1985 PLP 54 (SCMR)

M.S.H. QURAISHI, J.--This appeal by leave of the Court arises out of a proceeding relating to the execution of an ex parte order of ejectment from Shop No. 18 on the groundfloor of Hotel Metropole, passed by the Rent Controller on 31-3-1983 in favour of Messrs Hotel Metropole Limited appellant and against Messrs Kitabistan Limited, respondent No.

1. In response to the notice of the execution application, the respondent filed an application on 31-3-1983 for setting aside the ex parte order of ejectment. This application came up for hearing on 10-10-1983 but on an application made through Mr. Iqbal Ahmad, Advocate on behalf of the respondent's counsel, Mr. Muzaffar Ali Khan, the matter was adjourned to 12-10-1983, on which latter date, as none appeared on behalf of the respondent, their application for setting aside the ex parte order of ejectment was dismissed in default. The appellant then, with the help of the bailiff of the Court and police, obtained possession of the premises on 24-10-1983. The respondent immediately rushed to the Controller with an application under section 151, C . P . C . seeking a stay of the execution and obtained such order the same day, i.e. 24-10-1983. As delivery of possession had been taken, the respondent moved an application on 25-10-1983 for setting aside the ex parte order passed on 12-10-1983. They also moved another application on 26-10-1983 for restoration of possession of the premises. It is not disputed that in the relevant proceeding sheet the executing Court had adjourned the case to 12-10-1983. The respondent's case, however, was that both their Advocate, Mr. Iqbal Ahmad, and the Reader of the Court had understood the adjournment to be for 12-11-1983, that the Reader had made entry to that effect in the cause list at serial No. 36 and that the same date, that is, 12-11-1983 had been noted by the respondent's counsel Mr. Muzaffar Ali Khan when he had come to the Court at 12-00 noon to enquire about the next date, but that the date had been collusively changed to 12-10-1983. The respondent that after obtaining the stay order the same had been brought to the notice of the bailiff had further submitted it but he had paid scant regard to the same and had carried on with the execution. The submissions prevailed with the executing Court which, by its order dated 22-1-1984, allowed the applications, set aside the order of 12-10-1983 and restored the proceeding to the stage at which it was on 10-10-1983 and also directed for restoration of possession of the premises to the respondent.

2. The order was challenged by the appellant in appeal before the High Court mainly on the grounds that the ex parte ejectment order dated 31-3-1983 having not been set aside the executing Court could not have ordered the restoration of possession and that the respondent Company having been dissolved, respondents 2 and 3 had no locus standi to represent the Company and to have sought restoration of the possession. The contentions did not succeed and the High Court held that the possession having been illegally obtained by the appellant during the pendency of the execution application, the executing Court under section 22 of the Sind Rented Premises Ordinance read with section 144,C.P.C., had the power to order restitution of possession. The High Court, therefore, by the impugned order dated 26-2-1984, dismissed the appeal.

3. Leave was granted to consider the contentions which had been raised before but rejected by the High Court.

4. It has been urged on behalf of the appellant that the respondent Company having been dissolved and struck off from the register of Companies, neither that Company nor any one on its behalf could seek restitution of possession of the premises and that in any case the original order of ejectment, dated 31-3-1983, not having been set aside, the possession of the shop could not be restored. The submission, on the other hand, is that the dissolution of the respondent Company by the Registrar was still in dispute before the High Court and as such the respondent Company had the locus standi to protect its interests. It has also been urged that the impression gained by the respondent's Advocate that the executing Court had adjourned the case to 12-11-1983 was not without basis and as the act of Court is not to prejudice any one, the executing Court was right in setting aside the order of 12-10-1983 and as possession had been taken in pursuance of that order, the executing Court was also fully justified and competent to direct the restoration of possession.

5. The question whether the respondent's counsel had, on 10-10-1983, been misled by the Reader of the executing Court to believe that the matter had been adjourned to 12-11-1983, is one of fact which has been concurrently decided in their favour. Learned counsel for the appellant also does not contest the decision to restore the respondent's application for setting aside the ex parte order of ejectment. His grievance is only against the order of restoration of possession of the shop. We are not inclined to go into the question of locus standi of the respondent Company following from its dissolution by the Registrar, which matter, ac stated, is sub judice before the High Court. We, however, find that there is no proper material to show that the stay order had been passed prior in time to the delivery of possession. The bailiff's report shows that he handed over possession at 12-45 p.m. on 24-10-1983 and that no stay order of Court had been shown to him. The order staying the execution passed by the executing Court the same day does not mention the time when it was made. Apart from this difficulty, we also find that there was in fact no lis pending on that day, i.e. 24-10-1983, before the executing Court in which the stay could have been granted. With the dismissal in default of the respondent' application against the execution, their case had come to an end and in the absence of an application for restoration of that application, the Court was not competent to have granted the stay. Such application for restoration of the objection application had been made the following day i.e. 25-10-1983. On this view of the matter, we are inclined to set aside the order directing the restoration of the property in favour of the respondent.

5. These above are the reason for the following short order which we made and announced on 27-9-1984. "For reasons to be recorded later, this appeal is allowed to the extent that the impugned orders directing the restoration of possession in favour of the respondents are set aside. The proceedings for setting aside the ex parte ejectment order dated 31-3-1983 will continue before the executing Court. The appellant, however, is directed not to part with possession of the premises in question until the termination of the said proceedings." There shall be no order as to costs. M.Z.M. Order accordingly,