1996 PLP 265 (MLD)

(ii) The effect of the consolidation order is that proceedings will be conducted in the civil suit and then the final judgment would also be passed by the Civil Court, although ejectment petition has to be separately decided by the Rent Controller. (iii) The tenant in the disputed premises is M/s. Facto (Pak.) Ltd., respondent No.l herein, and respondents Nos.2 to 5 are sub‑lettees and they have no locus standi to file the application for consolidation of the proceedings. (iv) The application was filed after about 5 years when partial evidence had been recorded in the civil suit and the petitioner's evidence in the ejectment petition had been concluded. The petitioner would be seriously prejudiced because now the trial Court will frame consolidated issues and then proceed to record evidence afresh. This will cause unnecessary delay in the ejectment petition. The judgment in the case of Dr. Arslan Razzaq v. Ali Hussain PLD 1993 Lah.97 relied upon by the trial Court is distinguishable on facts. In the reported case the application for consolidation as filed by the tenant but in the present case it was filed by the sub‑lettees i.e. respondents Nos.2 to 5.

3. On the other hand, learned counsel for respondents Nos. 2 to 5 contends as under: ‑‑ (i) On the basis of agreement to sell dated 7‑3‑1988, the petitioner has received an amount of Rs.11,00,000 from respondents Nos.2 to 5. (ii) The petitioner himself told the original tenant i.e. M/s. Facto (Pak.) Ltd., to hand over the possession of the property to respondents Nos.2 to

5. They are not sub‑lettees and are in possession of the property in their own right as prospective purchasers. (iii) The tenancy between the petitioner and M/s. Facto (Pak.) Ltd., stood terminated after the execution of the agreement to sell dated 7‑3‑1988 and handing over the possession to the said respondents. (iv) The petitioner demanded more money for executing the sale‑deed but respondents Nos.2 to 5 refused to do the needful and refused to execute the sale‑deed and filed the civil suit. (v) The ejectment petition was filed as a counterblast after 4 months. (vi) Respondents Nos.2 to 5 were wrongly cited as sub‑lettees in the ejectment petition. (vii) In both the cases common issues of law and facts are involved and ought to be decided together to avoid conflicting judgments. He places reliance on the case of Dr. Arslan Razzaq v. Ali Hussain PLD 1993 Lah. 97.

4. The learned counsel for respondent No.l generally adopted the arguments raised by learned counsel for respondents Nos.2 to 5 and added that the present ejectment petition was barred by application of principles of res judicata because the petitioner had earlier filed an ejectment petition which was dismissed and the appeal filed by the present petitioner was also dismissed by the appellate Court. He supported the consolidation order and added that the same had been passed to advance the interest of justice.

5. There is considerable force in the arguments of the petitioner's learned counsel. The civil suit has to be decided by the Civil Court in accordance with the provisions of the Civil Procedure Code while the ejectment petition has to be decided by a Rent Controller, a persona designata, under the provisions of the Punjab Urban Rent Restriction Ordinance. The two jurisdictions are entirely different. The Rent Controller exercises quasi?judicial jurisdiction and is free to evolve his own procedure for deciding the petition. He is not bound to follow the provisions of the Code of Civil Procedure except those relating to summoning of witnesses and compelling the production of evidence. The Rent Controller does not become a "Court" while exercising powers for summoning and enforcing attendance of witnesses and compelling the production of evidence. Moreover, the pleadings and issues in both the suits are different and ought to be decided independently after recording evidence in the two cases separately. The proceedings in both the matters may go on simultaneously or one case may be taken up first and the other kept pending. Keeping in view the facts and circumstances of each case. Since the Rent Controller is a persona designata and not a Court within the meaning of law, he cannot invoke the provisions of section 151 of the C.P.C. regarding inherent powers of a "Court". Likewise, while deciding a civil suit, a Civil Court cannot reach out to the proceedings of a persona designata exercising jurisdiction under a different Statute. While invoking the provisions of section 151 of the C.P.C. a Civil Court may pass any order in the exercise of A inherent powers which may be necessary for the ends of justice or to prevent the abuse of the process of Court in respect of the proceedings of a civil suit and not an application under section 13 of the Ordinance. Learned counsel for respondents Nos.2 to 5 has relied on the reported judgment in the case of Dr. Arslan Razzaq which supports his contention that a civil suit and an ejectment petition can be consolidated and disposed of through a common judgment. However, with utmost respect I find myself unable to subscribe to the view expressed in the said judgment for the reasons given above.

6. The argument raised by learned counsel for respondent No.1 that the ejectment petition is barred by application of principles of res judicata may properly be raised before the Rent Controller who shall consider the same and' decide it in accordance with the law.

7. For the foregoing discussion, this revision petition is accepted and the impugned order dated 31‑1‑1994 is set aside as having been passed illegally and with material irregularity. The two matters i.e. the civil suit and the ejectment, petition shall be separately and independently decided by the competent forums in accordance with the law. The parties are left to bear their own costs. AA./M‑2545/L ?????????????????????????????????????????????????????????????????????????????????? Revision accepted