' MAZHAR ALAM KHAN MIANKHEL, J:---The petitioner, being the legal heir of the original tenant of the demised premises became successful in getting possession of the property on the strength of an order dated 3-3-1996 passed on his application under section 13(5)(b), of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred as the Ordinance). After his hectic exercise of fourteen years, eventually on 19-6-2010 possession of the property was delivered to him by the Court and the order dated 3-3-1996 came to its logical end on 21-6-2010 and his execution petition was consigned to record room. But once again through an objection petition filed by respondent No,1, who never remained a party before the Rent Controller or the executing Court, the petitioner is before this Court through instant writ petition against interim orders dated 26-8-2010, 1-9-2010 and 7-9-2010 passed by the respondents 2 to 4 whereby a new controversy regarding the demised premises was initiated by respondent No,
1. This would not be out of place to mention here that possession of the property was with the respondent No,15 and from respondent No,15, the petitioner was put into possession.
2. That on 7-7-2010 when the execution proceedings were consigned to record room and that order attained finality between the parties, all of a sudden, the respondent No,1 through his objection petition filed before the executing Court that he was in actual possession of the demised premises and a huge stock of medicine owned by him was lying there in the shop in question. This would again be not out of place to mention here that said objector, respondent No,1, throughout the process had no nexus with the said shop. His said objection was turned down by the executing Court on 14-7-2010 where against the respondent No,1 filed a revision in the Court of District Judge, Peshawar which was entrusted to Additional District Judge-VI for its disposal wherein the respondent No,1 sought an ad-interim relief of the sealing of the said shop vacant possession of which was delivered to the petitioner through the process of Court on 19-6-2010. Said ad- interim relief was refused on 22-7-2010. The respondent No,1 against the said refusal order filed a writ petition bearing No, 3205/10 wherein he at the time of hearing out rightly opted not to press his writ petition with the request that the main revision petition be decided within two weeks and he would also be allowed to make an application before the revisional Court. The order reads as under:-- "States that he would not press the instant petition on merits provided directions are given to the Revisional Court to dispose of the main revision petition within a period of two weeks and also to consider the application of the petitioner, which is likely to be made by him before the said Court.
Accordingly this petition is dismissed being unpressed, however, the Revisional Court is directed to dispose of the main revision petition within a period of 15 days positively because the Court has already taken cognizance of the matter by requisitioning the original record and by giving notice to the opposite party. At the same time the learned Revisional Court is directed to entertain the application of the petitioner, if any, for the ascertainment of the fact as to whether some medicine of perishable nature is lying in the suit shop and in what manner the possession was delivered to the respondent/decree holder. With these observations this writ petition is disposed of accordingly."
3. After the disposal of the said writ petition, the respondent No,1 then moved a fresh application for spot inspection to ascertain the existence of medicine in the suit shop and in this regard because of summer vacation, applications were moved by the respondent No,1 to different Courts working during vacations and ultimately on the arrival of revisional Court, impugned order dated 7-9-2010 was passed which along with two previous orders dated 26-8-2010 and 1-9-2010 have made the petitioner aggrieved and has challenged the orders through the instant writ petition.
4. Learned counsel for the petitioner submitted at the Bar that the main objection petition of respondent No,1 is not maintainable under the law and was rightly dismissed by the executing court by his order dated 14-7-2010, so the revision against the same is also not competent as the main controversy of ejectment petition, then a restoration of possession after reconstruction of demised premises and then restoration of possession through execution had come to its logical end and the proceedings were consigned to the record room by the competent Court which under the law cannot be re-opened and such exercise would be without jurisdiction and said Court would be functus officio. So, all the remaining proceedings by the revisional Court are illegal, unlawful and without jurisdiction and the main revision is also liable to be dismissed.
5. As against that, the learned counsel for the respondent No,1 submitted that it was a separate and independent application which under the law was maintainable and a huge stock of medicine was lying there in the suit shop efficacy of which was near to expire. He further submitted that the application of spot inspection and the impugned orders thereon were well within the jurisdiction of the revisional Court as the petitioner was permitted to file any application while his above said writ petition was being disposed of by this Court and requested for rejection of this petition.
6. We have heard the learned counsel for the parties and have gone through the record of the case.
7. The entire admitted facts as stated above would be sufficient to make an opinion that the predecessor of the petitioner was the original tenant of the suit shop and an ejectment order was made against him by the Rent Controller and on appeal there against a compromise regarding restoration of its possession after its reconstruction was arrived at between them. The predecessor of the petitioners was refused restoration of possession after its reconstruction who then filed an application under section 13(5)(b) of the Ordinance which was allowed and after a period of fourteen long years he succeeded in getting the possession through execution and the proceedings came to an end. We cannot shut our eyes to the fact and it is very shocking to note that execution of said order dated 3-3-1996 eventually came to its logical end on 21-6-2010 where after the matter was consigned to record room and then totally new proceedings in the shape of objection petition were initiated. The maintainability of which was not checked by the revisional Court.
8. The entire record of the case would again make us to a unanimous view that respondent No,1 was not in the picture throughout and the restoration of possession to the petitioner was made from respondent No,15. The questions hammering our mind are that: whether after such a long exercise of restoration of possession and then consigning of the same to the record room, any such objection petition would be maintainable; whether the executing Court or any other Court would have any jurisdiction to entertain such like objection petition when the original lis or execution petition after its conclusion has been consigned to record room and there is nothing pending adjudication before the Court. These are the moot questions which require to be replied.
We, in the circumstances of the case, would refrain from answering the same as the revision petition is pending adjudication before the Additional District Judge. The question of spot inspection and other alike questions can only be considered by the Court if the Court comes to the conclusion that the matter before it is maintainable and the Court entertaining the said matter has got the lawful jurisdiction in that regard. Before deciding the maintainability, consideration of allied matters like appointment of commission and other would be nothing but an exercise without jurisdiction and lawful authority. So, in this view of the matter, we are not hesitant to opine that without giving any such finding by the revisional Court, it entered into a controversy which only can be considered after answering the above said questions. This, on the very face of the record, reveals that such an exercise by the revisional Court is unlawful and without jurisdiction and not maintainable in the eye of law. If the Court comes to the conclusion that the interlocutory order of the Court below is against law and suffers from infirmities then such an order can well be checked and interfered with by this Court in exercise of constitutional jurisdiction.
9. So, in this view of the matter, we have no other option but to allow instant writ petition and send back the case to the revisional Court with the direction to decide the revision against the impugned order therein in the light of observations made above in a shortest possible time but not later than a fortnight after receipt of the order of this Court.
' The writ petition is allowed in the above terms.