' ATIR MAHMOOD, J. --- Brief facts of the case are that respondent No. 5 Mst. Azizan Begum filed an application under Section 144, Civil Procedure Code, 1908 for restitution of possession of the property No. SE-XIV-SE11-192/RH, commonly known as House No. 192, Street No. 20, Mustafabad, Lahore measuring 210 sq.Ft. Situated at Katchi Abadi, Gulistan Colony, Scheme No. 2, Mustafabad, Lahore. The petitioner contested the application by filing written reply raising objections that he is bona fide purchaser of the property as he had purchased the same from respondent No. 3 Mian Muhammad Jameel vide Sale-Deed No. 4418, Volume No. 793, dated 20.07.2006 registered with Sub-Registrar Aziz Bhatti, Town Lahore for a total consideration of Rs. 20,00,000/- and also obtained possession therefore; that the petitioner was neither party to the ejectment petition nor to the application under Section 12(2), C.P.C. Read with Order IX, Rule 13, C.P.C.; that a suit for cancellation of sale-deeds filed by respondent No. 5 is still pending before the Civil Court, Lahore.. However, after hearing both sides, the application under Section 144, Cr.P.C. For restitution of the possession of the property was accepted vide order dated 14.01.2010 and the petitioner was dispossessed on 21.01.2010. Feeling aggrieved, the petitioner filed appeal which was dismissed by learned Additional District Judge, Lahore vide judgment dated 20.05.2010. Hence this writ petition.
2. Learned counsel for the petitioner inter a/ia contends that the petitioner is a bona fide purchaser of the property from respondent No. 3 Mian Muhammad Jameel vide Sale-deed No. 4418, Volume No. 793, dated 20.07.2006 registered with Sub-Registrar Aziz Bhatti Town Lahore for a total consideration of Rs. 20,00,000/-; that after obtaining possession of the property, the petitioner spent a huge amount on reconstruction/renovation thereof; that respondent No. 3 had purchased the house from respondent No. 4 Mst. Dilshad Begum vide registered sale-deed No. 9467, Bhai No. 1, Jild No. 234, dated 17.12.2003; that the said transaction was witnessed by respondent No. 6 lkhlaq Ahmed and son of respondent No. 5 Zahid lqbal; that respondent Nu. 4 purchased the prokertj from respondent No. 5 Mst. Azizan Begum (who has filed application under Section 144, C.P.C. Through her general attorney Akblaq Ahmad bearing general attorney registration. No. 5139, Jild No. 1974, Bahi No. 4, dated 01.12.1999 vide registered sale-deed No. 13326, Bahi No. 1, Jild No. 6057, dated 24.08.2000; that respondent No. 3 obtained an ex parte order dated 31.01.2005 which was executed against respondent No. 4; that respondent No. 5 filed an application under Section 12(2) read with Order IX, Rule 13, C.P.C. Which was accepted vide ex parte order dated 23.07.2008 but the petitioner remained unaware thereof; that during the pendency of application under Section 12(2), C.P.C., respondent No. 5 filed an application under Order I, Rule 10, C.P.C. For impleading th petitioner in the proceedings but the application remained undecided and even no notices were issued to the petitioner; that respondent No. 5 also sought cancellation of general attorney dated 01.12.1999 and sale-deeds in favour of Dilshad Begum, Mian Muhammad Jamil and Dr. Ijaz Ahmed which ex facie shows that respondent No. 5 was not owner of the property in dispute which matter is still pending adjudication before the Court; that the general attorney bearing registration No. 5139, dated 01.12.1999 executed by respondent No. 5 in favour of respondent No. 6 holds the field and mere denial of general attorney as well as execution of sale-deed by the attorney can neither change the factum of sale-deeds nor makes respondent No. 5 owner of the property; that the petitioner was neither party to the ejectment petition nor has any knowledge thereof; that since the petitioner is bona fide purchaser with possession of the disputed property, therefore, no lawful order could be passed against him without impleading him in the proceedings; that impugned orders dated 23.07.2008, 14.01.2010 and 20.05.2010 are result of concealment of facts resulting in miscarriage of justice, therefore, this writ petition be allowed and the impugned orders be set aside. He has relied upon the law laid down in case reported as Mst. Rehmat Bibi v. Shahzad Waheed and another (PLD 1993 SC 69), Mst. Naeema Begum v. Lqbal All Khan and others (1999 CLC 1432) and Ashfaque Ahmad and 8 others v. Nadeem Ahmad and 3 others (PLD 2006 Lahore 643).
3. On the other hand, learned counsel for respondent No. 5 submitted that she is the actual owner of the disputed property and was dispossessed through Bailiff of the Court in compliance of the ejectment order passed on 31.1.2005; that the possession was snatched from respondent No. 5 on 09.3.2005 and then she filed an application under Section 12(2) of C.P.C., which was allowed and subsequently. Not only the ejectment order was set aside but also the ejectment petition was dismissed. He further submitted that no appeal was filed against the order of dismissal of the ejectment petition which has attained finality. He has emphasized that since the respondent was ejected from the disputed property on the basis of above-referred ejectment order, therefore, the order passed by the learned Rent Controller as well as by the learned Appellate Court on the application under Section 144, C.P.C. For restitution of possession are quite legal and inconsonance with the law laid down by the superior Courts. Learned counsel for respondent No. 5 has placed reliance on the law laid down in case reported as Abdul Bari v. Muhammad Rasheed Khan and 7 others (1995 SCMR 851), Mst. Imtiaz Bibi and another v. Abdul Qadir Shad and 2 others (1998 CLC 1043) and Mst Fatima Bibi v. Jan Muhammad (1991 SCMR 1031).
4. Despite repeated calls, none has put appearance on behalf of respondents No. 3, 4 and 6, as such, they are proceeded against ex parte.
5. The points raised before this Court which needs consideration are as to whether the Courts below were justified to pass the order for restitution of possession to respondent No. 5 and as to whether the possession of the petitioner cannot be disturbed being bona fide purchaser in possession of the disputed property.
6. There is no denial to the fact that respondent No. 3 filed an ejectment petition against respondent No. 4 and an ex parte ejectment order was passed. At that relevant time, respondent No. 5 was in possession of the property and she was dispossessed in compliance of the ejectment order passed by the learned Rent Controller. It is also an admitted fact that the application filed under Section 12(2) read with Section 9(13) of C.P.C. Filed by respondent No. 5 against the said ejectment order was accepted and the ejectment order was set aside vide order dated 23.7.2008.
This order dated 23.7.2008 attained finality and thereafter the ejectment petition filed by respondent No. 3 was also dismissed by the learned Rent Controller.
7. Perusal of the record also reflects that the petitioner allegedly purchased the disputed property from Muhammad Jamil, respondent No. 3 vide registered sale-deed No. 4418, dated 20.7.2006 i.e. During the pendency of the application filed by respondent No. 5 under Section 12(2) of C.P.C., as referred above. Meaning thereby, that he was inducted in this property subsequent to the dispossession of respondent No.
5. It is also an admitted fact that there are civil suits pending between the parties qua the disputed property out of which one suit has been filed by the petitioner himself. The question before this Court as well as before the learned Executing, Court and the learned lower Appellate Court have a very limited scope. The Courts below were required only, to consider as to whether respondent No. 5 was entitled for restitution of possession when the ejectment order on the basis of which she was ousted from the disputed property, was set aside by the competent Court and the said order attained finality. The case-law relied upon by the learned counsel for the petitioner has - distinguishable features and are not attracted in the present case. The referred case-law may be helpful to the petitioner during the course of civil litigation pending between the parties but not for the purpose of this application. The contention of the learned counsel for the petitioner that he was not impleaded as party during the proceedings of application under Section 12(2) of C.P.C., despite the fact that an application was made by respondent No. 5 in this regard, is also of no avail to the petitioner for two reasons. Firstly, that no notice was issued to any of the parties on the said application and that application only remained on the file as a piece of paper and secondly that the petitioner himself filed an application under Order 21, Rule 103, C.P.C. On 29.6.2010 for recalling the order dated 23.6.2008. The said application was dismissed by the learned Trial Court vide order dated 18.7.2011 in the following terms:- "The present application does not fall in the ambit of decree-holder or purchaser because the property was not sold in the execution of decree and when there was no eviction order at all. He also does not fall in the Order 21, rule 100. So, he cannot be treated as applicant under Order 21, rule 97 and Order 21, rule 100. So, the application under Order 21, rule 103 is not maintainable in the present form and the same is hereby dismissed."
8. I have no doubt in my mind that when respondent No. 5, who was in possession of the disputed property, when the ejectment order was passed, but was not impleaded as the respondent and was subsequently ejected has the legitimate right for restoration of possession when the ejectment order was set aside and ultimately ejectment petition was also dismissed. Reliance is placed upon the judgment of this Court reported as Mst. Imtiaz Bibi and another v. Abdul Qadir Shad and 2 others (1998 CLC 1043) wherein it has been held as under:- "The concept of restitution is as old as the law itself. It is automatic as it becomes operative the very moment when the order under which a party to the litigation is deprived of his possession is varied, modified or set aside for it is ordained that the Court must remedy the injury or the wrong done to a party because of order of the Court. Section 144, C.P.C. Provides the procedure therefore, while the power to order Restitution is inherent in Court."
9. The order passed by both the learned Courts below did not suffer from any illegality or jurisdictional defect. Therefore, this writ petition being devoid of any force is hereby dismissed.