ABDUL RASOOL MEMON, J.---This is second round of litigation between the parties on same subject- matter. The first round had gone upto Hon'ble Supreme Court in which the Applicants (hereunder will be referred as Applicants/Petitioners) lost their case along with their review filed against the order of Hon'ble Supreme Court. In this subsequent round Applicants/Petitioners have filed an application under section 12(2), C.P.C. against the short order dated 14.3.2013 and detailed order dated 20.3.2013 passed by this Court in C.P. No.S-1094/2010 thereby Rent Application No.1/2009 filed by Respondents was allowed by setting aside concurrent findings of Courts below. Besides this, petitioners have also filed C.P. No.S-127/2016 against the order dated 22.1.2016 passed by learned Vth Additional District Judge, Shikarpur in Rent Execution Appeal No.01/2016, whereby the order of executing Court dated 11.01.2016 allowing execution application filed on the basis of short and detailed orders passed by this Court as mentioned above, was maintained. Since both, application under section 12(2), C.P.C. and Constitutional Petition arise out of the one and same orders of this Court, therefore, they have been heard together and are being decided through this common order.
2. For deciding the matters under consideration, it is necessary to mention here the brief account of the dispute between the parties. Respondents Jurio Mal and Umesh filed rent application, cited above, against the Applicants/Petitioners for ejectment from demised premises being C.S. No.12/558, situated near Jugal Pyari Than/Haveli, Bhattai Bazar, Shikarpur on the ground of personal bonafide need and default committed in payment of rent. After full-fledged trial of the matter, rent application was dismissed by the Rent Controller, Shikarpur vide his order dated 13.11.2009 and the appeal preferred by respondents against said order also met the same fate vide order dated 18.2.2010. Respondents also filed a C.P. No.S-1094/2010 before this Court, wherein they succeeded to prove default committed by applicants/ petitioners in payment of rent. Consequently said petition was allowed by my Hon'ble brother Judge Mr. Muhammad Shafi Siddiqui vide impugned short and detailed orders. The matter did not end there but the applicants/petitioners went ahead and filed a review petition against the impugned short and detailed orders, which was dismissed on 21.1.2015.
The petitioners then filed Civil Petition No.99-K of 2015 against the said order of this Court but the same was dismissed by the Honourable Supreme Court vide order dated 31.3.2015, not only that but the review petition No.27-K of 2015 in Civil Petition No.99-K of 2015 also met the same fate and in this way first round was completed.
3.Second round of litigation started between the parties, from the date when Execution Application No.4/2014 was allowed by the IInd Rent Controller, Shikarpur vide his order dated 11.1.2016. In the meanwhile, Petitioners had moved transfer application against the Rent Controller with obvious object to prolong the matter, which was dismissed. Petitioners also challenged the order of executing Court in Rent Execution Appeal No. 01/2016 and simultaneously filed the application under section 12(2), C.P.C. before this Court against the order allowing rent application. Before the instant application could ripe up for hearing, the appellate Court dismissed the Rent Execution Appeal being not maintainable under section 22 of Sindh Rented Premises Ordinance, 1979 vide order dated 22.1.2016, which has been challenged in C.P. No.S-127/2016, hence both the matters have been taken up together for consideration and decision.
4.First, I take up the application under section 12(2), C.P.C., whereby impugned orders passed by this Court have been challenged which gave rise to filing of Execution Application. The application under section 12(2), C.P.C. is consisting of 52 paragraphs, wherein applicants/ petitioners have made attempt on confusing whole the matter by mixing up the factual merits of the case, though the matter has already been decided on merits upto Hon'ble Supreme Court of Pakistan, as such, merits of the case cannot be reopened at this stage. However, only two paragraphs are relevant through which applicants/petitioners allege fraud and misrepresentation of facts by respondents for obtaining impugned orders, one is that the respondents got fraudulently mutated the record of city survey of property in question in their names instead of Lal-Jo-Mandar, for which the property in question was purchased and F.C. Suit No.156/2013 (New F.C. Suit No.172/2014) filed by Jurio Mal against respondent Nanik Ram and others for cancellation of registered sale deed No.747, dated 12.7.2006 and its entry in City Survey Record on the basis whereof respondents are claiming ownership, is pending in the Court of 1st Senior Civil Judge, Shikarpur, as such, the ownership between parties is disputed, the second ground is that Constitutional Petition was not maintainable in rent matter after concurrent findings of Rent Controller and appellate Court. In support of instant applications, learned Counsel for the applicants/petitioners mainly argued the above mentioned grounds and placed reliance on the following case-laws: 1.Shakeel Ahmed v. Muhammad Tariq Farogh (2010 SCMR 1925)
2.Suleman Mala v. Muhammad Ramzan (2003 YLR 226); 3.All Muzaffar v. Muhammad All Abedi (2006 CLC 379); 4.Secretary Ministry of Religions Affairs and Minorities v. Abdul Majid (1993 SCMR 1171); 5.Sarfraz v. Muhammad Aslam Khan (2001 SCMR 1062); 6.Zahur Textile Mills Ltd. v. Federation of Pakistan (PLD 1999 SC 880).
5. The learned Counsel for respondent has challenged the maintainability of application under section 12(2), C.P.C. so also Constitutional Petition filed by the Applicants/Petitioners and placed reliance on the following case-laws: 1.Muhammad Asif Khan v. Sheikh Israr (2006 SCMR 1872); 2.Anwar Khurshid v. Rakhshanda Tahira (2001 MLD 1687); 3.Yasmeen Khan v. Abdul Qadir (2006 SCMR 1501); 4.Allah Din v. Habib (PLD 1982 SC 465); 5.Muhammad Luqman Ahmad v. Munir Ahmad (1997 CLC 651); 6.Hafeezullah v. Suhail Mahmood (PLD 2001 Karachi 165); 7.Pakistan State Oil Company Ltd. Karachi v. Pirjee Muhammad Naqi (2001 SCMR 1140); 8.Habib Khan v. Haroon-ur-Rashid (1989 CLC 783); 9.Allies Book Corporation v. Sultan Ahmad (2006 SCMR 152); 10.Safeer Travels (Pvt.) Ltd. V. Muhammad Khalid Shaft (PLD 2007 SC 504); 11.Mohibullah and Co. v. Bahauddin (1990 SCMR 1070); 6.I have gone through the case-laws referred by the learned applicants' Counsel. There is no cavil with the propositions laid down in these case-laws, but it is well settled principle of law that each case is to be decided on its own peculiar facts and merits. It is admitted fact on record that F. C.'
Suit No.156/2013 challenging the sale deed of respondents was filed by applicant Julio Mal after the rent application was allowed by this Court vide impugned orders, as such, it will have no concern or effect to the proceedings of the case filed and decided before its institution. Even otherwise, it is settled principle that mere filing and pendency of civil suit by tenant against landlord would not debar his ejectment till decision of suit. In this context reliance is placed on the case of Barkat Masih v. Manzoor Ahmad [NLR 2004 Civil 702 (SC)], wherein it is held that: "It is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences."
7.So far ground of maintainability of C.P. No.1094/2010 is concerned, the contentions raised by learned applicants' Counsel relates to pure law point, which could not be challenged under section 12(2), C.P.C. as it has no relevancy with the alleged fraud and on law point Civil Appeal No.99-K of 2015 and Review Petition No.27-K of 2015 filed therein by respondents have already been dismissed by the Honourable Supreme Court, as such, through instant application this Court cannot dig and sit over its orders which have attained finality upto the Honourable Supreme Court of Pakistan, therefore, for the reasons discussed above the application under section 12(2), C.P.C. on the face of it is not maintainable and does not require framing of any issue.
8.So far the C.P. No.S-127/2016 challenging the order of appellate Court dismissing Rent Execution Appeal is concerned, under section 22 of the Sindh Rent Premises Ordinance, Rent Controller has been authorized to determine all questions arising between the parties and relating to discharge or satisfaction of ejectment order but could not assume the powers of civil Court to enter into question of title raised by objector in respect of premises in question. The petitioners raised objections on execution application before executing Court, that a civil suit seeking cancellation of proprietary right of respondents was pending. Mere filing of civil suit does not automatically impose bar or stay on execution proceedings in rent cases, as if any question relating to proprietary right and cancellation of sale deed could only be decided by the civil Court and the party succeeded in getting relief from civil Court will have legal right to get his right enforced according to law. In the case in hand the question of relationship and default committed in payment of rent was decided on merits upto Hon'ble Supreme Court of Pakistan and had attained finality, in such circumstances, the executing Court rightly overruled the objections raised by the Applicants/ Petitioners in Execution Application. It has also been rightly held by the appellate Court that in the above circumstances no appeal lies against the order passed by executing Court under section 22 of the Sindh Rented Premises Ordinance. Learned Counsel for the Petitioners has failed to point out any illegality or irregularity in the order dated 22.1.2016 passed by the appellate Court, which is passed in accordance with law. The case law relied upon by the learned Counsel for the Applicants/ Petitioners has no relevant application to the facts and circumstances of this case, thus is not helpful to the Applicants/Petitioners.
9. For the reasons discussed above, the application under section 12(2), C.P.C. and C.P. No.S- 127/2016 filed by Applicants/ Petitioners merit no consideration and are dismissed accordingly.