Faisal Zaman Khan, J. Through this petition orders dated 18.07.2020 and 18.09.2020 passed by respondent Nos.4 and 3, respectively, have been assailed. By virtue of the former order an application filed by the petitioner for suspension of ejectment order dated 10.01.2020 passed by respondent No.4 has been dismissed and through the latter the same has been upheld.
2. Succinctly, the facts of the case are that an ejectment petition was filed by respondent No.1 against respondent No.2, which was allowed vide order dated 10.01.2020. Feeling aggrieved of the same, petitioner filed an application for suspension of ejectment order, which was dismissed vide order dated 18.07.2020 with the observation that since the suspension is sought on the ground that ejectment order has been obtained through fraud, therefore, the remedy available to the petitioner is to file an application under Section 12(2) CPC. Feeling aggrieved, petitioner preferred an appeal, which was dismissed vide order dated 18.09.2020, hence, this petition.
3. Learned counsel for the petitioner submits that in view of Section 26 of the Punjab Rented Premises Act, 2009 (ACT) certain provisions of the Code of Civil Procedure 1908 (CPC) have been made applicable to the Act and by virtue of Section 34 of the Act no other provisions of CPC are applicable, therefore, an application under Section 12(2) CPC could not be filed before the Rent Tribunal in view of bar contained in section 26 read with section 34 of the Act, thus, the application for suspension of the ejectment order should have been decided on merits. Places reliance on a judgment reported as Shehzad Ali Shah v. Special Judge Rent, Lahore and others (PLD 2020 Lahore 354).
4. Despite service and representation none has entered appearance on behalf of respondent Nos.1 and 2, therefore, they are proceeded against ex parte.
5. Arguments heard. Record perused.
6. The moot point which requires determination by this Court is as to which provisions of CPC are applicable to the proceedings initiated under the Act keeping in view the ouster provided in section 26 read with section 34 of the Act.
7. In the above backdrop, a perusal of Section 26 of the Act reveals that for certain purposes the learned Rent Tribunal can exercise powers of a civil court. For better appreciation of this provision, the same is reproduced as under:- "26. Rent Tribunal to exercise powers of Civil Court.--
(1) A Rent Tribunal may exercise the powers of a Civil Court to enforce the attendance of a person, compel the production of evidence inspect a premises or issue commission for examination of a witness or local inspection.
(2) A proceeding before a Rent Tribunal shall be deemed to be judicial proceedings and the Rent Tribunal shall be deemed to be a Civil Court within the meaning of sections 193 and 228 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and sections 476 and 480 of the Code of Criminal Procedure, 1898 (Act V of 1898).
(3) A Rent Tribunal may pass an interlocutory order at any stage of the proceedings before the final order.
In the above backdrop, reading of section 34 of the Act would further reveal that with the exception of the provisions of CPC mentioned in section 26 of the Act there is a clear ouster of applicability of the provisions of Qanun-e-Shahadat Order 1984 and CPC to the Act. For facility of reference section 34 of the Act is reproduced as under:- "34. Provisions of Qanun-e-Shahadat Order and Code of Civil Procedure not to apply.--- Save as otherwise expressly provided, under this Act, the provisions of Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984), and the Code of Civil Procedure, 1908 (Act V of 1908) shall not apply to the proceedings under this Act before a Rent Tribunal, District Judge or Additional District Judge."
Keeping in view the above provisions, a perusal of section 31 of the Act would show that a Rent Tribunal will execute the orders passed under the Act as a decree of a civil court and for the said purpose the Rent Tribunal may exercise any or all of the powers of a civil court. For ready reference section 31 of the Act is reproduced as under:- "31. Execution of orders.---A Rent Tribunal shall execute an order passed under this Act by a Rent Tribunal or a District Judge or an Additional District Judge as a decree of a Civil Court and for this purpose the Rent Tribunal may exercise any or all the powers of a Civil Court."
8. While dealing with an identical proposition and upon interpreting the provisions of Sindh Rented Premises Ordinance, 1979, which are synonymous to the provisions of the Act regarding the applicability of the provision of CPC in rent proceedings, the Honourable Supreme Court of Pakistan, in a judgment reported as Mst. Fehmida Begum v. Muhammad Khalid and another (1992 SCMR 1908) has held as under:- "15. The legal position, which emerges from the above case-law, seems to be that under section 17 of the Ordinance, the jurisdiction to execute an order of ejectment passed therein was executable by the Civil Court and, therefore, the provisions of the C.P.C. relating to the filing of objections to the execution order were attracted to. However, after the substitution of section 17 in Punjab in 1969 by Punjab Ordinance No.9 of 1969, an ejectment order was to be executed by the Rent Controller as if it were decree of a Civil Court and this Court in the case of Muhammad Yasin (supra) has held that since the Controller has been conferred power to execute an order in the manner of a decree of a Civil Court, then by virtue of the ordinary rule of interpretation, all the powers necessary or enjoyed by the executing authority for effectively and completely executing a decree of a Civil Court shall be available to the Controller. It may further be observed that, as pointed out hereinabove, the original section 22 of the Ordinance did not provide that the Controller shall be competent to decide the question arising between the parties and relating to execution, discharge or satisfaction and that a suit would not be competent, but this Court in the case of Messrs Bambino Limited (supra) held that the Rent Controller was competent to have invoked the provisions of section 151 read with section 141, order 21, Rules 100 and 101, C.P.C. The above view was reiterated by this Court in the case of Mst. Kulsoom Bhai (supra). It also seems that the above cases of Haji Abdur Rashid and Muhammad Hussain Tahir (supra) proceeded before this Court on the assumption that an application under Section 12(2) C.P.C. is competent before the Rent Controller and that it can be filed even by a person who was not a party to an ejectment proceedings keeping in view the judgment of this Court in the case of Ch. Jalal Din (supra). It is, therefore, evident that if a person wishes to challenge the validity of an ejectment order on the plea of fraud or misrepresentation, he may file an application under section 12(2)
C.P.C., before the Rent Controller, whereas if a person claims restoration of possession of a property on the ground that he was in possession of his own account or on account of some person other than the judgment-debtor but was ejected fraudulently, he may file an application for restoration of the possession under Rule 101 of Order 21, C.P.C. or if he claims right or interest in or possession of immovable property under Rule 97 or Rule 100 of Order 21, C.P.C., he may file an application under Rule 103, C.P.C. before the Rent Controller."
(Emphasis supplied)
9. From the perusal of the afore-referred provisions of law and the interpretation made by the Honourable Supreme Court of Pakistan, it has surfaced that although in view of section 26 of the Act the Rent Tribunal can exercise limited powers as contemplated in CPC and by virtue of section 34 of the Act there is a bar as to the applicability of the remaining provisions of CPC etc. to the proceedings before the Rent Tribunal, yet keeping in view the import of section 31 of the Act the Rent Tribunal is invested with the powers to execute its orders passed under the Act as a civil court, therefore, in view of case of "MST. FEHMIDA BEGUM" mentioned supra the Rent Tribunal by virtue of ordinary rule of interpretation can exercise all the powers as contemplated in CPC.
10. In view of the above it is held that since the Rent Tribunal in view of section 31 of the Act can exercise/invoke the provisions of CPC and exercise the jurisdiction accordingly, thus, where a person is aggrieved of an order passed by a Tribunal under the Act on the basis of fraud he can challenge the same through an application under section 12(2) CPC and ouster as contained in sections 26 and 34 of the Act will not apply.
11. As regards the judgment referred by the learned counsel for the petitioner, since proper assistance was not rendered to the Court at that point in time by way of not referring the case of MST. FEHMIDA BEGUM (supra), therefore, the same is distinguishable and as such is not applicable.
12. Since the learned counsel for the petitioner has not been able to highlight any jurisdictional defect or procedural impropriety in the impugned orders, therefore, no ground for interference is made out.
13. In view of the above, this petition fails and the same is dismissed.