AJMAL MIAN, J.---This is an appeal with the leave of this Court against the order dated 9-2-1986 passed by a learned Single Judge of the High Curt of Sindh in F.R.A.No.288 of 1980 upon respondent's C.M.A. No.1124 of 1983, directing the, Nazir of the High Court to go to the spot and see that the possession of the premises in question was restored to the respondent with the police aid, if necessary. Leave was granted to examine the casein view of the peculiar facts and circumstances of the case in order to do complete justice between the parties.
The facts to be noted are that the respondent filed. Suit No.1345 of 1976 inter alia for declaration that he was the owner of half portion of Quarter No.6/441, Liaquatabad, Karachi, hereinafter referred to as the quarter, on the basis of the lease deed executed by the K.M.C. In his favour on 1-4-1976, whereas the appellant filed Suit No.1995 of 1976 claiming the ownership of the entire quarter on the basis of a gift executed in her favour by her uncle Muhammad Noor Khan, the original allottee of the quarter. It was also pleaded that the respondent was her tenant of the half portion of the quarter for the last ten years and that he fraudulently by making mis-representation obtained the lease of the said half portion of the quarter in his favour from the K.M.C. It seems that while the above suits were pending, the appellant filed Rent Application No.3675 of 1976 for ejectment against the respondent on the ground of default. It also seems that the appellant obtained the possession of half portion of the quarter from the respondent on the basis of an ex parte ejectment order passed in the aforesaid rent application. However, the above ex parte ejectment order was set aside by a learned Single Judge of the High Court of Sindh by consent of the parties in Second Appeal No.292 of 1978 and the case was remanded to the Rent Controller. After the above remand order, the respondent filed an application under section 144, C.P.C. Before the Rent Controller for the restitution of the aforesaid half portion of the quarter, which application was allowed by the learned Rent Controller by his order dated 12-12-1979, whereby the appellant was directed to put the respondent in possession of the said half portion of the quarter. Before the above order could be implemented by the Rent Controller, the learned Rent Controller by his order dated 28-2-1980 dismissed the appellant's aforesaid Rent Application No.3675 of 1976 on the ground that there was no relationship of landlady and tenant between the appellant and the respondent. Against the above order, the appellant filed F.R.A. No.228 of 1980 which was dismissed by a learned Single Judge through the judgment dated 19-4-1982 with the specific order that possession of the half portion of the quarter be restored to the respondent. Thereupon, the appellant filed C.P.No.117-K of 1982 in this Court against the above judgment of the High Court dated 19-4-1982, but the same was declined with the following observation:- ......We would however like to clarify that none of the decisions in the proceedings out of which this petition has arisen are meant to affect the rights of the parties as established in the suit filed by any parties regarding title to the property in question."
3. It appears that after the dismissal of the appellant's aforesaid rent application by the Rent Controller, the above two suits were disposed of by a judgment dated 31-5-1981 whereby the appellant's suit was decreed with costs but the respondent's suit was dismissed with costs. The respondent's Civil Appeals Nos.251 of 1981 and 252 of 1981 riled by him against the above judgments and decrees, were dismissed by the learned VIth Additional District Judge, Karachi, by a judgment dated 12-4-1984. Against the above judgments/decrees, two civil revisions were filed, which have been converted into second appeals and which are pending for adjudication in the High Court.
4. It seems that in the aforesaid F.R.A. No.288 of 1980, the respondent filed aforesaid C.M.A., No.1124 of 1983 with the prayer that he be restored the possession of the half portion of the quarter in terms of the judgment dated 19-4-1982 passed by the learned Single Judge in chambers in the above F.R.A., whereas appellant filed C.MA. No.1931 of 1985 with the prayer that the respondent's aforesaid C.M.A.
No.1124 of 1983 be heard alongwith his second appeals Nos.5 and 6 of 1985. Thereupon, the learned Single Judge in chambers allowed the respondent's above application, but dismissed the appellant's aforesaid application on the ground that there was no nexus between above C.MA.No.1124 of 1983 and the above second appeals. Against the above order, the appellant filed a petition for leave, which was granted to consider the above question.
5. In support of the above appeal, Mr. Azhar Ali Siddiqui, learned A.S.C, appearing for the appellant, has raised two-fold contentions, fir 1 that since the respondent had obtained the lease of half portion of the quarter from the K.M.C, by practising fraud as has been held by the two Courts in the aforesaid suits and the first appeals arising there from, this Court should not allow the respondent to have premium for his above fraud by maintaining the order of restitution of half portion of the quarter, and secondly, that the learned Judge in chambers under section 22 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, had no jurisdiction to order the restitution, as it was for the Rent Controller to have executed his own order.
6. Adverting to the above first contention of Mr. Azhar Ali Siddiqui, it may be observed that admitted position is that the appellant had obtained possession of half portion of the quarter from the respondent in execution of an ex parte ejectment order, obtained by him in his aforesaid rent application. It is also an admitted position that by consent of the parties, the above ex parte ejectment order was set aside by a learned Single Judge of the High Court of Sindh in a second appeal and the case was remanded. In this view of the matter, it was open to the respondent to have filed an application under section 144, C.P.C., which provides as follows:- "144. Application for restitution.---(1) Where and in so far as a decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the, parties in the position which they` would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits which are properly consequential on such variation reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1).--- The respondent in fact, as stated hereinabove, filed such an application, whereupon the Rent Controller passed an order on 12-12-1979 directing the appellant to restore the possession of the said half portion of the quarter to the respondent. The above order became final by virtue of dismissal of the aforesaid C.P.No.117-K of 1982 on 15-5-1982 by this Court in which inter alia the final order of dismissing the aforesaid rent application was maintained. In the absence of any legally sustainable ground, the respondent was entitled to the restitution in terms of section 144, C.P.C. As a result of setting aside of the ex parte ejectment order. The question, whether respondent had obtained the lease of the half portion of the quarter from the K.M.C. In 1976 by practising fraud, is not relevant for the purpose of deciding the respondent's above application for restitution. We would not like to express ourselves on merits of the above contention as the matter is still sub- judice in the two second appeals pending in the High Court.
Mr. Azhar Ali Siddiqui is unable to bring to our notice any legally sustainable ground on which respondent's application under section 144, C.P.C. Could have been denied in the present case after the ejectment order pursuant to which the possession was taken, was set aside by the High Court and that too with the consent of the appellant, which fact demonstrates that the ex parte ejectment order was not warranted by law.
7. As regards Mr. Azhar Ali Siddiqui's above second contention that the learned Judge in chambers under section 22 of the Ordinance had no jurisdiction to order the restitution, as it was for the Rent Controller to have executed his own order, it may be pointed out that the High Court, while dismissing F.R.A. No.223 of 1980 on 19-4-1982, directed restoration of the possession of half portion of the quarter to the respondent. The above judgment was assailed by the appellant through the aforesaid petition for leave to appeal in this Court, which was declined and, therefore, it was open to the High Court to have ensured the implementation of, its own judgment. However, Mr. Azhar Ali Siddiqui has referred to section 22 of the Ordinance in order to urge that after the substitution of section 22 by Sindh Rented Premises (Amendment) Act, 1986 (Act I of 1986), only the Rent Controller is competent to execute a final order passed under the Ordinance. The above amendment has been gazetted in the Gazette of Sindh, Extraordinary, Part IV of 12-5-1986, whereas the learned Judge in chambers passed the impugned order on 9-2-1986 i.e. Prior to the above amendment. It may be pertinent to reproduce original section 22 and the substituted section 22 of the Ordinance, which reads as follows:- Original section 22 of the Ordinance "22. Execution of orders. An order made by the Controller or the appellate authority shall be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority."
Substituted section 22 of the Ordinance "22. Execution of Orders.-Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parties arid relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit.
Explanation.-In the execution proceedings relating to the order of ejectment, no payment, compromise or agreement shall be valid unless such payment, compromise or agreement is made before or with the permission of the authority passing the order."
A persual of the above-quoted original and substituted section 22 of the Ordinance indicates that under the original section, even the appellate authority had the power to execute the order.
8. Even otherwise, the above controversy is not germane to the point in issue as the order passed by the Rent Controller was an order under section 144 C.P.C. For restitution and not an order of ejectment under the Ordinance. The upshot of the above discussion is that the above appeal has no merits and, therefore, it is dismissed with costs.
However, we may observe that any observation contained herein will not prejudice the parties in any way in the above pending second appeal before the High Court and/or in any other legal proceedings which any of the parties may initiate in accordance with law.