1990 PLP 1227 (MLD)

(1) Whether the relationship of landlord and tenant exists between the petitioner and respondent No. 1? O P P. (2) If issue No. 1 is answered as such, whether the respondent No. 1 has sublet the premises to respondent No. 2 without the consent of the petitioner? O P P. (3) Relief.

3. After recording evidence the Rent Controller by order dated 26‑3‑1988 accepted the ejectment petition. Order of eviction was passed. Feeling aggrieved the petitioner filed an appeal before the learned Addl. District Judge Lahore which was dismissed through order dated 5‑10‑1988. Learned counsel for petitioner stated that the petitioner challenged the said orders in this Court through Writ Petition No. 5758 of 1988 which was also dismissed through judgment dated 7‑11‑1988. According to learned counsel for the petitioner Civil Petition for Special Leave to Appeal filed by the petitioner in the Supreme Court was also dismissed.

4. The respondent No. 1/landlord filed an application for execution of order of ejectment passed by Rent Controller dated 26‑3‑1988 which was maintained upto the Supreme Court. In these execution proceedings the petitioner on 3‑7‑1989 filed an objection petition under section 47 read with Order XXI, Rule 22 and all other enabling provisions seeking dismissal of the execution application. The main ground of attack was that decree‑holder sought ejectment from shop in portion `A' of Property No. S.49‑R‑38/A whereas property of that description existed at site. It was also averred that decree‑holder was not able to prove that he was landlord of shop in portion `A' of the said property, as such the ejectment proceedings are liable to be dismissed on this ground also. It was also stated that according to P.T.O. Ext. P/4 produced in evidence in the ejectment petition "one‑half house nearly", of property No. S.49‑R 38/A was transferred to the decree‑holder and there was no mention of any shop being part of this house in P.T.O.

5. The Rent Controller by order dated 2‑9‑1988 dismissed the said objection petition against which an appeal was filed by the petitioner which has also been dismissed by the learned Additional District Judge, Lahore through order dated 13‑9‑1989. Both these orders have been challenged in this revision petition.

6. I have heard learned counsel for the petitioner at length. The competency and maintainability of this revision petition is highly doubtful for under section 17 of Punjab Rent Restriction Ordinance, 1959, Rent Controller has been empowered to execute the ejectment order. It is by virtue of this jurisdiction having been conferred on the Rent Controller regarding execution of orders passed by it that it has been held by superior Courts that the Rent Controller while executing the ejectment order would also be competent to entertain and dispose of any objection petition if moved raising objections against execution proceedings. Under section 15 of the said Ordinance against final order passed by Rent Controller under the Ordinance, a right of appeal has been provided. These two provisions previous to their amendments were substantially different. Under section 17 of the said Ordinance, before amendment, an order passed by Rent Controller under various specified sections of the Ordinance were to be executed by a Civil Court as if it was a decree passed by that Court. Under this section the Civil Court while executing order of ejectment was exercising jurisdiction as Civil Court and the proceedings as such regarding appeal or revision were regulated and governed by the C. P. C. Under section 15 before amendment a right of appeal was provided only against orders passed by Rent Controller under sections 4, 10, 12 and 13 of the Ordinance.

7. The effect of amendment made in sections 15 and 17 of the Ordinance as noted above, is that a final order passed by Rent Controller under any of the provisions of the Ordinance has been made appealable. Since under section 17 the execution of the ejectment order is to be carried out by the Rent Controller himself therefore any final order passed in those proceedings dings whether on objection petition or in the execution proceedings regarding execution of order, the appeal would be competent under section 15 of the Ordinance as an order passed by the Rent Controller. That being so, in my view the revision petition according to well‑settled law, for challenging the validity of the orders passed by Rent Controller and appellate Authority under the Ordinance is not competent.

8. Learned counsel for the petitioner faced with this difficulty, tried to overcome it by arguing that this revision petition be treated as writ petition under Article 199 of the Constitution.

9. I have examined the case on merits. The objections raised in petition primarily related to the description of the property. As has been observed above the respondent No. 1 in the ejectment petition clearly stated that portion `A' of property No. S‑49‑R‑38/A which had been transferred to him had shops also out of which one shop was in possession of Feroze Din as his tenant which was sublet by him to the present petitioner. The said shop was shown in red colour in the site plan attached with the ejectment petition as stated in Para 2 thereof in which boundaries of the shop in dispute were also clearly given. The petitioner denied existence of relationship of landlord and tenant on which an issue was framed. He produced evidence before the Rent Controller who after appraising the evidence held that relationship of landlord and tenant existed between the petitioner in the ejectment petition and Feroze Din qua the shop in dispute and that the same way sublet to the present petitioner. The order passed by Rent Controller was upheld upto the Supreme Court in the further proceedings such as appeal, writ petition and Civil Petition for Special Leave to Appeal filed by the petitioner before the learned Additional District Judge, this Court and the Supreme Court respectively. The legal consequence of decision of the issue of existence of landlord and tenant was that the shop in dispute was held to be the part of portion `A' of property No. 'S‑49‑R‑38/A which was stated to have been transferred to the petitioner in the ejectment petition. The petitioner having lost this legal battle upto the highest forum could not turn around and raise the same objection about the description of the property or that the shop in dispute was not part of that portion of the said property which was transferred to respondent No. 1/landlord. In the P.T.O. or other transfer documents each room of the property transferred is not ordinarily mentioned. The decree‑holder in the P.T.O. was shown to have been transferred "one‑half nearly of house" property No. S‑49 R‑38/A which according to the decree‑holder also included shops which fact he established in the ejectment petition in which the issue of relationship of landlord and tenant was decided in his favour. The petitioner who led evidence in the main ejectment petition and failed to establish his plea therefore was debarred from raising the same plea in objection petition objecting to the execution of the ejectment order.

10. The petitioner also raised an objection that Feroze Din was insane therefore ejectment petition against him was not maintainable, without appointment of his legal guardian. It was also stated in the objection petition that Feroze Din became owner of the shop in dispute by way of adverse possession. These objections have been rightly rejected. No plea regarding insanity of Feroze Din was admittedly raised in the written statement filed by the petitioner in the proceedings in the ejectment petition. This plea appears to be an afterthought. The same is the position with regard to the ground that Feroze Din had become owner of the shop by way of adverse possession. Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 provided that occupant of an Evacuee Property transferred to any person under the said law would become the tenant under the transferee on the same terms and conditions as to payment of rent on which such occupant‑ was holding the premises under the Rehabilitation Department. In this view of the matter, the occupant of the shop i.e. Feroze Din having once become statutory tenant his possession, could not be adverse to the transferee.

11. In my view all the grounds raised in the objection petition are such which relate to the merits of the main case in the ejectment petition in which order of eviction was passed. The objector being one of the respondents in the ejectment petition and having contested the same should have raised all the grounds of defence which might and ought to have been raised to seek dismissal of ejectment petition. Through this objection petition as a matter of fact he wanted to achieve the object of reopening the entire case and re‑consideration and re‑hearing of the ejectment petition, which he lost as noticed above into Supreme Court.

12. For the foregoing reasons, the revision petition is devoid of any substance and it is hereby dismissed in limine. M.B.A./M‑2057/L Revision dismissed.