1984 PLP 3445 (CLC)

(a) Civil Procedure Code (V of 1908)‑ ‑‑ O. I, r. 10, O. IX, r. 13, O. XXI, r. 99 & S. Il‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 and Provisional Constitution Order (I of 1981), Art. 9‑Ejectment‑Respondent applying to be impleaded party in proceedings on strength of her being sub‑tenant under tenant‑Application dismissed on ground that she was not tenant of landlord‑Respondent (sub‑tenant) not challenging order in appeal‑Ex pane ejectment order against tenant passed -Respondent filing application under O. IX, r. 13, C.P.C. for setting aside decree which was rejected and no appeal filed against such rejection‑Respondent filing application under O. XXI, r. 99, C.P.C. during execution proceedings and Rent Controller entertaining same- Respondent's application under O. XXI, r. 99 on same grounds and basis on which previous application under O. I, r. 10 and O. IX, r. 13, C.P.C. were made and rejected and not challenged by respon dent in appeal, held, was not maintainable on principles of res judicata.‑[Res judicata]. (b) West Pakistan Urban Rest Restriction Ordinance (VI of 1959)‑ ‑‑ S. 13‑Civil Procedure Code (V of 1908), O. XXI, r. 99 Power of executing Court‑Possession of property‑Objection to execution of decree from a person not claiming through judgment -debtor‑Executing Court, held, competent to entertain and adjudi cate upon such application even before his physical dispossession from property‑Such right of a person was in addition to what law conferred on him to prefer an objection without resisting execution or without being dispossessed from property. Khursheed Begum v. Ghulam Kubra 1982 S C M R 90 rel. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑‑ S. 15(5)‑Civil Courts ‑ Ouster of jurisdiction ‑ Respondent challenging ejectment order passed by Rent Controller in civil Court which declared same as illegal‑Ordinance, held. created new rights and established special machinery for working out those rights by con stituting a Tribunal which had exclusive jurisdiction to decide matters entrusted to it by Ordinance and thereby excluded jurisdiction of civil Courts‑Section 15(5), held, gave finality to orders made by Rent Controller, Appellate Authority or High Court as provided therein and thus ousted jurisdiction of civil Courts in respect of matters specified therein except in cases of fraud or order having passed without jurisdiction.‑[Jurisdiction]. (d) Civil Procedure Code (V of 1908)‑ ‑‑ S. 9‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15 (5)‑Civil Courts‑Jurisdiction‑Limitation‑Civil Courts, held, have jurisdiction to try suits of a civil nature except suits of which cognizance is expressly barred‑Section 15(5) having ousted jurisdiction of civil Courts in matters cognizable under Ordi nance, order of ejectment by Rent Controller, held, could not be challenged in a civil Court.‑[Jurisdiction]. (e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ Ss. 13 & 15(5)‑Jurisdiction, want of‑Effect‑Judgment passed by civil Court without jurisdiction a nullity in law and it did not require to be set aside‑Judgment of civil Court declaring ejectment order passed by Rent Controller as illegal, held, was without jurisdiction and void and did not exist in eye of law and need not to be set aside as law did not recognize its existence.‑[Jurisdiction]. Yousuf Ali v. Muhammad Aslam Zip and others P L D 1958 S C 104 and Ch. Altof Hussain and others v. The Chief Settlement Commissioner P L D 1956 S C 68 rel. HAIDER ALI PIRZADA, J.‑The petitioner is the owner and landlord of bungalow No. 190/0, P.E.C.H.S., Karachi. The first respondent is the Xth Civil Judge and Rent Controller, Karachi the second respondent is the XIVth Civil Judge and Rent Controller, Karachi, the third respondent is the tenant, the fourth, respondent is the wife of the third respondent, and the fifth respondent has claimed to be sub‑tenant of the fourth respondent. This petition under Article 9 of Provisional Constitution Order is for declaration that order, dated 22nd October, 1981 is a nullity and in excess of jurisdiction of respondent No. 1 and for prohibitory order from proceed ing upon the order, dated 22nd October, 1981 of respondent No.

1. There is also a prayer for the issue of a writ of mandamus to compel the respon dent No. 2 to execute order, dated 16th May, 1979. The facts giving rise to this petition are as follows:

2. On 3rd January, 1979 the petitioner filed an application being Rent Case No. 43 of 1979 under section 13 of the Sind Urban Rent Restriction Ordinance 1959, on the ground of personal bona fide need against the respondent No. 3 in the Court of respondent No.

1. The respondent No. 3 did not defend the case and an ex parte order was passed on 16th May, 1979 directing the respondent No. 3 to vacate the premises. The respondent No. 5 filed an application under Order IX, rule 13, C.P.C. and also an application under Order 1, rule 10, C.P.C. for impleading him as a party in the aforesaid Rent Case No. 43 of 1979 on the main ground that respondent No. 3 was the tenant and the respondent No. 5 was induced as her sub‑tenant. During the pendency of the application, the respondent No. 5 filed a Suit No. 561 of 1980 in the Court of XIVth Civil Judge 1lnd Class, Karachi, for a declaration that order, dated 16th May, 1979 was illegal and also for restraining the petitioner from executing the order. The petitioner filed application under Order VII, rule 11, C.P.C. for rejecting the plaint on the ground that the initiation of proceedings in Suit No. 561 of 1980 is abuse of due process of law, is without jurisdiction and nullity in the eyes of law. The application under Order VII, rule 11, C.P.C. was rejected and the suit was decreed by judgment, dated 6th April, 1980. Judgment dated 6th April, 1980 is the Annexure III to the petition.

3. The application under Order I, rule 10, C.P.C. and under Order IX, rule 13, C.P.C. filed on 14th July, 1979 were finally dismissed on 30th April, 1980. The respondent No. 5 did not challenge the dismissal order. The petitioner filed Execution Application No. 8 of 1980 in January, 1980 and notice was issued to the respondent No.

4. Instead of respondent No. 4, the respondent No. 5 entered appearance on 16th July, 1980 and repeated application under Order I, rule 10, C.P.C. taking the additional ground that in view of judgment passed in Suit No. 561 of 1980 respondent No. 5 should be made a party. The petitioner filed a counter‑affidavit wherein he took the plea that the judgment in Suit No. 561 of 1980 is not binding upon the respondent No.

1. The respondent No. 1 by his order, dated 10th September, 1980 allowed the respondent No. 5 to file objections. Order, dated 10th September, 1980 is Annexure V to the petition. She filed objections on 17th November, 1980 in which she again reiterated all the grounds which she had taken in application under Order 1, rule 10, C.P.C. which was dismissed on 20th July, 1980. The respondent No. I by his order, dated 27th August, 1981 dismissed the application of the respondent No. 5 and held that the status of the respondent No. 5 is not that of a tenant and cannot be added as a party. Order, dated 27th August, 1981 is Annexure VII to the petition.

4. In September, 1981 the respondent No. 5 filed an application under Order XXI, rule 99, C.P.C. read with section 22 of the Sind Urban Rent Restriction Ordinance, 1959 on exactly the same grounds. The petitioner objected to the same. The respondent No. 1 by his order, dated 22nd October, 1981 allowed the application of the respondent No. 5 and held that respondent No. 5 was a necessary party in the ejectment proceedings and framed the issues and adjourned for recording evidence of the parties. Aggrieved by the order, dated 22nd October, 1981 the petitioner filed this petition.

5. Mr. Naimur Rehman, learned counsel for the petitioner has raised the following contentions :‑ (1) The order, dated 22nd October, 1981 is without jurisdiction. (2) The judgment Suit No. 561 of 1981 in nullity in the eyes of law. As regards contention No. 1 regarding excess of jurisdiction in passing order, dated 22nd October, 1981 the learned counsel for the petitioner has contended that the respondent No. 5 raised the same pleas which were taken by her in her application under Order I, rule 10, C.P.C. which was dismissed by order, dated 27th August, 1981. The learned respondent No. 1 has committed an error in allowing her to file objections.

7. The respondent No. 5 had filed earlier application for impleading and for setting aside ex parte order on the ground that she is tenant of the petitioner in respect of the portion of the disputed premises. It was averred in the application that she was inducted into premises with the permission of the petitioner. The respondent No. 1 by his order, dated 27th August, 1981 dismissed the objections filed by the respondent No. 5 and held that the status of the respondent No. 5 is not that of a tenant. The respondent No. 5 filed application under Order XXI, rule 99, C.P.C. on the ground that respondent No. 4 who is wife of respondent No. 3 has been carrying on business of readymade garments for many years in this eastern portion of the said premises under the name and style of "Bombi". The transfer/ subletting of the commercial portion of the said premises by the respondent No. 4 to respondent No. 5 was with the full knowledge and consent of the petitioner. She also alleged there in that the respondent No. 5 is an ordinary sub‑tenant. The petitioner filed the counter‑affidavit and denied the various allegations made therein. The respondent No. 1 by his order, dated 22nd October, 1981 framed the issues and directed the parties to lead evidence.

8. On the other hand, Mr. Yousuf Rizvi, learned counsel for the res pondent No. 5, has urged that the application is maintainable and is not hit by the principles of res judicata. Tha disputed premises has been sublet to her with full knowledge of the petitioner.

10. The basis of the application under Order XXI, Rule 99, C.P.C. is the same which she took in her earlier applications under Order I, rule 10, C.P.C. and under Order IX, rule 13, C.P.C. which were rejected. The res pondent No. 5 did not file any appeal against the order passed by the respondent No. 1 holding that she was not a tenant of the petitioner under either respondent No. 3 or respondent No.

4. Mr. Ahmed Yousuf Ali Rizvi the learned counsel for the respondent No. 5 has straneously urged on her behalf that she was in fact the tenant of the petitioner. He, however, admitted that she did not file an appeal against the order of the respondent No. 1.

11. The respondent No. 5 has not claimed the possession in her own right but clearly alleged that she was inducted by the respondent No. 4 with the permission of the petitioner. She nowhere alleged that she was paying rent directly to the petitioner. Her counsel has not submitted as well as she has not averred in the application that she was all the time paying rent to the respondent No.

4. The Supreme Court of Pakistan in a recent decision in the case of Khursheed Begum v. Chulam Kubra (1982 S C M R 90) held as follows "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 with out being dispossessed from the property. What remains to be seen is whether this principle is applicable to the facts of this case."

12. Mr. Naimur Rehman the learned counsel for the petitioner has contended that the judgment, dated 6th April, 1980 in Suit No. 561 of 1980 is nullity in the eyes of law, and is not binding on the petitioner. In support of his submissions he relied on section 15 subsection (5) of the Sind Urban Rent Restriction Ordinance, 1959. It is advantageous to reproduce pro. visions of section 15 (5) of the Ordinance which reads as under :‑ "No order passed by the Controller, the Appellate Authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance Provided that no stay order shall be made in respect of the pay ment or deposit of rent determined by the Controller Provided further that the Appellate Court may direct that instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the rent shall be furnished by the tenant." The Ordinance confers upon the Rent Controller specific powers and allows particular disputes between the landlords and tenants only an application be made to the Rent Controller. This is provided for in section 13 of the said Ordinance. The grounds of eviction are set out in section 13(2) of the Ordinance. Section 15(5) of the Ordinance enacts a rule of ouster of the jurisdiction of the civil Courts.

13. This section has not introduced anything new or strange in the realm of the law relating to general jurisdiction of civil Courts as it is now well‑settled that where a statute creates new rights and establishes a special machinery for working out those rights by constituting a Tribunal it becomes vested with exclusive jurisdiction to decide matters entrusted to it by the Ordinance and thereby excludes the jurisdiction of the civil Court.

14. Section 15(l) of the Ordinance provides for an appeal against the order of the Rent Controller. Subsection (2) of section 15 provides an appeal to the High Court and the decision thereof shall be final. Subsection (5) of section 15 states that no order passed by the Controller, the appellate authority or High Court shall be called in question in any Court of law by suit or otherwise, except as provided under the said Ordinance. It was not averred in the suit that the petitioner has obtained ejectment order by practising fraud on the Rent Controller.

15. This provision, therefore, gives finality to the order made by the Rent Controller, appellate authority or the High Court. This section, there fore, oust the jurisdiction of a civil Court in respect of the matter specified therein except in case of fraud committed on the Rent Controller.

16. The significant words are "no order shall be called. The emphasis seems to be more on the order specified in this subsection. That is, an order passed by the Rent Controller, appellate authority, or the High Court shall not be called in question in any Court. The civil Court will have no jurisdiction to entertain the suit. The view, which we are taking, is in accordance with the intention of the Legislature. The Ordinance provides for the constitution of a special Tribunal for deciding the disputes between the landlord and tenant. Having provided a remedy and having constituted special Tribunal for this purpose. the Legislature intended that it should have exclusive jurisdiction in respect of matter, which it could entertain. Subject to appeal finality has, therefore, been given to the order of the Rent Con troller, and section 15(5) deprives the civil Court of its jurisdiction to dean with the such matters.

17. In Pakistan there is statutory limitation to the power of a civil Court to entertain suits of a civil nature. They have jurisdiction to try suit) of a civil nature except suits of which cognizance is expressly barred. So also the power of the Courts to grant declaratory relief in Pakistan is not unfettered by statute. The power to grant declaratory relief is defined by the Special Relief Act. We, therefore, hold that the order of the Rent Controller cannot be challenged in a civil Court by a suit except in case of fraud or order passed without jurisdiction.

18. Mr. Naimur Rehman, the learned counsel for the petitioner, has contended that as the judgment, dated 6th April, 1980 is without jurisdic tion and void it need not be set aside.

19. On the other hand, Mr. Ahmed Yousuf Ali Rizvi, the learned counsel for the respondent No. 5 has contended that, the petitioner not only appeared in the suit but filed written statement and also application under Order VII, rule 11, C.P.C. which was rejected and the suit was decreed by judgment, dated 6th April, 1980. The petitioner did not prefer any appeal against the said judgment as such he is precluded to challenge the same in this petition.

20. We are of the view that, the judgment order passed by a Court which it has no jurisdiction, is a nullity in law and ii does not require to b set aside. 1n Yousuf Ali v. Muhammad Aslam Zia and others (PLD 1958SC 104) the Hon'bl Supreme Court held as under :‑ "Where the Legislature clothes an order with finality, it always assume that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order mad in excess of the powers of the authority making it, in the eye of the law such order being void and non‑existent." In Ch. Altaf Hussain cnd others v. The Chief Settlement Commis sioner (PLD1956SC68) the Hon'ble Supreme Court held that an order without jurisdiction is a nullity in law and does not require to be set aside formally. In Ali Muhammad v. Hussain Baksh and others (PLD 1976SC37), the Honourable Supreme Court held as follows :‑ "It follows that portions of the property in possession of the respon dents were not available for transfer to the appellant. The transfer of the entire Haveli in his favour by the Deputy Settlement Com missioner was, therefore, in violation of the provisions of subsection (5) of section 30 which was in force when the order of transfer was made also in violation of the provision of section 16‑B and Settle ment Scheme No. IV framed thereunder. The order of transfer, dated 22nd December, 1959 was thus void and rightly set aside by the High Court."

21. In the light of the above discussion, it follows that the judgment,, dated 6th April, 1980 in Suit No. 651 of 1980 passed by the Court of XIVth1 Civil Judge IInd Class, Karachi, is without jurisdiction and void and it does not exist in the eyes of law and need not be set aside because law does not recognize its existence.

22. For the foregoing reasons we allow the petition and declare that order, dated 22nd October, 1980 is without lawful authority and is of no legal effect and direct the respondent to execute the order 16th May, 1979. In the circumstances of the case the parties will bear their own costs. M. B. A.