M. YOUSUF vs WALI MUHAMMAD AND ANOTHER

ORDER

' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is directed against the order dated 26-5-1983, passed by the Controller on an application under section 12(2), C. P. C.

2. The facts giving rise to this appeal briefly stated, are :- Respondent No, 1 filed an application, being Application No, 869/82, before the Controller, against the appellant and one Mst. Mehrunissa for their eviction from House No, AK-7-7S-19 (973), Massan Road, Baghdadi, Lyari, Karachi, on the grounds of default in payment of rent, which was allowed ex parte by the order dated 7-8-1982.

3. According to the appellant, he came to know of the ex parte order on 9-4-1983 and on 27-4-1983 filed an application under section 12(2), C. P. C. Which the Controller rejected holding that the application under subsection (2) of section 12 of the Code of Civil Procedure was not maintainable.

4. I have heard Mr. A. Aziz Khan, Advocate.

5. Learned counsel submitted that C. P. C. Was applicable to the proceedings under the provisions of the Sind Rented Premises Ordinance and a separate suit to challenge the ex parte order is barred under section 12(2), C. P. C. And therefore, his only remedy was to file an application before the Controller for setting aside the ex parte order.

6. So far as the applicability of section 12 (2), C. P. C. To the rent proceedings is concerned, it may be stated that under section 20 of the Sind Rented Premises Ordinance, 1979, the Controller and the appellate authority have been given, for the purpose of any case under the Ordinance, powers of a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the following matters

(a) Summoning and enforcing the attendance of any person and examining him on oath ;

(b) compelling production or discovery of documents.

(c) inspecting the site ; and

(d) issuing commission for examination of witnesses or documents.

' This necessarily implies that the rest of the powers enjoyed by a civil Court are not available to it and therefore, the Controller was right in holding that the application under section 12(2), Cr. P. C. Is not maintainable.

7. The learned counsel has however, relied on a decision of Supreme Court of Pakistan in Messrs Bambino Ltd. v. Messrs Seimor International Ltd. And another (1), wherein Zafar Husain Nirza, J., while delivering the opinion of the Court, in paragraph 5 of the judgment, observed as follows :- "(5) In regard to the first contention, learned counsel referred us to the provisions of section 20 of the Sind Rented Premises Ordinance, 1979 and submitted that since specified powers relating to summoning of witnesses, compelling production of documents, inspecting the site and issuing commission for examination of witnesses, vesting in civil Court

(1) PLD 1983 SC 155 ' under the Code of Civil Procedure, have been conferred upon the Controller and the appellate authority, it follows by necessary implication that the rest of the powers enjoyed by a civil Court were not available to these authorities under the repealed enactment i,e,. Urban Rent Restriction Ordinance, 1959 (vide section 16) was identical and the settled view in this Court has been that although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller by its own force, the Rent Controller was free to follows the equitable principles contained in the Code of Civil Procedure. There is no reason, therefore, to take a different view so far as the provisions of the Sind Rented Premises Ordinance are concerned, which governed the proceedings for execution of the order in this case. Under the repealed Ordinance of 1959, the order passed by the Controller or in the appeal by the appellate authority was to be executed under section 17 of the said Ordinance, by a civil Court having jurisdiction in the area as if it were a decree of that Court. However, under section 22 of the Sind Rented Premises Ordinance, 1979 an order passed by the Controller or the appellate authority has to be executed in such manner as may be determined by the Controller or as the case may be, the appellate authority. Plainly, therefore, the Controller was competent to adopt any procedure deemed by his suitable for the purpose of execution of his order. Order XXI, rules 100 and 101 of the Code of Civil Procedure amply authorised an executing Court for investigating and adjudicating upon the matter of dispossession from immovable property by the holder of a decree for possession of such property of a person other than the judgment-debtor. If the Court is satisfied upon such inquiry and determination, that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor the executing Court has the jurisdiction to direct that the applicant be put into the possession of the property. It is a rule of procedure based on equitable principles and on the principle that a decree passed by Court, ordinarily binds the parties to the suit or their assignees and persons claiming through them. We, therefore, agree with the learned Single Judge that the Controller and the appellate authority had the jurisdiction to pass orders for the restitution of possession in favour of respondent No, 2."

' The question of following the equitable principles contained in the Code of Civil Procedure did not arise in the present case for this was not a case of execution of decree, where in the absence of any specific rules, equitable principle contained in the Code of Civil Procedure could be followed but it, was a case of questioning an ex parte order allegedly obtained by practising fraud upon the authority. Therefore, a suit against such an order could A have been maintained under section 9, C.

P. C. Because the provisions of section 12(2), C. P. C. Are not made applicable to the rent proceedings under the Ordinance (See Rajwant Prasad Pande and others v. Ram Ratan Gir and others (1)).

8: I may also refer to Malik Muhammad Shafi v. Muhammad Salem (2), wherein the question cropped up before a learned Single Judge of Lahore High Court whether a suit against the order of the Controller, challenging the same on the grounds mentioned in section 12(2), C. P. C. Was barried thereunder. It was ruled that it was not.

(1) AIR 1915 P C 99 (2) PLD 1982 Lab. 702 ' I may here quote the relevant observations :- "It was contended by learned counsel for the petitioner that the provisions of subsection (2) of section 12 of the-Code of Civil Procedure were not attracted to proceedings before a Rent Controller and, therefore, the suit brought by the petitioner was not hit by those provisions. In view of the words "suit", "Court", "Code", "judgment" and "decree" used in section 12 it appears that its provisions apply to suits and not to applications made to the Rent Controller under the Punjab Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance. I, therefore, agree with the learned counsel that the suit brought by the petitioner was not barred by subsection

(2) of section 12 of the Code of Civil Procedure."

9. However, I may state that I am not called upon to decide the question whether the Controller had inherent power to suo motu or otherwise recall the order on the alleged ground on the principle that fraud vitiates the most solemn proceedings, for no such ground was raised before the Controller nor has been before me.

10. In any case, in the memorandum of appeal, the appellant has stated that he has already filed an appeal under section 21 of the Ordinance against the ex parte order, being F. R. A. No, 490/83, which according to the learned counsel for the appellant, has already been admitted to the regular hearing. Therefore, this appeal, in my opinion, has become redundant.

11. I, therefore, dismiss it in limine.