1991 PLP 1405 (CLC)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 assails the judgment of the Additional District Judge, Sheikhupura dated 24th of July, 1986 whereby he dismissed a revision petition filed by the petitioner and affirmed the order of the learned Senior Civil Judge, Sheikhupura dated 4th of February, 1985.

2. The facts necessary for the disposal of this petition are that respondent No3 Sh. Muhammad Sharif on 27th of June, 1984 filed a suit against the petitioner and respondent No.4 with the following relief‑ "It is, therefore, respectfully prayed that a decree for possession through specific performance of agreement regarding the disputed property be passed or in the alternative decree for declaration to the effect that the plaintiff is co‑sharer/owner of one‑fourth share of property No.BVI‑95 204‑A Main Bazar, Sheikhupura and the ejectment order is illegal, without jurisdiction, mala fide as such ineffective upon the rights of the plaintiff, with consequential relief of permanent injunction restraining the defendants from changing the nature of the suit property, be passed in favour of the plaintiff against the defendants with costs."

3. An application under Order VII rule 11 of the Civil Procedure Code was filed by the petitioner during the pendency of the suit in which it was alleged that the suit was barred by the provisions of Order 21 Rule 103, C.P.C. as one of the prayers made in the suit was that the ejectment order obtained by the petitioner from the Rent Controller was illegal and unlawful. This application was dismissed by the trial Court on 41h of February, 1985 holding that the relief for specific performance could not be granted by the Executing Court and prima facie the suit was not barred by time. It was further observed that the question as to the maintainability can only be determined after framing the necessary issues. The petitioner went in revision but remained unsuccessful as the same was dismissed by the learned Additional District Judge on 24th of July, 1986. The learned Additional District Judge was of the view that the question of title could not be determined by the Rent Controller and therefore, the suit was competent.

4. Mr. Zafar Iqbal Bajwa, the learned counsel for the petitioner has reiterated the same arguments as were advanced before the lower Court and on the strength of Order 21, rule 103, C.P.C. it has been contended that the suit filed by respondent No.3 was barred. This contention of the learned counsel is not well‑founded. Admittedly the suit filed by respondent No.3 is for specific performance and it is even not disputed by the learned counsel for the petitioner that this relief cannot be granted by the Rent Controller. It would be therefore idle to contend that the suit on the face of it was barred by law so as to attract the mischief of rule 11 Order 7 of the Civil Procedure Code. In these circumstances the trial Court was justified in taking the view that the question of maintainability of suit could be decided only after framing the necessary issues. This petition has no force. It is accordingly dismissed leaving the parties to bear their own costs. AA./M‑2922/L Petition dismissed.