' MUHAMMAD KHALID MEHMOOD KHAN, J.---Through this constitutional petition the petitioners have assailed a consolidated order dated 28-3-2005 passed by the learned Additional District Judge Multan on 12 appeals.
2. Briefly stated the facts of the case are that petitioners filed ejectment petitions against occupants of House No,1724/5, Ward .No,9 shown in possession of land of different measurement.
The said tenants are not the party to the present petition. Claim of the petitioners was that they purchased the said property through registered sale deed dated 13-6-2003 from the legal heirs of one Sheikh Muhammad Akhtar. The tenants appeared in the first instance but subsequently they failed to appear and ex parte ejectment order was passed against them on 26-6-2004. The petitioners when tried to execute the ejectment order, respondents Nos.3 to 18 filed an application under section 12(2), C.P.C. Praying that they are in possession of land bearing Khewat No,893 Khatooni No,1067 and Khasra No,1785 from the last 60 years and they have constructed their temporary residences and 135 families are residing on the land. They further claimed that the land under their possession is "Kachi Abadi" and they have applied for transfer of proprietary rights. The petitioners through fraud and misrepresentation by giving wrong site plan of their property succeeded to get ejectment order against fictitious persons. They came to know about the ejectment order on 19-2-2009 when the. Bailiff of court came to property for ejecting the petitioners in pursuance of ejectment order dated 26-6-2004. The learned Rent Controller after entertaining the petition suspended the operation of ejectment order but vide order dated 3-3-2009, the suspension order was withdrawn and the petition was fixed for further proceedings.
3. Respondents Nos.3 to 18 assailed the said order through an appeal before the learned Additional District Judge. The said appeals were allowed vide order dated 28-3-2009, hence, the present writ petition.
4. Learned counsel for the petitioners in the first instance submits that the learned Rent Controller is creation of special statute and as such application under section 12(2), C.P.C. Was not maintainable. He submits that no appeal is provided against the interim order of Rent Controller and as such, the impugned judgment is against law and facts. Further argues that no notice as provided under Order XLIII Rule 3, C.P.C. Was served before filing of appeal, hence the said appeal was also not maintainable on this court. Learned counsel for the petitioner relied upon Zahurul Hasan v. Mst. Ruqqia Begum and 4 others (PLD 1981 Supreme Court 112) Muhammad Tariq Khan v.
Khawaja Muhammad Jawad Asami and others (2007 SCMR 818), Muhammad Yaqoob v. Mohsin Ali and others (1999 CLC 1173), Jamia Masjid City Courts v. Safdar All through Legal Heirs (1997 CLC 1892), Wajid Ali Khan v. Sheikh Murtaza All and 2 others (2003 SCMR 1416).
5. Learned counsel for the respondents submits that petitioners have committed fraud and as such the principal court who passed the final order was empowered to entertain the application under section 12(2) C.P.C. Further submits that no doubt C.P.C. Is not applicable stricto senso but the learned Rent Controller can entertain application under section 12(2), C.P.C. Where the impugned order is obtained through fraud under in its inherent powers. He adds that instead of filing a separate suit challenging the wires of illegal order application under section 12(2), C.P.C. Was maintainable before the learned Rent Controller. Further submits that issuance and service of notice under Order 43 Rule 3, C.P.C. Becomes redundant when the petitioners themselves appeared and argued their case at length and as such no prejudice was caused to the petitioner for non-service of notice as provided under Order 43 Rule 3, C.P.C. He has relied on Mrs. Sheher Bano v. Muhammad Sharif (PLD 2003 Karachi 507), Ismail v. Subedar Gul Inayat Shah (PLD 1991 Supreme Court 997), Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCMR 917) and Mst. Fehmida Begum v. Muhammad Khalid and another (1992 SCMR 1908).
6. Both the parties' have argued at length about the facts of the case but issue at present is only that on respondent's application under section 12(2), C.P.C. Rent Controller suspended the ejectment order and after hearing the petitioner, learned Rent Controller recalled the said order on 3-3-2009. The respondents assailed the said interim order through an appeal which was allowed by the learned appellate court on 28-3-2009. Hence the present petition.
7. The factual controversy between the parties about the ownership of land and the exact location of property, subject-matter of ejectment petition is yet to be decided. At present only point requires resolution is whether application under section 12(2), C.P.C. Was maintainable before the learned Rent Controller or not?
8. It is an admitted fact on record that ejectment order dated 26-6-2004 was not assailed by the tenants as claimed by the petitioners and as such it become final. Respondents Nos.3 to 18 ate aggrieved of the ejectment order dated 26-6-2004, hence they filed application under section 12(2), C.P.C. Before the learned Rent Controller.
9. Argument of learned counsel for the petitioners is that C.P.C. Is not applicable before the learned Rent Controller and as such application under section 12(2), C.P.C. Was not maintainable. He.
Submits that under section 15 of Rent Restriction Ordinance an appeal is provided against the order of learned Rent Controller which too against the final order. Even if it is assumed that the application was maintainable the order passed by the learned Rent Controller was interim in nature and no appeal is provided there against. He has relied on PLD 1981 Supreme Court 112. In this case the question of maintainability of application under section 12(2), C.P.C. Was not the point in issue. Point in issue was applicability of section 15(7) of Punjab Urban Rent Restriction (Amendment Ordinance) 1979 and it was held that order of Rent Controller, subject to result of appeal if any final and not questionable in any court of law including the High Court by appeal or otherwise and the word otherwise was indicated that it covers section 115 of C.P.C. And as such Revision against the order of Rent Controller was not maintainable. Other judgment referred by the learned counsel for the petitioner 2007 SCMR 818 shows that in this case it was held that provision of C.P.C. Is not applicable in rent proceedings stricto sensu but the Rent Controller in exercise of its jurisdiction could follow equitable principle of C.P.C. In this case the Landlord obtained possession in execution of ejectment order and under sections 141 and 144, C.P.C. The aggrieved party agreed for the restoration of possession and also payment of damages. Hon'ble Supreme Court of Pakistan has held that Rent Controller is only empower to pass an order for restoration of possession but could not grant damages and it was held that the Rent Controller while passing the ejectment order Under West Pakistan Rent Restriction Ordinance, 1979 remain persona designata and does not become a civil court merely because he has to execute its order like decree of civil court. Although the force of ejectment order is that of a decree of civil court, 3rd judgment relied upon by learned counsel for the petitioners is 1999 CLC 1173. In this case application under section 12(2), C.P.C. Was moved which was dismissed by the learned Rent Controller but the facts of this case were different.
In this case father was the tenant and his son filed application under section 12(2), C.P.C. And was residing with his father and the Hon'ble Sindh High Court has held as under:-- "The father of the intervener is admittedly tenant of the D. H, therefore, the intervener is also deemed to be tenant of the premises because in case of the death of father of the intervener he and his other brothers, sisters, mother would become tenant and the tenancy would devolve upon them."
' Last judgment referred by learned counsel for the petitioner is 2003 SCMR 1416. In this case point in issue was whether ejectment order could be executed against a person having come into possession of the subject property through tenant was dilated upon and it was held that ejectment order is executable against a person who comes into possession to the ejected property through tenant. All the judgments referred by learned counsel for the petitioners are not relevant for the disposal of present writ petition and the question of maintainability of application under section 12(2), C.P.C. Was not in issue in the judgment quoted.
10. In the present writ petition question of maintainability of application under section 12(2), C.P.C.
Before the learned Rent Controller is in issue. There' is no cavil of the point that Rent Controller is a Persona Designata and is creation of special statute like Displaced Persons and Rehabilitation Act.
Issue for setting aside a wrong order fraudulent order was discussed in Chief Settlement Commissioner v. Raja ' Fazil Khan and others (PLD 1975 SC 31) was point in issue. Hon'ble Supreme.
Court of Pakistan has held that every authority, tribunal or court has power even suo motu to recall or review the order obtained by fraud. On the general principle of law no party should be allowed to take benefit of his own fraud and it is principle of law which could safely be held that there can be no distinction between the powers available in this behalf to the court of general jurisdiction or to a court or tribunal constituted under special law having limited jurisdiction. It is the bounden duty of court, tribunal or authority to undo the effect of fraudulent order and as such the equitable principle of C.P.C. Can be invoked by the Rent Controller. For example if any fraudulent person with the collusion of a so called tenant succeeded to obtain ejectment order against a legitimate person in possession of property and if it is assumed that the Rent Controller has no power to set aside its own order obtained through fraud, the legitimate person in possession of the property will be remediless. It is not the intention of law. A special enactment is meant only for the expeditious disposal of cases of special nature like rent, banking, Anti-Terrorism etc. Etc. It is a general principle of law that every court, tribunal or authority possesses inherent power to undo the orders obtained through fraud. Hence, it is established that any aggrieved person if wants to challenge the validity of any ejectment order on the plea of fraud or misrepresentation he is competent to file application under section 12(2), C.P.C. Before the Rent Controller. This right is also available to a person who was not even party to the proceedings as is held in 1992 SCMR 917.
11. Now the second objection raised by learned counsel for the petitioner that in the absence of statutory notice under Order XLIII Rule 3, C.P.C. The appeal was not maintainable. It is now well- settled that lack of service of notice in terms of Order XLIII Rule 3 C.P.C. Is of no legal significance when the appeal has been admitted. If once appeal has been admitted the same cannot be dismissed for noncompliance of the provision of Order XLIII, Rule 3, C.P.C. The objection of non- maintainability of appeal due to non-service of notice under Order XLIII Rule 3, C.P.C. Is only up to the stage of preliminary hearing of appeal. Such objection cannot be entertained when the respondents appeared and contested the appeal and no prejudice will be caused to respondents for noncompliance of provision of section 43 Rule 3, C.P.C. Reliance is placed on Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 CLC 448) and Malik Maqsood Asghar and 5 others v. Malik Sultan Asghar and 2 others (2008 CLC 1150).
12. The arguments advanced by both the parties regarding the merits of the case could not be entertained in the present writ petition as all the allegations of both the parties require evidence.
Petition under section 12(2), C.P.C. Of respondents No,3 to 18 is pending disposal before the learned Rent Controller who will definitely frame issues out of the divergent pleadings of parties, if he thinks fit and will record the evidence. After recording the evidence learned Rent Controller will be in better position to adjudicate upon the contention of the parties.
13. In view of the above, in my humble opinion application under section 12(2), C.P.C. Was maintainable before the learned. Rent Controller and he rightly entertained the same and as such this writ petition fails and is dismissed accordingly. However learned counsel for the petitioners states that even after passing of ejectment order in 2004 and still he is unable to reap the benefits of ejectment order. It is directed that the learned Rent Controller will decide the application under section 12(2), C.P.C. Expeditiously within three months from the date of receipt of certified copy of this judgment.