1983 PLP 2714 (CLC)

On 9th February, 1980‑ respondent Abdul Karim filed application, under Order XXI, rules 97 to 103, C. P. C. and section 44 of the evidence Act read with section 151 and section 47, C. P. C., claiming that he was tenant in respect of the two cabins since the year 1977 and praying that the writ of possession so far as the cabins were concerned be suspended. The applicants denied the bona fides of the claimants and stated that rent receipts filed by him in Court were forged documents. The learned Senior Civil Judge and Rent Controller by his order dated 24th May, 1980 dismissed the execution application in respect of the two cabins and observed that it was open to the applicants to sue Abdul Karim in separate proceedings if so advised. Against the aforesaid order the applicants filed a Miscellaneous Appeal under section 104 read with Order LIII, rule 1, C. P. C. in the Court of V111th Additional District Judge, Karachi who dismissed the same by his order dated 2nd December, 1980 holding that he had no jurisdiction to hear the appeal against the order of the Rent Controller. The following grounds have been urged in the instant application :‑ (1) That since Abdul Karim filed application under Order XXI, rules 97 to 103, C. P. C., claiming himself to be a tenant the order of the Senior Civil Judge was not an order passed in the rent proceedings and the VIIIth Additional District Judge had jurisdiction to bear appeal under section 104 read with Order XL11I ,rule 1, C. P. C. (2) That after the amendment of Order XXI, rule 103, C. P. C. by the Law Reforms Ordinance, 1972 no separate suit was maintain able between the parties and the executing Court should have adjudicated upon and determined the plea of the respondent Abdul Karim after recording evidence in execution proceedings. With regard to ground No. 1, Mr. Amir Ahmed Khan, the learned counsel for the applicants, has stressed the fact that the applicant had filed the application under section 13 of the West Pakistan Urban Rent Restric tion Ordinance, 1959 against Mst. Rabia Bai, their tenants, Abdur Rashid Khan and Abid Hussain on 3rd April, 1975 and on 5th July, 1975 both Abdur Rashid Khan and Abid Hussain had filed written statement saying that they had no concern with the tenancy as they were employees of Mst. Rabia Bai. On 9th September, 1975 tentative rent order was passed in respect of the shop and Mst. Rabia Bai failed to comply with the same and, therefore, on 30th March, 1978 defence was struck off and ejectment ordered. Appeal No. 268/1978 filed was withdrawn on 28th October, 1979 and on 19th November, 1979 the applicants filed execution application in the Court of the First Rent Controller, Karachi under section 17 of the Urban Rent Restriction Ordinance, 1959. The Sind Rented Premises Ordinance, 1979 was promulgated and was published in the Sind Government Gazette Extraordinary on 21st November, 1979. In. section 27 (1) thereof (of) the Sind Urban Rent Restriction Ordinance, 1959 was repealed and in subsection (2) of the section it was further provided that "all appeals and such cases before a Controller as are fixed for argument or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, not withstanding the repeal thereof be disposed of in accordance with the said Ordinance". It is, therefore, apparent that there were no specific provisions with regard to matters before the Executing Civil Court under section 17 of the repealed Ordinance, However, section 22 of the Ordinance which was about execution of orders reads as under :‑ "

22. An order made by the Controller or the appellate authority shall be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority." Section 27 referred to above however was further amended by the Sind Rented Premisee Amendment Ordinance, 1980_ (Sind Ordinance No. 2 of 1980) which‑wag published in the Sind Government Gazette Extraordinary on January 21, 1980, and after subsection (2) new subsections (3) and (4) were added to the section. The aforesaid subsections read as under :‑ "(3). All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, not withstanding any orders made otherwise by the Controller be continued and disposed of under this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall, for all purposes, have effect as proceedings taken or orders made under this Ordinance. (4) Notwithstanding the provisions of subsection (2) all orders made in pursuance thereof and any order made under the Ordinance mentioned in subsection (1) in any proceedings before the com mencement of this Ordinance shall be deemed to lave effect as an order under this Ordinance and be executed in accordance with the provisions of section 22." A further reference to the aforesaid amending Ordinance would show that it came into force at once and further provided that it be deemed to have taken effect on or from 21st day of November, 1979 which is incidentally the date on which the Sind Rented Premises Ordinance, 1979 was published in the Sind Government Gazette. In the instant application neither in the memo. nor at the stage of arguments the vires of the amending Ordinance was challenged. It .is, therefore, very clear that the provisions of subsections (3) and (4) in section 27 of the Ordinance have to be deemed to have been in existence from the very start and, therefore, the orders made under the Sind Urban Rent Restriction Ordinance, 1959 before the commencement of the Ordinance shall be deemed to have effect as an order under the Sind Rented Premises Ordinance, 1979 and as further provided in subsection (4) of section 27 such orders bad to be executed in accordance with the provisions of section 22 of the Ordinance which has already been reproduced above. ~ It is significant to note that the impugned order of the learned Rent Controller I, Karachi dated 20th day of May, 1980 purports to be order of the Rent Controller and not a civil Court executing the order of the Rent Controller. The argument of Mr. Amir Ahmed Khan, the learned counsel for the applicants that since the application of respondent Abdul Karim under Order XXI, rule 103, C. P. C., as amended by the Law Reforms Ordinance, 1972, and, therefore, no separate suit or proceeding was required for deciding the plea raised, would not apply inasmuch as the provisions of section 22 of the Ordinance which provided for execution of orders applied to the case. It is therefore not necessary to examine the authorities cited by him on the point that the application made by the respondent could have been dealt with by the executing Court. The order of the learned First Rent Controller, Karachi passed as such was appealable to the High Court under section 21 of the Ordinance as correctly held by the learned VIIIth Additional District Judge; Karachi in his impugned order dated 2nd December, 1980 and even if the appeal made is considered to be a revision having filed the same before the VIIIth Additional District Judge, no further revision can lie to this Court as provided in section 115(3), C. P. C. It has. also been contended by Mr. Iqtedar Ali, the learned counsel for the respondent that the revision is beyond time as it has been filed beyond 90 days. The instant application is, under the circumstances stated, totally, misconceived and is dismissed. However, as points of law were involve 'd no order is being passed with regard to payment of costs. K.M.A. Application dismissed.