' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, has given rise to some interesting arguments, but when the statutory provisions with which it is concerend are examined the decision does not present great difficulty.
2. The property bearing C.S. No, B-815, situated at Nishtar Road, Sukkur, which consisted of two portions, viz. Commercial premises on the ground floor and a residential room on the upper floor, was an evacuee property which was included in compensation pool and was transferred to respondent No,3 under the provisions of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958. The respondent No, 3 served the appellant with the requisite notice sent through Mr. A.H.
Zaidi, Advocate calling upon it to pay the rent for the upper portion, viz. Premises in dispute. The appellant replied to this notice through Mr. Kadir Bux Memon, Advocate on 1-10-1961, thereby disputing the title of respondent No,3. Necessary documents of title were issued in favour of respondent No,3, who sold the said property to his wife Mst. Aasia Begum through a registered sale-deed dated 24-7-1967. Since Bhagwandas Shewdhari, respondent No,4 was found in actual possession of the disputed premises he was served with a notice by Mst. Aasia Begum calling upon him to pay the rent. The refusal of respondent No,4 to pay or tender rent to Mst. Aasia Begum led the parties into this litigation. On 11-5-1973 Mst. Aasia Begum filed an application for eviction against respondent No,4 in the Court of Rent Controller, Sukkur, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed). During the pendency of ejectment application Mst. Aasia Begum died and consequently the respondents Nos. 1 to 3 were brought on record being her legal heirs. The respondent No,4 disputed the relationship of landlord and tenant between the parties by pleading that the disputed premises was part and parcel of Ski Ram Tikana Building (temple) Sukkur and the respondents Nos.1 to 3 had no concern with it. The learned Rent Controller vide order dated 15-11-1975 decided the preliminary issue against respondent No,4 and in consequence thereof directed his eviction from the said premises. This order was challneged by respondent No,4 in C.M.A. No, 110 of 1975, which was heard by III-Additional District Judge, Sukkur who vide order dated 30-10-1976, remanded the case to Rent Controller to decide the preliminary issue afresh. On remand the Rent Controlles decided the repliminary issue against respondents Nos. 1 to 3 and dismissed the ejectment application for want of jurisdiction vide order dated 27-10-1979. The respondents Nos. 1 to 3 went in appeal against this order (RA.No,49 of 1979), which was heard by learned District Judge, Sukkur who allowed it and directed the eviction of respondent No,4 vide order dated 10-6-1980. Being aggrieved the respondent No,4 challenged this order in II-Appeal No, 39 of 1980, before this Court which was dismissed on 1-2-1983. The respondent No,4 then filed a petition for leave to appeal (C.P.S.LA. No, K-140 of 1983) before the Supreme Court, but without success and his petition was dismissed on 17-5-1983. The respondents Nos. 1 to 3 filed execution application before the Rent Controller, Sukkur, but that too was resisted by respondent No,4. On 30-9-1985 the Rent Controller disallowed the application on the ground that the order of ejectment was not executable. The respondents Nos. 1 to 3 challenged this order before this Court in F.RA. No, 84 of 1985, which was set aside on 18-2-1986. The respondent No,4 again filed an appeal before the Supreme Court which too was dismissed on 13-5-1990.
3. During the pendency of the above litigation "Hindu Panchiat Sukkur", the appellant, filed an application on 3-11-1983, under Order 21, rules 97 and 103, C.P.C., wherein it was inter alia submitted that respondent No,4 was neither the owner of the disputed premises nor he had any status of tenant and consequently the order of eviction passed against him could not be executed against it. This application was resisted by respondents Nos. 1 to 3. Mehfooz Ahmed, respondent No,2 filed his counter-affidavit on 9-1-1984. Paras. Nos. 2, 4 and 8 of this affidavit are relevant and for the sake of convenience are reproduced below.
"2. That para 1 of the application is false and baseless, hence denied. This Hindu Panchayat has been registered on 8-11-1980. It has no locus standi to file this application. The matter of ejectment to the knowledge of all persons concerned and including the present applicant, has been decided upto the level of Hon'ble Supreme Court and now to create hindrance and to thwart the orders of the Hon'ble High Court and Supreme Court, this baseless and false application knowing it to be false, has been filed with mala fide intention. Calling the upper portion as `Mandie is also false and baseless. To the knowledge of all concerned, the matter has been decided by the Chairman, Evacuee Trust under order dated 19-3-1978, even otherwise the opponent being a Shewadhari/Mohant was properly sued and no question of this application arises."
"4. That para 3 of the application is false and baseless, hence denied. This objection was never taken throughout the proceedings. Anyhow, without prejudice, if the room was in possession of `Mandir, it was properly represented through the opponent and the applicant has no legal status and no locus standi. The matter has been decided upto the level of Hon'ble Supreme Court and this Hon'ble Court has absolutely no jurisdiction.
8. That I am advised to say that the application is barred by acquiescence and estoppel."
4. This application was heard and disposed of by learned 1st Senior Civil Judge and Rent Controller, Sukkur who dismissed it on 30-6-1990. The writ of possession in respect of the demised premises was also issued. This order is the subject-matter of the present appeal.
5. I have heard Mr. Lachmandas, learned counsel for appellant and Mr. Abdul Naeem, learned counsel for the respondents Nos. 1 to 3 who is on notice. I have also gone through the record of this case carefully.
6. It is contended on behalf of the appellant that the executing Court was not competent to dismiss the application without making an investigaton which is clear from the language of rule 103 of Order 21, C.P.C. Which provides as follows:-- "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."
' Reliance is placed upon the following judgments:-
(i) Mst. Khurshid Begum and others v. Mr. Ghulam Kubra and others 1982 SCM R 90.
(ii) Messrs Bambino Ltd. v. Messrs Selmor International Ltd. And another PLD 1983 SC 155.
(iii) Muhammad v. Hussain and 2 others 1986 CLC 2600.
(iv) Kabiruddin v. Syed Sibtain Ahmed 1987 CLC 604.
(v) Chowdhry Ashraf Abid v. Mst. Shabnam Naseem 1987 CLC 1979.
(vi) Ghulam Qadir (through L.Rs) v. Haji Munir Ahmed and others 1989 MLD 2503.
7. Out of the above judgments the cases at S.Nos. (i) and (ii) are not attracted to the facts of the present case. The case at S.No, (ii) only lays down that a Rent Controller is free to follow equitable principles contained in the Code of Civil Procedure Code, 1908. The ratio of the remaining authorities is that the questions relating to title, right or interest in, or possession of the immovable property would be adjudicated upon under Order 21, rule 103, C.P.C. After framing issues and affording the parties an opportunity to adduce evidence, if any.
8. Mr. Abdul Naeem, learned counsel for the respondents Nos. 1 to 3 has, however, contended that the remedy to appellant, if any, was available under subsection (2) of section 12, C.P.C. Which was not availed of and consequently the appellant could not challenge the validity of the order of ejectment passed against respondent No,4. Subsection (2) of section 12, C.P.C. Which was added by Ordinance X of 1980, provides as follows:-- "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
9. This newly-added provision of law was examined by the Supreme Court in the case of Messrs Arokey Ltd. And another v. Munir Ahmed Mughal and 3 others reported in PLD 1982 SC 204 and it was held:-- "Subsection (2) of section 12, C.P.C., referred to above was inserted by Ordinance X of 1980 with effect from 26-3-1980. Before the amendment of section 12 by the inserton of the said subsection, an order passed by a Court was not liable to be challenged collaterally before the same Court on the ground of fraud, misrepresentation or want of jurisdiction. A separate suit was maintainable for having such order declared a nullity on these grounds. However, the effect of the amended provisions is that a separate suit is not competent to seek relief on the grounds covered by subsection (2) of section 12. Clearly, therefore, the provisions have the effect of encroaching upon and curtailing the remedy before the general Courts of jurisdiction in the relevant field. It is a well- established principle of interpretation of statutes which create new and extraordinary remedies, or remedies unknown to common law, to be strictly construed. Same rule is applied for construing statutes which have the effect of ousting the jurisdiction of ordinary Courts. Applying these principles of interpretation, it appears to us that the special remedy provided by section 12 (2), C.P.C. Will be available only in respect of cases where the ground of attack is based on fraud, misrepresentation or want of jurisdiction."
10. The cases reported as M.G. Gazdar (deceased) through his 4 legal heirs v. Manzoor Hussain 1985 CLC 2438, Shabbir Hussain v. Mst. Anwar Sultan through 3 legal heirs, 1986 CLC 903 and Munir Ahmed Memon v. Mst. Mumtaz Begum 1990 M LD 1689, are also relevant, wherein it was held that provisions of section 12(2), C.P.C. Are also applicable to cases decided under the Sindh Rented Premises Ordinance, 1979.
11. On a careful examination of both the above provisions of law it will be clear that the matters to be dealt with by Order 21, rule 103, C.P.C. And section 12(2), C.P.C. Are entirely different and the provisions are neither mutually exclusive nor one overlaps or destroys the other. Both these remedies are available under different circumstances and the resort to one does not operate as a bar in derogation to other.
12. Rule 103 of Order 21, C.P.C. Was substituted by Ordinance XII of 1972, and now all questions arising as to title, right or interest in, or possession of immovable property under rule 97 or rule 100 are to be decided by an executing Court and not by a separate suit. The appellant has raised question about the possession of the disputed premises and consequently an application under Order 21, rule 103, C.P.C. Was maintainable and the executing Court was competent to investigate if it was a case of bona fide dispute.
13. How far, then, has the appellant been able to fulfil the requirements of the law? I think, is the primary question, and until that question is answered in its favour it appears to me of little use to emphasise any imperfection in the impugned order on the strength of the dictum laid down in the case of Muhammad v. Hussain and 2 others, reported in 1986 CLC 2600.
14. Quite admittedly the appellant was served with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, after the disputed premises was transferred to respondent No,
3. This section in fact regulated the statutory tenancy. It appears that at some subsequent stage it was found that actual occupant of the disputed premises was respondent No,4, and he was served with the requisite notice who all along disputed the tenancy and claimed the premises as part and parcel of a Hindu temple. Para No,3 of the written statement filed by respondent No,4 is clear on this point and for the sake of convenience is reproduced below:-- "As regards para 3 of the application, it is submitted that the opponent is in possession of upper residential portion, which is part and parcel of Siru Ram Temple Building, Sukkur."
' The record also shows that respondent No, 4 has consumed his entire energy in asserting his rights over the disputed premises. The order of the Chairman, Evacuee Trust Property Board, Lahore in Case No, PB/SCS/317/77 filed by respondent No,4 against respondent No,3 and others is on record, which makes the entire position clear. It starts in the following words:- "This is a petition filed by Mahant Bhagwan Dass s/o Wadho Mal of Sukkur against the Settlement Department and Mr. Manzoor Ahmed under sections 8 and 10 of Act XIII of 1975 regarding Property No, B815, Sukkur stating that the said property as a temple was' an evacuee trust property, and that the entire upper portion of the property is part and parcel of the temple having its stairs from inside the temple. Further, it was said that the petitioner is in physical possession of the upper portion since before partition when he and prior to him his Guru used to say prayers and were respected and loved by the Hindu community, it was requested that this upper portion had been transferred by the Settlement Department to Mr. Manzoor Ahmed and being illegal it may be cancelled.
Alongwith the petition he has produced a plan of the property, an extract from the Property Register Card of both Nos. 813 and 815, a copy of NCS form filed by Mr. Manzoor Ahmed, copy of the P.T.O. No, 10879, dated 6-12-1959, copy of P.T.D. No, 000191 and copy of a sale-deed alongwith copy of Enquiry form of the Custodian's office."
' The operative part of this order dated 19-3-1978 is self-explanatory and reads as follows: "Since the order of the Custodian has been passed by hearing the alleged contenders, of being the keepers of the property and has declared the property as simple evacuee property, the Chairman, District Committee has acted on that order and the Settlement Department disposed of the same, I cannot sit on judgment over the Deputy Custodian's order. The property as declared evacuee shall so stand."
15. The respondent No, 4 when examined before Rent Controller, Sukkur on 5-11-1978 testified as follows:-- "Ganesh Ram was the Secretary of Hindu Panchiat but he had no concern with the temple except that he was a worshipper like other Hindus. Hindu Panchiat has no concern with the temple. I had instituted proceedings in the Custodian Department in my name in respect of C.S. No, 815. I do not know if the case of mine was dismissed by the Custodian Department. I do not know if any one on my behalf had filed a petition before Chairman, Evacuee Trust Board, Lahore, but I had given a power of attorney for that purpose. I had appeared before the Chairman of the Board at Hyderabad alongwith my counsel Mr. Om Parkash. I do not know whether my petition was dismissed by the Chairman, Evacuee Trust Board. I do not remember if I had made an application to the Deputy Commissioner, Sukkur in respect of the upper portion of C.S. No, 815. The upper portion of C.S. No, 815 is in my possession."
16. With this documentary evidence available on record the claim of the Hindu Panchiat Sukkur about possession of the disptued premises appears to be frivolous and was an attempt to defeat the order of learned District Judge which has been upheld upto the Supreme Court of Pakistan.
17. The circumstances attending to this case again indicate that the appellant was in the knowledge of these proceedings and a religious colour was given to a dispute over a property which was never a part of temple and was declared as evacuee by all concerned forums. The application out of which this appeal has arisen was filed on 3-11-183. The FRA No, 84 of 1985 was decided by this Court on 18-2-1986 within the knowledge of the appellant but still no effort was made to be joined in this appeal and other proceedings which followed the appeal. In such a situation the application was liable to be dismissed summarily as it was barred I by acquiescence.
Again nothing is bona fide which is not done in good faith. Since the application under Order 21, rule 103, C.P.C. Was made in collusion with respondent No, 4 and was frivolous in nature, it was not necessary for the Rent Controller to have framed issues and allowed the parties to lead evidence.
18. Having regard to the above factual and legal position, I am of the clear view that the present appeal is wholly misconceived and is dismissed in limine.