MUHAMMAD ISMAIL Versus AZIZ ASLAM

ORDER

Brief facts of the instant civil revision are that an eviction petition was filed by Aziz Aslam against his tenant about house property No.SW-IV-735-6 measuring 8 Marlas situated in Wishno Street No.73, Shamnagar Chauburji, Lahore. The application was allowed by the Rent Controller. The same was set aside by the Appellate Court but restored by the High Court and the matter went up to the Hon'ble Supreme Court, which dismissed the petition for leave to appeal filed by Haji Muhammad Aziz Bhatti and confirmed the judgment passed by the learned Rent Controller. Execution petition was filed by the landlord. During execution proceedings the present petitioner filed an objection petition under Order XXI, Rule 99 of the C.P.C. and submitted that the landlord Aziz Aslam had entered into an agreement to sell with him on 4-3-1991 in respect of the disputed property for a consideration of Rs.3,00,000. The earnest money of Rs.50,000 was paid to the landlord and the remaining amount of Rs.1,50,000 was again paid on 3-5-1995 and the petitioner secured possession of the house. The learned counsel for the petitioner has submitted that on refusal of the respondent to execute the agreement to sell he has filed a suit for specific performance of contract on 14-7-1997. As the petitioner apprehended dispossession he filed another suit for permanent injunction and secured a temporary injunction from the same Court which was dismissed on 25-1-1997 arid finally the petitioner stands dispossessed. He has prayed for possession of the said house.

2. The objection petition filed by the petitioner was dismissed by the learned trial Court alongwith other objection petitions on 25-11-1997. The same was assailed in appeal. The learned Appellate Court after hearing the petitioner affirmed the judgment of the learned executing Court on the objection petition and burdened the petitioner to costs of Rs.50,000. '

3. I have heard the learned counsel for the petitioner.

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4. The objection petition is given under Order XXI, rule 99 of the C.P.C. which is reproduced below:-

"99. Resistance or obstruction by bona fide claimant.--Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or qn account of some person other than the judgment-debtor, the Court shall make an order dismissing the application."

Since in the instant case the learned Rent Controller was an executing Court which could execute the order of a Rent Controller as a decree and any party adversely affected could apply under this rule. The provisions of Order XXI, rule 99 of the C.P.C. shall be read together with section 74 as well as Rules 97 and 98 of Order XXI of the C.P.C., these provisions read together enable the third party's interest to be determined by an independent character. Rules 97 of the C.P.C. would apply when resistance is offered to the decree holder or an auction-purchaser who is entitled to the possession of such property but the basic rule is that an executing Court cannot act beyond the decree and the order of the learned Rent Controller which is affirmed by the Hon'ble Supreme Count is about the eviction petition and the matter bdtween the landlord and the tenant. The present petitioner did not defend the proceedings of the eviction petition and the matter between the landlord and the tenant was set at naught by the Hon'ble Supreme Court which affirmed the order of learned Rent Controller giving a period of two months for ejectment of the tenant from the rented premises. It is also an admitted fact that the tenant stood ejected and the rented premises were handed over to the landlord vide order dated 9-2-1998. The learned counsel for the petitioner brought the attention of this Court to the photostat copy of the report of Ahl-Commission where it is submitted by the local commission that the tenant vacated the disputed house 1-1/2 months before his inspection and the present petitioner took possession of the property and is in possession fof 1-1/2 month. The report is dated 7-6-1995. Report of the Bailiff, 'who made on the warrant issued is reproduced below:--

Signed on 9-2-1998 by the Bailiff and scribed by the witnesses. "

5. The instant civil revision is filed on 27-1-1998 and remained under objections which were removed. The same was re-filed on 3-2-1998 and was fixed for hearing before this Court on 9-2-1998. It is also admitted fact that the petitioner has filed a suit for possession through specific performance of agreement to sell and he is at liberty to take a resort to the same Court where he has a remedy under the law available to him. The learned executing Court under Order XXI, rule 99 of the C.P.C. cannot restore the possession while executing the order of the learned Rent Controller.

6. 1 have minutely read the findings of the learned Courts below. Where the Courts were under the impression rather convince that, the petitioner in connivance with the tenant has taken possession of the disputed property in order to frustrate the execution proceedings but without prejudice to the petitioner 's suit for specific performance of agreement to sell no Court can ascertain whether the agreement to sell is based on fraud or is fabricated. The only concerned Court who can decide the same after appraisal of the evidence produced by the party is the Civil Court. The provisions of rules 97, 98 and 99 of the C.P.e. and that of section 74, C.P.C. can be availed if the applicant shows some overt act of resistance and these remedies are available to the decree-holder or the auctionpurchaser under rule 97 and the provisions of rule 97 are of permissible nature. Rule 99 provides resistance or obstructions by bona fide claimant who has caused the resistance or obstruction and he is any person other than the judgment-debtor claiming in good faith to be in possession of the property in his own account or on account of some person other than the judgment-debtor. The petitioner stands dispossessed and still the matter whether the agreement in respect of the disputed property is genuine or not or what charge or interest is created in respect of the disputed property in favour of the petitioner is to be determined by the Court concerned, and if the petitioner is successful to prove the same he can be put into possession by the concerned Court. As such, the provision of Order XXI, rule 99 read with the provisions or rules 97, 98 as well as section 74 of the C.P.C. are not available to the petitioner. Therefore, I find no reason to interfere in the concurrent findings of the Courts below. 'the revision petition is dismissed in limine.

7. So far as the order of burdening the petitioner to cost of Rs.50,000 is concerned, it seems harsh to this Court, therefore, to this extent the civil revision is allowed and the order of burdening the petitioner to costs of Rs.50,000 is hereby set aside.

A.A./M-586/L ? Order accordingly