MUHAMMAD NAEEM ANWAR. J.- Impugned through instant petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is the order of the learned Additional District Judge-XI, Peshawar dated 11.03.2023, whereby appeal of respondent No.1 against the order of learned Rent Controller dated 29.06.2021 was allowed and consequently, possession of the rented house in terms of section 144 of the Code of Civil Procedure, 1908 (C.P.C) was directed to be restored to her till decision of the ejectment petition.
2. Arguments heard and record perused.
3. Scrutiny of record reveals that the petitioner has filed an application u/s 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (the Ordinance of 1959) for ejectment of respondent No.1 from quarter No.1 situated at Charkhana road Peshawar alongwith recovery of outstanding rent of Rs.50,400/- w.e.f. June, 2017 @ Rs.2,000/- permonth with 10% annual increase. The application was filed on 21.06.2019 wherein respondent No.1 was proceeded exparte twice and vide judgment and decree dated 08.07.2020, the application of the petitioner was allowed by the leaned Rent Controller, with directions to respondent No.1 to hand over the vacant possession of the rented premises to petitioner within 60 days from the date of order. Respondent No.1 has moved an application for setting aside of the ex-parte judgment and decree, which was resisted by the petitioner and her application was dismissed by the learned Rent Controller vide order dated 07.12.2020, against which, respondent No.1 filed an appeal, which too was resisted by the petitioner, however, the learned Additional District Judge-XI, Peshawar allowed the appeal vide order dated 24.03.2021, resultantly, order of dismissal of application for setting aside ex-parte decree was set aside and the ex-parte judgment and decree dated 08.07.2020 was also set aside, with directions to the learned Rent Controller to decide the ejectment application in accordance with law. This order was passed on 24.03.2021, however, on 17.05.2021, an application u/s 144 C.P.C was filed by respondent No.1 for restoration of possession of the house, by contending therein that her application for setting aside of the order of learned Rent Controller dismissing her application for setting aside of ex-parte judgment and decree was allowed and now there is no decree against her, therefore, possession of the rented house may be handed over to her till final decision of the ejectment application of the present petitioner.
4. The main contention of learned counsel for the petitioner was that the possession of the rented house could not be restored to respondent/ tenant as through an amicable settlement, he has obtained the possession from her, which was later on transferred by him to one Hamid Khan s/o Gul Khan through deed dated 02.03.2017. He also hinted towards document dated 27.08.2020 that he has become the owner of the house on the basis of the aforesaid deed and now, there is a civil suit pending adjudication before the Civil Court and an application u/s 12 (2) C.P.C before the Appellate Court, however, since the order u/s 144 C.P.C is void ab-initio and against the law, hence, same requires reversal.
5. The moot question in the instant petition is regarding the validity of order of the learned Additional District Judge-XI, Peshawar dated 24.03.2021, whereby the ex-parte judgment and decree for ejectment of the respondent No.1 from the rented house was set aside and the learned Rent Controller was directed to decide the application pending adjudication against her, in accordance with law. This order was passed on 24.03.2021 and has never been assailed by the present petitioner, and the same has attained finality. On acceptance of the appeal of respondent No.1/tenant, the exparte judgment and decree was set aside, therefore, at the same moment, the application u/s 144 C.P.C could be invoked, which reads as under: "144. Application for restitution: (1) Where and in so far as a decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest , damages, compensation and mesne profits, which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1)."
The paramount consideration for the Court in the application u/s 144 C.P.C is to take care of the act that rights of none should be prejudiced and the Court while accepting the application must undo the wrong done to a party. The above reproduced section of law specifies the method, by which, the right can be enforced whereas, the object is to redress the wrong and restitute the possession to its original position. Principle of restitution is an inherent power in exercise of judicial authority so that the status quo ante is restored. The very object of section 144 C.P.C is to place the parties in same position as they occupied prior to the decree, which has been varied/reviewed by the Court of competent jurisdiction. Section 144 of Civil Procedure Code, 1908, embodies the principle that nobody shall be prejudiced by the act of the Court that the foremost duty of the Court is to take care that the act of Court does no injury to the suitor and when such injury was found by the Court on the event of variation or reversal of the decree, it is the duty of the Court to undo the wrong and reinstate the wronged party to the position to which it was entitled. The basic principle underlining the right of restitution is that the wrong done to a party by the act of the Court should be rectified, however, in order to grant restitution, the Court has to satisfy itself that:
(i) The restitution sought must be in respect of the decree or the order, which has been varied or reversed;
(ii) The party applying for restitution should be entitled to a benefit under reversing or varying decree or the order; and
(iii) The relief claimed must be consequential on the reversal or variation of the decree or the order.
6. Furthermore, once it was held by the Court that the ex-parte judgment and decree against respondent No.1/ tenant was not correct or being based upon the law and facts and the same was set aside then the respondent No.1 was legally entitled to recover the possession of the rented house in terms of section 144 C.P.C. Ref: "Mst. Sultan Bibi and 25 Others Versus Gul Baran and others" (PLD 1996 QUETTA 56), "Umatullah-Begum versus Munawar Akhtar" (PLD 1996 LAHORE 582), "Mirza Farooq Beg Versus Muhammad Kashif Kamal Siddiqui" (1987 CLC 51). In the case of "Allah Ditta and others versus Jalal Din and others" (1986 MLD 2093) it was held that after setting aside of the decree by the Supreme Court it was necessary for the Collector to restore the position, which existed before the passing of the decree and if any subsequent developments have taken place after that, they will not be affected by that order. The principle of the doctrine of restitution is that on the reversal of a decree or order of eviction, the law imposes an obligation on the party to the eviction application who received the benefit of the erroneous decree or order of eviction to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal of modification of the decree/order of eviction and necessarily carried with it the right to restitution of all that has been done under the erroneous decree/order of eviction and the Court/ Controller in making restitution is bound to restore the parties, so far as he can be restored, to the same position he was in at the time when the Controller by its erroneous action has displaced him from. It is significant to mention that when learned counsel for the petitioner was asked about the transfer of possession through amicable mode as alleged by him, he was unable either to lay his hands on any such document or to refer the same rather he simply submitted that no such record is available before this Court as same has not been annexed with the instant petition.
7. More-so, the document referred by learned counsel for the petitioner available at page No.84 of the instant petition is of the year 2017, which was much earlier even to the institution of the application for ejectment. Likewise, the fate of section 12 (2) C.P.C application and civil suit pending adjudication before the Civil Court shall be decided on the basis of the record in accordance with law but pending adjudication of both the above matters could not provide any justification to set aside the order passed by the learned Appellate Court for restitution of the possession of the rented house. It was the duty of the court to order for restoration of possession even if it has changed hands on the strength of decree and has been transferred to the person who was not party to the suit.
8. Another intriguing aspect of the matter is the strange submission of learned counsel for the petitioner that after getting the possession through the process of the Court or through amicable settlement, he has handed over it to someone else then in such an eventuality, the present petitioner has got no locus standi even to file the application rather the person to whom the possession has been transferred is, in fact, an aggrieved party, who may challenge the order on the ground that certain valuable rights have been accrued in his favour. At this juncture, the petitioner has no locus stands as no possession could be taken from him for simple reason that he is not in possession of the rented house.
9. Insofar as the contention of learned counsel for the petitioner that since both the learned Courts below in their findings were at variance and therefore the instant petition is required to be admitted for regular hearing is concerned, same is misconceived because the fate of the controversy shall be decided by the learned Rent Controller as the matter is still open for both the parties before the said forum, especially when the order of setting aside of the ex-parte proceedings was not challenged by the present petitioner. Possession of the rented house was rightly directed to be restored. Respondent No.1 shall be provided an opportunity to protect her right and the present petitioner to prove his case. The application u/s 12 (2) C.P.C or any other matter pending adjudication before the Civil Court shall also be decided in accordance with law in juxtaposition with the facts but same has got no nexus whatsoever with the instant petition.
The learned Appellate Court has rightly allowed the application of respondent No.1 by directing the restoration of possession of the rented house to her. No illegality, irregularity or jurisdictional defect could be pointed by the present petitioner in the impugned order of the learned Appellate Court, as such, this petition, being bereft of merits, is hereby dismissed in limine.