1986 PLP 2883 (CLC)

Rao M. Shakir Nakshbandi for Appellant. Azhar Ali Siddiqui for Respondent. Date of hearing: 27th November, 1984. This rent appeal has arisen from the following facts and circumstances. On 3‑3‑1975, the respondent /landlord Muhammad Hassan filed ejectment application seeking ejectment of one Syed Ahamd Jan from the premises bearing No. 64‑F/ 2, P. E. C . H . S. Karachi. During pendency of the ejectment proceedings the appellant Saleh Muhammad who claims to be in physical possession of the disputed premises moved an application before the Rent Controller praying therein that since he was the actual tenant he should be joined as party. However, the said application of the appellant was rejected and thereafter he took no step to challenge the order of the learned Rent Controller passed on his application. Instead he filed a suit for declaration and injunction that he being the tenant, the respondent /landlord be restrained from ejecting him from the said permises. It seems he filed a stay application in the said suit which was, however, dismissed. His appeal against the order of dismissal of this stay application also did not succeed, as the same was dismissed in default of appearance by order, dated 17‑10‑1981. It seems the appellant did not move the Civil Court for restoration of his application. Meanwhile he is alleged to have instituted second suit while his first suit was still pending. It appears that the plaint in the second suit was rejected under Order VII, Rule 11, C . P. C . vide the order of the XIXth Civil Judge Karachi, dated 13‑2‑1982. The learned counsel for the appellant was, however, not aware if any appeal was filed against the order. Even the first suit filed by the appellant was dismissed in default of appearance of the plaintiff vide order of the XXXth Civil Judge Karachi, dated 10‑3‑1983. It appears that when the respondent /landlord moved an execution application seeking enforcement of the order passed by the learned Rent Controller in his favour, the appellant once again appeared on the scene and opposed the execution application. He filed objections to the execution application alleging that the respondent /landlord has secured the judgment of the learned Rent Controller through fraud and misrepresentation by showing some fictitious person as his tenant although he is in occupation of the disputed premises. Once again he made another application, dated 10‑9‑1983 wherein he prayed that Administrator of P.E.C.H.S., be summoned to produce record showing that the respondent /landlord had already sold out the disputed premises. After considering the objections of the appellant and an application for summoning the relevant record to show that the respondent /landlord was no longer interested in the disputed premises, the learned Rent Controller passed the impugned order, dated 10th October, 1983 directing in the same order for issuance of writ of possession. It is against the said order that the appellant has filed this appeal. After hearing the arguments of the learned counsel for the parties, the appeal was dismissed by short order, dated 27‑11‑1984 with no order as to costs for reasons to be recorded later on. It was stated in the said order that the learned counsel for the appellant requested that appellant may be given six months time to vacate the disputed premises but as the learned counsel for the respondent opposed the request saying that the appellant was not entitled to such indulgence as he was not paying any rent to the respondent, the appellant, in the circumstances of the case, was allowed only four months time to deliver the vacant possession to the respondent/ landlord and in case of any default in this behalf he was directed to be ejected forthwith without any further notice to him. Following are the reasons in support of the short order. It is an admitted position that Ahmed Jan against whom the ejectment application was filed by the respondent /landlord did not contest the application and hence ex parte order was passed against him. The said ex parte order has gone un‑challenged as no appeal was preferred there from. But during the pendency of the ejectment proceedings the appellant attempted to have himself joined as party to the said proceeding. His application was, however, rejected. He did not question the order of dismissal of his application as no appeal or revision was filed from that order. Thus, the remedy open to the appellant was lost. It is an admitted position that after having failed to get himself joined as party in the ejectment proceedings, the appellant filed two suits one after the other in an attempt to establish his status viz‑a‑viz disputed premises. As stated above, in one suit his plaint was rejected and it is not known if any appeal was preferred by him, against the order of rejection of his plaint. So far his other suit was concerned, it was also dismissed for his non‑appearance. Thus he did not show his earnestness in pursuing the suits and establishing his often repeated claim of being tenant in occupation of the disputed premises. It was again at the stage of execution of the order passed by the learned Rent Controller that the appellant once again came forward and opposed the execution of the said order. Somehow the learned Rent Controller was not impressed by the stand taken by him and, therefore, passed the impugned order directing for issuance of writ of possession. It was frankly conceded by the learned counsel for the appellant that writ of possession was not directed against the appellant but the same was directed against the judgment‑debtor namely, Syed Ahmed Jan. This being so, the learned counsel was asked if the appellant was aggrieved by issuance of such writ of possession. Although he admitted that strictly speaking the appellant was not aggrieved by the said writ of possession as the same was not directed against him yet he submitted that as per practice followed in execution of such writ of possession the appellant apprehended that he would be ejected on the basis of the said writ of possession and, therefore, he was feeling aggrieved by the same. I am sorry, I cannot agree with the thinking of the learned counsel. He was unable to point out any provision of law which supported the alleged practice of ousting, even the persons not covered by writ of possession from the disputed premises. Admittedly the appellant was not a party to the ejectment proceedings instituted by the respondent/ landlord against the tenant by name Syed Ahmed Jan. As such any order passed in those proceedings was not binding on the appellant. It is true that even order passed by the learned Rent Controller in execution proceedings is appealable but the question arises who is competent to file appeal against such order. It is only the aggrieved person who is to file appeal against the order passed in execution proceedings. As has been pointed out above and has been conceded by the learned counsel for the appellant the writ of possession issued by the learned Rent Controller was not directed against the appellant. Therefore, he cannot be held to have been aggrieved by such writ of possession and hence not an aggrieved party for the purposes of filing appeal. For above reasons the appeal filed by him has no basis in law and as such was dismissed as stated above. H. B. T. Appeal dismissed.