Through this writ petition, the petitioner seeks setting aside of the impugned orders/judgments dated 4.5.2009 and 15.5.2009 passed by Respondents No, 8 & 9 respectively dismissing the objection petition of the petitioners.
2. Brief facts succinctly required for the determination of this writ petition are that Respondents No,
1. to 6 filed the ejectment petition against Respondent No, 7, real brother of the petitioner, with regard to Shop No, 62-7, Block No, 1, Rail Bazar, Jhang Sadar on the ground of default and the same was accepted by the learned Rent Controller, Jhang, vide judgment dated 25.9.2008. Respondent No, 7 preferred an appeal against the same which was dismissed vide order dated 15.1.2009. Later on, the same was challenged before this Court in W.P. No, 2771/09 but the same was not accepted.
After the dismissal of the writ petition, Respondent No, 7 approached the Honourable Supreme Court but the ejectment order of the learned Rent Controller and the subsequent orders passed in appeal and in writ petition were upheld by the August Supreme Court of Pakistan. Therefore, Respondents No, 1 to 6 filed execution petition. In the meanwhile, the petitioners filed objection petition, alleging therein that Respondents .No, 1 to 6 are owners of land measuring one marla which was purchased by their predecessor-in-interest namely Muhammad Jamal Nasir and others, as is evident from the copy of the PT1, whereas the petitioners and their said brother are owners of property measuring 45 square yard (more than half marla) which is situate adjacent to the shop in question, as such the disputed shop consists of half marla of the property owned by Respondents No, 1 to 6, whereas on other property, they have another shop which has rented out to one Muhammad Zahid. With a view to expand the business as the said shop could not fulfil the requirement of the said tenant, he had expanded the said shop over the land purchased by the petitioners to the extent of more than half marla, whereas in the adjoining, there is a shop of the petitioners.
3. In view of the above, the petitioners had filed the objection petition, which is stated to have not been dealt with in accordance with law by, the learned Rent and the same was dismissed vide order dated 4.5.2009 mainly on the ground that the application has been filed under Section 47 of CPC but Section 47 CPC is of no help to the petitioners/objectors for the reason that only question which relates to the execution, discharge and satisfaction of decree between the parties or their representatives can be taken up by executing Court and the person who is neither a party nor a representative of a party cannot file any objection.
4. It is contended that the view taken by the learned Executing Court is contrary to law, in which it has been held in sub-section (3) to Section 47 CPC that "where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court." In the instant case, the same has not been dealt with, as such, the order dated 4.5.2009 cannot sustain and in this respect, reliance is placed upon Municipal Committee, Kasur through Tehsil Nazim Vs. Additional District Judge, Kasur and 3 others (PLD 2008 Lahore 230). It is further stated that along with the objection petition, the petitioners bona fidely also made an application for the appointment of local commission so as to ascertain the factual position of the site. The learned trial Court also dismissed the same vide order dated 4.5.2009.
Against the said order, the petitioners preferred an appeal before the learned District Judge, Jhang, and the same has also been dismissed, as such, both the Courts below have traveled on the assumption that the petitioners are assailing the ejectment order upheld upto the level of the August Supreme Court of Pakistan and under the garb of this objection petition, they want to frustrate the ejectment order. Further contended that the application for the appointment of local commission was very genuinely and bona fidely filed to determine the real controversy regarding the factual position at the site and disallowing the same resulted into a grave injustice to the petitioners, which will result in an irreparable loss to the Petitioners, as such both the impugned orders be set aside by accepting this petition and a direction be passed to the learned trial Court to conduct proper inquiry into the objection petition of the petitioners and appoint the local commission and decide the same.
5. I have heard learned counsel for the petitioners and have also perused the impugned orders as well as other material made available on the record.
6. The learned appellate Court have given due consideration to the contentions raised by the petitioners and in an elaborate manner determined the controversy keeping the factual aspect as well as legal aspect in light.
7. It appears that the petitioners are admittedly real brother of Muhammad Ishaque Respondent No, 7, against whom the ejectment order dated 25.9.2008 had been passed, which had attained finality from the judgment of the August Supreme Court of Pakistan. Therefore, the site-plan Ex.A2 stood fully proved and upheld upto the level of the August Supreme Court of Pakistan, with regard to which the instant execution petition is being proceeded against. In view of the same, Ex.A2 site- plan upheld by the August Supreme Court, which has attained finality and for which the possession in execution petition is being sought on the basis of ejectment petition, cannot be interfered into by this Court in its constitutional jurisdiction. Therefore, the impugned judgment dated 15.5.2009 has been passed considering the same. Since the site-plan Ex.A2 had attained finality from the August Supreme Court of Pakistan, the learned Courts below have rightly rejected the objection petition and thereafter the appeal of the petitioners. I see no merits in this petition and the same is dismissed in limine.