1989 PLP 1929 (CLC)

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6. It may be noticed that under the late Ordinance an order passed by a Rent Controller under section 10 or section 13 or an appellate order passed under section 15 was to be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Since the ejectment order was deemed to be a decree for the purpose of execution, the executing Court could have entertained objections under section 47 or under Order XXI, C.P.C. Whereas, under the new Ordinance subsection (2) of section 19 prohibits a Rent Controller from recalling even ex parte order in case it is found that the notice of the application was served on the party." Also it has been further observed in the same case as under:‑‑ "In our view, such an application will be competent before the learned Rent Controller because he has to execute the ejectment order in respect of the tenement which was the subject‑matter of the rent proceedings before him and, therefore, he would be entitled to go into that question but the question whether a stranger has become the tenant of the tenement which was the subject‑matter of the rent proceedings filed against the admitted tenant in our view is a question, which cannot be agitated in an execution proceedings." The observations made in the above case show that in order to attract the same to the present case the Respondent No.l will have to show that in the first instance notice was served on the party and secondly that the appellant claims to have become tenant as against the admitted tenant. Taking up the above 2 points, the order would show that the Rent Controller has relied on the endorsement of the Bailiff only which is not supported by the witnesses as required under Rules for service of summons. Of course the notice was published in the newspaper but the same was in the name of Respondent No.2 and moreover the appellant being a household lady is not supposed to have access to that particular newspaper. Therefore the reasons I advanced by appellant in her affidavit should have been considered sufficient for holding that she was unaware of the proceedings. On the second point Mr. Afzal argued that Respondent No.2 was the admitted tenant and the statutory `tenant under the provisions of Displaced Persons Act, 1958. He has placed reliance on the case of Beejal Mal v. Punaji 1987 CLC 1134. There can be no two opinions about the above legal position. But for that the learned counsel had to show that at the time of transfer of the said premises in favour of Respondent No.l, the Respondent No.2 was in occupation thereof. There is nothing on record to show this Mr. Afzal has drawn my attention to the notices sent to the Respondent No.2 in the year 1982 and from this he has argued that this is sufficient proof to support his contention. I am afraid, this on the contrary goes against his contention. The said notice was never served on the Respondent No.2 on the given address but the same was returned unserved with postal endorsement which shows that he did not reside there. In view of above discussion and with all due respects. I am of the view that above‑cited Division Bench case is not on all fours with the present case and will not be applicable. On the question of maintainability, Hon'ble Supreme Court has held that an intervenor whose application for joinder as party in a rent case has been rejected can file an appeal as for his purposes the said order of rejection, shutting him out, is a final order. Reliance maybe placed on the case of Muhammad Mobin Siddiqui v. Mst.Shahzadi Begum and 2 others 1982 SCMR 233 wherein it has been held:‑ "

7. This argument has no force because after the decision of the preliminary issue holding that Mobin Siddiqui was not a tenant under Mst. Shahzadi Begum he was no longer a party to the case. If he, at all, wished to contest the matter further, he should have filed an appeal against the aforementioned order of the Rent Controller dated 31‑5‑1978 because as far as he was concerned that was the final order in this case. Not having done so he was not entitled now to file an appeal against the order of ejectment before the Additional District Judge and the High Court, as he was not a party to the case in which that order was passed." Also in the case of Messrs Bambino Ltd. v. Messrs Selmor International Ltd. and another PLD 1983 SC 155 wherein it has been held:‑‑ "As regards the second contention that no appeal lay from the order passed by the Rent Controller in execution of the order of ejectment it may be stated that a plain reading of section 21 of the Sind Rented Premises Ordinance, 1979 shows, that such an order not being an interim order, was appealable before the High Court. There is, therefore, no substance in this contention as well." The third case to be referred in this context is the case of Allah Rakhio v. Khushmir Khan and others 1986 CLC 1828 wherein it has been held that the intervenor claiming interest in property is a necessary party. The last list question requiring consideration .in the present appeal is whether the Rent Controller, in execution proceedings can investigate into the bona fides of the claim of a person resisting the order of eviction. It has been held in above‑cited case of Messrs Bambino Ltd. v. Messrs Selmor International Ltd. and another PLD 1983 SC 155 wherein it has been held:‑ Order XXI, rules 100 and 101 of the Code of Civil Procedure amply authorised an Executing Court for investigating and adjudicating upon the matter of dispossession from immovable property by the holder of a decree for possession of such property of a person other than the judgment‑debtor." Similarly in the case of Kabiruddin v. Syed Sibtain Ahmad 1987 CLC 604 it has been held:‑‑ "In executing the order the Controller is not debarred to exercise any power under Order XXI with regard to investigation of the matter or determining the bona fide claim of a person who is resisting or obstructing the order of eviction claiming himself to be in possession of the disputed premises in his own right. Now section 2 has been substituted by Sind Rented Premises (Amendment) Act, 1986, Act 1 of 1986. Final orders passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit. This amendment was gazetted on 12‑5‑1986. Learned counsel for the applicant has submitted that in view of this amendment it is quite clear that previously the Rent Controller had no jurisdiction to determine the questions arising between the parties and relating to the execution, discharge or satisfaction or the order and proper remedy by a third party was a regular civil suit. This contention has no force. After all Controller had to adopt some procedure in executing the order. If the third person obstructs the execution of order claiming himself to be in possession of the property in his own right the Controller could after enquiry decide this matter and would not stay the proceedings till the controversy was resolved by the civil Court:" From the above discussion I am of the view that the appellant is a necessary party and that the Rent Controller should have allowed her the opportunity to join in the proceedings and to prove the bona fides of her claim. I, therefore, allow this appeal, set aside the orders of Rent Controller passed on 5 10‑1986 and 13‑3‑1988. The case is remanded to the IIIrd Rent Controller, South, Karachi with the directions that appellant be joined as party to the proceedings and to proceed with the case according to law. However, there will be no order as to costs. H.B.T./Z‑98/K Case remanded.