' MOHSIN AKHTAR KAYANI, J.---Through this writ petition, the petitioner has assailed the order dated 21.09.2016 passed by learned Additional District Judge West, Islamabad whereby the learned Additional District Judge West, Islamabad has dismissed the revision petition of the petitioner on the ground that no revision is maintainable.
2. Learned Counsel for the petitioner contends that respondent No,2 Asim Mushtaq Mughal, the owner of Shop No, 03, Block 3-F, Sagheer Market, Islamabad filed eviction petition against respondent No, 3, who was tenant of the above said shop on the ground of default as well as on personal bona fide need. Respondent No, 2 has recorded his statement vide order dated 07.02.2015 and in pursuant to the said statement, the eviction petition was disposed of.
3. Both the landlord and the tenant have filed the execution petition and notice has been issued by the learned Executing Court on 09.01.2016 when Process Server of the learned Rent Controller visited the shop of the petitioner and the petitioner then came to about the proceedings pending before Rent Controller. Petitioner feeling aggrieved by the order passed by the learned Rent Controller has filed an application under section 12(2), C.P.C. Before the learned Rent Controller that petitioner is paying the rent of the suit premises to respondent No, 2 as possession of the demised shop has been handed over to the petitioner with the consent of both the respondents and respondents have no authority to give any statement before learned Rent Controller while denying the rights of the petitioner. The petition under section 12(2), C.P.C. Was dismissed by the learned Rent Controller after thorough probe and inquiry vide order dated 16.09.2016, therefore, the petitioner being aggrieved by the said order filed the petition before the learned Additional District Judge, Islamabad but the learned Additional District Judge vide impugned order dated 21.09.2016 has observed that remedy of revision can only be exercised if it is provided in Special Statute whereas under Islamabad Rent Restriction Ordinance, 2001, no such remedy is available.
4. Learned counsel for the petitioner further contends that after filing of petition under section 12(2), C.P.C., the matter can only be regulated in terms of Civil Procedure Code, 1908, the said concept has been acknowledged by the learned Rent Controller who has framed the issues and after recording of evidence in application under section 12(2), C.P.C. Decided the petition vide order dated 16.09.2016 and dismissed the petition under section 12(2), C.P.C., learned counsel for the petitioner further contends that any order passed under section 12(2), C.P.C. Can be assailed in revision as there is no remedy of appeal provided under the law whereas the learned Additional District Judge while passing the impugned judgment has committed error and exercised his jurisdiction without application of his judicial mind. Learned counsel for the petitioner put his reliance upon PLJ 2011 Lahore 745, 2004 YLR 1066, 1992 SCMR 1908, 1992 SCMR 917, 2013 CLC 411 and 2014 MLD 109.
5. Conversely, learned counsel for the respondents/landlord states that he has already received the possession of the suit shop in execution proceedings and at present the instant writ petition is not competent as the entire matter has been settled and the decree passed by the learned Rent Controller has already been executed. He further contends that the question of maintainability of appeal or revision against order passed in application under section 12(2), C.P.C. Can be adjudicated in terms of law settled in Civil Procedure Code, 1908 but the instant proceedings are arising out under Islamabad Rent Restriction Ordinance, 2001 which only provides a remedy for appeal to the tenant or the landlord as the case may be in terms of Section 21 of IRRO, 2001 if a relation between landlord and tenant exists on record otherwise Rent Controller has no jurisdiction; he further contends that present petitioner is not the tenant nor he was acknowledged as tenant anywhere in the proceedings before the learned Rent Controller.
6. Arguments heard, record perused.
7. From the perusal of record it has been revealed that the learned Rent Controller West, Islamabad has allowed the eviction petition vide order dated 12.01.2015 which was challenged by the present petitioner through application under section 12(2), C.P.C. For setting aside of decree on the ground of misrepresentation and fraud.
8. The Learned Rent Controller after receiving the application under section 12(2), C.P.C. Has framed three issues whereby the principal issue No, 1 is whether order dated 07.02.2015 is based on fraud and misrepresentation and is liable to be set-aside. The onus of the said issue was upon the applicant to prove his own grounds on which he has filed the instant application.
9. The Learned Rent Controller after recording of complete evidence of the parties has dismissed the application under section 12(2), C.P.C. On the basis of findings of issue No,
01. The petitioner has assailed the said order before the learned Additional District Judge West, Islamabad in appeal, however, the said appeal was dismissed by the learned Additional District Judge, West, Islamabad vide impugned order dated 21.09.2016 on the ground that Islamabad Rent Restriction Ordinance, 2001 is a Special Law wherein no provision for filing of revision petition is provided and it is settled law that the appeal and revision are the creation of statute.
10. From the perusal of the impugned order it has been observed that the learned Appellate Court while passing the impugned order has ignored the basic question as to whether any tribunal or court which has passed the final order can re-visit the order on the basis of fraud and misrepresentation. In order to settle the said proposition one has to go through the portion of remedy which is provided under Civil Procedure Code, 1908 and it is very much settled principle that order passed under section 12(2), C.P.C. Is not an appealable order in terms of Order XLIII Rule 1, C.P.C. Read with Section 104, C.P.C., therefore, the only remedy left under the Civil Procedure Code is filing of civil revision in terms of Section 115, C.P.C. And the same is applicable in the instant case, however, order passed by the learned Additional District Judge West, Islamabad is not maintainable on the ground that if the learned Rent Controller has entertained the application under section 12(2), C.P.C. It means the learned Rent Controller is exercising the jurisdiction A in terms of Civil Procedure Code, 1908 although it is an admitted position that there is no such remedy available in terms of Islamabad Rent Restriction Ordinance, 2001 but parties have not been precluded from filing of application under section 12(2), C.P.C. In order to prove the question of fraud and misrepresentation. Remedy for third party under such situation lies under Section 12(2), C.P.C. For recall or review of the order based on fraud or to file separate suit but he could only pursue that remedy which he initiated first or earlier in point of time. Similarly, the Hon'ble Supreme Court of Pakistan has also held that a person aggrieved by any order passed under Rent Restriction law can avail the remedy in terms of section 12(2), C.P.C. And there are two basic judgments passed by the Apex Court, which are "1992 SCMR 917 titled as Tan veer Jamshed and another v.
Raja Ghulam Haider" wherein it was held that:- "Order of ejectment allegedly based on fraud---Remedy for third party---Two options open-- Stranger to ejectment proceedings/third party had two remedies open to him; he could apply to Rent Controller under S.12(2), C.P. C. For recall or review of the order based on fraud or file a separate suit; but he could pursue only the remedy which he had initiated first or earlier in point of time, for having done so, his right to the other remedy would stand forfeited in order to avoid conflict of opinion in two forums---Third party having filed suit which was filed earlier in time, his subsequent application filed before Rent Controller under S.12(2), C.P.C. Was liable to be dismissed".
' Similarly, in 1992 SCMR 1908 titled as Mst. Fehmida Begum v. Muhammad Khalid and another it was held that:- ' ----S.12(2)---Sindh Rented Premises Ordinance (XVII of 1979), S. 15---Application under S.12(2), Civil Procedure Code, 1908, before Rent Controller---Competency---Rent Controller as a Tribunal of limited jurisdiction, could invoke equitable principles of Civil Procedure Code, 1908---Fraud vitiates proceeding of a Court or Tribunal---Rent Controller thus would have power under Sindh Rented Premises Ordinance to set aside any order which had been secured by practicing fraud or misrepresentation upon it.
(1 Civil Procedure Code (V of 1908)--- ' ----Ss.9 & 12(2)---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Ejectment order obtained by practising fraud or misrepresentation upon Rent Controller---Aggrieved person would have two remedies open to him; he could either go to special forum viz. Rent Controller with application to recall or review its order, or file a separate suit---Once such person had acted to invoke either of the two remedies, he would, on general principle to avoid a conflict of decisions, ultimately before higher appellate forums, be deemed to have given up and forfeited his right to the other remedy unless order passed by hierarchy of forums under Sindh Rented Premises Ordinance, 1979 had left scope for approaching Civil Court.
11. In view of these case studies, I am of the view that petitioner has rightly filed the application under section 12(2), C.P.C. On his own grounds and the learned Additional District Judge West, Islamabad has not considered the remedy of revision, although there is a settled proposition that if appeal is not maintainable then the Appellate Court can convert the remedy into revision and in the present case, the learned Additional District Judge West, Islamabad has not applied both of these remedies to the petitioner, hence committed an illegality which is not protected under any law. Reliance is placed upon 2004 YLR 1066 "Asghar Ali Xhan v. Mst. Feroza Begum and others", PLJ 2011 [Lahore] 745; "Mst. Naureen Bibi v. Shamas-ul-Haq, and others" and 2014 MLD 109 "Muhammad Ashraf v. Kashif Iqbal through Mst. Fakhar-un-Nisa and another" whereby it has been held that no appeal lies against order passed under section 12(2), C.P.C., the only remedy available to any aggrieved party is to file revision under section 115, C.P.C. The same principle is applicable in all cases where petition under section 12(2), C.P.C. Has been arising out of proceedings under rent restriction law or any other special law where there is no concept of filing of application under section 12(2), C.P.C. As it is inherent power of every Tribunal or the Court to set-aside their own orders if the order has been obtained through fraud.
12. In view of above situation, instant writ petition is allowed, the impugned order dated 21.09.2016 passed by learned Additional District Judge West, Islamabad is hereby set-aside although it has been disclosed before this Court that possession of suit shop has already been taken over by the bailiff of the court in execution of the decree and the possession was handed over to the respondents (landlord) but even then the illegality committed by the learned Additional District Judge has to be eliminated on the legal principles, therefore, the instant case has been remanded back to the District and Sessions Judge West, Islamabad to transfer the same to any other Court except the court of Ms. Abida Sajjad, learned Additional District Judge West, Islamabad. The Court which shall seized with the matter is directed to decide the same within the period of one month of receipt of copy of this judgment.