2011 PLP 1815 (CLC)

SYED KAZIM RAZA SHAMSI, J.

This constitutional petition is directed against a decision dated 22-5-2010 passed by Mr. Zafar Hussain Bhatti, learned Additional District Judge, Lahore whereby he accepted the appeal and set aside the order dated 8-3-2010 passed by Mr. Arif Mehmood, learned Rent Controller, Lahore whereby the learned Rent Controller had dismissed the application filed under section 12(2) of C.P.C. on behalf of the present respondents.

2. Muhammad Kabeer the landlord of Property No.1457/929 filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 against one Manzoor Ahmed which was accepted by the learned Rent Controller on the consenting statement of the tenant. One Muhammad Suleman predecessor-in-interest of respondents Nos.1 to 9 filed an application under section 12(2), C.P.C. challenging the ejectment order dated 6-6-1989. In that application of Muhammad Suleman the court after framing issues dismissed the same on 19-12-2000 for want of evidence which order was assailed in the revision petition before the learned First Appellate Court and the revision petition was also dismissed on 20-10-2003.

3. Later on after the death of said Muhammad Suleman his legal heirs namely respondents Nos.1 to 9 again filed an application under section 12(2), C.P.C. challenging the legality of order dated 6-6-1989 which application was contested by the landlord. The learned Rent Controller after considering the submissions made by learned counsel for the parties dismissed the same holding that the fresh petition under section 12(2), C.P.C. was barred by law as on the same subject-matter and against same decree the first application of Muhammad Suleman was dismissed, which order was maintained in the revision petition, as such those proceedings attained finality.

4. The legal representatives of Muhammad Suleman then preferred an appeal before the learned First Appellate Court which proceeded to accept the same on the grounds that the application was decided by the learned Rent Controller without framing issues and recording evidence of the parties, thus, remanded the case to the court for doing the needful. The landlord being dissatisfied with the order has assailed the same in this constitutional petition.

5. The parties have been heard and the record has been perused.

6. The learned First Appellate Court has taken erroneous view that the application filed under section l2(2), C.P.C. in the instant case should be decided after recording evidence. The court has ignored the fact that the predecessor-in-interest of the respondents had also assailed the vires of the ejectment order dated 6-6-1989 by filing the same type of application which was dismissed upto the First Appellate Court, thus, that order had attained finality and the same cannot be reopened subsequently by the successors in interest of Muhammad Suleman. This fact was so apparent on the face of record which did not require any recording of evidence as it involved a legal question about the maintainability of the second petition on the same subject-matter. This court is conscious of the fact that the application under section 12(2), C.P.C. is to be treated like a civil suit and the court should frame issues and proceed to record evidence to determine the application. In various judgments of this Court as well as of the apex Court this has been so held, but in the instant case the position is different. It is not denied by respondents Nos.1 to 9 that they are not successors in interest of Muhammad Sulaman. The decision of dismissal of the previous application filed by Muhammad Suleman and its maintainability was properly adjudged by the then learned Rent Controller and subsequently the same was dismissed against which a revision petition was preferred before the learned First Appellate Court. Khawaja Muhammad Zafar Iqbal, learned Additional District Judge vide judgment dated 20-10-2003 dismissed that revision petition against which no further remedy was availed in any higher forum. Thus, the orders passed by the court in the first round of litigation were final against said Muhammad Suleman and for all times to come against his successors in interest. Accordingly the same cannot be reopened in the subsequent proceedings on the same grounds. This was an error apparent on the face of record which was not taken notice by the learned First Appellate Court in the impugned order. The contention of counsel for the respondent that after eighteen years the respondents came to know about the fraud committed, as such they have filed the petition, is of no avail to the respondents as it is not lawful excuse for reopening the matter after about two decades.

7. The learned First Appellate Court has totally proceeded against the law while accepting the appeal and remanding the case to the court below for further proceedings, as such is not maintainable.

8. For the foregoing reasons, this petition is allowed declaring decision of the First Appellate Court dated 22-5-2010 as illegal and of no legal consequence, resultantly, this judgment is set aside and that of the learned Rent Controller is restored. H.B.T./M-225/L Petition allowed.