1. ' Petitioner was residing in Bala Khana No, 1327/20, Aziz Building Tipu Sultan Road, Peshawar Cantonment as a tenant under Mst. Askari Begum, respondent. She filed an application for his ejectment in the Court of Controller of Rents, Peshawar Cantonment on 13-6-1978. This was registered as Case No, 55 of 1958. She sought eviction of the petitioner on the grounds that (1) he had failed to pay rent, and (2) she needed the Bala Khana in question for the office of her son Mr. Ayaz Faheem, Advocate. There is no order on this file by the Controller directing issuance of process to the petitioner, but it appears that a notice dated 18-6-1978 was sent to the petitioner by registered post A. D. For appearance in his Court on 19-9-1978 at 11 a.m. On 19-9-1978 and this is the first order borne on the order sheet of Case No, 55 of 1978. The following order was passed by the Controller :- "Parties present. The case is transferred to the Additional Cantonment Executive Officer (who has since been appointed as Rent Controller, Peshawar Cantonment) for further trial. Parties directed to appear before the said Court on 9-10-1978."
2. ' Petitioner alleges that he was not present on the said date nor he had any knowledge whatever of the case and had received no information from any source to that effect. There is, however, an A. D.
3. Card played on this file which purports to bear the signature of the petitioner though it is true that this signature does not seem to bear resemblance with any other admitted signature of his, borne on the records requisitioned by this court. On the next date fixed, i,e, 9-10-1978 petitioner was absent and the learned Controller to whom the case was transferred passed this order :- "Counsel for the petitioner present. Respondent is absent in spite of service, neither any counsel appeared on his behalf nor any information received regarding his non-appearance. However, a special chance is given to him. To come up for further proceedings on 5-11-1978."
4. There is nothing on record to show that any process was issued to the petitioner informing him of the date to which the proceedings were adjourned 'in absentia'. It appears that he was not informed and on the said date the learned Controller passed yet another order proceeding ex parte against the petitioner. Since this order is the main bone of contention between the parties it also needs be reproduced :- "Counsel for the petitioner is present. Petitioner is also present in person. Respondent is absent in spite of service nor any counsel appeared on his behalf. Called several times, but no one appeared for him nor any information received regarding his non-appearance. As such he is ordered to be proceeded ex parte. Order announced."
5. ' Now when the learned Controller observed that the respondent was absent in spite of service, presumably he had in mind the notice which was allegedly served on him for 19-9-1978, for there is nothing else on record to show that any other notice was sent to or received by him. The order quoted above would also show that the learned Controller proceeded against the petitioner ex parte but did not pass any order of ejectment against him. No further proceedings were taken thereafter and the case seems to have been consigned to record.
6. ' Respondent then filed an application in the Court of Senior Civil Judge, Peshawar on 21-11-1978 for the execution of the order dated 5-11-1978. It may be mentioned that section 25 of the Cantonments Rent Restriction Act, 1963 provides that orders made under section 13 or section 17 and those passed on appeal shall be executed under section 25 by a civil Court having jurisdiction in the area as it were a decree of that Court and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure apply so far as may be to the execution of such orders. This application was registered as Case No, 139/10 and was marked by the learned Senior Civil Judge to Sarishta for report. On 26-11-1978, the Execution Muharrir gave a report that "ex parte order of ejectment" has been passed against the petitioner and the 'decree holder' was now praying for delivery of possession of the house to her. On this, process was ordered to be issued to the petitioner for 10-12- 1978. Tenth of December was declared to be a close day and, therefore, the file was put up before the Court on 21-12-1978. As notice issued earlier had been received back without service fresh notice by substituted service was therefore ordered, followed by warrant for possession for 28-2- 1979. Since on this date it was reported that the warrant could not be executed because the house was found locked, therefore, warrant for possession by force and breaking open of the lock was ordered to be issued next. And the petitioner was consequently dispossessed of the Balakhana on 8-3-1979. It has been contended before me that till this day C when h.e was thrown out lock, stock and barrel he had not been informed' either with regard to proceedings in the Court of Controller of Rents or in the executing Court and this came to him as a bolt from the blue.
7. There is another circumstance which may also be referred in passing. Now whereas the application for eviction of the petitioner was filed with regard to Balakhana No, 1327/20, the order dated 5-11- 1978, whatever it may be, was sought to be executed with regard to House No, 1327/A/21 and not Balakhana No, 1327/20. The certified copy of the order dated 5-11-1978 attached with the execution application neither gives complete addresses of the parties nor any detail of the property concerning which the said order was passed. Again the number of the case in the report of Sarishta dated 26-11-1978 referred to above is given as 58/78 whereas in the execution application in the relevant column, titled 'Case No,', it is written as 52/78. Figure 2 on the face of it appears to have been re-written clearly suggesting interpolation, made subsequently, and this is confirmed by the report dated 4-4-1979 of the same Muharrir, appearing on page 17 of the execution file. It was petitioner's turn now. He on 25-3-1979 filed an application in the Court of Senior Civil Judge for review of the orders of the Court dated 8-9-1979 (issuing warrants of possession) and dated 28-2- 1979 (ordering forcible warrants for possession by breaking open the lock and doors), on the ground that the said order was obtained by practising fraud on the Court and as a result of collusion between the Process-Serving Agency and the son of the decree-holder. Prayer for restoration of possession was also made therein. Various provisions of law are mentioned in the heading of the application under which it purports to have been made. These being sections 114, 152(1) and 151 read with Order XLVII, rule (1) of the Code of Civil Procedure. It is a lengthy application.
8. It would suffice at present to refer to one particular point raised therein and this relates to the order dated 5-11-1978 which, according to the petitioner, was not an order of ejectment, hence not executable. Simultaneously another application was also moved by the petitioner under section 151 to the effect that since the execution application was pending, therefore, in view of the circumstances, possession of the house be restored to him in the meanwhile.
9. When these applications came before the then Senior Civil Judge he on 2-4-1979 ordered restoration of possession of the Bala Khana to the petitioner by force as he felt that 'prima facie' irregularity had been E committed. He also called for an explanation from the concerned Muharrir and directed issuance of notice to the `decree-holder' for further proceedings for 7-4-1979. It appears that soon after the exit of petitioner's counsel, the decree holder's son appeared in the Court and submitted an application for certified copy of the aforementioned order. Necessary permission for the same was granted and the order aforesaid was also read out to him.
10. ' The record shows that when notice for appearance on 7-4-1979 was taken to the decree-holder for compliance the same day the decree-holder did not acknowledge it being, as per report of the Process-Server, a Tar& Nasheen lady; and although her husband and son were present but they refused to acknowledge the same on her behalf. There is a note to the report of the Bailiff that no person in the locality was prepared to be a witness on account of `Lihaz Dari'. Similarly when process for restoration of possession was sought to be executed on the decree-holder on 2-4-1979, she declined to comply with the same. Consequently the Bailiff approached the West Cantonment Police Station authorities but the S. H.
0. Was not there and when he ultimately returned and was asked for assistance he expressed his inability to help, in the absence of the Illaqa Magistrate, The Bailiff and the petitioner repaired to the site. They noticed that the roof of the Balakhana had been demolished and the laborers were busy in dismantling it further. The j Bailiff is reported to have informed them of the order of the Court and asked them not to demolish the house. The proceedings for recovery of possession were however put off by him until next day. And when on the next day they went to the house again they noticed that the stairs of the house had also been razed. The husband of the decree-holder was present there and he was shown the order of the Court on which he recorded the following remarks :- {{URDU TEXT}} ' And when the house was seen by the Bailiff roofs were found to have been brought down, stairs removed and the intervening wall between the house in question and the adjacent house was also demolished as if to amalgamate the two houses. The debris was lying inside the house. The doors and the windows were broken. The bailiff was then informed by respondent's husband that the proceedings for recovery of possession had since been stayed by the District Judge. On this the Bailiff returned to the Courts. His enquiries revealed that this was true hence recovery proceedings were put off indefinitely.
11. ' It appears that certified copy of the order dated 2-4-1979 was secured by the petitioner the same day and on the following day she filed an Appeal (No, 53/14 of 1979) alongwith an application for stay and succeeded in obtaining an order from the Court of the District Judge suspending its operation, thus bringing restoration proceedings to an immediate halt. On 25-4-1979 yet another Appeal (No, 63/14 of 1979) was instituted by her against similar order dated 2-4-1979 passed in Case No, 11/6.
12. ' On 5-4-1979 petitioner filed an application in the Court of learned District Judge in the first mentioned appeal for vacation of the order dated 3-4-1979. Notice of this application was ordered to be issued for the same date (11-4-1979) on which stay application filed by Mst. Askari Begum was earlier posted for hearing. On this day "status quo in the meanwhile" was ordered to be maintained.
13. ' Both the appeals were ultimately dismissed by the learned District Judge by two separate judgments dated 6-6-1979. The former was dismissed on the basis of incompetency on the ground that the order impugned therein having been passed under section 151, C. P. C. Was not appealable. The latter appeal challenging the same order passed in Case No, 11/6 was held competent as "the impugned order", wrote the learned Appellate Court, "which is the subject- matter of the present appeal was passed during the execution proceedings and, in my view, falls within the mischief of section 47, C. P. C." On merits the learned Appellate Court held :- " The direction of the learned executing Court with regard to restoration of possession to the respondent, in the circumstances, merits no interference inasmuch as prima facie no ejectment order had been passed in favour of the appellant which could be executed against the respondent.
14. The order dated 5-11-1978 passed by the learned Controller of Rents is not happily worded and since a dispute has arisen with regard to its interpretation it would meet the ends of justice if possession was restored to the respondent who had been dispossessed in execution of a disputed order passed against him. A major portion of the disputed house has been demolished by the appellant and she shall not be prejudiced if possession is restored to the respondent pending the determination of the question agitated before the learned Executing Court."
15. Now the question which was pending determination before the Executing Court was obviously this, "Whether the ex parte order of the Controller dated 5-11-1978 amounted to an ejectment order or not?" It is clear that the learned District Judge did not interfere with the order of the Executing Court dated 2-4-1979 directing restoration of possession of the house by force despite this fact that major portion of the disputed house had been demolished. In fact it reasserted the same by saying that until the question is determined "possession should be restored to the respondent".1 This order was not challenged further by Mo. Askari Begum and thus became final.
16. ' The decision of the Appellate Court seems to have been received by the Executing Court sometimes on 3/444979. No sooner did it reach the learned Court than an application was filed by the respondent objecting to the execution of the order dated 2-4-1979. It was alleged that by the time possession was ordered to be restored by the Court on 2-4-1979 major portion of the house had been dismantled; that subsequently operation of the order was suspended on 3-4-1979 and during the intervening period the whole structure of the house had been dismantled by the decree-holder as it was in ruinous condition and required immediate dismantling and reconstruction. It was added that site plan for reconstruction (copy annexed) had also been approved by the Cantonment Board. It was, therefore, submitted that since the house "no longer existed on the spot" the orders of the executing and appellate Courts directing restoration of possession had become `impracticable, non-implementable, non-executable and infructuous before the passing". And if objector's version that the house no longer existed at site was not believed then a Commissioner may be deputed to inspect and verify "existence non-existence of the house at the spot". This application was supported by an Affidavit (though it is not attested by an Oath Commissioner). It is strange that the respondent took no such stand in the appellate Court till 6-6-1979 knowing well that there was the 'status quo' order in the field.
17. Now on her own admission, the house had been further dismantled to the extent it ceased to have any existence whatever during the period "8-3-1979" (when petitioner was dispossessed) to "6-6- 1979" i,e, even between 11-4-1979 (when status quo was ordered to be maintained) to 6-6-1979 (when her appeals were dismissed), when admittedly status quo order passed by the learned District Judge was in force. This was obviously in open defiance of the order of the Court and it seems to have escaped the notice of the learned Executing Court. It proceeded instead to determine this objection petition immediately, without even obtaining a written reply from the petitioner who was present with his counsel, and they did controvert the same saying that the petition was frivolous and the house still existed. A Commissioner was appointed with the direction that "he should inspect the spot today in presence of the parties and report fitness of the house for habitation or otherwise by tomorrow". I think it was beyond Court's domain to see whether the house was fit for habitation or not. It had to implement its order dated 2-4-1979. This was the direction of the appellate Court as well and whatever may have been the existing condition of the house the learned! Executing Court ought to have restored its possession to the petitioner.
18. ' Be that as it may, report came from the Commissioner the same da that the house was uninhabitable and minor repairs would not make it otherwise. The report was objected to but was maintained and finally by, an order dated 9-7-1979 the objection petition by the respondent was; accepted and the review petition and application for restoration of possession preferred by the petitioner were rejected.
19. ' It is remarkable indeed that in the application for eviction it was not the case of the respondent that the house was in a ruinous condition o that she wanted to reconstruct it. In fact petitioner was sought to be evicted because she needed the same to be used as an office by her son meaning thereby that it was perfectly capable of being used as such else' she would have asked for his eviction on, the ground that she wanted to reconstruct the property and was duly possessed of the necessary sanction for the same. Again after the petitioner was dispossessed the house was not occupied for the, purposes for which it was got vacated. Instead they proceeded to demolish it.
20. This would not be but to stultify any effort on the part of the petitioner to undo the proceedings already taken against him. In fact there are reasons to believe that the process of dismantling was started the same day on which the order for restoration of possession was issued by the learned Executing Court, and when despite this, respondent did not seem to be successful, she hastened with the process of demolition, disregarding even the wants quo' order to which she was a party.
21. Thus no effort seems to have been spared to make the orders of the Court infructuous and impracticable. How can this be continence is beyond me.
22. The record shows that the house still exists though it might not be] habitable. Whether it is so or not is beside the point. The petitioner has to be put back into it in whatever condition it may be. He may not reside there for his own safety but the respondent should know that the orders of the Courts have to be respected and no one can be allowed to flout them with impunity. It is strange that the learned Senior Civil Judge while dismissing the applications has himself held and I would like to quote it in his own words :- "According to him there is no house in existence at all on the spot and it is lying in the shape of Khandar. J need not to discuss whether the order of my learned predecessor-in-office dated 8-2- 1979 or 28-2-1979 was legal or illegal but I may lay down that this was a very improper order as the Court has not applied its mind at the time of entertaining the execution petition and passing the impugned orders dated 8-2-1979 and 28-2-1979 because there had been no order at all of the Rent Controller for delivery of possession to Mst. Askari Begum through ejectment of Muhammad Ali hence according to my humble opinion all the proceedings conducted in the execution petition is ab initio void and of no legal entity."
23. ' Thus the question before him had been answered by him in no unambiguous words that the order dated 5-11-1978 was not an order of ejectment and any proceedings taken in the guise of the said order were void ab initio. The learned Executing Court was, therefore, wrong in holding that since there was no house in existence at the spot therefore acceptance of the review petition will not give any relief to the petitioner and with the dismantling of the house petitioner's rights of tenancy "have come to an end there and then" and the orders of his predecessor dated 2-4-1979 and that of the District Judge dated 6-6-1979 have become impracticable and in executable. The finding that "no house exists at the spot at all" seems to be factually incorrect because the record shows and even the report of the Commissioner confirms it that there does exist a structure there though not in the shape in which it was. Therefore the applications for review and restoration of possession could not have been dismissed after holding that there was no order of ejectment ever against the petitioner and the entire proceedings in execution of the supposed order were ab initio void. The learned Executing Court, in the circumstances, has clearly failed to exercise the jurisdiction vested in it. It should have ordered the petitioner to be put back into possession of whatever was left of the house. Nay even further than that, it should have ordered the respondent to restore the house into the same position in which it was on or before 5-11-1978 and put the petitioner back into its possession. Thus only justice would have been done. If the respondent had demolished' the house she must have done so at her own risk for she should have known that the proceedings for restoration were pending and she could be affected by the result thereof. The order of the learned Executing Court, therefore, deserves to be interfered with. The same is accordingly set aside with costs throughout and it is ordered that the respondent shall restore the house to habitable condition with the same alacrity with which she undertook the mission of its demolition. This should not in any case consume more than 3 months and the petitioner should be put into its possession without any hindrance whatever. The Court of learned Senior Civil Judge shall ensure the execution of the order.
24. ' The learned counsel for the respondent contended that since this Court was sitting in Revisional jurisdiction, therefore, it should confine itself only to the orders of the "civil Courts" impugned before it. He obviously meant to say that this Court cannot sit in judgment over the order of the Controller dated 5-11-1978 which, according to him, had been passed after due service of the petitioner through registered post A. D. And the learned Controller was not bound to record evidence as under Order VIII, rule 6 of the Code of Civil Procedure he could proceed ex parte and pass the decree without recording evidence. It is true that this Court in revisional jurisdiction cannot sit in judgment over the order of the Controller passed under Act XI of 1963. But then no judgment has been passed by this Court on the order of the Controller. That order has been determined to be not an order in terms of ejectment of the petitioner by the learned Executing Court itself. Nor there can be a dispute with the preposition that a Court may in appropriate cases, when it is proved that defendant has been duly served, proceed ex parte and pass decree without recording evidence.
25. But then it has to pass a decree. In the instant case it did not. It merely proceeded ex parte and then abruptly stopped, without passing a decree and determine whether the decree was valid or not. True that It was next contended that executing Court cannot go behind the executing Court cannot, except in very few cases, go behind the decree but then it cannot be denied that it has the power to see whether there is a decree before it which it is required to execute or not. This is precisely what the executing Court has done in the matter of decision of the objection petition filed by the respondent herself. And with that judgment she seems to have remained satisfied.
26. The learned counsel then argued with considerable emphasis that as long as the petitioner's application for setting aside the ex parte order dated 5-11-1978 was pending before the Rent Controller, he was precluded from making any application of the nature filed before the executing Court. Learned counsel placed reliance on Kishori Mohan Shadhu and others v. Kumar Brahma Nivaujan Chakravarty Bahadar" (1). Apart from the fact that the judgment cited proceeds on entirely different premises and is not attracted to the case in hand it will be seen that the proceedings before the Controller are for setting aside the order by which petitioner was proceeded against ex parte whereas the proceedings before the learned executing Court are for placing the petitioner back into the same position in which he would have been but for the order dated 5-11-1978 which was wrongly assumed to be a decree and in consequence of which he was dispossessed. Besides it is doubtful if the Rent Controller can Q order restitution because it had never ordered petitioner to deliver possession of the house to the respondent. Rent Controller was not an executing Court either. Therefore reference to the case of Muhammad Bashir v. Muhammad Ramzan and others (2) is also misconceived.
(1) AIR 1938 Cal. 554 (2) 1979 SCMR 260