1983 PLP 2787 (CLC)

(b) Civil Procedure Code (V of 1908)‑ ‑‑ S. 115‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959). Ss. 13, 15 & 17‑District Judge failing to exercise jurisdiction vested in him and deciding appeal without reference to questions raised in memorandum of appeal‑Order of District Judge set aside by High Court in revision. Ch. Muhammad Hasan for Petitioner. Sh. Hamid Mukhtar and Mian Ghulam Rasool for Respondents Nos. 1 and

9. Date of hearing ; 30th January, 1983. This revision petition arises out of the judgment dated. 8th December, 1982 in execution proceedings before the learned District Judge, Sheikhupura, seeking therein eviction of the petitioner from a portion of property No. R‑VI‑SI‑8‑A, Waris Road, Ward No. 6, Sheikhupura, on. the grounds of default, damage to the property and personal need. The petitioner resisted the application but did not deny the relationship of landlord and tenant between the parties. The ejectment application was accepted by order dated 12th March, 1980 of the learned Rent Controller which was challenged in appeal and in consequence of which the case was remanded to the learned Rent Controller which was challenged in appeal and in consequence of which the case was remanded to the learned Rent Controller with the direction to rewrite the judg ment on the question of Issue No. 3 relating to personal need. Con sequently, the learned Rent Controller rejected the ejectment application by order dated 19th February, 1981. On appeal. the learned District Judge, Sheikhupura, set aside the order of the learned Rent Controller and accepted the ejectment application by order dated 2nd March, 1982 on the ground of personal need alone. It 'may however, be pointed out that during the pendency of the ejectment proceedings, Ch. Rafiq Dad, Deputy Settlement Commissioner/Deputy Administrator (R. P.), Sheikhupura, by order dated 14th December,. 1980 (page 131 of the Settlement file which I have perused in the Court with the assistance of the learned counsel for the parties) passed an order that the Transfer Order No. 74268, dated 23rd July, 1978 was partly invalid, in that, only the 'Malba' and machinery was evacuee and not the land underneath which belonged to the Provincial Government. Consequently, the P. T. O. was amended by order dated 23rd September, 1981 with the result that the transfer of the land underneath the building was excluded from the Transfer Order issued in favour of Sardar Khan deceased. It is also an admitted fact that mutation sanctioned in favour of Sardar Khan deceased in pursuance of the original Transfer Order was cancelled on 25th November, 1979 against which Sardar Khan filed appeal which is still stated to be pending adjudication. These facts are proved on record which 1 have perused with the assistance of the learned counsel for the parties. Subsequently, the respondents filed execution proceedings on 2nd May, 1982. This application was resisted by the petitioner by means of an objection petition under section 47, C. P. C. dated 3rd May, 1982 on various grounds including the ground that the property. in dispute, being the property of the Provincial Government, was outside the domain of the learned Rent Controller and, therefore, in pursuance of the ejectment order passed by the learned Rent Controller, the decree was unexcutable. The Executing Court, by order dated 13th July, 1982 dismissed the objection petition, inter alia on the ground that the tenant after having once admitted the tenancy under the decree‑holder, was estope to challenge the title over the property, in dispute, in the light of the principle enshrined in section 116 of the Evidence Act. The appeal filed by the petitioner was also dismissed by the learned District Judge on 8th December, 1982. He upheld the findings of the Executing Court that the petitioner was estopped to deny the title of the landlord decree‑holder after having admitted the tenancy. He further held that the petitioner had no locus standi to file the objection, in that, the ownership the suit property had been cancelled by the Provincial Government and, therefore, the petitioner neither remained the tenant of the decree‑holder nor that of the Provincial Government by operation of law.

2. The reasoning advanced by the learned District Judge is factually incorrect, in that, the learned counsel for the parties have admitted before me that Sardar Khan died during the pendency of the appeal before the learned District Judge. This being so, the learned District Judge ought to have considered as to whether a decree obtained on ground of personal need was executable at the instance of his legal heirs. . Failure to decide this question has resulted in grave prejudice to the petitioner. It is also difficult to hold that the petition under section 47, C. P. C. filed by the petitioner was not maintainable simply because the ownership of the property had been allegedly cancelled by the Provincial Government. In the first instance, this finding of fact is based on no evidence on record. The perusal of the Settlement record however. reveals that the ownership of the entire suit property was never cancelled. In fact the P. T. D. alone was amended by excluding the land transferred to the predecessor‑in -interest of the respondents. In terms of unamended provisions of section 15(5) of the Ordinance and section 15 (7) as added by the Punjab Urban Rent Restriction (Amendment) Ordinance (IX of 1979), the order of the Rent Controller subject to the result of appeal, if any, is final and cannot be called in question in any Court of law including the High Court by suit, appeal or otherwise. Reference may be made to Zahurul Hasan v: Mst. Ruqqia Begum and 4 others (PLD 1981 SC112). This being so, the grievance of the petitioner could have been competently determined by the Executing Court which has the power to entertain an objection petition as envisaged by section 47 of the Civil Procedure Code which is admittedly applicable to execution proceedings of an order of ejectment passed under the Ordi nance. Reference may be made to Khurshid Begum, etc. v. Mr. Ghulam Kubra etc. (1982 S C M R 90). Learned District Judge has failed to exercise the jurisdiction vesting in him in not deciding the appeal with reference to the questions raised before him in the memorandum of appeal.

3. The upshot of the whole discussion is that the impugned order dated 8th December, 1982 of the learned District Judge, Sheikhupura, is hereby set aside and the case is remanded for disposal afresh of the appeal which is deemed to be pending. The parties are directed to appear before the learned District Judge, Sheikhupura, on 14th February, 1983 for further proceedings in the light of the observations made in this judgment. Learned District Judge is further directed to dispose of the appeal within two months. In the circumstances of the case, there shall be no order as to costs. M.A.K. Petition accepted.