MESSRS BAMBINO LTD. vs MESSRS SELMOR INTERNATIONAL LTD. AND ANOTHER

ORDER

' ZAFFAR HUSSAIN MIRZA, J.-The petitioner company is the owner of a building known as Bambino Chamber on the Garden Road, Karachi. The first respondent herein, Messrs Selmor International Limited was a tenant of the petitioner in respect of room No, 27 on the fourth floor of the aforesaid building for office purposes, since January,

15. However, in July, 1976 the petitioner filed an ejectment application under the Urban Rent Restriction Ordinance, 1959 and in these proceedings learned Rent Controller passed an ex parte ejectment order against the first respondent on 30-11- 1977. .

2. It is the case of the petitioner that in February, 1978 he filed an application, for execution of which notice was ordered but since the first respondent could not be served in the ordinary mode, substituted service by affixation of the notice on the outer door of the premises in dispute, was effected and thereafter execution was ordered to issue. It seems that notice by publication through newspaper was also sent. By a further order, the learned Rent Controller also directed that police aid for executing the writ of possession be provided to the petitioner. It seems that in the meantime, however, the vacant possession of the premises in dispute had been handed over to the petitioner and the latter had induced the second respondent herein, into the premises as a tenant under the terms of a written lease-deed executed between the parties on 19-4-1977. The second respondent seems to have been paying rent which was being accepted by the petitioner, who also issued receipts for these payments. This being the position on the date when the writ of possession was issued, as soon as the second respondent came to know that the writ would be executed with police aid, he sought unsuccessfully to obtain stay of the execution of the writ of the same. However by the time the order of stay could be served on the Court official the process of eviction had already been completed. Being thus dispossessed in execution of an order passed against the first respondent, the second respondent moved the learned Rent Controller under section 151 read with section 141 of the Code of Civil Procedure, for restitution of possession of room No,

27. The learned Rent Controller, however, dismissed this application as per his order dated 13-11- 1980 on the ground of lack of jurisdiction, in view of the provisions of section 19(2) of the Sind Rented Premises Ordinance, 1979, as in the opinion of the learned Rent Controller the question of restitution of possession was dependent upon setting aside the ex parte order of ejectment. The second respondent thereupon took an appeal against the order of the Rent Controller before the High Court under section 22 of the Sind Rented Premises Ordinance, which was allowed by the learned Single Judge as per his impugned order dated 25-11-1982, whereby the learned Single Judge has directed that the second respondent be put back into the possession of room No, 27, Bambino Chambers, within seven days from the date of his order. The petitioner being aggrieved by the aforesaid order has filed this petition for leave to appeal.

3. In support of the petition, Mr. Muhammad Ibrahim Memon, Advocate contended that the provisions of the Code of Civil Procedure, not being applicable to the proceedings before the Rent Controller, there was no power and jurisdiction under section 22 of the Sind Rented Premises Ordinance, to order restitution and the remedy, if any, lay before the ordinary Civil Court. It was further submitted that the impugned order was passed without jurisdiction, inasmuch as no appeal lay from the order of the Rent Controller. No authority was relied upon by the learned counsel in support of his submissions.

4. Upon or enquiry whether the second respondent was inducted into the premises on the basis of a new tenancy, the learned counsel replied that the previous management of the petitioner company had admitted the said respondent to the tenancy of the premises in question. There is, therefore, no dispute that the second respondent is the existing tenant of the premises and it, therefore, follows that he had been illegally dispossessed in execution of an order for ejectment passed against the previous tenant. The petition, was, therefore, being pressed on legal points only.

5. In regard to the first contention, learned counsel referred us to the provisions of section 20 of the Sind Rented Premises Ordinance, 1979 and submitted that since specified powers relating to summoning of witnesses, compelling production of documents, inspecting the site and issuing commission for examination of witnesses, vesting in Civil Court under the Code of Civil Procedure, have been conferred upon the Controller and the appellate authority, it follows by necessary implication that the rest of the powers enjoyed by a Civil Court were not available to these authorities under the repealed enactment i. e. Urban Rent Restriction Ordinance, 1959 (vide section 16) was identical and the settled view in this Court has been tha although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller by its own force, the Rent Controller we free to follows the equitable principles contained in the Code of Civil Procedure. There is no reason, therefore, to take a different view so far as the provisions of the Sind Rented Premises Ordinance are concerned, which governed the proceedings for execution of the order in this case. Under the repealed Ordinance of 1959, the order passed by the Controller or in appeal by the appellate authority was to be executed under section 17 of the said Ordinance, by a Civil Court having jurisdiction in the area as if it were a decree of that Court. However, under section 22 of the Sind Rented Premises Ordinance, 1979 an order passed by the Controller or the appellate authority has to be executed in such manner as may be determined by the Controller or as the case may be, the appellate authority. Plainly, therefore, the Controller was competent to adopt any procedure deemed by him suitable for the purpose of execution of his order. Order XXI, rules 100 and 101 of the Code of Civil Procedure amply authorised an executing Court for investigating and adjudicating upon the matter of dispossession from immovable property by the holder of a decree for possession of such property of a person other than the judgment-debtor. If the Court is satisfied upon such enquiry and determination, that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, the executing Court has the jurisdiction to direct that the applicant be put into the possession of the property. It is a rule of procedure based on equitable principles and on the principle that a decree passed by Court, ordinarily binds the parties to the suit or their assignees and persons claiming through them. We, therefore, agree with the learned Single Judge that the Controller and the appellate authority had the jurisdiction to pass orders for the restitution of possession in favour of respondent No,

2. As regards the second contention that no appeal lay from the order passed by the Rent Controller in execution of the order of ejectment it may be stated that a plain reading of section 21 of the Sind Rented Premises Ordinance, 1979 shows, that such an order not being an interim order, was appealable before the High Court. There is, therefore, no substance in this contention as well.

6. For the reasons mentioned above, we find no merit in this petition, which is accordingly dismissed. It may, however, be mentioned that on conclusion of the hearing of this case Mr. Sayed Saeed Hassan, Advocate appeared before us and requested for granting time for delivering the possession of the premises in dispute to the second respondent, as according to him his client had been inducted as tenant in these premises after the second respondent was dispossessed in execution proceedings. However, since Mr. Syed's client was not a party before the Controller or the High Court and no petition has been submitted in this case on his behalf, we cannot entertain any request on behalf of such a. Party.