P L D 1982 Peshawar 111 (PLP)

The dispute in this revision petition relates to the annexe of Bungalow No. 32, The Mall, Peshawar Cantt. the circumstances in which the present controversy arose, as set out in the objection petition filed in the executing Court are that Abdul Azam Khan, acting as next-friend of Mst. Tajwar Sultan daughter of Hamraz Ahmad, initiated proceedings under the Canton ment Rent Restriction Act, 1963, against Lt: Col. Sikandar Khan and his brother Waris Khan for their ejectment from the demised premises. An ex parte order was passed in her favour. She thereafter filed execution application in the Court of Civil Judge, Ist Class, Peshawar. Mst. Bilquis Jehan Begum, the present petitioner submitted objection petition in the executing Court. On behalf of Mst. Tajwar Sultan, the petition was resisted on various legal and factual pleas. Without recording any evidence, the objection petition was rejected on 15-4-1980 on the strength of an authority cited as P L D 1977 Lah.

418. The objector went in appeal but it too was dismissed on 29-1-1981, by a short order which reads:- "Counsel for the parties present and heard. Record perused. The appellant was not party to the suit regarding which the executing proceedings are in progress and in view of the provisions contained in Order XXI, rule 97 to rule 100, coupled with decision in P L D 1977 Lah. 418, the order of the lower Court is quite legal. The counsel for the appellant has referred me to P L D 1959 Lah. 511 where a different view was taken but the authority P L D 1977 Lah. 418 is a recent ruling read with the provision of Civil Procedure Code is applicable to the circumstances of the present case and in this ruling quoted in P L D 1959 Lah. 511 has dissented. There is no substance in the appeal and it is dismissed. The parties are however left to bear their own costs."

2. The only question for consideration would be if in the facts and circumstances of the case the objection petition is liable to dismissal.

3. Though not specifically stated in the objection petition but it was admitted during the arguments that the objection petition has been filed under Order XXI, rule 100, C. P. C. which provides "that (i) where any person other than a judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (ii) the Court shall fix a day for investigating the matter and shall summon a party against whom the application is made to appear and answer the same".

4. It is clear from the perusal of the impugned orders that the two Courts below, have held in substance that as the objector has neither been dispossessed nor she has vacated the suit premises, therefore she is debarred from filing the objection petition. Reliance has been placed on P L D 1977 Lah.

418. Clearly the First Court of appeal has given preference to the cited authority over the one quoted by the learned counsel for the petitioner, i. e. P L D 1959 Lah. 511.

5. The learned counsel for the petitioner argued that in view of the recent authority of the Supreme Court, cited as Mst. Khurshid Begum etc. v. Ghulam Kubra etc. (1982SCMR90), after taking notice of the two authorities, the matter stands settled. It has been laid down that:- "It follows consistently from these decisions of this Court that an executing Court has the power to entertain and adjudicate an objection petition filed by persons not claiming through the judgment-debtor, even before their physical dispossession from the property. This has to be distinguished from the right conferred by law on such a party to prefer an objection without resisting the execution or without being dispossessed from the property. What remains to be seen is whether this principle is applicable to the facts of this case." It was contended that the objector without being dispossessed, can file objection petition.

6. It is an admitted principle of law that each case is to be attended to on its own merits and confined to its own facts. As to be discussed, the instant case has some distinguishing features. The objector has founded his claim to the suit property on her title and possession. There can be no two opinions that in the proceedings under Rent Restriction Act, the question of title can neither be agitated nor adjudicated by the Rent Controller. As far as the question of possession of the suit property is concerned, para. 3 of the objection petition would show that she has claimed it through the judgment-debtors (respondents 2 and 3). For better understanding, the said para. is reproduced here:-

7. The authority cited by the learned counsel for the petitioner covers only cases where the objectors have independent claim to the property. In the present case, the petitioner has clamed that the judgment-debtors have passed on the possession of the suit residential property to her. In the circumstances the dispossession was a condition precedent for filing the objection petition.

8. The result is that this revision has no merit and is dismissed hereby. S. A.H. Petition dismissed.