The appellant above named, being aggrieved by order dated 7 November. 1977 of the President Summary Military Court "G", Karachi,by which he was ordered to hand over vacant possession of house No. C-2, SR-9/23, Serai Quarters; Faiz Muhammad Fatehally Road, Karachi, to the respondent by December, 1977, has proffered this appeal, on promulgation of Sind OrdinanceI of 1980 under section 2(2) of the said Ordinance, on the following facts and grounds;----
2. The appellant is the tenant of the respondent in respect of Godown premises, being tenement No. G-2, Plot No. SR-9/23, Faiz Muhammad Fatehally Road, Serai Quarters, Karachi, at a monthly rent of Rs.
35. The abovesaid tenement was previously an evacuee trust property and on transfer thereof to the respondent by the Settlement Department, the appellant became his statutory tenant in respect thereof.
3. That there has been prolonged litigation between the appellant and the respondent, with regard to the said premises and the respondent from the very commencement of its transfer has been harassing the appellant in one way or the other according to appellant. The respondent in the first instance filed an ejectment application, being Rent Case No. 1627 of 1967 in the Court of Rent Controller and Vth Civil Judge First Class, Karachi, but the said ejectment application was withdrawn by him on 3-9-1969. Thereafter, the respondent again started avoiding to receive the rent of the premises from the appellant, whereupon the appellant had to file Misc. Rent Case No. 3601 of 1975, seeking permission for deposit of the monthly rents and the appellant had been depositing the monthly rents regularly in Court.'
4. That the abovesaid premises is a godown, which is being used as such by the appellant for the last more than 30 years. The abovesaid premises are in a very bad state of repairs, as theth respondent never repaired the same and even the property tax and other K. M. C. Taxes etc. In respect thereof were being paid by the appellant, according to him.
5. That all of a sudden the appellant received a notice from the President Summary Military Court "G", Karachi requiring him to appear before him on 25-10-1977, in connection with a petition filed by the respondent under M. L. O.
20. The appellant was never supplied with a copy of any such petition.
The appellant appeared before the said Court on 25-10-1977 and submitted his objections in writing before him.
6. That in the objections filed by the appellant before the Summary Military Court he had specifically pleaded inter alia, that the respondent did not belong to the class of persons entitled under M. L. O. 20 to make a petition to the Summary Military Court for redress of his grievances and that the respondent was neither a retired Government servant nor a widow, but was still working as Exchange Control Officer, in the Foreign Exchange Branch of the State Bank of Pakistan, at Karachi and further that the respondent did not require the premises, being godown premises for his own use or for the use of his dependents as a residence.
7. That on 25-1.0-1977, the matter before the President Summary Military Court `G', Karachi was adjourned to 29-10-1977 and thereafter to 7-11-1977, as would appear from the orders passed by the said Court and appearing on the' abovesaid notice. However, on 7-11-1977, the appellant was served with a copy of the decision passed by the said Summary Military Court requiring the appellant to hand over vacant possession of the premises in question to the respondent, by 15th December, 1977.
8. That against the said orders dated 7-11-1977, passed by the Summary Military Court, the appellant filed a Revision Application dated 12-11-1977 under clause (8) of M. h. O. 20, before Martial Law Administrator ,Zone "C", Karachi. The said Revision Application remained pending and- the appellant was never communicated any decision having been taken on the said Revision Application.
9. That against the said order dated 7th November, 1977, passed by the President Summary Military Court "G", Karachi, the appellant filed , Constitutional Petition No. D-566 of 1978, which was admitted to regular hearing and is still pending. In the said petition, by orders dated 10-4-1978 it was ordered that the respondent should not transfer or hand over possession of the disputed premises to any other person.
10. That on account of promulgation of Sind Ordinance I of 1980, the appellant has filed the above appeal, against the impugned order of Summary Military Court, Karacbi, on the grounds mentioned in the memo of appeal.
11. The first contention, that has been raised by the learned counsel for the appellant before me was that the respondent did not come within the category of class of persons entitled to move a petition under M. L. O. 20 and as such the Summary Military Court in question wrongly assumed the jurisdiction and consequently the impugned order dated 7th November, 1977 of the Summary Military Court is without lawful authority and without jurisdiction and as such liable to be set aside by this Court. In. Support of this contention, learned counsel drew my attention to the provisions of M. L. O. 20 specially clause (2) thereof, which reads as under :----
(2) A dispute, as is referred to them by Martial Law Administrator, under the Sind Urban Rent Restriction Ordinance, 59 between the tenant and landlord of a building situated in Karachi and Hyderabad in the following cases shall be decided by the Summary Military Courts especially empowered in this behalf :---
(a) Where the landlord is a retired Government servant and requires the building for his own use or the use of his dependents.
(b) Where the landlord is a widow and requires the building for her own use.
(c) Where a tenant has unauthorisedly occupied or sublet the building for any purpose other than residential.
(d) Where the landlord uses any means to harass the tenant with a view to secure ejectment or enhancement of rent.
(e) Where a person has unauthorisedly occupied or sublet a building owned by an autonomous or semi-autonomous body.
(f) Where the agreement between the landlord and the tenant has already terminated.
12. The learned counsel for the appellant pointed out, that respondent on the day when he filed proceedings before the Summary Military Court; was neither retired Government servant as envisaged by clause 2 (a) of M. L. O. 20 nor he was a person to which clause 2(b) of M. L. O. 20 applied. He further pointed out that admittedly clauses (c), (d), (e) and (f) were not applicable to the respondent's case. In view of this, learned counsel submitted, that the provisions of M.. L. O. 20 were not at all applicable to the proceedings, which were initiated by the respondent before the Summary Military Court in question. Therefore the learned counsel submitted, that the assumption of the jurisdiction by the Summary Military Court in question was without jurisdiction and consequently the impugned order dated 7th November,.1977, was passed by the said Summary Military Court without lawful authority and as such on this ground alone the said order is liable to be set aside. Learned counsel further submitted that no copy of ejectment application filed by the respondent was supplied to the appellant nor he was given an adequate and reasonable opportunity to defend the said case. Learned counsel for the respondent, on the other hand, submitted that the impugned order dated 7th November, 1977 passed by the Summary Military Court was legal and in accordance with the provisions of M. L. O. 20.
13. I have carefully considered the above submissions of the learned counsel for the parties and in view of the fact, that the assertions made by the learned counsel for the appellant, that the respondent was not retired Government servant at the time when he moved ejectment application in question before the Summary Military Court, which has not been denied by the learned counsel for the respondent, and in view of the fact, that other provisions of clause (2) of M L. O. 20 admittedly were not applicable to the ejectment application filed by the respondent, before the said Summary Military Court, the jurisdiction assumed by the said Summary Military Court under M.
L. O. 20 was not at all justified and as such, in my opinion, the impugned order dated 7th November, 1977 was passed without lawful authority by the said Summary Military Court and consequently on this ground alone the said order cannot be maintained.
14. The contention of the learned counsel for the respondent that the above appeal is not maintainable, as appellant was not ejected in persuance of impugned order, in my opinion, has no force at all. In this appeal, the jurisdiction of the Summary Military Court to act under M. L. O. 20 has been challenged and on this basis, the impugned order has been attacked. The second contention that has been raised by the learned counsel for the appellant before me was, that in case it is held that the impugned order dated 7th November, 1977 was, passed without jurisdiction, and is set aside, then, the appellant is entitled to restoration of possession under the provisions of section 144, C. P. C., as according to the learned counsel, the appellant was ejected from the premises in question, on the basis of the impugned order. Learned counsel for the respondent, on the other hand submitted and drew my attention to the notice dated 27th March, 1978, which was addressed on behalf of the appellant, by his Advocate to the respondent, according to which, it is alleged, that the respondent illegally and forcibly took possession of the premises in question by breaking open its lock, in the absence of the appellant. In view of this notice sent on behalf of the appellant, the learned counsel for the respondent submitted, it is obvious, that appellant was not ejected on his own saying, in the execution of the impugned order and as such the provisions of section 144, C. P.
C. Are not at all applicable to appellant's case for restoration of possession. To view of contradiction in the statements and the stand of the parties regarding ejectment of the appellant from the premises in question, this question would require recording of evidence, before the fact in question can be determined, whether the appellant was ejected in pursuance of the impugned order or not. It is not possible for me in this appeal to take the necessary evidence. Even the provisions of section 144, C. P. C. Show, that on reversal of the judgment of the original Court, the Court of first instance, shall on the application of any party entitle to any benefit by way of restitution or otherwise could be moved. Therefore, I am not inclined to consider the prayer of the appellant for restoration of possession in this appeal. However, appellant will be at liberty to move the Court of the first instance, which in the circumstances of the present case, after disbandonment of Summary Military Court constituted under M. L. O. 25, will be the Court of Rent Controller, in whose jurisdiction the property in question is situated, for such relief by an application as provided under section 144, C. P. C., if he is so advised.
15. Therefore, in view of my above conclusions. I allow the above appeal and set aside the impugned order dated 7th November, 1977 of the Summary Military Court "G", Karachi, being without lawful authority and without jurisdiction. However, in the circumstances and the facts of the above appeal, I would pass no order as to costs.