WADHO AKHARA TRUST Versus ISMAIL SHAH

Brief facts leading to this revision application are that respondent No.l filed Rent Case No. 2377/1967 against one Haroon. In the execution application the respondent No.2 was dispossessed of the premises in dispute. Respondent No.2 then filed an application under Order XXI, Rule 100, C.P.C. in the Execution Application No.81 of 1973 in which the evidence was recorded and the application of the respondent No.2 was dismissed. He filed appeal No. 226/1975 against the said order of dismissal of the application, but the appeal was also dismissed by the learned Appellate Court. He then filed Suit No. 83 of 1977 against respondent No.1 and the applicant praying therein for the following reliefs:‑

"(a) For judgment and decree in favour of the Plaintiff declaring that the premises belong to the Defendant No.2

(b) Judgment anal decree in favour of the Plaintiff and against Defendant No.l, ejecting/evicting the Defendant No.l and all other person/persons claiming through him, from the tenement No.220, Wadho Akhara Trust, Bhimpura, Karachi and putting the plaintiff in possession thereof;

(c) Costs of the suit and

(d) Any other relief deemed fit and proper in the circumstances of the case."

2. The suit was dismissed by the learned XXVth Civil Judge, IInd Class, Karachi vide his order dated 26‑11‑1978 holding as under:‑

"Since the questions relating the ownership and right of his possession as tenant in the same premises have been adjudicated upon in the execution proceedings No. 81/73 and lastly in appeal bearing No.226/75, therefore, I am of the opinion that these questions involved in the instant suit, have already been adjudicated upon and determined by the competent Courts and no separate suit can lie for the determination for the same matter as provided under Order XXI, Rule 103, Civil Procedure Code."

3. Against this order the applicant as well as the respondent No.2 filed appeals in the District Courts which were dismissed by a single judgment by the learned Additional District Judge, Karachi on 16th April, 1981. Respondent No.2 did not file any revision application against the impugned order, but the applicant has filed this revision application challenging the orders of the Courts below.

4. It may be pointed, that admittedly the applicant was not a party to the original rent case or to the execution proceedings before the executing Court but he was made party in appeal against the order of dimissal of the application of respondent No.2 by the executing Court. It may also be pointed, that the applicant has not filed any suit for declaration of his rights.

5. I have already reproduced the prayers with regard to the reliefs claimed by the respondent No.2 in his suit. Mr. Syed Abbas Zia learned counsel for the applicant candidly conceded that the declaration under section 42 with regard to the rights of the applicant could not be granted in the suit filed by the respondent No.2. Thus, the only relief that the trial Court could have granted to the respondent No.2 was with regard to prayer (b) in his plaint which is for possession of the suit premises.

6. It is also admitted that the respondent No.2 was dispossessed in 1973 and that he moved an application under Order XXI, Rule 100, C.P.C. in 1973. Mr. Syed Abbas Zia contended that Rule 103 of Order XXI, C.P.C. has been amended by Ordinance XII of 1972 and therefore, this amended rule would not be retrospectively applicable to the causes of action which accrued to the parties prior to the amendment. In support he has relied upon the case of Rafiuddin v. Chief Settlement and Rehabilitation Commissioner (P L D 1971 SC 252). At page 306 their Lordships have held that "it is well settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order". In the instant case the action of ejectment was commenced in 1967 against a different party namely Haroon. Neither the present applicant, nor respondent No.2 were parties to that action. In the reported case the right of the parties to the action of right prior to the relevant amendment. The principle laid down by their Lordships in my humble opinion applies only to the parties, who were parties to the action prior to the amendment and not to the parties whose rights were determined and who became parties after the amendment.

7. Mr. Syed Abbas Zia has also relied upon 1905 A.C. (Privy Council) 369. In that case the right of appeal from the Supreme Court of Queens-land to His Majesty in Council given by the Order in Council of June 30, 1860, had been taken away by the Australian Commonwealth Judiciary Act, 1903 under which the appeal lies to the High Court of Australia, but as the Act was not retrospective, the right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court and afterwards was held not to have been taken away.

8. The instant case is quite distinguishable from the two reported cases. Neither the applicant nor the respondent No.2 had challenged or appealed against or applied for setting aside the order of ejectment of Haroon. It is contended that it was a collusive case and the order of ejectment was obtained by respondent No.l in collusion with this Haroon. However, admittedly no suit has been filed for setting aside of the said judgment on the ground of fraud or misrepresentation. It appears from the plaint that the eviction was ordered from doom No.12 Wadho Akhara Trust Building whereas the applicant claims to have been ejected from Room No. 220. Thus in the Suit No.83/1976 the questions for decision before the Court were (1) whether the present applicant was owner of the tenement in question and (2) whether the respondent No.2 was illegally evicted from Room No.220. The Rent Controller does not decide the question of right of ownership, but by implication the learned Rent Controller has held respondent No.l to be the landlord of Room No.12. In fact the right of the applicant as owner was not decided by that cent case, but as pointed above, even the learned counsel for the applicant has conceded that the respondent No.2 in his suit cannot seek declaration that the applicant was owner of the premises. I need not discuss the question whether the applicant can still file a suit for such declaration, as that can only be decided as and when such suit is filed. Thus the only question for decision before the Court in Suit No.83/1977 was whether the respondent No.2 was wrongfully ejected from Room No‑220. The action before the Rent Controller in the Rent Case was eviction of Haroon from Room No.12. Therefore, even if it is held that the date of cause of action will be the date of filing of the rent case, still under the circumstances of the present case, no cause of action would be deemed to have accrued either to the applicant or to respondent No.2, as neither they were parties to the rent case, nor their right were challenged in the rent case in any way.

According to respondent No.2 cause of action accrued to him because of wrongful ejectment from Room No. 220. He had chosen to agitate this question which is a question of fact before the executing Court by moving an application under Rule 100 of Order XXI, C.P.C. Admittedly the evidence of the parties was recorded and the learned executing Court gave finding on the question of possession and rights of parties viz. respondent No.l and 2. Therefore, the suit agitating the same questions would be barred under Rule 103 of Order XXI, C.P.C.

It may further be pointed that respondent No.2, who would be the main aggrieved party, has not chosen to challenge the order A of the Appellate Court in revision application.

Under the circumstances for the aforesaid reasons I do not find any reason to interfere with the orders of the Courts below. The revision application is, therefore, dismissed, but in the circumstances of the case the parties are ordered to bear their own cost.

H . B . T . /W‑19/ K Revision application dismissed.