' This appeal is directed against the order dated 28-8-1980 passed by the Rent Controller Karachi in Rent Case No, 637/77 (Execution No, 2 of 1978) whereby the application filed by the appellant for restitution of possession of the shop in dispute was dismissed.
1. The brief facts of the case are that the appellant who was the tenant of the respondent in respect of the shop in question was ejected therefrom on 23-4.1978 pursuant to an ex parte order passed on 16-11-1977 by the Rent Controller on an application filed under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the said Ordinance of 1959).
' The above-mentioned ex parte order of ejectment however on an application filed subsequently by the appellant was set aside by the Rent Controller on 20-3-1979 with the observation that the notice was not duly served upon the appellant, that alleged service of notice was illegal and improper and hence the proceedings taken in the matter thereafter and the ex parte order of ejectment passed on 16-11-1977, were all illegal.
2. The appellant thereafter on 12-4-1979 moved an application under sections 144 and 151, C. P. C. In the Court of the Rent Controller, who earlier had ordered issuance of writ of ejectment in execution proceedings, for restitution of possession of the shop in dispute pending the final disposal of the case. During the pendency of this application, at the instance of the respondent the Rent Controller inspected the premises in dispute. In the inspection note, inter alia, it was observed that the shop was without any roof that it had no orders and was lying deserted. Four iron sheets were found on its floor.
' Before the application filed by the appellant for restitution could be disposed of, an application was made on 19-12-1979 by the respondent for withdrawal of the ejectment application.
3. Both the applications mentioned above were heard together. By the impugned order passed on 28-8-1980 the application of the appellant seeking restitution was dismissed for the reason that the Rent Controller being only a Tribunal to determine disputes between landlords and tenants was not competent to direct the parties not to interfere with the affairs of each other or grant damages, that the shop was no more in existence as per site inspection note and that only the Civil Court could determine if the order of ejectment was obtained by fraud and that the respondent/landlord had withdrawn the ejectment case itself and thus the proceedings could not be continued.
4. The above order has now been challenged in this appeal filed under section 21 of the Sind Rented Premises Ordinance of 1979.
5. After hearing the learned counsel fr the parties the admitted fact which emerges is that the order of ejectment dated 16-7-1977 (pursuant to which the appellant was ejected on 23-4-1978) was set aside on 20-3-1979 with the observation that no proper service was affected upon the appellant and the proceedings taken and order passed against the appellant were illegal.
In these circumstances, coupled with the fact that the Respondent had withdrawn the ejectment application filed by him against the appellant, in my opinion on the principle that no party should suffer on account of any mistake on the part of the Court, restitution of possession ought to have been 4 ordered so as to restore status quo ante and thus undo the wrong caused to the appellant.##TE# ' The conclusion reached as above finds support from the observations made in the case of Southern Commercial Corp. v Abdul Hussain (1) wherein it was held :- .Once the ex parte ejectment decree was set aside the original tenant shall have to be restored the possession of the building"
' It was further observed :- "The legal position is that since the decree was reversed the applicant was entitled to restitution of the building and in this connection the order of the Rent Controller was legal and valid."
6. Reference may here be also usefully made to the case of Mst. Sakina Bibi v. Inayatullah (2). In that case ex parte order of ejectment was obtained and possession delivered in execution proceedings. Subsequently the said ex parte order was set aside and an application under sections 144 and 151, C. P. C. Was moved for restitution of possession which was allowed by the learned Civil Judge. In the appeal preferred against the said order before the learned High Court of Lahore, it was contended that section 144, C. P. C.
(1) PLD 1976 Kar. 918 (2) Law Notes 1974 Lat. 367 was not applicable as under section 13 of the Ordinance of 1959 there is no Court of first instance for the reason that the order of ejectment was passed by the Rent Controller who was only a persona designata. While rejecting the above plea on the ground that under the Ordinance of 1959 the Rent Controller passed an order, the effect to which in execution is given by a Civil Court the objection that section 144, C. P. C. Was not attracted had no force, it was held that the said section is not exhaustive of the power of restitution or power of restoration of status quo ante and that whenever the provisions of this section were not applicable the jurisdiction to make restitution is exercised under the inherent powers of the Court. The learned High Court further observed that apart from the provisions of section 144, C. P. C. The jurisdiction to order restitution could be exercised not only by a Court but also by a personsa designata entrusted with duties and powers normally performed and exercised by a Court of law.
7. Reference may also be made to the case of Mehrab Din. Ghulam Muhammad(1) wherein while determining the jurisdiction to order restitution of possession in a case where the order of the Rent Controller was set aside, the learned Judge (Mr. Justice Muhammad Akram, as he then was) observed :- "The doctrine of the restitution is based upon the cardinal principle of law that "the act of the Court should not be allowed to work injury" on the suitors. It contemplates a case where property had been received through Court under the order of an authority which was later on wholly or partially reversed or varied. In such a case the law imposes an obligation on a party who had received the benefit of the erroneous order to make restitution to the other party for what he had lost, and it is the duty of the Court to enforce that obligation in the interest of justice between the parties."
8. The learned counsel for the respondent then submitted that the Ordinance of 1959 was repealed by Sind Rented Premises Ordinance, 1979 which came into force with effect from 21-11-1979, and that under section 20 thereof the Rent Controller and the appellate authority have been conferred powers of a Civil Court under the Code of Civil Procedure, 1928 in respect of only the following matters, namely :- "(a) summoning and enforcing the attendance of any person and examining him on oath ;
(b) compelling production or discovery of documents ;
(c) inspecting the site ; and
(d) Issuing commission for examination of witness or documents."
' It was accordingly argued that powers directing restitution conferred upon the Courts under section 144, C. P. C. Cannot be exercised by the Rent Controller or even this Court as the appellate authority. I however, fiind that the above argument advanced by the learned counsel, is devoid of any force.
In the first place we have already seen above that the consequence of setting aside of the (ex parte) order of ejectment is that the parties should be placed in the same position in which they were before the application for ejectment was filed and that power to order restitution could be exercised apart from section 144, C. P. C. Even by the Rent Controller/persona designat Moreover, it is obvious that though under section 20 specific powers of their Rent Controller and the appellate authority have been enumerated but the
(1) PLD 1965 Lab. 374 same is neither exhaustive on the question of procedure to be adopted no intended to cover all the questions of procedure which may arise during th proceedings under the said Ordinance before the Rent Controller or the appellate Court.
' Secondly, the proceedings (from the commencement of the case, passing of ex parte order, moving application for execution and the ejectment of the appellant) took place under and pursuant to the provisions of Ordinance of 1959. The ex parte order of ejectment was set aside and the application for restitution was pending before the same Court/Rent Controller under whose order the appellant had been ejected, during the period the Ordinance of 1959 was in force. The repeal of said Ordinance, therefore, even otherwise would not affect the pending application for restitution, which in these circumstances, has to be decided as if the said Ordinance, 1959 had not repealed in view of the provisions of section 6 of the General Clauses Act.
' It would be relevant here to refer to the case of Fakhri Printing Press v. Rubab Bai and others (C. P.
No, K. 15 of 1981) wherein while considering the effect of repeal of Ordinance of 1959 by Sind Rented Premises Ordinance of 1979 on the pending proceedings for execution of ejectment order passed under section 13 came up for consideration. The honourable Supreme Court while rejecting leave to appeal observed :- "it should not be lost sight of that the petition for ejectment related to an order passed under the West Pakistan Urban Rent Restriction Ordinance and not an order under the Sind Rented Premises Ordinance, 1979 which came into force on the 21st of November, 1979 when the same was notified in the official Gazette. Section 4 (C & E) of the West Pakistan General Clauses Act was fully applicable to this case and the Sind Rented Premises Ordinance, 1979, did not affect any right acquired under the repealed enactment nor did it affect any legal proceedings or remedy in respect of such right and such proceeding or remedy could be instituted as if the repealed Act had not been passed.
The landlords having acquired the right to eject the petitioner from the premises in dispute under the West Pakistan Urban Rent Restriction Ordinance, 1959 remedy by way of a legal proceeding under section 17 of the Act was not affected by the repeal. In other words the order of the Rent Controller against the present petitioner had to be executed by a Civil Court as a decree notwithstanding the repeal of the West Pakistan Rent Restriction Ordinance in its relation to Sind."
10. Lastly, the learned counsel for the respondent submitted that the shop now does not exist and as such no order for restitution could be made. This argument is without any substance as according to the inspection note of the Rent Controller the shop is lying deserted though its tin roof and the doors are missing. It may also be mentioned here that a commissioner was appointed by this Court who as directed after site inspection on 26-2-1968 reported that the shop is presently top less, without any roof or doors but the marks of their existence are still available and that the three side walls of the shop still exist. In the circumstances it cannot be argued that the shop does not exist or that there is any valid reason to refuse to order restitution and allow the respondent to take advantage of his own fraud. The landlord cannot resist the prayer for restoration of possession of the shop to the appellant as the ejectment case itself has since then been withdrawn by him.
' No other point has been urged,
11. The upshot of the above discussion is that this appeal succeeds and the order passed by the lower Court is set aside and the respondent is directed to restore the possession of the shop in dispute to the appellant forthwith: ' The respondent shall pay Rs, 500 as costs of this appeal to the appellant.