Sultan Tanvir Ahmad, J:- Through this judgment, I intend to decide the captioned petition as well as petition No. 26150 of 2025 involving same parties and essentially raising similar questions.
2. Azam Ali / respondent No. 2 approached the learned Special Judge Rent, Lahore (the "Rent Controller") claiming to be the tenant of Fayyaz Ahmad / petitioner in shop No. 986-A, Tufail Road, Lahore Cantt. Lahore, raising grievance that in execution of eviction order dated 02.02.2022 passed by the learned Rent Controller the bailiff of the learned Court has handed over the possession of the said shop to Fayyaz Ahmad, whereas, eviction order is with respect to the different shop bearing No. 986 against one Muhammad Sharif.
His objection-petition dated 16.04.2025, filed under Order XXI Rule 100 of the Code of Civil Procedure-1908 (the 'Code'), was allowed vide order dated 03.05.2025, directing to restore possession of Azam Ali over shop No. 986-A. Admittedly, this order was passed without holding due investigation, framing issues or recording evidence.
3. To appreciate the question raised in this petition as well as the connected petition, it is necessary to see the relevant Rules of Order XXI of the Code, which are as under:-
100. Dispossession by decree-holder or purchaser. (1) Where any person other than the judgment-debtor dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
101. Bona fide claimant to be restored to possession. When the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of property.
102. Rules not applicable to transferee 'lite pendente'. Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after institution of the suit in which the decree was passed or to the dispossession of any such person.
103. Certain orders conclusive and suit barred. All questions arising as to title, right or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite- party, or between an applicant under rule 100 and the opposite party, shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter.
(Emphasis Supplied)
Rule 103 of Order XXI of the Code was substituted through Law Reforms Ordinance-1972 and prior to this amendment the Rule was as under:-
103. Order conclusive subject to regular suit. Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive.
4. Under the substituted provision, any party not being judgment-debtor against whom order is made for restoration of possession in terms of Order XXI Rule 101 was permitted to institute a suit to establish rights to claim possession of the property. This position stood changed after the above substitution. Now all the questions arising as to title, right, interest in or possession of immovable property are required to be adjudicated by the learned executing Court. The orders passed, in this regard, become conclusive and no separate suit is permitted. The legislature has used the words "adjudicate upon" and "determined by the Court" besides restricting separate suit.
5. Any person other than judgment-debtor dispossessed from immovable property by decree- holder, can make an application under Order XXI Rule 100 of the Code, which then require investigation in terms of Order XXI Rule 100(2) of the Code. Order XXI rule 100 of the Code is to be read with Rules 101 and 103 of Order XXI of the Code. Order XXI Rule 101 of the Code provides that the Court can make the order when satisfied that the applicant was in possession on his own account or on account of some person other than judgment-debtor. The scheme of law is such that it confers full jurisdiction upon the executing Court to decide the issues involved therein. In case titled "Qasim Ali and 5 others versus Fazal and another" (1986 MLD 2997) similar conflict of rights was involved. The findings and the law laid down are fully brought out in the following paragraph:- "In my opinion the learned Rent Controller has not fairly adjudicated upon the issue. A perusal of provisions of Rule 103 of Order XXI, C.P.C. would show that all questions arising as to title, right or interest in, or possession of immovable property under Rule 100 are to be adjudicated upon by proceedings under Rule 103 and the proceedings under Rule 103, are not mere summary proceedings but are as if were trial in the suit and the provisions of the Code relating to the trial of the suit shall apply to the proceedings under these Rules 100, 101 and 103 and issues shall be framed in the proceedings. Parties shall be given opportunity to lead both documentary and oral evidence. It seems that this has not been done in this case."
6. It is pivotal to note that Order XXI Rule 101 of the Code permits restoring possession of bona fide claimants, as is also evident from the heading of the said Rule. The learned Sindh High Court in case titled "Ibrahim versus Mst. Saeeda Bano" (1984 MLD 1124) dealt with an application moved with the claim that during the pendency of ejectment against one, the property was let out to another / objector. The claim was found dishonest and it was rejected. The same view was adopted by the learned Balochistan High Court in case titled "Agha Mohammad versus Haji Maula Dad" (PLD 1971 Quetta 10):- "....Rule 100, C. P. C. entitles a person other than the judgment debtor, who has been dispossessed of immovable property, to apply for relief to the Court, and under rule 101, C. P. C., if the Court is satisfied "that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property." Rule 102, C. P. C. is not relevant, and rule 103, C. P. C. prescribes that any party aggrieved by an order under rule 98, 99 or 101, C. P. C." may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, the order shall be conclusive." Thus it is very clear that the benefit of these rules, which have to be read with Order XXI, rule 36, is available only to a person who claims possession of the property in good faith "on his own account or on account of some person other than the judgment-debtor," therefore these rules cannot be invoked by a sub-tenant, except perhaps when the landlord has agreed to the creation of the A sub-tenancy...."
(Underlining is added)
7. The learned executing Court or a Court hearing objections arising out of Rules under discussion, can also come across applications or objections, which are based on mala fide or collusiveness.
The same is to be seen with great caution and where the mala fide and collusiveness is floating on the surface of record or it is to prevent the decree-holder from reaping the benefit of the decree or when actuality is obvious and evident, guidelines can be taken from case titled "Hindu Panchayat of Sukkur versus Matloob Ahmed and others" (1991 MLD 480).
8. In the case under consideration, Fayyaz Ahmad is admittedly the owner of two shops having No. 986 and 986-A on the strength of two sale deeds bearing No. 5168 registered on 29.05.1993 and No. 5588 registered on 13.05.1991, respectively. He filed ejectment-petition against Muhammad Sharif on 24.11.2020. As per stance of Fayyaz Ahmad, he rented out property measuring 32 x 13 sq. ft. to Muhammad Sharif, after removing partition wall between two adjacent shops. The number of shop given in eviction-petition is 986, however, the rent agreement dated 18.09.1996 is with respect to shop No. 986-A, which is relied upon. The rent agreement dated 18.09.1996 was made part of record as Ex.PW/2. This agreement clearly stipulates that the property subject of rent agreement is measuring 32 x 13 sq. ft. The number of property mentioned therein is 986-A.
9. Somehow, Azam Ali who has now instituted the objection-application under Order XXI Rule 100 of the Code, previously approached the learned Rent Controller with an application dated 03.03.2021 claiming that Fayyaz Ahmad has executed a rent agreement in his favour. He claimed that he is tenant in the shop which was subject of eviction-petition and sought to be impleaded in the array of parties. This application, under Order I Rule 10 of the Code, was rejected on 29.09.2021. Then he never raised any challenge to the said order until the conclusion of trial. It is admitted position that Muhammad Sharif maintained in ejectment proceedings that he was tenant of shops subject to eviction proceeding until 13.08.2000 and then Azam Ali obtained the same shops on rent under separate arrangement. Thereafter, Muhammad Sharif stopped pursuing the proceeding and he was proceeded ex-parte. Statements of three witnesses were recorded in support of the stance of Fayyaz Ahmad / ejectment-petitioner. These statements went un-rebutted as they were never cross-examined. Finally, the ejectment-petition was allowed vide order dated 02.02.2022.
10. The disputes raised by Azam Ali in his objection filed under Order XXI Rule 100 of the Code clearly involved such questions which should not have been resolved in his favour in summary manner.
The above discussed law perhaps escaped the view of the learned Rent Controller, which resulted into passing the order dated 03.05.2025. This order without due investigation and proper exercise of jurisdiction can cause miscarriage of justice.
11. For what has been discussed above, order dated 03.05.2025 and subsequent orders passed by learned Rent Controller are set-aside. The case is remanded to the learned Rent Controller concerned for decision, after framing relevant issue(s) and permitting the parties to lead their evidence. The final decision shall be passed without being prejudiced from discussions of facts made above. Office to intimate the concerned learned Court.