, it may be observed here that Mst. Zubeda Begum had also made a similar applica tion against Siraj Din a real brother of the respondent who is in occupation of other portion of the same house. Both applications were on 16tb of September 1975, allowed on contest and orders of ejectment were passed against the appellant and Siraj Din. Separate appeals were filed before learned District Judge to challenge orders of learned Controller which were heard and rejected by an Additional District Judge acting as appellate authority. Further appeals were filed in the High Court under subsection (4) of section 15 of the Ordinance. Both appeals were admitted to regular hearing and the question of stay of execution order of learned Controller which as said above was affirmed on first appeal was ultimately decided on 18th of January 1978. Execution proceedings were stayed subject to the appellants furnishing security within 20 days for the deposit of arrears of rent to the satisfaction of trial Court (Controller). We are here concerned only with the case of Mehraj Din whose appeal in the High Court was registered as S. A. O. 183,/76. On 14th of February 1978, Saeed Ahmad the husband and attorney of the appellant made an application before Mr. Riaz Ahmad learned Rent Controller, Lahore for issue of warrant for delivery of possession of the premises in occupation of Meraj Din respondent contending therein that the respondent had not furnished security in obedience to the order dated 18th of January 1978, of the High Court staying proceedings for execution of order of ejectment against the respondent. Notice was issued to the respondent for 23rd instant which was received back with the report that the respondent had refused to accept service. Learned Rent Controller called report of the Ahlmad concerned so as to assure himself of veracity of the contention of the appellant that security had not been furnished by the respondent. The Ahlmad confirmed the version of the appellant in his report dated 25th of February 1978, (DHW1/2). Learned Rent Controller issued warrant for delivery of possession to tire appellant returnable on 9th of March 1978. Next day viz. on 26th of February 1978, attorney of the appellant made another application that warrant could not be executed except by breaking locks and breaking open outer door of the premises. The application was allowed same day and necessary orders were issued. On 4th of March 1978, the respondent filed application in the Court of learned Controller for stay of execution of proceedings. It was contended in the application that proceedings for execution had been stayed by the High Court vide order dated 18th of January 1978. Necessary security had been duty furnished on 6th of February 1978. The warrant for delivery of possession to the appellant bad been issued on some wrong assumption or on a false and incorrect information furnished on behalf of the appellant. Learned Rent Controller ordered withdrawal of the warrant. However, possession had been delivered to the appellant before the order withdrawing the warrant could be notified to the bailiff entrusted with execution of the warrant. On the following day the respondent applied for orders for restoration of possession of the premises. The application was allowed same day by learned Controller observing that according to entry in the Peshi register security had been filed by the respondent on 6th of February 1978. The Ahlmad had made a misleading report and false affidavit concealing the real facts was filed on behalf of the appellant. The order was challenged by the appellant in revision before learned District Judge which was accepted on 11th of March 1978, and the case was remanded to the executing Court with the direction to hold an inquiry if security was furnished and why it was missing and who was responsible for loss/ misplacement of the document. Tile appellant joined issues. Preliminary objections were also raised in the, formal re-joinder that the application was not maintainable, the Court had become functus officio and that the respondent could not seek any remedy from the said Court. A couple of issues (i) if security had been furnished by the respondent in time in compliance, with orders of the High Court, and (ii) if the application for restoration of possession was competent were struck for disposal of the application for restoration of possession. On consideration of evidence examined before him, Mr. Ijaz Mahmood, Civil Judge to whom the case was transferred at the instance of the appellant upheld the contention of the respondent that security had been furnished in time and there was nothing to show that the application was not competent in law. Accor dingly, the application was accepted and the appellant was directed to hand over vacant possession of the premises within four days. The appellant filed revision petition under section 115, C. P. C. which was dismissed by learned Additional District Judge on 16th of September 1978. On proper analysis of evidence examined before the executing Court learned Additional District Judge also held the same view that the respondent had furnished necessary security on 6th of February 1978. Precisely, learned Additional Dist rict Judge concluded that "Mehraj Din has successfully established on record by convincing evidence that he deposited the security on 6th of February 1978 and it was a mistake on the part of some employee of the Court that the security deed is not available on the record. I have no doubt in my mind that the security bond was executed and was deposited in accordance with the direction of the High Court. Thus the tenant was wrongly dispossessed on the misstatement coming from certain quarters".

3. The appellant filed Writ Petition No. 4605/78 under Article 199 of the Constitution for a declaration that the orders of both courts below were without lawful authority and of no legal effect. The petition was dismissed in limine with the observation that the appellant had failed to assail with any success concurrent findings of fact that the security was in fact furnished in time. The restoration of possession by the appellant would be necessary consequences of the said finding and the appellant was not entitled to any relief in discretionary jurisdiction of High Court. Thereafter, the appellant came up with the instant appeal.

4. The first question arising for consideration would be if appeal is] competent: Evidently, the order passed by the executing Court does not fall under section 144, C. P. C. which applies where a decree is varied or reversed in appeal. In such cases restitution can be ordered .in exercise of inherent powers under section 151, C. P. C. Order under section 144 is a decree by virtue of amendment of subsection (2) of section 2, C. P. C. and is appealable under section 96, C. P. C. However, order under section 151 is not a decree nor it is an appealable order. The appellant had therefore rightly availed of remedy of revision under section 115, C. P. C. The section as amended by means of Ordinance XII of 1972 confers concurrent jurisdiction of revision on the High Court and District Court Revision is competent before learned District. Judge where order has been passed by a Court subordinate to the District Court in a suit, the amount or value of the subject-matter whereof does not exceed the appellate jurisdiction of the District Court. In other cases the revision lies to the High Court only. Subsection (3) lays down that where a revision within the competence of District Court has been made either to the High Court or District Court no further application shall be made to either of them. It will be shown that High Court is not competent to entertain a further revision against a revisional order passed by District Judge or Additional District Judge. The case of the appellant stands clinched on this ground.

5. Learned counsel for the appellant contended that the question whether restitution is ordered under section 144, Civil Procedure Code or under the inherent jurisdiction of Court under section 151, Civil Procedure Code should be a matter of no practical importance for the purposes of competency of appeal. The order of granting restitution in exercise of inherent jurisdiction shall be deemed to have been passed under section 144, Civil Procedure Code. Reliance was placed on the judgment of a Division Bench of Nagpur High Court in Mst. Champa Bai v. Shree Daulat Ram Sharma and others (A I R 1938 Nag. 326). It was held in that case that if however inherent powers are used to expand remedy in order to do justice to cover a case not within the exact words but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the order was made under section in question, in this case section

144. In such a case even justice demanded that one side should be given a remedy, restitution, as if section 144 applied so the other side should as a matter of justice be allowed the right to appeal, that would have existed, had section 144 really applied instead of its being applied by means of a fiction. It was also observed that two views could be taken upon the subject. However, the learned Judges preferred the above view which was consonant with the view expressed in a couple of cases from Calcutta High Court. I am not advised to attempt a detailed discussion on the point and would proceed on the assumption that appeal against the order passed by learned Civil Judge was competent as if order was passed by him under section 144, Civil Procedure Code, which appears to be more logical and fair as well. The revisional application which the appellant had filed before learned Additional District Judge shall be deemed to have been disposed of as an appeal under section 96, Civil Procedure Code. I am not in. the least persuaded to subscribe to the view that the order of learned Additional District Judge passed in revision should be treated as non-existent for the reason that the appellant had filed revisional application instead of appeal which remedy was open to her under section 96, Civil Procedure Code and this appeal should be treated notionally as initial (first) appeal ignoring altogether judgment of learned Additional District. The remedy of revision which the appellant had chosen to avail had not caused any prejudice to the appellant. Learned Additional District Judge had undertaken proper survey of evidence as is permissible in appeals. He had not confined his attention only to the point if the order of Court of first instance suffered from jurisdictional error or a material irregularity which is the fundamental consideration for decision of revisions under section 115, Civil Procedure Code.

7. As said above, both the Courts below have held concurrently that Meraj Din respondent had furnished security on 6-2-1978. Mr. Khalid Habib Advocate, Qaim Din a licensed petition-writer, Muhammad Nawaz who stood surety for the respondent were adduced on the side of the latter. Muhammad Siddiq Attorney of the respondent also recorded his statement. Inayatullah Ahlmad attached to Mr. Riaz Ahmed, Civil Judge, Muhammad Aslam Process-Server and Saeed Ahmed Attorney of the appellant were examined in rebuttal. The finding that security had been furnished by the respondent is a finding of fact which could not be displaced in second appeal even though erroneous or grossly inexcusable or High Court ma on its own examination of the case come to have a different view, unless it were shown with absolute clearness that some blunder or error is apparent in the way in which the Courts below had dealt with the facts or, if any rule of evidence had not been properly applied. Despite repeated queries, learned counsel for the appellant was unable to point out that findings of the two Courts below were based on misreading or mis representation of evidence. An argument was sought to be raised that the two Courts below had not considered evidence of the witnesses its true perspective. With respect, the contention is misconceived as the question of appreciation of evidence and decision as to the credibility of the witnesses is neither an error of law nor of procedure and cannot furnish a ground for second appeal. Court of fast appeal alone is competent to enter into questions of fact and decide whether findings of fact by the lower Courts are or are not erroneous. As said above, the Court of second appeal is not competent to entertain question as to soundness of a finding of fact by the Courts below. I find it wholly unnecessary to encumber this judgment with citation of authorities on the question of scope of powers of Court of second appeal which is a question of common knowledge. It may, however, be said in passing that the statement of Mr. Khalid Habib which was not open to a conceivable challenge; and the fact that learned Civil Judge had observed in his order dated 5-3-1578, long before the enquiry was started that there existed an entry in the Peshi Register with regard to filing of security by the respondent on 6-2-1978 as well as the finding in the writ petition that the appellant had failed to assail with success the finding that security had been furnished by the respondent in time, completely shut out the controversy sought to be raised by learned counsel for the appellant. It may also be said that I have also seen Peshi Register and find 'hat the entry regarding furnishing of security does not arouse any suspicion. As a last resort, learned counsel for the appellant came up with an argument that the order for restitution of possession could not be passed even under section 151, Civil Procedure Code when the provisions of section 144, Civil Procedure Code are excluded. The respondent should have filed a regular suit for restoration of possession. After short arguments learned counsel for the appellant conceded with candour that there is a plethora of authorities which negatived his argument. The jurisdiction to make restitution is inherent in every Court and should be exercised whenever the justice of the case demands it and the application is not strictly within section 144, Civil Procedure Code. Reference be made to a recent judgment of this Court in Iqbal Ahmed Mahk v. Surayya Anwar Sheikh (P L D1977 Lah. 409). It was held in that case that the power of a Court or competent authority to grant restitution is not confined to the case covered by the provisions of section 144, Civil Procedure Code. It extends also to cases which do not come strictly within this provision, the reason being that the Court; competent authority has inherent powers under section 151, Civil Procedure Code irrespective of section 144, Civil Procedure Code to order restitution. It was also observed that it cannot be denied that in the exercise of their inherent powers the Courts have applied the principle underlying the right of restitution to other cases which are not strictly in the terms of the ;aid provisions.

8. In the result, the appeal stands dismissed with costs throughout. Counsel fee Rs. 200'. The appellant shall hand over possession of the premises to the respondent within one week failing which formal warrant for delivery of possession to the respondent shall be issued by learned Civil Judge.