1984 PLP 1399 (CLC)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ Ss. 13 & 15 (7) [as added by Punjab Urban Rent Restriction (Amendment) Ordinance (IX of 1979)]‑‑Civil Procedure Code (V of 1908), S. 115 ‑‑ Provisional Constitution Order (1 of 1981), Art. 9 Order of ejectment passed in appeal, held, not open to further challenge in High Court by means of constitutional jurisdiction. Zahural Hasan v. Mst. Ruqqia Begum and 4 others P L D 1981 S C 112 ref. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 15 (7)‑Scope‑Section 15 (7) of Ordinance, held, not restricted to parties to ejectment but covers all orders passed by Controller or appellate authority and these orders can only be; challenged in manner provided by Ordinance itself. Khurshid Begum v. Ghulam Kubra etc. 1982 S C M R 90 ref. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ Ss. 13 & 17‑Provisional Constitution Order (of 1981), Art. 9‑ Ejectment proceedings‑Petitioner not party to proceeding before Controller or appellate Court nor in physical possession of property in dispute but only claiming constructive possession on basis of trans fer order issued in his favour and co‑transferee‑Observation allegedly affecting his proprietary rights, held, not binding on him and he can apply to executing Court for protecting his constructive possession, as all questions arising as to title or interest in or possession of property in dispute shall be determined by executing Court without prejudice to observations made by High Court. Gul Muhammad and another v. Mir Zaman and another P L D 1954 Lah. 406 ref. This is a petition under Article 9 of the Provisional Constitution Order, 1981, for a declaration that the order dated 25‑9‑1982 of the learned District Judge, Lahore, is without lawful authority and of no legal affect qua the petitioner in regard to his valuable rights in the property, in dis pute, in any manner whatsoever.

2. The facts relevant for the disposal of this petition are that respon dent No. 2 filed an application for ejectment under section 13 of the Punjab Urban Rent Restriction Ordinance (VI of 1959) for the eviction of respondent No. 3 in respect of Property No SW. III‑9.S‑5, Mongia Street. Devsmaj Road, Ram Nagar, Lahore, on the grounds of default, personal need etc. The application was dismissed by order, dated 9‑3‑1982 of the learned Rent Controller on the ground that statutory relationship of landlord and tenant did not exist between the parties. On appeal, the learned District Judge, Lahore, vide judgment, dated 25‑9‑1982, set aside the order of the learned Rent Controller and accepted the ejectment application.

3. Learned counsel for the petitioner contends that a part of the property, in dispute, was transferred in favour of the petitioner and others and, therefore, no order of ejectment could be passed by the learned District Judge. It is further contended that the impugned order of the learned District Judge, has been passed without 'jurisdiction, in that, the question of demarcation of an evacuee property completely vests within the exclusive jurisdiction of the Settlement authorities. Precise submission of the learned counsel is that the impugned order has the effect of adding or modifying the order, dated 18‑6‑t976 of the learned Deputy Settlement Commissioner, whereby, the property, in dispute, was transferred and demarcated into two different portions. Finally, it is submitted that the findings recorded by the learned District Judge in paragraph 9 of the impugned order, have the effect of jeopardising the legal and valuable rights of the petitioner as owner of the part of the disputed property and in case of implementation of the impugned order in the execution proceedings, it will create further complication and result in protracted litigation. Hence this petition.

4. In terms of section 15 (7) of the Punjab Urban Rent Restriction Ordinance (VI of 1959), the order of the learned Controller or the Appel late Authority is final and cannot be called in question in any Court of law including the High Court by suit, appeal or otherwise. Interpreting the word `otherwise', it was held by the Supreme Court in Zahural Hasan v. Mst. Ruqqia Begum and 4 others (PLD1981SC112) that the word is wide enough to include the remedy of revision under section 115, C. P. C. and by the Amending Ordinance the Legislature had taken away the jurisdiction of the High Court regarding second appeal against the order of the District Judge. This being so, the order of ejectment passed in respect of the disputed property is not open to further challenge in the High Court and the same cannot be permitted to be challenged by means of constitutional provisions.

5. When faced with this situation, learned counsel for the petitioner vehemently contended that the impugned order of the learned District Judge was passed ex parte, without notice to the petitioner and, therefore, is inoperative qua the rights of the petitioner. Suffice is to say that section 15 (7) of the Ordinance is not restricted to the parties to the ejectment proceedings, but covers all orders passed by the Controller the appellate authority. These orders can only be challenged in manner provided by the Ordinance itself. In Khurshid Begum v. Ghulam Kubra etc. (1982 S C M R 90) it was held that the Civil Procedure Code is applicable to an order of ejectment passed under the Ordinance and the Executing Court has power to entertain and adjudicate an objection petition filed by a person not claiming through judgment‑debtor even before his physical dispossession from the property. In the instant case, the petitioner is not in physical possession of the property, in dispute. He however, claims to be in constructive possession on the basis of transfer order issued in hi and co‑transfers. This being so, the petitioner may if so advised apply to the Executing Court for protecting his constructive possession a envisaged by Order XXI, rule 100, Civil Procedure Code. Refer Gul Muhammad and another v. Mir Zaman and another (P L D 1954 Lah. 406). Needless to add that the petitioner was not party to the proceedings before the Controller and the appellate authority and, therefore, the observations allegedly affecting his proprietary rights, are prima facie not binding on him. Be that as 'it may, all questions arising as to title, right or interest in or possession of the property, in dispute, in execution of the decree, shall be determined by the Executive Court without prejudice to any observations made in this order. In view of the above, the petition fails and is dismissed in limine. M. Y. H. Petition dismissed.