The undisputed facts in this case are that in respect 'of the portion of ground floor of the house in dispute, an application for ejectment was filed against Mir Allah-ud-Din, brother of the respondent, which was allowed by the learned trial Court on 12-11-1975. Appeal of Mir Alla-ud-Din was dismissed on 5-6-1978 by the learned Additional District Judge and S. A. O. Bearing No. 372 of 1978 was thereafter dismissed on 7-4-1979 in which IS days time was allowed to Mir Alla-ud-Din to vacate the premises which expired on 22-4-1979.
2. A suit on that last date was filed by the respondent before the trial Court claiming that he could not be ejected from this property .Otherwise than in due course of law as he was in possession of it.
No reference in that suit was made to the above-mentioned litigation. These facts were, however, brought to the notice of the learned trial Court at the time of hearing of the application for injunction filed by the respondent in that suit. The learned trial Court while dismissing the application for injunction also rejected the plaint of the respondent under Order VII, rule 11, C. P. C.
3. The respondent filed an appeal against this order and decree which was allowed by Sh. Muzaffar Hussain, Additional District Judge, on 5-11-197. He gave all these facts in his judgment but held that Order VII, rule 11 could not be attracted except when the facts disclosed absence of cause of action or the suit being barred by some provision of law was apparent in the plaint itself which was not a fact in the present case. Despite this proposition of law he further proceeded to discuss extraneous evidence in the form of a certified copy of a statement stated to have been made by petitioner before the learned Rent Controller in support of the plea-that the respondent was in possession of the property. He, therefore, allowed the appeal on 3-11-1979 and remanded the matter to the trial Court for decision of the suit afresh after getting written statement, framing of issues and recording of evidence. It is further important to note that he did not issue; any injunction- in favour of the respondent, hence this revision.
4. The learned counsel for the appellant contended that the suit -itself was not maintainable in view of the provisions of Order XXf, rule 103, C. P. C. A.I Hussain v. Rafiquddfn and 9 others (PLD 1977 Lab. 418). The learned counsel for the respondent, on the other hand, contended in support of his' stand that for acting under Order VII, rule 11, the Court should look only at the plaint and no other document. In support of his contention he relied upon Din Muhammad etc. v. Mehr A.I Khan etc. (PLD 1978 Kar. 267). Miss Suriya Bano v. Govern--ment of West Pakistan (PLD 1973 Lab. 572), Seven Slats Goods Transport Co. v. The Administrator, K. AT. C., Karachi (.PLD 1976 Kar. 21) and M. Moosa v.
Mahamed and others (PLD 1954 Sind 70).
5. He further submitted that the revisional jurisdiction of this Court Could not be exercised in this case even if the Court came to the conclusion that the order was absolutely wrong, since the Court has the jurisdiction to decide a matter rightly or even wrongly. In this behalf he sought support from N. S. Venkatagiri Ayyangar etc. v. The Hindu Religious Endowment Board (PLD 1949 P C 26
6. The learned counsel for the respondent further submitted that the respondent being in possession of the property, as admitted in the proceed--ings before the Rent Controller by the petitioner, the fraud played by the petitioner should not be allowed to be perpetuated by the exercise of revisional jurisdiction.
7. The learned Additional District Judge has acted illegally and with material irregularity in the exercise of his jurisdiction in several points. In the first instance, it is clear from the facts stated above that he has given a self-contradictory judgment. On the one hand, he relied upon the proposition of law that Order VII, rule 11, C. P. C. Is not attracted except when the plaint itself calls for its rejection on the facts stated in it. On the other hand, he has relied upon the alleged statement of the petitioner made before the Rent Controller in justification of possession of the respondent over the property in. Dispute. The second ground could have been justified if he had issued an injunction in favour of the respondent but the fact that he has not issued any such injunction would show that this particular point has been taken into consideration by him in support of his judgment setting aside the decree of rejection of the plaint under Order VII, rule 11, C. P. C.
8. The learned Additional District Judge has also not considered an important fact that since the facts, as stated above, were not denied, he) could justifiably treat the order of rejection of plaint as a decree of dismissal of suit. This ought to have been done by him in order to reduce the litigation so that the respondent might be enabled to file the correct proceedings as required by Order XXI at that stage. Instead of" this, the suit remained pending far quite a long time.
9. The learned Additional District Judge has, therefore, acted with material irregularity in the exercise of his jurisdiction in this respect also. In fact, this would amount to refusal to exercise his jurisdiction which vested in the learned- Additional District Judge.
10. In view of the fact that, in my. Opinion, the order of the learned Additional District Judge suffers from two . Of the defects pointed out in threw clauses of section 115, C. P. C. The objection of the learned counsel based on PLD 1949 P C 26 loses all its force. This is not a case where the order of the learned Additional District Judge is merely wrong, but it suffers from the defect of his having committed illegality and acted with material irregularity in the exercise of his jurisdiction and, further, he has also refused to exercise the jurisdiction vested in him by law to consider . The judgment and decree of the learned trial Court as a decree of dismissal of the suit.
11. I agree. With the argument of the learned counsel of the respondent that for acting under Order V11, rule 11, C. P. C. Only the plaint can be looked at. There is no cavil with this proposition at all, but, as stated above, the question is whether, in view of these undeniable facts when there is already an order of ejectment passed by a Rent Controller in favour of the petitioner against the brother of the respondent, namely, Mir Alla-ud-Din, this suit was at all maintainable ? Order XXI provides for the manners in which the execution of the decree can be obstructed and also the manners in which. The restoration of possession can be ordered by the executing Court, if some other person who holds the property in his independent right is dispossessed from there in execution of the decree against some third 'person. In such cases, Order XXI, rule 103, C. P. C. Bars the jurisdiction of any other Court and provides that all questions arising as to title, right or interest in or possession of immovable property between an applicant under rule 97 and the opposite-party or between an applicant under rule 100 and the opposite-party shall be adjudicated upon and determined by the Court and no separate suit shall lie for the determination of any such matter. I had held in PLD 1977 Lab. 418 that, in view of the circumstances of the present case, the jurisdiction. Vests in the executing Court and no regular civil suit is competent. The respondent has a remedy under Order XXI. He can obstruct the execution of the decree if he considers it bona fide that he is in possession of the suit property in his own independent right. Even if he is, somehow or the other, ejected in execution of the .Decree, it will be open to him to file a petition for restoration of possession under rule 100 of Order XXI. This being the proper remedy before him, his suit was not competent
12. I, therefore, allow this revision petition without there being any order as to costs, set aside the judgment and decree of the Additional District Judge and modify the decree of the trial Court to be a decree of dismissal of the suit.