MUHAMMAD AZIM Versus BASIT YAR KHAN

1. In the year 1975 the respondent No.l filed application for ejectment against the respondent No.2. The Rent Controller granted the ejectment application against'which respondent No.2 filed an appeal before the District Judge. The order of the Rent Controller was set aside. The respondent No.l then filed a IInd Appeal before the High Court which was allowed and the order of the Controller was maintained. The respondent No.2 then filed application for special leave to appeal before the Supreme Court, obtained a stay, but finally the petition was dismissed on 26‑8‑1986.

2. After the High Court had allowed the appeal, the respondent No.l filed execution application No.7/1986 but as the Supreme Court had granted stay it was re‑opened after 26‑8‑1986. The respondent No.2 did not file any objection to the execution application but the appellant entered the scene as an intervenor claiming to be in bona fide possession of the disputed premises. He filed an application under Order XXI,Rules 99 and 101 C . P. C . and a second application was filed under section 12(2) C.P.C. After notice the learned Controller by the impugned order dismissed both the applications.

3. The appellant has filed his affidavit in support of both these applications in which he stated that he is in actual physical possession of the premises from before 1975 and has been trading under the name and style of Decors Craft. As the disputed shop is situated in Cooperative Development Fund and Project the allottees are not allowed to sublet the premises and therefore, there is no lease or tenancy agreement but the fact remains that the appellant has been paying rent to the respondent No.l at the rate of Rs.250 p.m. It was alleged that the respondent No.2 never existed at all and the ejectment proceedings were collusive. It was alleged that in fact Muhammad Habib and Muhammad Yousaf shown as partners of the respondent No.2 have been carrying on business under the name and style of H.Y. Corporation. He had filed a photo copy of their partnership deed as well. Mr. Khalil‑ur‑Rehman the learned counsel for the appellant has contended that the learned Controller did not frame issues, allow the appellant to produce evidence and decided the application in violation of the provisions of law. In this regard the learned counsel has referred to 1986 C L C 2600 where it was held that where in execution proceeding for ejectment of a tenant, application under Order XXI Rule 99 C.P.C. was filed it should have been tried as a suit. With respect I am unable to subscribe to this view. The provisions relating to execution of the ejectment order are contained in section 22 of the Sind Rented Premises Ordinance, 1979 which reads as follows: ‑

4. "22. Execution of orders. An order made by the Controller or the appellate authority shall be executed in such manner as may be determined by the Controller, or, as the case may be, the appellate authority."

5. It is clear that no specific procedure has been laid down for proceeding with an execution application but it has been left open to the Controller to determine the procedure in such a manner as he may deem necessary in the facts and circumstances of the case. The provisions of C.P.C. are not applicable to the proceedings under the Sind Rented Premises Ordinance or to the execution proceedings under it and therefore, the procedure which should be followed byi the Controller in execution proceedings should be in accordance with i the rules of justice and equity. It should not be arbitrary. There is no allegation that order has been passed arbitrarily. The Controller while executing the ejectment order does not act as a Civil Judge, nor he is bound by the provisions of C.P.C. including Order XXI. The Controller is free to choose his own procedure according to the facts of the case which should meet the demand of justice. The appellant therefore cannot insist for trial of his application like a suit. The Controller after considering the appellant's application, the affidavit and documents filed with it, counter‑affidavit of the respondent and rejoinder, heard the arguments and passed the order. The appellant had filed alleged partnership deed of the partners of respondent No.l and the lease issued to respondent No.l. No evidence worth the name was produced to establish his possession. It was the duty of the appellant to have produced prima facie evidence to establish his claim. If the appellant is in possession from 1975 and carrying on business in the disputed shop he would be in possession of various documents including tax receipts, account books and correspondence copies of which could have been produced with the, application. Except his affidavit no document showing his possession was filed. In these circumstances the Controller was justified in hearing the arguments of the parties. It seems that the appellant did not object to this procedure, nor at any stage stated that he would examine his witnesses and file documents. In my view the Controller was justified in adopting the procedure followed by him to which no objection was raised.

6. It is an admitted position that the appellant is the brother of the partners of the respondent No.2. The respondent No.2 have been contesting the ejectment for the last eleven years and at no stage the appellant appeared and objected that it was a collusive proceeding. Furthermore, the proceedings as stated earlier cannot be termed to be collusive because at every stage the respondent No.2 has contested and defended it and taken the matter even upto the

7. Supreme Court. Under these circumstances the question of collusion does not arise.

8. The second application under section 12(2) was dismissed on the ground that it was not maintainable. The view taken in Mohammad Yacoob v. Mst. Nooran 1983 C L and Zaibunnisa v. Sultan Ahmed 1986 C L C 1520 is that such an application should be filed before the Court which has passed the fin 1 judgment. In the present case the Supreme Court has passed the final judgment. Therefore, the Controller was right in holding that the application was not maintainable.

9. I have noted that in Mubarak Ali v. Fazal Muhammad andanother 1987 S C M R 1627 leave to appeal was granted in thefollowing manner:‑

10. "The contention in support of these petitions is the petitions for special leave to appeal were not pressed before this Court it could not be said that the final judgments in the two suitshad been passed by this Court, in the circumstances the High Court was not justified in taking the view that the applications under section 12(2) lay in this Court. The contention needs examination. Leave to appeal is granted."

11. In the present case the petition for leave to appeal was dismissed with the following observation:

12. "It was contended by the 1 arned counsel for the petitioner that the order of Rent Controller which was restored by the High Court, was vague in discussion of the evidence and the ground of personal need was also not proved. We have gone through the impugned judgment and find that each and every aspect of the case has been well considered particularly so as the matter was brought in Second Appeal and findings of fact arrived at by the first appellate Court were sought to be set aside. The findings in the case are purely one of fact and no question of law arises in the matter. The petition is, therefore, dismissed".

13. This order affirms the judgment of the High Court and has finally decided the matter. However, if for argument sake the contention that the application under section 12(2) was not required to be filed before the Hon'ble Supreme Court then it ought to have been filed before the High Court and surely not before the Controller. This application was therefore not maintainable. Even on merits the appellant has relied on documents and affidavit filed with his application under Order XXI rule 99 C.P.C. I have already dealt on their merit in'the preceding paragraphs and need not repeat here. The facts and circumstances of the case do not establish any fraud, misstatement or collusion in obtaining the ejectment order. The application is belated and mala fide. It has been filed in collusion with the respondent No.2 and in bad faith.

14. The appeal is therefore, dismissed

15. H.B.T./M‑602/K Appeal dismissed