MUHAMMAD Versus HUSSAIN

ORDER

1. This First Rent Appeal is directed against the order, dated 22‑12‑1985 passed by First Senior Civil Judge and Rent Controller (South), Karachi, whereby the objections filed by the appellant were dismissed and whereby the writ of possession was ordered to be issued.

2. The facts giving rise to the filing of this appeal are that the respondent No. 1 filed eviction application No. 3671 of 1982 against respondents Nos. 2 and 3. It seems that the respondents Nos. 2 and 3 did not appear before the Rent Controller as such ex parte eviction order was granted on 29‑11‑1983. It further seems that the respondent No. 1 filed execution application No. 24 of 1985 against the respondents Nos. 2 and 3. As the notice could not be served in ordinary way against the respondents 2 and 3, the respondent No. 1 filed application for substituted service and the notices were pasted on the door of the Appellant. The appellant filed an application under Order XXI, Rules 99 and 100 read with section 151, C.P.C. praying therein that the execution application filed by the respondent No. 1 be dismissed, The learned Rent Controller after considering the arguments advanced by the learned counsel for the parties dismissed the objections by his order, dated 22‑12‑1985.

3. The appellant being aggrieved against the aforesaid order, dated 22‑12‑1985 of Ist Senior Civil Judge and Rent Controller, Karachi, has preferred this appeal on the grounds mentioned in the memo of appeal.

4. Mr. Iqbal Qadri, learned counsel for the appellant has contended that the learned Rent Controller has not framed the issues and provided no opportunity to the appellant to lead evidence in support of his case. His contention is that the appellant is lessee in respect of the property in dispute and the respondent No. 1 is not the owner of the same.

5. On the other hand, Mr. Mehar Hussain Mesawa, learned counsel for respondent No. 1 has submitted that the respondent No. 1 is the owner of the premises in dispute.

6. I have heard the learned counsel for the parties and have perused the documents filed on the record of this Court and also perused the impugned order.

7. It seems that the photostat copy of the lease deed produced by the appellant shows the Plots Nos. 1604 and 1605 of Singolane, Lyari Quarters, Karachi. This lease was executed by the Karachi Metropolitan Corporation in favour of the appellant. The learned counsel for the appellant has argued that these K.M.C. Nos. are of the same plot on which house in question is situated. The learned counsel has also produced the copy of the summons which were served upon the appellant at his address which is also mentioned in the PT‑1 Form.

8. I have perused the order of .the learned Rent Controller. It seems that the learned Rent Controller has not framed any issue and he has not recorded any evidence and the perusal of the order shows that the objections were overruled only after taking into consideration the arguments 'advanced by the learned counsel for the parties. The learned counsel for the respondents has submitted that the respondent No. 1 is the owner of the premises in dispute and the appellant is not the owner of the premises in dispute.

9. In my opinion the learned Rent Controller has clearly erred. a perusal of the provisions of Rule 103 of Order XX1, C.P.C. would show that all questions arising as to title, right or interest in, or possession of immovable property under Rule 100 are to be adjudicated upon by proceeding under Rule 103, C.P.C. The proceeding under, Rule 103, C . P. C . are no more summary proceedings but are as if trial in the suit and the provisions of C.P.C. relating to the trial of the suit shall apply to the proceeding under Rules 100, 101 and 103, C.P.C. It seems that no opportunity was given to the parties to lead both documentary and oral evidence.

10. In the circumstances, this Appeal No. 648 of 1985 was allowed by a short order, dated 16‑2‑1986 and the above are the reasons for the same.

11. The impugned order, dated 22‑12‑1985 is set aside and the case is remanded to the Ist Senior Civil Judge and Rent Controller (South), Karachi, for deciding the case in accordance with law within four months from the receipt of the order from this Court.

12. The learned Rent Controller is further directed to frame the issues and allow the parties to lead both documentary as well as oral evidence and then decide the case on merits. The above are the reasons for short order passed on 16‑2‑1986.

13. A.A. Case remanded.