SHEHZAD AHMAD vs MUHAMMAD HAYAT AND, 3 OTHERS

' This revision petition arises out of the judgment dated 27-5-1980, of the learned Additional District Judge, Gujranwala.

2. The facts relevant for the disposal of this petition are that the plaintiff-petitioner instituted a suit on 9-4-1978, for declaration and Permanent injunction. The relief prayed for in the plaint reads thus {{URDU TEXT}} ' It is an admitted fact that prior to the institution of the suit, respondents Nos. 1 and 2 and another filed an eviction application on 14-1-1963, against Sahibzada Faiz-ul-Hassan and Mirza Safdar Ali Beg under section 13 of the Punjab Urban Rent Restriction Ordinance (V1 of 1959) (hereinafter called the Ordinance). The application was dismissed by the learned Rent Controller by order dated 25- 5-1965. The first appeal was also dismissed on 19-11-1965. The second appeal was accepted by this Court vide judgment dated 9-4-1974. In consequence, Mirza Safdar Beg was ordered to be evicted.

Special leave to appeal against the judgment of this Court was also refused by the Supreme Court vide order dated 19-11-1975. Thereafter, respondents Nos. 1 and 2 filed execution proceedings on 5- 1-1976. During the pendency of the execution proceedings, the petitioner filed a suit. The learned Civil Judge, Gujranwala, by order dated 21-9-1973, rejected the plaint on the ground that it was not maintainable under section 15(5) of the Ordinance read with Order XXI, rule 103 of the Code of Civil Procedure and section 42 of the Specific Relief Act. The appeal against this order was also dismissed by the learned Additional District Judge, Gujranwala, vide judgment dated 27-5-1980.

Hence this revision petition.

3. Learned counsel for the petitioner contends that a number of grounds were raised in the plaint and therefore, the learned trial Court ought not have rejected the plaint on the ground that it was barred by the aforesaid provision of law. It is further contended that the Courts below have misconstrued the provisions of Order VII, rule 11, C. P. C. And those contained in Order XXI, rule 103, C.

P. C. Finally it is submitted that the impugned order of the appellate Court is partly based on erroneous assumption of fact that the petitioner filed an objection petition before the Executing Court against the order of ejectment.

4. A bare perusal of the plaint would show that the petitioner claimed two-fold reliefs. First, that the plaintiff-petitioner was in possession of the disputed shop and respondents Nos. I and 2 have no connection with it and secondly ; that the order of ejectment against Mirza Safdar Beg has been obtained by practising fraud and the same is ineffective on the rights of the petitioner.

5. In terms of Order VII, rule 11, C. P. C., a plaint is liable to be rejected in any of the cases covered by clauses (a) to (d) thereof. In the instant case, the only question which needs examination is as to whether the plaint was hit by clause (d) which provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. The suit was filed in 1978 and therefore, the unamended provisions of section 15(5) of the Ordinance were applicable, which reads thus :- "(5) No order passed by the Controller, the Appellate Authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance.

The scope of section 15(5) corresponding to the provisions of section 15(7), added by the Punjab Urban Rent Restriction (Amendment) Ordinance (IX of 1979), has been authoritatively determined by the Supreme Court in Zahurul Hasan v. Mst. Ruqqia Begum and 4 others (1) wherein it has been held that the order of the Rent Controller, subject to result of appeal, if any, is final and cannot be called in question in any Court of law including, High Court, by suit, appeal or otherwise. Interpreting the word "otherwise" it was held that the word is wide enough to include the remedy of revision under section 115, C. P. C.

And by the amending Ordinance, the Legislature g had taken away the jurisdiction of the High Court regarding second appeal against the order of the District Judge. This being so, the order of ejectment passed in respect of the disputed property was not open to challenge by means of a suit and was clearly barred by the provisions of section 15(5) of the unlamented Ordinance when faced with this situation, Kh. Muhammad Farooq, submitted that the provisions of section 15(5) of the Ordinance govern only those persons who were parties to the ejectment proceedings but do not affect the rights of strangers who may be affected by an order passed by the Rent Controller or the Appellate Authority under the provisions of the Ordinance. The contention is misconceived. No such indication is given in the enactment. The phraseology used in section 15(5) of the Ordinance is not restricted to the parties to the ejectment proceedings, but covers all orders passed by the Controller, the Appellate Authority or the High Court under the provisions of the Ordinance. These orders cannot be called in question in any court of law by a suit or otherwise except as {{FOOT NOTE}}

(1) PLD 1981 SC 112 {{FOOT NOTE}} ' provided under the Ordinance itself either by the parties to the proceedings under the Ordinance or by any person whose interest is adversely affected . Although he may not be a party to the proceedings. Refer H. M. Saya & Co., Karachi v. Wazir All Industries Ltd., Karachi and others (1) wherein it was held that stranger to a suit or proceedings can file an appeal if he is adversely affected by an order in that suit or proceedings. It is, therefore, difficult to hold that the provisions of section 15(5) are restricted only to the parties to the proceedings.

6. Learned counsel for the petitioner next contended that he has not challenged the validity of the ejectment order but merely sought a declaration that the ejectment order has been obtained by practising fraud. The declaration prayed for by the plaintiff-petitioner does amount to calling in question the order of eviction as is apparent from the contents of the plaint and the relief claimed therein. The declaration sought for would have the effect of nullifying the order of ejectment which was not open to challenge by way of suit by virtue of the provisions contained in section 15(5) of the Ordinance. No exception can therefore, be taken to the rejection of plaint. Thus visualized no prejudice has been caused to the plaintiff-petitioner on account of erroneous observation made by the learned Additional District Judge that the petitioner filed any objection petition before the Executing Court, although none was made.

7. The rationale behind rules 100 and 101 of Order XXI of the Civil Procedure Code, which are to be read together, is to protect the possession of persons who are not parties to the suit and who are in, possession in their own account or on account of some persons other than the judgment- debtor. If the petitioner bona fide considered himself to be in possession of the suit E property in his own independent right, could obstruct execution decree by virtue of rule 97 and notwithstanding his eviction in execution of the decre of the learned Rent Controller, he could competently file a petition fo restoration of possession under rule 100. Refer Qazi Zahooruddin v. Mir Shah2buddin (I).

The learned counsel for the petitioner, however, took up the plea that the provisions of Order XXI, rule 103 of the Civil Procedure Code are not attracted to the facts of the present case, in that, the suit was filed in anticipation of his dispossession and before the execution of the decree. The preoise submission is that the petitioner was neither an applicant under rule 97 nor rule 100 of Order XXI of the Code of Civil Procedure and therefore, the suit was not barred by rule 103. The contention is misconceived. The petitioner could file an application if not dispossessed but was apprehensive of his dispossession and the Court can deal with his application. In Khurshid Begum etc. v. Mrs. Ghulam Kubra etc. (3) it was held that the Civil Procedure Code is applicable to execution proceedings of an order of ejectment passed under the Ordinance and the Executing Court has power to entertain and adjudicate an objection petition filed by a person not claiming through judgment-debtor even before his physical dispossession from the property. Respectfully following the ratio laid down in Khurshid Begum's case I hold that the plaint was rightly rejected under clause (d) of rule 11 of Order VII of the Civil Procedure Code.

' In view of the above, the revision petition fails and is hereby dismissed, but in the circumstances of the case, there shall be no order as to costs. . {{FOOT NOTE}}

(1) PLD 1969 SC 65 (2) PLD 1981 Lah. 289 {{FOOT NOTE}}

(3) 1982 SCM R 90