Malik MUHAMMAD SHAFI vs MUHAMMAD SALEEM

The dispute involved in this civil revision relates to certain property in respect of which an ejectment order was secured by the respondent, Muhammad Saleem, from a Rent Controller. The said order was challenged by the petitioner, Malik Muhammad Shafi, by filing a civil suit. It was alleged by the petitioner that in the ejectment proceedings, resulting in the order of the learned Rent Controller, some property belonging to the petitioner had also been shown as ownership of the respondent. The peti--tioner sought a declaration to the effect that he was owner of the property in dispute and also prayed for permanent injunction restraining the respondent from interfering with his possession over the said property. Plaint in the suit was, however, rejected by a Civil Judge holding that the suit was barred by subsection (2) of section 12 of the Code of Civil Procedure and Order XXI, rule 103 of the said Code. An appeal was, therefore, taken by the petitioner to an Additional District Judge, but without success. He has, therefore, come up in revision to this Court.

2. It was contended by learned counsel for the petitioner that the provisions of subsection (2) of section 12 of the Code of Civil Procedure were not attracted to .Proceedings before a Rent Controller and, therefore, the suit brought by the petitioner was not hit by those provisions. In view of the words "suit", Court", "Code", "judgment" and "decree" used in section 12 it appears that its provisions apply to suits and not to applications made to the Rent Controller under the Punjab Urban Rent Restriction Ordi--nance, 1959, hereinafter referred to as the said Ordinance. I, therefore, agree with the learned counsel that the suit brought by the petitioner was not barred by subsection (2) of section 12 of the Code of Civil Procedure.

3. As for the provisions of Order XXI, rule 103 of the Code of Civil Procedure, which were also invoked by the learned Civil Judge for rejecting the plaint, it was urged by learned counsel for the petitioner that since the petitioner has been dispossessed of the property in dispute he is not left with any remedy other than that of a Civil suit. According to him, the petitioner was dispossessed only two days ago. Now, therefore, according to learned counsel for the petitioner, the petitioner would also, on the setting aside of the order of rejection of plaint, pray for restitution of possession of the property in question.

4. In view of section 17 of the said Ordinance, the ejectment order was) to be executed by the Rent Controller "as if it were a decree of a Civil Court". This means that the provisions of Order XXI of the Code of Civil Procedure relating to the execution of decree are available to the learned Rent Controlled under whose orders the petitioner has been dispossessed. 1n other words, b virtue of the provisions of section 17 of the said Ordinance, he will be d to be a "court" and the order of ejectment, the person in whose favour it Was made and the person against whom it was passed would be deemed to "decree","holder of a decree" and "judgment-debtor" respectively for t purpose of the provisions of Order XXI. Since in the instant case the petitioner is not the judgment-debtor (person against whom the ejectment order was made) and he claims to be the owner of the property in question, which is an immovable property, he can, according to rule 100 of Order XXI, make an application to the Rent Controller for restoration of its possession and if be succeeds in establishing that he was in possession of the dispute property on his own account when he was dispossessed therefrom, the learned Rent Controller would be able to order restoration of possession under rule 101 of Order XXI. It has been laid down in rule 103 of Order XXI that all questions arising as to the title, right or interest in, or possession of, immovable property between an applicant under rule 100 and the opposite party shall be adjudicated upon and determined by the Court executing the decree and no separate suit shall lie for determination of any such matter.

In view of section 17 of the said Ordinance read with rules 100, 101 and 10 of Order XXI of the Code of Civil Procedure, therefore, what the petitioner seeks to achieve by means of the suit brought by him can be awarded by the learned Rent Controller, who has executed the order of ejectment, on his (petitioner's) making an application to him (Rent Controller) and thus the suit filed by him was barred.

5. Plaint of the suit brought by the petitioner was, therefore, rightly rejected under rule 103 of Order XXI of the said Code. Accordingly, this civil revision fails. It is dismissed in limine.