ABDUL SHAKOOR PARACHA, J. --- On Mehmoodul-Hassan son of Umar Daraz, petitioner, through this petition under Article 199 of the Constitution of Islamic Pakistan of Pakistan 1973 assails the order dated 23.12.2008, passed by the learned District Judge. Chawal, and seeks a declaration to the effect that the said order has been passed without lawful authority. Through the said order the learned District Judge accepted the application of respondent No 2 lmran `Abbas for restoration of the possession of Shop No. 1-situated at Main Talagang Road, Chakwal, and the petition was directed to hand over possession of the shop in question to lmran Abbas. Respondent No 2.
Facts in brief, a narrated in the instant and petition, are that the petitioner filed an ejectment petition against respondent No. 2 in respect of shop No. 1, a Main Talagang Road, Chakwal, giving full description, before the learned Rent Controller, Chakwal under the Punjab Urban Rent Restriction Ordinance, 1959 as amended in 1991, on the ground of personal bona fide need. The said petition was resisted by respondent No. 2 by filing the written reply and the assertions in the petition as well as relationship of landlord and tenant between the parties were denied. The learned Rent Controller framed necessary issues recorded evidence of the parties and vide his order dated 31.7.2008 decided issue No. 1 qua relationship between the parties in: favour of the petitioner and ordered for ejectment of the respondent from the shop in question directing respondent No. 2 to vacate the same within two months from the date of order i.e. 31.7.2008. On 22.9.2008, the respondent No. 2 preferred an appeal under Section 15 of the. Punjab Urban Rent Restriction Ordinance, 1959 against the afore-said order of ejectment. On 23.9.2008, the learned District Judge. suspended the operation of the impugned ejectment order dated 31.7.2008 of the Rent. Controller and the case was adjourned to 16.10.2008. It is contended by the petitioner that the possession of the shop was voluntarily given by the respondent to the petitioner on 27.9.2008 in presence of Jirga and people of the locality thereafter the respondent moved an application for restoration of the possession of the. , shop in dispute before the learned District Judge, Chakwal on _(sic) alongwith the said appreciation an application for initiating contempt 'proceedings was also moved by the respondent No. 2 against the petitioner. The learned District Judge accepted the application and ordered for restoration of the possession of the shop on 23.12.2008 ands the petitioner was directed to hand over possession to the respondent No. 2 by or before 16:1.2009. The petitioner has challenged the said order in this Constitutional petition.
3. Mr.. Mujeeb-ur-Rehman's Kiani, Advocate, learned counsel for the petitioners contends that the impugned order passed by the learned District judge against law and without jurisdiction. Further contends, that the parties entered into compromise and in presence of the shop-keeper of the locality. The possession was delivered and the landlord i.e, the petitioner looked the shop in question. Further contends that without framing orany issue - and permitting the parties to lead, their respective evidence that any compromise was effected between the parties and the- possession was delivered voluntarily by the respondent No. 2 to the petitioner, the learned District Judge illegally and without jurisdiction passed the impugned order whereby the petitioner had been directed the hand over the possession by or before 16.1.2009. He contends that there is no provision in the Punjab Urban Rent Restriction Ordinance, 1959 as amended in 1991, about the restoration of possession whether taken legally or otherwise. The only provision for restitution of the possession is contained in Section 144, C:P.C. And most probably the learned District Judge taking refuge of said Section 144, C.P.C. Entered for restoration of possession. It is well-settled princiPle of law that were restoring to the provisions of Section144, C.P.C., the Presiding Officer has to hold an inquiry after framing of the issues allowing the parties to lead their evidence on the subject.
Reliance has been placed on the case reported as Abdul Rahim v. Muhammad Salim alias Chottan (1985 CLC 2834 Karachi). It is contended that the said judgment was cited before the learned District Judge but the same was not adverted to and in haste the impugned order has been passed which is without jurisdiction. Adds that an application for initiating contempt of Court proceedings was pending adjudication and the learned District Judge without looking into the said contempt application decided the application for restoration of possession meaning thereby that the possession was taken illegally and the contempt application is presumed to have been decided without any legal justification. He further contends that an F.I.R. Waslodged for the alleged occurrence and the proper course was to decide both the applications simultaneously after 'framing of issues and allowing the parties an opportunity to prove their versions raised in the application. It is further contended that the learned District Judge assumed the jurisdiction of the Rent Controller, hence the order impugned herein is patently illegal without jurisdiction. The learned counsel adds that the order has been passed under Section 144, C.P.C. Which is appealable under Section 96, C.PIC. But as it is a rent matter where a special mechanism has been provided and during the pendency of appeal under Section 15 of the Ordinance ibid second appeal is to be preferred, that as it was an interlocutory order where second appeal does not,lie therefore the writ petition has been filed because the petitioner has no other equally efficacious remedy except to invoke the Constitutional jurisdiction of this Court.
4. I have heard the arguments of the learned counsel for the petitioner. All the above stated facts are admitted. Eviction order was passed against the respondent with respect to the shop in dispute, therefore, he was. Under legal obligation to handover possession to the petitioner till 30.9.2008, hence there was no legal justification for the petitioner to get the possession before the said date on the basis of valid agreement veached between the parties in presence of the Jirga.
Secondly, the eviction order was challenged before in Court of District Judge and on 23.9.2008 during pendency, of the appeal eviction order was suspended, meaning thereby that there was no eviction order in favour of the petitioner.
5. Word "suspend" has been defined in the Chamber English Dictionary as "to hang, to make, to depend: to sustain from falling: to put or hold in a state of suspense or suspension: to make to stop for a time: to defer: to'debar from any privilege, office, emolument, etc. For a time: to sustain into a following chord producing discord to hold an indeterminate state."
Now the question before this .Court is whether Section 144, C.P.C. Is applicable in the ejectment proceedings, because the contention of the learned counsel for the petitioner is that the only provision for restitution of possession is contained in Section 144, C.P.C. And the learned District Judge has taken refuge of said section for passing the order of the restoration. It is well-settled law that the provision of C.P.C. Are not applicable in the rent proceedings, but its principles are applicable. In the case reported as Iqbal Ahmad Malik v. Surraya. Anwar Sheikh (PLD 1977 Lahore 409) while interpreting the provisions of Section 144 read with Section 151, C.P.C. Alongwith Section 13.15 of the Punjab Urban Rent Restriction Ordinance, 1959, it had been ruled that "It cannot be argued that the 'principle underlying the I right of restoration would not be applicable to the proceedings under the Ordinance." Mr. Justice Zakiuddin P.L as the them was relied on the case of Padma Gowda v. Yuvaraja Hudge (AIR 1960 Mys. (sic) wherein it had been held that inherent jurisdiction to pass an order of ,restitution under Section 144, C.P.C. Can be exercised by a persona designate entrusted with function of a Court as for example by a District Munisif to whom decree in transferred for execution under Section 66 of the Madras Village Courts Act.
1992 MLD 1409 Lahore) it has been ruled that ".... Principle laid down by Section 144, Civil Procedure Code, 1908 was applicable to ejectment cases. Rent Controller would not be deemed to have become functus officio and he could order restoration of possession."
7. Whether the impugned order passed by the learned District Judge was in exercise of jurisdiction under Section 144, C.P.C. To my mind this is not so because Section 144, C.P.C. Only applies where decree is varied or 'reversed by the Court of first instance on the application of a party entitled to any benefit by way of restitution or otherwise restitution is to be made. In the case decree has not been reversed and the order has not been passed by the Court of first instance Section 144, C.P.C. Is not exhaustive and the principle of this section can be extended to cases which do not strictly come within the wording of the section. Reliance can be placed on the case reported as. Abdul Haq v. Dr. Abdul Quddus Khan and others (PLD 1960 Dacca 452).
It had been ruled in the case of Hamejaddi Howladar and another v. Maminaddi Shaikh and another (PLD 1959 Dacca 304) that the Court has inherent power to direct restitution. His Lordship Aftab Hussain, J. While dealing with an ejectment matter and interpreting Section 144, C.P.C., in the case of Mst. Sakina Bibi and others v. Lnayatullah and others (1974 Law Notes 367 Lahore) relying on the cases reported as (AIR 1922 P.C. 269; AIR 1954 Cal. 544; AIR 1958 Kar. 84; AIR 1956 Madhia Bharat 226; AIR 1954 Andhra Pradesh 5; AIR 1931 Cal. 779 and AIR 1952 Assam 42)held that "it is undisputed that Section 144, C.P.C. Is not exhaustive in that respect.
Wherever the provision of this section was not applicable the jurisdiction to make restitution is exercised under the inherent powers of the. Court as saved by Section 151, C.P.C."
8. In view of the matter while exercising jurisdiction under Section 151, C.P.C. There was no need to held an inquiry after framing the issues and allowing the parties to lead their evidence. The learned counsel has relied on the case of Abdul Rahim v. Muhammad Salim alias Chottan (1985 CLC 2834 Karachi) where in a case under the -Sindh Rented Premises Ordinances (XVI of 1979) it has been held that the Court to hold inquiry in accordance with. Provisions of , Section 144, C.P.C. About restoration, of possession. In the case in hand the order has not been passed by the learned District Judge, under Section 144, C.P.C. But in inherent jurisdiction of the Court.
9. Another question arises whether the present writ petition is maintainable or not Section 144, C.P.C. Applies where a decree is varied or reversed in appeal and the order is a decree within the meaning of Section 2, C.P.C., and the order passed under Section, 144, C.P.C. For restoration of the possession is appalable under Section .96, C.P.C, Where Section 15, C.P.C. Is invoked and Section 144, is not applicable, the order of restitution passed by the Civil Court under. Section 1,51, C.P.C. Is revisable under Section 115, C.P.C. If the Court purports to act under Section 144, C.P.C. Certainly the order of the Court is appealable, however, wrong that order may be because it is an order or at least purports to be an' order under Section 144, C.P.C. Which is appealable as a decree within the, definition of the 'decree' as given in C.P.C. 1908. If, however, the Court purports to act in exercise of its inherent power under Section 151, C.P.C. Then certainly the order is not appealable because the right of appeal is creation of statute and no appeal has been provided in the Code against an order under Section 151, C.P.C. Since the order has not been passed on civil side in a rent matter no revision lies against an order passed in the proceedings of rent, therefore, the present writ petition is maintainable. ,
10. The last argument of the learned counsel for the petitioner is that proper course was to decide both the applications under Section 151, C.P.C. Was seeking restitution of possession and the other for initiating contempt proceedings against, the petitioner, simultaneously after framing the issues and allowing the parties to prove their respective versions raised in the applications. It is settled law that ordinarily if a temporary injunction issued by a Court is violated action as contemplated in sub-rules (3) and (4) of rule 2 of Order XXXIX, C.P.C. Can be resorted to. But before punishing a person for disobedience of the temporary injunction or breach of any term thereof, the Court has to find that in fact such disobedience or breach has taken place and for that an inquiry is needed.
Under Section 151, C.P.C. Also an appropriate can be made for restitution of property or for doing certain other acts if. The Court finds that during the subsistence of the stay order the party against.
Whom stay order is made has dispossessed the -party in whose favour stay order was made or there has been any breach of any term of the stay order. This action can only be resorted to if the Court finds that there has actually been violation of the stay order or breach of any terms thereof meaning thereby that two actions can be taken by the Court one for initiating contempt proceedings against' gainst the contemner and the other by exercising jurisdiction under Section 151, C.P.C. For bringing the original position at the site by making an order of restoration of the possession. .Reliance is placed on the case reported as Muhammad Boota v. Allah Ditta etc. (1989 Law Notes Lahore 1187).
While interpreting the provisions of Order XII, Rule 5 (sic) with Order XXXIX, Rule 2(3) and Section 151, C.P.C., the honourable Supreme Court in the case of Bakhtawar 'etc. v Amin etc. (1980 SCMR (sic) had ruled that "Securing compliance and execution of an order of injunction by .Directing arrest and detention of judgment- debtor is an independent subject by itself whereas punishing a judgment-debtor for violation of the injunction of status-quo is quite a different matter altogether though in certain (sic) apparently they may, look to be overlapping but that is only. Incidental. The object of first is to seek compliance by a Court of its orders an otherwise these orders would be a mere farce. The aim of the second machinery is the punishment of the defaulter." It has been further ruled that. "When by contravening an injunction order the party against whom the order is passed has done something for its on advantage to disadvantage of the other party. It is open to the. Court under the inherent jurisdiction to bring back the. Party to a position where it originally stood, as if the order had not been contravened. The exercise of this inherent power is based on the principle that no party can be allowed to take advantage of his on wrong in spite of the order to the contrary passed by the Court. The Court is the instant case had to pass an order for restoration of the possession, but if The possession is not restored the respondent' can' ask the Court for execution of the order by detention of the petitioner on the above-stated principle of the law.
11. The role of law is whoever seeks equity must do equity. The petitioner was asking for ejectment of respondent No. 2 through the Court of law. He was expected to wait for dismissal of the appeal. The Court has ample power to restore the possession of the property and it. Can direct restoration of status-quo ante and refuse to recognize the act violate of the law. Reliance can be placed on cases of Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others (PLD 2002 SC 303) and Mst. Sharifan Bibi and another v. Allah Bakhsh (1996 SCMR 1822).
12. For what has been discussed above and for the reason that the petitioner took the law into his on hand by taking possession (sic) of the shop from the respondent it is held that the learned District Judge rightly exercised the jurisdiction directing' the petitioner to restore possession of the shop to the respondent. No illegality has been committed by the Court. This being so, this writ petition fails and the same is dismissed in limine with costs. .