1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 arises out of the order of Rent Controller, dated 7-4-1985 passed in Execution No,2 of 1979 on the objection of appellant/ intervenor. In order to dispose of this appeal it is necessary to state here the background of present litigation.
2. ' The dispute relates to a shop on the ground floor in the building known as Ghadialy Building, situated on Plot No,23, SB-1, Preedy Street, facing Empress Market, Saddar, Karachi. This building was originally owned by a person named as D.B. Ghadialy. The said D.B. Ghadialy instituted ejectment proceedings against all the tenants including the predecessor-in-title of respondents 1 to 4 (Muhammad Siddique) for his eviction from the shop on the ground of reconstruction of the premises (I will hereinafter refer the said Muhammad Siddique as the "deceased tenant" for the sake of convenience). That application was granted by the Rent Controller and in pursuance of the order of Rent Controller the deceased tenant was evicted. A new building was constructed on the same site by the owner namely, D.B. Ghadialy. After reconstruction of the premises it appears that the landlord instead of inducting back the deceased tenant let out the same to one Ghulam Haider. This led to the filing of Miscellaneous Rent Application No,2813 of 1967 under section 13 (5-B) of Ordinance VI of 1959 by the deceased tenant. The application filed by the deceased tenant was contested both by the previous owner D.B. Ghadialy as well as the sitting tenant Ghulam Haider.
3. The Rent Controller by order, dated 28-11-1969 allowed the application of deceased tenant and directed the landlord to put back the deceased tenant in possession of a shop premises on the ground floor. Both D.B. Ghadialy and Ghulam Haider filed two separate First Appeals.'Nos.676 of 1969 and 6 of 1970 'against the order of Rent Controller, dated 28-11-1969. Both the appeals were dismissed by the first appellate authority on 4-5-1970. Against the order of first appellate authority both Ghulam Haider and D.B. Ghadialy preferred two separate second appeals to this Court being Second Appeal Nos.196 of 1970 and 490 of 1970. The second appeal preferred by Ghulam Haider was dismissed by a learned Single Judge of this Court by order, dated 26-10-1970. However, while dismissing the appeal of Ghulam Haider the learned Judge simultaneously granted a certificate under clause (10) of the Letter Patents, whereupon Ghulam Haider preferred L.P.A. No,208 of 1970.
4. This L.P.A. Preferred by Ghulam Haider was heard alongwith Second Rent Appeal No,490 of .1970 filed by the landlord D.B. Ghadialy and both the L.P.A. And the Second Appeals were disposed of by a Division Bench of this Court by judgment, dated 17-10-1978 which is reported in PLD 1979 Kar.
167. The order of the L.P.A. Bench, dated 17-10-1978 shows that the direction of the Rent Controller for restoration of possession of the shop in the newly-constructed building to the legal representations of deceased tenant was maintained except with the modification that the area of the disputed shop was reduced equal to the area which was originally in possession of the deceased tenant in the old building and rent was fixed at Rs,204 per month. Against the order of L.P.A. Bench, referred to above, only Ghulam Haider filed a petition for leave to appeal before the Supreme Court but the same was dismissed and the judgment is reported in 1979 SCM R 396. After the decision of the Supreme Court the legal representations of deceased tenant applied for execution of the order of the Rent Controller, dated 28-11-1969 but the Rent Controller dismissed the application as not maintainable. Against the order of Rent Controller dismissing the execution application the legal representations of deceased tenant preferred First Rent Appeal No,123 of 1982 in this Court which was allowed by a learned Judge by order, dated 8-4-1984 and the case was remanded back oto the Rent Controller with direction to issue the writ of possession in accordance with the order of the Rent. Controller as modified by the L.P.A. Bench. Against the order, dated 8-4-1984 in First Rent Appeal No,123 of 1982 the present appellant preferred Petition No,206 of 1984 for, leave to appeal to the Supreme Court in which stay was also granted but later on it was withdrawn as in the meantime the present appellant having purchased the shop from D.B. Ghpdialy had instituted a rent case against Ghulam Haider and respondents Nos.1 to 4 on ground of personal and bona fide requirement and succeeded in obtaining vacant possession of the disputed shop. In the meantime as a result of order passed in First Rent Appeal No,123 of 1982 the case was taken up by the Rent Controller where the present appellant resisted the execution application on the plea that she is holding the property in her own right and, therefore, she cannot be evicted from the premises. The Rent Controller by order, dated 7-4-1984, however, rejected the contention of appellant and against this order the above appeal is filed. Mr. Sabihuddin Ahmed, learned counsel for the appellant contends that the Rent Controller could not issue possession warrant in execution proceedings on the basis of the order, dated 28-11-1969 as in the meantime the possession of the property was acquired by the appellant on the basis of title and was holding the same in her own right as an owner. It is further contended by the learned counsel that on account of acquiring possession of property on the basis of order of ejectment passed in Rent Case No,1429 of 1982 the right of possession, if any, enjoyed by respondents 1 to 4 heirs of deceased tenant stood extinguished..
5. I have heard the learned counsel for the appellant as well as learned counsel appearing for respondents Nos.1 to 4 and respondent No,5 (a) at length. From the facts stated above it is absolutely clear that the right asserted by respondents 1 to 4 and 5 (a) under section 13 (5-B) of Ordinance VI of 1959 could not be defeated on the basis of ejectment order passed by Rent Controller in Rent Case No,1429 of 1982 against Ghulam Haider on the application of appellant. It is not disputed that on the date order of ejectment was passed in Rent Case No,1429 of 1982 the respondents 1 to 4 were not in possession of the premises and as such no effective order could have been passed against them. The Rent Controller also clarified this possession in the eviction order passed in Rent Case No,1429 of 1982 that it was only against Ghulam Haider who was found to be in possession of premises as tenant. In these circumstances the contention of the learned counsel for the appellant that the appellant is entitled to retain possession of the premises obtained by her in pursuance of the execution of order passed in Rent Case Nb.1429 of 1982 cannot be sustained.
6. ' However, it is clarified that by reason of putting back respondents Nos.1 to 4 and 5 (a) in possession of premises the appellant will not be debarred from seeking any relief under the Ordinance, 1979, if it is available to her. I, therefore, find no substance in this appeal which is' accordingly dismissed but there will be no order as to costs. It may be mentioned here that respondent No,5 (a) who is also an heir of deceased tenant will be entitled to get back possession of disputed shop alongwith other heirs and question of alleged gift in favour of her husband by the deceased tenant may be agitated in appropriate proceedings.
7. After I dictated the judgment Mr. Sabihuddin Ahmed stated that he would like to file appeal before the Supreme Court against this order. I, therefore, direct that the execution will not take place for period of one month from today.