MAMOOR KHAN vs NASIRUDDIN alias NASIR MUHAMMAD and 5 others

ORDER

1. ' The dispute relates to house bearing C.S. Nos. 636 and 637 corresponding to D.S. Nos. 623/1 and 2 Ward 'B' Kamber Town, District Larkana. The applicants are the tenants and the respondents are the landlords. On 15th of April, 1981 Rent Application No. 26/1981 was filed against the applicants claiming possession of the house on the grounds of personal need and default in payment of rents.

2. Summons were issued to the applicants/tenants and according to the leaned Rent Controller the service was held good. Para. 2 of the judgment runs as under:- "The summons were sent to the opponents but they refused to receive the same. The bailiff of the Court affixed the summons on the door of their residential house in presence of two witnesses but the opponents did not attend the Court. They were, there fore, made ex parte on 18-5-1981.

3. Applicant Nasiruddin alias Nasir Muhammad has filed his affidavit as ex parte proof. He has also produced certain documents in support of his version."

4. ' After this finding the learned Rent Controller proceeded to discuss the merits of the case and finally directed the opponents "to hand over the vacant possession of the above-mentioned premises to the applicants within 60 days from the date of this order".

5. ' The applicants challenged this order by filing a suit being Suit No. 50/1981 in the Court of learned Civil Judge, Kamber praying for the following relief:-

(1) A judgment and decree declaring the order, dated 23-9-1981 passed by the learned Rent Controller and Senior Civil Judge, Larkana for ejectment of the plaintiff and his late father in ejectment Appeal No.26 of 1981 was ab initio void, illegal and inoperative having been obtained by fraud and misrepresentation of facts.

(2) Permanent injunction to restrain the defendants from ejecting the plaintiff.

6. ' The plaint was rejected under Order VII, rule 11, C.P.C. by the learned Civil Judge, Kamber by his order, dated 22nd December, 1983. The concluding portion of the order may be reproduced below:- "So this Court has reached to the conclusion that plaint does not disclose any cause of action which can be adjudicated by the civil Court in presence of remedy available to the plaintiff, hence plaint is hereby rejected and the application for interim injunction likewise stands disposed of as it became infructuous."

7. ' Against this order the applicants filed an appeal which has been dismissed by the learned Second Additional District Judge, Larkana by his detailed and, I may say, a very laborious judgment. The applicants have now moved this Court in revision for challenging the concurrent findings of the two Courts below and for trial of the suit filed by them on merits. Before admitting this revision I had issued pre-admission notice to the respondents. I have had the benefit of hearing both the counsel, namely, Mr. S.M. Enayat Waris for the applicants and Mr. Rehmatally Raput for the respondents at great length. As the judgment of the learned Additional District Judge against which this revision has been filed is very exhaustive and has discussed the law in details I need not repeat the same reasonings for disposal of this revision. I would, however, refer to one more aspect which has been argued by the learned counsel for the respondents, namely, that even if the applicability of section 12, C.P.C. was doubtful there was another remedy for the applicants under the Rent Ordinance itself to challenge the ex parte order of the Rent Controller by filing an appeal under section 21 of the Sind Rented Premises Ordinance, 1979. To this argu ment there has been no satisfactory answer by the learned counsel for the applicants. The main contention of the counsel for the applicants has been that under section 19(2) of the Sind Rented Premises Ordinance an order passed by the learned Rent Controller becomes final "and the Controller shall have no power to rescind such order". The counsel contends that in view of the embargo he had lost all the remedy before the Rent Controller and the provisions of C.P.C. not being applicable to the proceedings before the Rent Controller the newly-enacted provisions of section 12, subsection (2), C.P.C. were not available to him thus leaving no remedy for the applicants to get rid of the ex parte decree passed against them by the learned Rent Controller on 15th of June, 1981. First of all this arguments does not hold water in view of the case, law on the point which has been thoroughly discussed in the order of the learned Second Additional District Judge.

8. Particular reference may be made to judgment of Mr. Justice Abdul Hayee Kureshi in F.R.A. No. 719/80 publised in 1982 SCMR 570.

9. 'By now it is well-settled that the provisions of section 12(2) of C.P.C. as well as Order IX, C.P.C. can be availed of by the parties litigating before the Rent Controller. But as the learned counsel for the respondents argues assuming for the sake of arguments that there was an element of doubt in the mind of the applicants in view of misreading of the provisions of section 19(2) of Sind Rented Premises Ordinance, there was no inability to challenge this order under section 21 of the Ordinance which is the remedy provided by this special statute for all orders passed by the learned Rent Controller except interim order. This remedy being available the learned counsel for the respondents pleads a bar of section 56(i) of the Specific Relief Act and contends that the suit itself is not maintainable. Section 56(i) runs as under:- "An injunction cannot be granted--

(i) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust."

10. 'In this view of the matter the judgments of two Courts below particularly the well-reasoned judgment of the learned Second Additional District Judge cannot be said to be erroneous or amenable to interference in the revisional jurisdiction of this Court. This revision is, therefore, dismissed in limine.

11. Revision .