P L D 1994 Karachi 379 (PLP)

There has been prolonged litigation between the parties. Central to the disputes has been a godown premises bearing No.G‑2, Plot No. SR‑9/23, Faiz Muhammad Fateh Ali Road, Serai Quarters, Karachi. Apparently, the respondent was the transferee of such premises from the Settlement Department and the appellant was its tenant at a monthly rent of Rs.35. Rent Case No. 1627‑of 1967 for eviction is said to have been filed by the transferee landlord against the tenant in the court of the learned Vth Controller and Civil Judge, Karachi, but such was withdrawn on 3‑9‑1969. Thereafter because, allegedly, the landlord started avoiding to receive rents, the tenant through Miscellaneous Rent Case No. 3601‑of 1975 obtained permission to deposit the same before the Controller. In the year 1977, under MLO 20 the landlord sought eviction of the tenant through the agency of a Summary Military Court and succeeded in obtaining an order dated 7‑11‑1977, requiring the tenant to hand over vacant possession of the' tenement in question by 15‑12‑1977. Against such order the tenant preferred a Revision application under clause 8 of MLO 20 before the Martial Law Administrator, Zone `C', but the fate thereof remains unknown. Correspondingly, however,‑ the order dated 7‑11‑1977 was also assailed in Constitutional Petition No.D‑566‑of 1978 before this Court and, during its pendency, an order was passed on 10‑4‑1978 whereby the landlord was directed not to transfer or hand over possession of the disputed premises to any third party. Meanwhile, Sindh ordinance 1 of 1980 war promulgated where under the tenant preferred FRA No.137/1980, again in this Court which, on 1‑11‑1981, was allowed but because, in the meantime, the tenant had no longer remained in possession of the premises the question of restitution thereof upon the principle codified in section 144 of the Code of Civil Procedure was left to be decided by the Controller in words, which are material and which are reproduced hereunder: "The second contention that has been raised by the learned counsel for the appellant before me was, that in case it is held that the impugned order dated 7th November, 1977 was passed without jurisdiction, and is set aside, then, the appellant is entitled to restoration of possession under the provisions of section 144, C.P.C., as according to the‑ learned counsel, the appellant was ejected from the premises in question, on the basis of the impugned order. Learned counsel for the respondent, on the other hand submitted and drew my attention to the notice dated 27th March, 1978, which was addressed on behalf of the appellant, by his advocate to the respondent, according to which, it is alleged, that the respondent illegally and forcibly took possession of the premises in question by breaking open its lock, in the absence of the appellant. In view of this notice sent on behalf 'of the appellant, the learned counsel for the respondent submitted, it is obvious, that appellant was not ejected on his own saying in the execution of the impugned order and as such the provisions of section 144, C.P.C. are not at all applicable to appellant's case for restoration of possession. In view of contradiction in the statements and the stand of the parties regarding ejectment of the appellant from the premises in question, this question would require recording of evidence, before the fact in question can be determined, whether the appellant was ejected in pursuance of the impugned order of not. It is not .possible for me in this appeal to' take the necessary evidence. Even the, provisions of section 144, C.P.C. show, that on reversal of the judgment of original Court; the Court of first instance shall on the application of any party entitle to any benefit by way of restitution or otherwise could be moved. Therefore, I am not inclined to consider the prayer of the appellant for restoration of possession in this appeal. However, appellant will be at liberty to shove the Court of the first instance, which in the circumstances of the present case, after disbandment of Summary Military Court constituted under MLO 20, will be the Court of Rent Controller, in whose jurisdiction the property in question is situated, for. such relief by an application as provided tinder section 144, C.P.C., if he is so advised." In due course evidence was recorded by the Controller, the landlord examining himself (Exh.5), one Ghulamus Syedain (Exh.10) and the tenant his attorney, Wazir Muhammad (Exh.12). The Controller through the impugned order dated 7‑10‑1990 has disallowed restitution, finding in the order being that the tenant was not dispossessed in execution of the outer of the Summary Military Court thereby precluding the grant of relief upon the principle under lying section 144, C.P.C. I have heard the learned counsel and have perused the record. It is evident that on 27‑3‑1978 the tenant lodged a complaint with the S.H.O., Aram Bagh Police Station, Karachi, maintaining that while the matter of the dispute regarding the godown in question was still (in appeal) pending before the Martial Law Administrator Zone `C' Karachi, at 4‑00 p.m., on the same date i.e. 27‑3‑1978 when he went to the godown to obtain certain articles he found the lock thereof broken, articles worth thousands of rupees preferred and the godown lying open. A case of criminal house‑trespass and criminal misappropriation was sought to be registered on the information laid (Exh.6). It is also manifest that on or about 27‑1‑1982, per agreement of that date, the landlord rented out the godown under reference to Syed Ghulamus Syedain at a monthly rent of Rs.200. As adverted to above; the said Syed Ghulamus Syedain was examined by the landlord (Exh.10) and the agreement has been produced by, him (Exh.11). Another significant fact is that in or about April, 1982, the tenant filed a suit bearing No.195/1982 in this Court against the landlord wherein reciting some of the facts it was pleaded that after the decision of F.RA. No. 137/1980 when the tenant‑plaintiff went to inspect the godown premises he was astonished to note that the same had been completely demolished with a view to deprive the tenant of his rights and with a view to obstruct him in getting back possession, which was rightfully due to him. Declaration to the effect that the tenancy continued was sought in the suit and damages in the sum of Rs.1,20,000. were claimed. In evidence itself, the landlord has denied having taken over possession of the disputed premises by force and has, on the contrary, claimed that possession was delivered to him by a representative of the tenant whom, somewhat curious, he could not name and about' whom he said that he was present in Court at the time of the landlord's testimony. Now there can be no two opinions on the question that the principle which section 144 of the Code of Civil Procedure incorporates is an equitable principle and being an equitable principle that; can be little doubt that such may be invoked in rent proceedings on the basis of well‑established dicta founded on uncontroverted authority. The next question, which is no less clear, is that restitution by the Court of first instance, under section 144 of the Code, upon reversal o; modification of the decree, is to be made not only where possession was initially divested upon execution of the verdict at the time holding the field but also in cases where possession is obtained under the cover of such decree by the person claiming under the decree since reversed or varied. The Privy Council case of kohani Ramah Dhwaj v. Har Prasad Singh, AIR 1943 PC 189, visualises a situation of voluntary payment in compliance. It seems, however, immaterial whether compliance is voluntarily made by the judgment‑debtor in deference to the decree, then pendente lite occupying; the field, or is obtained by use of or threat of use of force or even clandestinely by the person supposed to be acting in furtherance of or emboldened by the decree. There can be no other meanings to be assigned to the phrase placing "the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed employed in the section. Any other interpretation should lead to multifariousness of proceedings and delaying, if not defeating of justice. My attention has been drawn to Baikuntha Nath v. Prosannamoyi Debi, AIR 1924 Cal. 769 and Niadar Mal v: Ratan Lal, AIR 1927. 625 but both are distinguishable on account of the peculiar facts there involved. Reference on, the point may also aptly be made to Narain Singh v. Bachan Singh, AIR 1927 Lah. 37, Salehon Shah v. Zawar Hussain, AIR 1941 Lahore 343 and Jacob Syriac Nidhiri v. Majenra Prabbu Krishna Prabhu, AIR 1951 Trav.‑Cochin 226(1). On facts, it is obvious that divestation of possession took place at a time when the order of the Summary Military Court held the field. There is hardly any dispute that such carne about on 27‑3‑197$ though the respondent ;landlord has urged that possession was voluntarily handed over. Even if that were so would 'Make no difference because proceedings had not yet attained any finality and making over of possession voluntarily, assuming the landlord's allegation to be true, could have only been in deference to the then subsisting orders. That the appellant tenant did not treat the taking over or making over of possession, such as that may have been as a fait accompli becomes manifest when he sought and obtained the referred order of stay in his constitutional petition on 19‑4‑1978. In the face of the then subsisting order, 'bf eviction he hardly had any others plausible relief except to pursue the normal remedies, which it is nobody's that that he did not. In consequence, that order has since F been displaced in appeal. The possession, therefore, is to be restored in conformity with the appellate order since divestation of possession was occasioned in the garb, in furtherance of and under cover of the order of the Summary Military Court in question. That the possession, in the meantime, has been made over to a third party is also of little account because such third party is claiming under the person obliged to. restitute possession. The matter is further 'compounded by the fact that third party rights were created after the decision in the F.R.A. and apparently in negation of the spirit of the order passed in the Constitutional petition referred to hereinabove. , Likewise, I am of the view that destruction of the subject‑matter of the I tenancy, even though, inter alia, separately questioned in a suit can be of no avail to the respondent because, in any case, the ground on which the tenement C in dispute stood is very much in existence and perhaps has even been re constructed upon. Restitution, accordingly, would be made, to the extent it is capable of being made and for that purpose, upon remand, which order is hereby' passed, the Controller would be competent to pass such orders as are "properly consequential" within the terms of section 144 of the Code. This the learned Controller in due course would ensure. Appeal allowed AA/A‑1473/K Order accordingly