1. ' This revision is directed against the impugned judgment, dated 15th March, 1983 passed by the learned VIIth Additional District Judge, Karachi, in Civil Appeal No, 323 of 1980 filed by the applicant against the impugned order, dated 29th July, 1980 passed by the learned XXIInd Civil Judge IInd Class, Karachi.
2. ' The facts which give rise to this revision are that the applicant filed Rent Case No, 2236 of 1975 for ejectment of the respondent in the Court of XXIInd Civil Judge, Second Class, Karachi, on or about 12th July, 1975. The learned XXIInd Civil Judge and Rent Controller Karachi by his order, dated 23rd December, 1975 allowed the ejectment application and directed the respondent to hand over the vacant possession of the disputed premises to the applicant, as the respondent failed to hand over the vacant possession of the premises, the applicant filed the Execution Application No, 14/1976 and the respondent was ejected from the disputed premises and the applicant was placed in possession of the case premises. The ejectment order, dated 23rd December, 1975 was ultimately set aside in Second Appeal No, 130/ 1976 by an order, dated 18th July, 1977 passed by this Court.
3. ' The respondent filed an application under section 144, Code of Civil Procedure on or about 16th November 1979 in Execution Application No, 13/1976 in the Court of the XXIInd Civil Judge, Second Class, Karachi praying therein for restoration of possession and damages of Rs, 44,897. The applicant received notice of the application on or about 10th April, 1980 and filed his objection contended therein amongst others that the application under section 144, Code of Civil Procedure was not maintainable in the Court of XXIInd Civil Judge Second Class, Karachi as the provisions of section 144, C. P. C. Provide that the application under section 144, C. P. C. Be made to the Court of first instant i. e. The Court of Rent Controller and as the Court of XXIInd Civil Judge, Second Class, Karachi, was not the Court of Rent Controller, therefore, it had no jurisdiction to order restitution. The learned XXIInd Civil Judge, overruled the objections filed by the applicant by his order, dated 29th July, 1980 and directed the respondent to put in possession of the premises. The applicant being aggrieved by order, dated 29th July, 1980 of the leaded XXIInd Civil Judge, filed Appeal No, 323 of 1980 in the Court of District Judge, Karachi, which was ultimately transferred for hearing to the Court of VIIth Additional District Judge, Karachi. The VIIth Additional District Judge, Karachi, by his judgment, dated 15th March, 1983 dismissed the appeal and confirmed the order of the XXIInd Civil Judge, Karachi. The applicant above-named being aggrieved by the judgment of the learned VIIth Additional District Judge, Karachi has preferred this revision on the grounds mentioned in the Memo. Of the revision.
4. ' Mr. Masood Shaheryar, learned counsel for the applicant has contended that the restitution application was not presented in the Court of Rent Controller as such the Court of XXIInd Civil Judge has no jurisdiction to entertain the same. On the other hand, Mr. S. Mazhar Imam, learned counsel for the respondent has contended that the ejectment order was passed by the Court of XXIInd Civil Judge Second Class and Rent Controller, Karachi, and the application for restitution was presented in the same Court. The tenant/respondent applied for restitution of the possession in the Court of XXIInd Civil Judge, Second Class, Karachi. I am of the view that the ejectment order was passed by the learned Rent Controller and a Rent Controller's Court is also a Civil Court. When he passes an ejectment order under section 13 of the Sind Urban Rent Restriction Ordinance (VI of 1959) he acts as a Rent Controller but when be executes that order he executed as a decree of a civil Court. If any authority is needed for this proposition I would refer to Muhammad Bashir v.
5. Muhammad Ramzan and 2 others (1). The Supreme Court has observed on page 261 as follows :- "The petitioner forgets that a Rent Controller is also a civil Court. When he passes an ejectment order under section 13 of the Ordinance,
(1) 1979 SCMR 260 ' he acts as a Rent Controller, but when he executes that order, he executes it as a decree of a civil Court. Consequently in his capacity as a civil Court, he can deal with the restitution of possession also. The view taken by the Courts below is unexceptionable and calls for no intereference."
6. ' The learned counsel for the applicant has relied on a decision reported in AIR 1938 Cal.
554. There is no quarrel that the principles laid down in this case during the pendency of this restitution, the Sind Urban Rent Restriction Ordinance, 1959 was repealed by new Ordinance i. e.
7. Sind Rented Premises Ordinance, 1979. The new Ordinance came into force w e.f. 21st November, 1979. This Ordinance is not applicable to the facts of this case as rights of the parties are governed by the old Ordinance. This plea of the disputed premises was taken in pursuance of ejectment order, dated 23rd December, 1975. The respondent has vested right in recovering possession from the applicant. It is submitted before me that XXIInd Civil Judge and Rent Controller passed the decree in the ejectment application is still in existence the Court did not cease to have jurisdiction in respect of the case which has given rise to this application.
8. The limited question is whether the XXIInd Civil Judge can grant restitution. An application for restitution in all cases had to be made to the Court of first instance. Application under section 144 can be made before the Court which decided the case in the first instant. In the instant case the application was made before the XXIInd Civil Judge. The meaning of the expression "the Court of first instance" as used in section 144, C.P.C. means the Court which passed the decree. I will now proceed to consider the plea that has been raised on behalf of the applicant is that while the application for restitution was pending in Court of XXIInd Civil Judge, the District Judge made arrangement under which there was re-distribution of jurisdiction. The application was pending in the Court of XXIInd Civil Judge and as such re-distribution is not applicable to the pending matters.
9. I think that the effect of the redistribution is that all future cases are to be instituted in the Court of 1st Class Civil Judge but the Second Class Judge would still have jurisdiction to entertain the application in connection with the matters arising out of cases already decided and cases pending at the time of re-distribution of the work by administrative measures. It is true that a cause of action for an application under section 144, C. P. C. May arise when the order of the Court below is reversed in appeal but nevertheless it is an application in relation to a case which a Court has already decided. According to the provisions of section 144, C. P. C. An application for restitution has to be made to the Court which decided the case. The case before me is not one where the Court has ceased to exist. Hence the Court is still in existence.
10. As to the objection that the Court of XXIInd Civil Judge acted without jurisdiction in entertaining application under section 144, C. P. C. In which the claim for damages amounting to Rs, 44,897 was beyond the pecuniary jurisdiction of the Court. I need only refer to Lakshman Bhatkar v. Babaj C Bhatkar (1) an authority that the jurisdiction continues in all matters in execution, and is not ousted by the circumstance that the value of the question in execution exceed the limits of suit within the Court's original cognizance. I find no force in this objection and the same is overruled.
(1) I L R 8 Born. 31 The orders of the Courts below are in accord with law. I do not find any force in the submission of the learned counsel for the applicant.
11. The revision application is dismissed with no costs. In the present case the applicant has obtained possession which he cannot retain after the order passed by the XXIInd Civil Judge under section 144, C. P. C. The respondent/tenant has been kept out of possession for a long time. The right of the tenant/respondent must be vindicated. The applicant/landlord shall not be allowed to render the order for restitution passed by the learned trial Court ineffective. For ends of justice I feel that the order of this revision be immediately sent to the Court of XXIInd Civil Judge and writ of possession be issued without any delay. In the circumstances of the case the parties will bear their own costs.