1981 PLP 198 (SCMR)

Khwaja M. Tufail, Advocate Supreme Court and Rana Maqbool Ahmed Qadri, Advocate-on-Record for Petitioner. Nemo for Respondents. Date of hearing: 8th April 1980. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from the judgment dated 12th February, 1980, of the Lahore High Court, whereby petitioner's second appeal arising out of a case under the West Pakistan Urban Rent Restriction Ordinance, 1959, was dismissed. A learned Rent Controller had on an eviction application filed by the respondent directed the petitioner to deposit arrears of rent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. On failure of the petitioner to comply with the direction, his defence was struck off on 3-11-1970. The physical eviction of the petitioner however, was postponed because the ownership dispute between the parties was pending adjudication before the Settlement Authorities. When the controversy about the transfer of the property ended, the respondent moved an application for implementation of the order passed on 3-11-1970. The petitioner resisted this application. The learned Rent Controller however, directed the petitioner to hand over vacant possession of the property to the respondent. The petitioner then challenged this order of the learned Rent Controller in first and second appeals. The same having been dismissed, he has sought leave to appeal. The grounds taken in this petition are that the learned Rent Controller having passed a final order on 3-11-1970 had become functus officio-he could not have revived the case for purpose of physical ejectment of the petitioner, that the petitioner was not debared from resisting the respondent's application for passing a formal order of eviction against him ; and that the learned Rent Controller had no power of review, 'therefore, his order passed on 3-11-1970 which bad attained finality could not be changed so a9 to reopen a past and closed litigation. Learned counsel has invited our attention to the language used in the order dated 3-11-1970 wherein the learned Rent Controller had used two phrases. This, according to the learned counsel was final determination of the lis between the parties. Therefore, the learned Rent Controller could not have reopened the matter. Learned counsel has ignored a very vital part of the order-dated 3-11-1970. 'The learned Rent Controller had specifically mentioned that the immediate physical ejectment was not being directed because the question of settlement was. Pending before a Deputy Settlement Commissioner and further that the proceedings for physical eviction could be taken after a decision by the Settlement Authorities. Thus while a part of the proceed?ings before the learned Rent Controller bad concluded, the remaining was to commence and continue after the decision by the Settlement Authorities. It was neither a case of review of the old proceedings nor of review in the real sense. The respondent had rightly moved the learned Rent Controller for further proceedings in the nature of physical eviction of the petitioner, after the decision by the Settlement Authorities. But the petitioner had objected to this procedure on the ground that a fresh formal order of physical eviction was necessary ; on which the respondent again moved the Rent Controller who having passed a proper order, the learned District Judge and the High Court have rightly refused to interfere. The observation of the learned Single Judge in the High Court that in the circumstances of the case, the petitioner could not approbate and reprobate is also un?exceptionable. We uphold the view of the High Court that in the circumstances of this case, the order of the learned Rent Controller did not amount to review of his earlier order. Proceedings for physical ejectment of the petitioner were kept in abeyance for a long time for the benefit of the petitioner. After he had lost the case for the transfer of the property he had no legitimate excuse to put forward against the implementation of the ejectment order. This is not a fit case for grant of leave to appeal. This petition is accordingly dismissed. Petition dismissed.