' SYED ZAKIR HUSSAIN, J.---This Revision Application is preferred against the judgment dated 17-12- 2005 passed by the learned IIIrd Additional District Judge, Karachi (South), whereby he has been pleased to dismiss the Civil Appeal No, 178 of 2001, preferred by the applicant party against the judgment and decree dated 30-11-2001 and 17-11-2001, passed in Civil Suit No, 1231 of 1985 by the learned 1st Senior Civil Judge, Karachi (South). The applicant has prayed for setting aside of the impugned findings referred to above, and has prayed for an order decreeing the aforesaid suit as prayed for.
' I have heard the learned counsel for the parties and perused the record. '
' By the short order dated 13-10-2010, for the reasons to be recorded later on, I dismissed the application with no order as to costs.
' The necessary facts of the case, are that, Muhammad Ibrahim (ancestor of respondents No, 1) filed a Rent Case bearing No, 1726 of 1982 against the husband of the applicant namely, Ahmed Hashmi for ejectment on the ground of default in payment of rent, The opponent Ahmed Hashmi filed written statement therein in which, he appears to have denied the relationship with no specific claim in defence, over the property in question, admitting only to be in possession thereof, as stated in the rent case, but against no payment of rent. The said rent case, was allowed and the ejectment order, was passed by the learned XIIIth Senior Civil Judge, Karachi, on 29-10-1983. No, F.R.A. Was filed against the said findings of the Rent Controller on the part of the said opponent. The execution application was filed for implementation of the ejectment order, against which, objections were filed by the said opponent and the same was decided against him, which too, stood unchallenged on his part. The opponent thereafter, disappeared in all respect and instead, his wife the applicant, appeared in the said execution proceedings, by filing an application under section 12(2), C.P.C. r/w Order XXI Rule 103, C.P.C., in which she claimed that the property in question had been a gifted property in her occupation (in her own rights or title) and PTI existing in favour of the applicant of the said rent case, was obtained by fraud and misrepresentation. The said application is pending adjudication before the aforesaid executing Court. During such pendency, the applicant filed the Civil Suit No, 1231 of 1985 for declaration and injunction in respect of the property in question, against the applicant decree-holder of the rent case namely, Muhammad Ibrahim (ancestor of the respondents No,1) and respondents Nos. 2 & 3 to the following effect:--
(a) To declare that the property originally belongs to the plaintiff's father and subsequently to her mother on which the plaintiff's husband has constructed the building.
(b) To declare that plaintiff is in lawful possession as the legal heir and owner of superstructure and cannot be dispossessed from portion in her possession.
(c) To declare that defendant No, 1 has obtained PT-1 from defendant No, 3 by misrepresentation of facts that he is absolute owner of plot in question and therefore liable to be cancelled.
(d) To grant permanent injunction against the defendants Nos. 1 and 2 restraining them, their representatives, servants, agents or any person on their behalf from dispossessing the plaintiff from premises bearing No, K-13-B-24S-25, Kalri, Karachi.
(e) Any other relief which this Hon'ble Court deems fit and proper.
(f) Cost may be awarded.
' As stated above, the suit was dismissed and the dismissal findings were brought in question in Civil Appeal No, 178 of 2002, which too, met with the same fate and hence, this Revision Application.
' The learned counsel for the applicant states that the learned two courts below have come to an erroneous conclusion that the suit was barred under. Rule 103 of the Order XXI, C.P.C. Or in other words, the suit was wrongly held to be not maintainable merely on account of pendency of the application under section 12(2), C.P.C. r/w Order XXI Rule 103, C.P.C. Before the executing court (in the matter of the ejectment order referred to above). He states that it is the choice of the applicant to file the suit. He states that there is no legal bar in two parallel proceedings referred to above as well. He further states that the court has not decided the suit by giving findings on all the issues framed on its part, but simply decided the legal issue to the above effect and came to the aforesaid conclusion incorrectly and therefore, the findings are inappropriate and need interference of this court. The appellate court, according to the learned counsel, also came to the erroneous conclusion by upholding the said findings of the Court of first instance. He has relied on 1992 SCMR 1908.
' On the other hand, the learned counsel for the respondents also relied on the same case-law. The relevant headnote of the same is as follows:-- "S. 12(2) & O.XXI, Rr.97, 100, 101 & 103.---Sindh Rented Premises Ordinance (XVII of 1979), S. 15--- Validity of ejectment order challenged on plea of fraud and misrepresentation. Applicability of section 12(2), Civil Procedure Code, 1908, before Rent Controller. Person wishing to challenge validity of ejectment order on plea of fraud or misrepresentation could file application under section 12(2), Civil Procedure Code, 1908 before Rent Controller. Such application could be filed even by a person who was not a party to ejectment proceedings. Person claiming restoration of possession on the ground that he was in possession on his own account or on account of some other person other than the judgment-debtor but was fraudulently ejected, could file application for restoration of possession under O.XXI. R. 101; or where he claimed right or interest in or possession of immovable property under R. 97 or R.100 of Order XXI, he could file application under R.103 of O.XXI, Civil Procedure Code, 1908 before Rent Controller. Where a person who was not a party to ejectment proceedings and who claimed to have been ejected from the property owned by him, opted to file a suit in respect of an ejectment order on the ground that same was obtained by practising fraud on Court, his suit would not be barred either under S. 12 (2) or O.XXI, R.103, Civil Procedure Code, 1908. Such suit would' be competent provided it was based prima facie on reliable documentary evidence and was not actuated to undo a lawfully executed ejectment order."
8. The learned counsel for the respondents stated that where the applicant had already preferred an application under section 12(2) read with Order XXI, Rule 103, C.P.C. On similar ground, no suit as parallel proceedings was open to be filed, and if filed, the same was hardly to remain in field. He added that the applicant was free to choose any of the available two remedies i,e, one by filing the application of like nature in the same Court and the other, by maintaining a suit of like nature, and once a choice is exercised by filing, the application referred to above, it was not fair on the part of the applicant to file a suit on same footing for same purpose. He is therefore, of the view that the suit in such circumstances, too, was barred and same was rightly dismissed.
9. The learned counsel for the applicant has nothing to say except to reiterate what is mentioned above with reference to his bone of contention(s).
10. The contention of the learned counsel for the applicant that other issues have not been disposed of and the suit has been decided simply on the legal score discussed above, and therefore, the matter needs remand or the direction to the court of first instance to decide the same afresh by giving findings on all the issues, will meet the ends of justice, carries no weight, in the instant case, no doubt, the issues were framed and the evidence was led by the parties, yet the court chose to dispose of the suit simply on legal score as the same adversely attract its jurisdiction in terms of the bar there against, as highlighted above. The Court, which does carry no jurisdiction, has no domain over a dispute both on factual and legal score, and hence, the court which took notice of the pendency of the said proceedings of section 12(2), C.P.C. Etc. On similar score, came to the conclusion that since the matter Is already sub judice and under adjudication C before the competent court, it had nothing to do with the suit and except the order, which had been passed on its part, there could have been no other order for the reasons referred to above.
11. The perusal of the record reveals that the husband of the applicant contested the ejectment proceedings as opponent/tenant thereof; the ejectment order was passed against him after he had been established tenant in such proceedings; since the tenant includes his spouse and children in occupation of the rented premises, the applicant being spouse of the said IE tenant, had knowledge of the rent proceedings, yet she kept mum and emerged for the first time, after the ejectment order had stood passed (and the same went in execution before the learned Controller), by way of an application under section 12(2), C.P.C. Read with Order XXI Rule 103, C.P.C. Claiming her inherited right to the rented premises and denied the right of the respondents over the same either as owner or landlord thereof both; the conduct of the applicant in such circumstance is cloudy while the bar to file a suit in the matter is operative against her and the remedy if any available to her stood already sought for through the said application in the concerned Court, whereas the suit was incompetently filed on her part. The case-law (supra) is distinguishable from the facts in hand.
Besides, since the applicant has not stood ousted from the premises in question as yet, in execution or in pursuance of the said ejectment order, the said case-law, that provides that the suit is maintainable by a person who is stood ejected under a decree or ejectment order obtained by fraud or by misrepresentation of facts, is not identical.
12. In my firm view that the suit was not open to be filed being barred under Rule 103 of the Order XXI, C.P.C. And the provisions of the section 12(2), C.P.C'. Invoked on the part of the applicant together with the said provisions of law in the executing court referred to above, carried the same effect barring thereby the applicant to pursue the same controversy with same parties by way of a separate suit to be brought under adjudication in any Court in terms of section 10 of C.P.C, which provides that two suits on same cause of action, cannot run together, and the subsequent one must stand stayed, while the previous one will proceed. In the instant case, the effect of the said application (of section 12(2), C.P.C. And that of the Order XXI, Rule 103, C.P.C.) is equivalent to that of a suit, for the same would be decided like a suit, for all practical purposes, and therefore, the subsequent proceedings, warrant discontinuation thereof, in order to avoid conflict of findings.
13. Consequently, I am of the firm view' that the matter does not need to be remanded for deciding the suit afresh since on legal score, I am also of the view that the suit being hit by the provisions of law referred to above, was not maintainable and the plaint was open to be rejected in the first instance under Order VII, Rule 11, C.P.C. On such score alone, and the proceedings, which culminated in the judgment and decree passed in the civil suit, which ultimately stood affirmed by the next appellate forum still carried the effect, which could have resulted from such rejection of the plaint thereof under Order VII, Rule 11, C.P.C. In the first instance. The impugned findings are open to be affirmed only to the above extent. Reliance can be placed on PLD 1982 Karachi 374, 1984 CLC 2255, 1986 CLC 2600, 1997 CLC 343 and 1997 CLC 1691. The controversy of the rights of the applicant is/are open to be adjudicated upon by the forum where the said application of section 12(2), C.P.C.
Is pending. In these terms the application in hand stands disposed of accordingly.
14. These are the reasons for the short order referred to above.