RAB NAWAZ Versus KARACHI BUILDING CONTROL AUTHORITY

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question order, dated 31‑7‑1988 whereby a learned Additional District Judge, Faisalabad accepted the appeal of Ata Muhammad respondent against order, dated 17‑3‑1987 of a learned Rent Controller, Faisalabad dismissing his application seeking restoration of possession of Shor No.219, Ward No.5, Bhawana Bazar, Faisalabad, in ejectment proceedings.

2. Litigation concerning the transfer of disputed shop under the Settlement Laws covers a period of well over three decades. It is common ground between the parties that the disputed shop was not transferred to either Barkat Ali or Ata Muhammad respondent under Settlement Scheme No.1 as the former had refused transfer on the ground that although he was an allottee but was out of possession and the latter on the ground that although he was a claimant displaced person in possession but had not submitted a formal application for its transfer under Settlement Scheme No.1 and the application on which lac raised his claim was found to have been tampered with. In that regard a Constitutional petition filed by Ata Muhammad respondent was dismissed by this Court and so was a Letters Patent Appeal arising therefrom. The Settlement Department ordered to dispose of the disputed shop by public auction.

3. This shop was put to auction on 27‑6‑1966 and Imam Din predecessor -in‑interest of some of the petitioners came out as the highest bidder on the said date. While this bid was awaiting confirmation, Ata Muhammad filed an application for its transfer under Settlement Scheme NO.VIII. The Additional. Settlement Commissioner confirmed the highest bid on 18‑12‑1966 approving the same subject to availability of property. A P.T.O. and P.T.D. were issued in favour of petitioners' predecessor on 1‑2‑1907 and 2‑2‑1967, respectively.

4. The application of Ata Muhammad respondent for transfer of the disputed shop under Settlement Scheme NO.V11I was rejected by the then Deputy Settlement Commissioner on 3‑4‑1967 holding that with the issuance of P.T.D. of the disputed property, the same was not available for transfer thereunder.

The auction‑purchaser sold half of his share in the shop to his brother Fazal Muhammad, predecessor of some of the petitioners on 18‑7‑1967.

5. Ata Muhammad respondent filed an appeal against order of the Deputy Settlement Commissioner, dated 3‑4‑1967 and the Additional Settlement Commissioner dismissed his appeal on 6‑5‑1970 holding that although the shop was available for transfer to Ata Muhammad as he had submitted C.S. Form under Settlement Scheme NO.VIII and the auction in favour of the predecessor of the petitioners should not have been confirmed during the pendency of the said Form, yet the auction‑purchaser having obtained the P.T.D. after making payment, he had no jurisdiction to set aside auction proceedings at that stage.

6. The order, dated 6‑5‑1970 was further impugned by the parties in, revision before the Settlement Commissioner and the latter accepted the revision of Ata Muhammad respondent with a direction to the Deputy Settlement Commissioner to dispose of his Form under Settlement Scheme No.VIII on merits and the revision filed by the auction‑purchaser and the transferee from him was dismissed.

7. The petitioners brought this matter before this Court through W.P. No.98‑R of 1973. During the pendency of this writ petition, the Deputy Settlement Commissioner held Ata Muhammad respondent entitled to the transfer of this property on 21‑1‑1978. The petitioners challenged the order of the Deputy Settlement Commissioner in this Court but the same was dismissed as premature and their Petition for Leave to Appeal was also dismissed by the Supreme Court on 27‑11‑1973.

Ultimately, petitioners' constitutional petition bearing W.P. No.98‑R‑1973 was allowed on 4‑4‑1978 and they were held to be entitled to the disputed shop as its transferees in terms of the auction, dated 27‑6‑1966.

On 16‑10‑1978, the petitioners filed an ejectment application against Ata Muhammad respondent under section 13 of the Urban Rent Restriction Ordinance, 1959.

8. Ata Muhammad respondent had obtained leave to appeal against judgment, dated 4‑4‑1978 passed by this Court in W.P. No.98‑R of 1973 on 17‑5‑1978 and contested the ejectment application on, among others, the ground that the matter regarding the transfer of the disputed shop being sub judice before the Supreme Court, he could not be ejected therefrom. He also succeeded in obtaining an order from the Supreme Court in the Appeal on 2‑4‑1979 to the effect that the execution of the final ejectment order, if passed against the petitioners by the competent authorities shall be stayed till the' disposal of this appeal provided he continues to deposit the rent/mesne profits of the property tentatively fixed at the rate of Rs.10 per mensem with the Rent Controller before the 15th of each succeeding calendar month. On 21‑7‑1979, the learned Rent Controller allowed the ejectment application of the petitioners in the following terms:‑‑‑

"However, this order is subject to the decision of the appeal pending in the hon'ble Supreme Court of Pakistan regarding the title of the disputed property. If the appeal of the respondent is accepted, then this order shall become infructuous, and if the appeal is dismissed then this order shall operate and the respondents shall be bound to vacate the disputed property within two months from the date of the decision of the honourable Supreme Court of Pakistan."

9. Ata Muhammad respondent challenged the order of the learned Rent Controller, dated 21‑7‑1979 in appeal and the learned Additional District Judge dismissed the same on 22‑11‑1980 in the following terms:‑‑‑

" I direct the appellant to hand over the vacant possession of the disputed property to the respondent within one month of this order, subject of course to the decision regarding the transfer of the disputed premises pending before the Supreme Court of Pakistan. The appellant shall not be dispossessed from the disputed premises till the disposal of his appeal before the Supreme Court or till the stay order granted by the Supreme Court is vacated by the said Court."

Stay order, dated 2‑4‑1979 was vacated by the learned Supreme Court on 10‑10‑1984 and the petitioners succeeded in obtaining possession of the disputed shop in terms of the ejectment orders passed by the Rent Tribunals on 25‑10‑1984.

Civil Appeal No.180 of 1978 came up for hearing before the Supreme Court and the same was allowed on 8‑11‑1986 holding Ata Muhammad respondent entitled to the transfer of the disputed shop under Settlement Scheme No.VIII.

On 30‑11‑1986, Ata Muhammad respondent filed an application before the learned Rent Controller seeking restitution of possession of the disputed shop. This application was contested by the petitioners and the learned Rent Controller rejected the same on 17‑3‑1987 observing that he was not competent to exercise his discretion under section 144, C.P.C. for the purpose of restitution of possession as his Court had become functus officio.

10. Ata Muhammad respondent challenged the order, dated 17‑3‑1987 and the learned Additional District Judge allowed the same on 31‑7‑1988 with ‑a direction to the petitioners to hand over the vacant possession of the disputed shop to Ata Muhammad. respondent. Petitioners' objection to the maintainability of appeal against order, dated 17‑3‑1987 under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 was repelled with the observation that the same was competent under subsection (1) of section 15 of the Urban Rent Restriction Ordinance, 1959 in that a final order had been passed by the Rent Controller in rent proceedings while disposing of application of Ata Muhammad respondent seeking restitution of possession of the disputed shop.

11. Mr. Ghulam Mahmood Qureshi, the learned,,. counsel for the petitioners, has argued that the orders of the learned Rent Controller, dated 21‑7‑1979 having merged in the order of the learned Additional District Judge passed on 22‑11‑1980 and the private respondent having not impugned the same any further, it had attained finality and the subsequent resolution of the dispute regarding title in favour of Ata Muhammad respondent by the Supreme Court on 8‑11‑1986 cannot have the effect of conferring any right on the said respondent to fall back upon that part of the order, dated 22‑11‑1980 which subjected the continuation of the possession till the disposal of his appeal by the Supreme Court. This contention has no merit. Stay order, dated 2‑4‑1979 was vacated by the Supreme Court on 10‑10‑1984 and it was only after the resolution of the question of title in favour of Ata Muhammad respondent. on 8‑11‑1986 that he filed the application for restitution of possession on 30‑11 1986 which was dismissed by the learned Rent Controller on the incorrect premise that Ata Muhammad respondent was not entitled to the restitution of possession from his Court and that he was not competent to exercise discretion under section 144, C.P.C. as he had become functus officio. The learned Rent Controller and the learned Additional District Judge had both subjected the ejectment order to the final resolution of the dispute about title of the parties by the Supreme Court. It is not the case of the petitioners that they would have obtained the possession of the disputed shop even if Civil Appeal No.180 of 1978 had been allowed by the Supreme Court. The intermediary step regarding the vacation of stay order and the consequential execution proceedings cannot be treated as taking the entire matter out of the purview of the main condition attached to the ejectment orders passed by the Rent Tribunals.

12. It was next contended that order, dated 17‑3‑1987 whereby the learned Rent Controller had dismissed the application of Ata Muhammad respondent was not appealable under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 and therefore, the order, dated 31‑7‑1988 of the learned Additional District Judge is coram non judice. I am afraid the argument is devoid of any merit. Section 17 of the Punjab Urban Rent Restriction Ordinance, 1959 provides for the execution of every order made under section 13 and every order passed in appeal under section 15, by the Controller, as if it were a decree of a Civil Court. After the substitution of section 15 by the Punjab Ordinance No.IX of 1979 the scope of appeal against orders passed by Rent Controller was enlarged and it was provided that any party aggrieved of an order of the Rent Controller finally disposing of an application made under the Ordinance may prefer an appeal to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated. Under the second proviso to subsection (1) of section 15 ibid no appeal lies from an interlocutory order passed by the Controller.. According to the un-amended subsection (1) of section 15 ibid appeal could be preferred against orders of the Controller made under sections 4,10,12 and 13 only. With the deletion of those sections in the amended subsection (1) and substituting the same by "by an order of the Controller finally disposing of an application made under the Ordinance" it is abundantly clear that appeal lies against all orders which have been passed by a Controller disposing of an application finally under the Punjab Urban Rent Restriction Ordinance, 1959. The application for restitution of possession having been finally disposed of by the learned Rent Controller, the order was liable to challenge in appeal under section 15(1) ibid.

13. It was finally contended that after the petitioners had obtained the possession in execution of the ejectment orders passed by the Rent Tribunals under the Punjab Urban Rent Restriction Ordinance, 1959, the only remedy available to Ata Muhammad respondent was to file a suit for dispossession and his resort to provisions of section 144, C.P.C. was misconceived. I am afraid the contention has little merit. It has already been held that the situation which came into being after the vacation of the stay order by the Supreme Court in Civil Appeal No.180 of 1978 was an intermediary stage, and therefore, the condition imposed by both the Rent Tribunals subjecting the result of the ejectment proceedings to the resolution of the question about title to the disputed shop, would be treated in law to have the effect of keeping the issue alive for all intents and purposes. With the resolution of the dispute regarding. title in favour of Ata Muhammad respondent by the Supreme Court on 8‑11‑1986, the only remedy available to him was to ask for restitution of possession under section 144, C.P.C. It is not denied that the principle laid down by provision of section 144, C.P.C. is applicable to cases covered by the Rent Restriction Ordinance. The contention that after the petitioners had obtained possession of the disputed shop in execution proceedings the Rent Controller had become factus officio and, therefore, Ata Muhammad respondent could not make an application before him for restitution of possession, has already been repelled. After the decision of the Supreme Court, the ejectment order had ceased to be effective against Ata Muhammad respondent. The change in possession brought about during the interregnum could only be undone by the Rent Controller in exercise of his jurisdiction under section 144, C.P.C. as done by learned Additional District Judge, Faisalabad. As the learned Rent Controller had declined to order restoration of possession on the application of Ata Muhammad respondent, the illegality committed by him was set right by the learned Additional District Judge, Faisalabad in the exercise of his appellate jurisdiction under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959. The impugned order has not been shown to be suffering from any jurisdictional defect. No case for interference in the impugned order, dated 31‑7‑1988 in these proceedings has been made out.

In view of the above discussion this petition fails and is dismissed with no order as to costs.

AA./A‑81/L Petition dismissed.