' AJMAL MIAN, J.--- This is an appeal with the leave of this Court against the judgment dated 8-1- 1987 passed by a learned Single Judge of the High Court of Sindh in Civil Revision Application No, 147 of 1986, filed by the appellant, dismissing the same and maintaining the judgment dated 18-1- 1986 of the learned IVth Additional District Judge, Karachi (South), whereby the judgment dated 23- 8-1986 passed by the learned Vlth Senior Civil Judge at Karachi, rejecting the plaint of the respondents' suit under Order 7, Rule 11, C.P.C. On the ground that the suit was barred by Order 21, Rules 100 and 103 C.P.C. Was set aside. Leave to appeal was granted to consider the questions, whether the suit was barred by section 12(2), C.P.C., and whether the only authority which was competent to adjudicate upon the question arising between the parties relating to execution, discharge or satisfaction was the authority mentioned in Section 22 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance.
2. The facts to be noted are that the appellant purchased from Riasat Ali Khan, through his Attorney Rao Shakir Ali Khan, house bearing No, 51 S-889 KMC No, 979 MAC-II, situated in Mahmoodabad No, 4, Karachi-44, through a sale agreement dated 3-12-1979 for a sum of Rs, 13,000. The above house was in occupation of one Khadim Hussain, hereinafter referred to as the tenant. After the above purchase, the appellant served a notice dated 11-5-1980 upon the tenant under Section 18 of the Ordinance. It is the case of the appellant that since the tenant had not paid or tendered the rent, she filed ejectment proceedings (Rent Application No, 3760 of 1980) in the Court of VIIth Senior Civil Judge and Rent Controller at Karachi against the tenant on the grounds of personal requirement and default. As nobody had appeared after the service of notice of the above rent application, the learned Rent Controller, by his order dated 26-11-1980, granted the ejectment order on both the above grounds. Pursuant to the above order, a writ of ejectment was issued which was executed on 30-4-1981. Thereupon, on 5-5-1981 the respondents filed Suit No, 2182 of 1981 for possession, mesne profits and permanent injuction, averring therein that House No,889 situated in Street No,16, Mahmoodabad No, 4, Karachi, which originally belonged to Riasat Ali s/o Deedari Khan, consisted of two units; one unit comprising two big rooms, kitchen, bath room, latrine and a small courtyard, herginafter referred to as Unit No,1, and the other unit consisting of two big rooms and three, small rooms alongwith kitchen, bathroom, lavatory and a courtyard, hereinafter referred to as Unit No, 2.
It was further averred that the respondents were the tenants in Unit No, 2 for the last several years of Riasat Ali and that they, through a sale agreement dated 5-10-1978, purchased the same for a sum of Rs, 15,000 from Riasat Ali through his duly constituted attorney, Rao Shakir Ali Khan. It was also averred that the Unit No, 1 was in occupation of the tenant. It was also asserted that the appellant, by playing fraud by concealing the material facts from the Court, obtained ex parte ejectment order and the possession on 30-4-1981 by filing the aforesaid rent application against the tenant instead of Unit No, 1 for Unit No, 2 and that the respondents' belongings were still lying outside the house pursuant to the ejectment order.
3. Upon the service of the summons of the above suit and the stay application which was also filed alongwith the suit, the appellant inter alia filed an application under Order 7, Rule 11, C.P.C. On the ground that the suit was barred under Order 21, Rules 100 and 103, C.P.C.. The above plea found favour with the learned trial Court inasmuch as by its judgment dated 23-8-1981, rejected the plaint under Order 7, Rule 11, C.P.C. For the following reasons :- "The legal position as advanced by the Advocate for the defendant is. That all such questions arising as to title and or interest in possession of immovable property between the applicant, and opposite party shall be adjudicated upon and determined by the Court and no separate suit shall lie for the determination of any such matter. Now it is well-settled law that all questions arising as above shall be adjudicated upon by the Executing Court and not by separate suit. Thus the plaintiffs' present suit under the circumstances is not maintainable in law and the plaint is rejected under Order 7, Rule 11, C.P.C. With costs of the suit."
4. Thereupon, the respondents filed Civil Appeal No, 296 of 1985 against the above judgment, which was heard by the learned IVth Additional District Judge, Karachi (South), and who, by his judgment dated 18-1-1986, allowed the appeal by holding that the suit was not barred under Order 21, Rule 103, C.P.C. Or under Section 12(2), C.P.C. The operative portion of the judgment reads as follows :- "Under. Section 17 of Urban Rent Restriction Ordinance, 1959, ejectment order passed under said Ordinance was to be executed by the Controller as if it was a decree of Civil Court. In Section 22 of Sindh Rented Premises Ordinance, 1979, it is not written in this section that the ejectment order under said Ordinance is to be executed as a decree of a Civil Court. Previously relying on section 17 of Urban Rent Restriction Ordinance, 1959, it was held in so many authorities that all provisions of C.P.C. Were applicable in executing proceedings. In section 20 of Sindh Rented Premises Ordinance, 1979, the powers which are available to the Rent Controller under the Code of Civil Procedure are given. Under those powers, the executing Court is not competent to adjudicate upon and determine the question, whether the ejectment order was obtained by fraud and concealment of facts. Therefore I am of the view that suit filed by the appellant was competent before the trial Court and was not barred under Order 21, R. 103 C.P.C. Or under Section 12(2), C.P.C. I am supported in this view by 1984 CLC 1690."
5. Against the above judgment, the appellant filed aforesaid Civil Revision Application, which was dismissed by a learned Single Judge of the High Court of Sindh through a judgment dated 8-1-1987, for the following reasons:-- "A perusal of the provisions of section 12(2) shows that they are applicable to suits. This is on account of the use of the words "judgment", "decree" in section 12(2). Similarly, Rule 103 of Order 21 shows that it refers to the decrees of the Civil Courts, executable under the Code of Civil Procedure.
Admittedly, the proceedings which were challenged by the respondents before the learned Civil Court were pending under section 22 of the Sindh Rented Premises Ordinance, 1979. The said section at the relevant time and before its amendment by Sindh Act I of 1986 read as follows:-- "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.
' Section 22, therefore, shows that execution of the orders passed by the Controller was to be governed purely by the said Ordinance of 1979 and not by Order 21 of the C.P.C. In any manner.
Such intention appears to be more clear if the language of section 22 is compared with that of section 17 of the Sindh Urban Rent Restriction Ordinance, 1959, according to which an order for eviction of a tenant is to be executed by the Controller "as if it were a decree of a Civil Court".
Consequently, a party seeking to challenge such proceedings on the ground of fraud does not appear to be precluded under section 12(2) of Rule 103 of Order 21 of the C.P.C., to file a suit in this regard since the proceedings before the Rent Controller are not covered by the language of the above said provisions of the C.P.C."
' After that, the appellant filed a petition for leave in this Court, which was granted to consider the above questions.
6. In support of the above appeal, Mirza Abdur Rashid, learned ASC appearing for the appellant, has contended that the order of the learned trial Court rejecting plaint under Order 7, Rule 11, C.P.C.
Was legal and proper and, therefore, the learned first appellate Court was not justified in reversing the same, and that the High Court failed to correct the error of law committed by the appellate Court by dismissing the revision. On the other hand, Mr. Faizanul Haq, learned A.O.R. Appearing for the respondents, has urged that fraud has been committed by the appellant in ejecting the respondents from Unit No, 2 though the appellant had purchased Unit No,1 . His further submission was that the learned first appellate Court was justified in reversing the order of the learned trial Court, which was not in consonance with law.
7. I may observe that prior to the enforcement of the Ordinance in Sindh in November, 1979, the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, was in force, which contained certain provisions which made the provisions of the C.P.C. Applicable inter alia for execution of the ejectment order, disposal of objections arising therefrom, and the disposal of the appeals. In this behalf, reference may be made to clause (h) of section 2 which defines "Controller", Explanation to subsection (4) of Section 15 and Section 17 of the late Ordinance, which read as follows:-- Clause (b) of Section 2 of the late Ordinance:- "(b) "Controller" means a judicial officer who is appointed by the Provincial Government to perform the functions of a Controller under this Ordinance."
Explanation to subsection (4) of Section 15 of the late Ordinance "Explanation.--An appeal under the subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings."
' Section 17 of the late Ordinance:- "17. Every order made under section 10 or section 13, and every order passed on appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court."
8. It may be noticed that under the late Ordinance, a judicial officer was to be appointed as a Controller, whereas under the Ordinance, there is no such requirement.
' It may further be noticed that the abovequoted Explanation to subsection (4) of Section 15 of the late Ordinance provided that an appeal under the above subsection (4) was to be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it was an order of the Controller and as an appeal from the appellate Court under section 100 of the said Code if it was from an order of the appellate authority and the provisions of Part VI of First Schedule to the said Code relating to appeals were to apply with such modifications as the context may require.
' Whereas under section 17 of the late Ordinance, every order made under section 10 or section 13 and every order passed on appeal under section 15 was to be executed by Civil Court having jurisdiction in the area as if it were a decree of that Court. It may be pointed out that by the above section, jurisdiction was conferred on the existing Civil Courts for executing inter alia the ejectment orders passed by the Rent Controller or by the appellate authority without any qualification, the effect of which was that it would be implied that the ordinary incidents of the procedure of that Court were to attach and also that any general right of appeal or review or other remedy from its decision likewise would be attracted to. In this behalf, reference may be made to the following cases :--
(i) National Telephone Company Limited (In Liquidation) and another v. His Majesty's Postmaster- General (1913 AC 546);
(ii) Secretary of State for India v. Chellikani Rama Rao and others (AIR 1916 PC 21);
(iii) Maung Ba Thaw v. Ma Pin (1961 IA. 158);
(iv) Hussain Bakhah v. Settlement Commissioner and others (PLD 1970 SC 1);
(v) In re : Sao Motu Shariat Review Petition No, 1-R of 1989 (PLD 1990 SC 865 Shariat Appellate Bench).
9. It may be stated that so long the late Ordinance remained in force with the above section 17 in the original form, there was no controversy on the question as to how the objections to the ejectment order were to be dealt with, as the provisions of section 47 and Order 21, Rules 97 to 103, C.P.C. Which provided for dealing with such a situation, were very much applicable to an execution proceeding in respect of an ejectment order. However, the above Section 17 was substituted in Punjab by the Punjab Ordinance No, 9 of 1969 as follows :- "17. Execution of orders.--Every order made under section 10, section 13, section 13-B and every order passed in appeal under section 15, shall be executed by the Controller as if it were a decree of a Civil Court."
10. It may be pointed out that the change brought about by the above substitution was that under the original Section 17 inter alia an ejectment order was to be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court, whereas after the above substitution, an ejectment order was to be executed by the Controller as if it were a decree of a Civil Court. At this juncture, it may also be pointed out that subsection (2) to Section 12, C.P.C. Was added by Ordinance No, X of 1980 in March, 1980, which provided as follows :- "(2) 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."
11. I may now revert to the provisions of the Ordinance. Section 4 provides that the Government may appoint one or more Controllers in any District and if more than one Controller is appointed in the same District, Government shall define the local limits within which each of such Controller shall exercise jurisdiction. It may again be pointed out that there is no requirement under the above Section that a judicial officer is to be appointed as a Controller, as was contemplated under Clause
(b) of Section 2 of the late Ordinance. It may also be observed that Section 20 confers power of Civil Court on the Controller and the appellate authority under the Code of Civil Procedure, 1908, in respect of only the 'matters mentioned therein, 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 witnesses or documents. It may also be observed that section 22 originally read as follows:- "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."
12. The above section was substituted by Act No,1 of 1986 in May, 1986, providing as follows:- "22. Execution of Orders.--Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separtate suit."
' It may be noticed that under the original section 22, it was not provided that all questions arising between the parties and relating to the execution, discharge or satisfaction of the order, shall be determined by the Controller and not by a separate suit. In the original section 22, it was laid down that an order made by a 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. There was also no explanation to the above section.
13. Since the suit in the present case was filed on 5-5-1981, the original section 22 of the Ordinance was applicable, which did not provide for adjudication upon the dispute arising between the parties and relating to the execution, discharge or satisfaction of the ejectment order. Keeping in view the above state of law, it is evident that at the relevant time the provisions of the C.P.C. Were not made applicable to the rent proceedings under the Ordinance except what was provided in section 20 therein and, therefore, the provisions containing in section 12(2), C.P.C. Which provides that where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, 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, was not applicable on its own force. Similarly the provision of Rules 101 and 1W of Order 21, C.P.C. Could not have been pressed into service in respect of execution of an ejectment order by their own force. It may be pointed out that Rule 101, C.P.C. Provides for the restoration of the possession of the property upon an application of a person other than the judgment-debtor, whereas Rule 103 lays down that "All question's 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.
14. I may now refer to the case-law on the subject. First I intend to take up the cases decided by this Court:
(i) Messrs Bambino Ltd. v. Messrs Sehnor International Ltd. And another (PLD 1983 SC 155); ' In which the facts were that the petitioners filed ejectment proceedings in July, 1976, against respondent No, 1, who were the tenant of Room No, 27 in the building in question, in which ex parte ejectment order was passed on 30-11-1977. The petitioners filed execution application in February, 1978, of which they got the notice served by publication through newspaper. They obtained order of police aid. However, before the above ejectment order could be executed, the petitioners received the possession of the room in which they inducted respondent No, 2 as a tenant under a lease deed and started recovering rent. However, they did not drop the above execution application when respondent No, 2 came to know that the writ of ejectment issued by the Rent Controller would be executed against them, they obtained a stay order from the Rent Controller but by the time the stay order could be served by the Court official, the process of eviction had already been completed. Being dissatisfied in execution of an order passed against the first respondent, the 'second respondent filed an application under section 151 read with section 141, C.P.C. For restitution of possession of above room. The Rent Controller dismissed the same on the ground of lack of jurisdiction in view of the provisions of section 19(2) of the Ordinance, which prohibits Rent Controller from rescinding an ejectment order. Thereupon, respondent No, 2 filed first rent appeal before the High Court, which was allowed by a learned Single Judge, who ordered that the possession be restored. Against the above order, the petitioners filed aforesaid petition for leave, in which it was urged that since the C.P.C. Was applicable to the proceedings under the Ordinance, the High Court was not justified in restoring the possession, but this Court repelled the above contention and observed as follows:-- "5. In regard to the first contention, learned counsel referred us to the provisions of section 20 of the Sindh Rented Premises Ordinance, 1979, and submitted that since specified powers relating to summoning of witnesses, compelling production of documents, inspecting the site and issuing commission for examination of witnesses, vesting in Civil Court under the Code of Civil Procedure, have been conferred upon the Controller and the appellate authority, it follows by necessary implication that the rest of the powers enjoyed by a Civil Court were not available to these authorities under the repealed enactment i.e, Urban Rent Restriction Ordinance, 1959 (vide section 16) was identical and the settled view in this Court has been that although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller by its own force, the Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure. There is no reason, therefore, to take a different view so far as the provisions of the Sindh Rented Premises Ordinance are concerned, which governed the proceedings for execution of the order in this case. Under the repealed Ordinance of 1959, the order passed by the Controller or in appeal by the appellate authority was to be executed under section 17 of the said Ordinance, by a Civil Court having jurisdiction in the area as if it were a decree of that Court. However, under section 22 of the Sindh Rented Premises Ordinance, 1979 an order passed by the Controller or the appellate authority has to be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority. Plainly, therefore, the Controller was competent to adopt any procedure deemed by him suitable for the purpose of execution of his order. Order XXI, rules 100 and 101 of the Code of Civil Procedure amply authorised an executing Court for investigating and adjudicating upon the matter of disposession from immovable property by the holder of a dercree for possession of such property of a person other than the judgment-debtor. If the Court is satisfied upon such enquiry and determination, that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, the executing Court has the jurisdiction to direct that the applicant be put into the possession of the property. It is a rule of procedure based on equitable principles and on the principle that a decree passed by Court, ordinarily binds the parties to the suit or their assignees and persons claiming through them. We, therefore, agree with the learned single Judge that the Controller and the appellate authority had the jurisdiction to pass orders for the restitution of possession in favour of respondents No,
2. As regards the second contention that no appeal lay from the order passed by the Rent Controller in execution of the order of ejectment it may be. Stated that a plain reading of section 21 of the Sindh Rented Premises Ordinance, 1979, shows that such an order not being an interim order, was appealable before the High Court. There is, therefore, no substance in this contention as well."
(ii) Ch. Jalal Din v. Mst. Asghari Begum and others (1984 SCMR 586); ' In the above case, the facts were that the petitioner had entered into an agreement with one Mst.
Amir Begum for purchase of property bearing Nos.332, 332-A and 333 situated at Shahrah-e- Sarwar, Lahore, for consideration of Rs, 75,000 out of which he paid her Rs, 40,000 in advance, but before the contract of sale could be finalised and a sale-deed, could be executed, Mst. "Amir Begum expired without leaving behind any heir. According to the petitioner, the above property escheated to the Government. He filed a suit, against the Province of .Punjab for specific performance and possession, which was decreed ex parte on 20-3-1979 and a sale-deed was executed through the Court on 15-12-1979. Respondents Nos. 1 and 2, claiming themselves to be the daughters of Mst. Amir Begum, moved an application for setting aside said decree under section 12
(2) and Order 9, Rule 13, C.P.C. On the ground that the petitioner had obtained it by practising fraud upon the Court. The reliance was placed by them on the factum that the Lahore Cantonment Authorities had on 20-9-1978 mutated the property in their names as the legal heirs and that the petitioner concealed the above facts. The above application was contested by the petitioner and inter alia it was pleaded that respondents Nos. 1 and 2, had no locus standi to file the above application as they were not parties to the suit. On the basis of pleadings of the parties, a number of issues were framed including an issue relating to the maintainability of the above application and an issue as to the locus standi of respondents Nos.1 and 2. The learned Civil Judge held that the application was competent and respondents Nos. 1 and 2 had locus standi. Against the above order, the petitioner filed a revision, which was dismissed by a learned single Judge of the Lahore High Court. Thereupon a petition for leave to appeal was filed in this Court, which was declined and wherein a passage from the judgment in the case Abdur Rauf and others v. Abdur Rahim Khan (PLD 1982 Peshawar 172) was quoted with approval, holding that the word "person" used in section 12(2), C.P.0 would include a person other than judgment-debtor or his successor-ininterest. The relevant portion of the judgment reads as follows:-- "We have perused the above judgment and find that it proceeds on its own peculiar facts and circumstances and is not relevant in the facts and cirsumstances of this case. A much fuller discussion of scope of the word "person" in section 12(2) of the C.P.C. Has been made in the case of Abdur Rauf and others v. Abdur Rahim Khan (PLD 1982 Peshawar 172). The following passage therefrom may be reproduced hereunder with advantage:- ' It is obvious that in section 12(2), C.P.C. The word 'person' and not the judgment-debtor or his successor-in-interest or the word 'party to the suit' have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word `person'. Had the intention of the law- maker been to restrict the right of filing the application under section 12(2), C.P.C. Only to the judgment-debtor or his successor-in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforsaid provision of law would be frustrated because then a person not being a judgment-debtor or his successor-in-interest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents".
' Mst. Kulsoom Bai v. Mst. Nargis Bano (1985 SCMR 1275); ' In which the facts were that the respondent was the owner of a building situated in Saddar Area, Karachi. She filed an ejectment application against one, Moosaji, as her tenant in respect of one of the tenements of the building, which was allowed by the Rent Controller on 29-11-1975 through an ex parte order. Pursuant thereof, the respondent filed execution proceedings, in which the petitioner filed objections under Order 21, Rule 99, C.P.C. Claiming that she was the lawful tenant in occupation of the premises and that the order of ejectment was obtained by fraud and misrepresentation. However, the above objections were dismissed in default on 11-7-1975, against which no appeal was filed by the respondents but she filed a fresh application which was dismissed on 12-7-1975 on the ground that similar objection petition had already been dismissed.
Then, she filed a suit for declaration and injunction in the same Court on the basis of same averments. However, the learned Civil Judge rejected the plaint of the the suit under Order 7, Rule 11, C.P.C. By an order dated 5-9-1975 on the ground that the suit was not maintainable by virtue of provisions of Order 21, Rule 103, C.P.C. And section 56 of the Specific Relief Act. Appeal and revision filed by the petitioner, were dismissed by the learned IVth Additional District Judge, Karachi, and a learned single Judge of the High Court of Sindh, respectively. Thereupon, the petitioner filed a petition for leave to appeal, which was declined with the following observations:-- "4. On a plain reading of the aforesaid provision the right claimed by the petitioner as a tenant in the execution proceedings was to be adjudicated upon and determined by the Court in such proceedings and no separate suit was competent on any such question. If, therefore, the Code of Civil Procedure was applicable manifestly the suit filed by the petitioner was barred under the aforesaid provision of law. The petitioner's remedy lay in filing appeal from the order of the Civil Court dismissing her objections as such an order is now the effect of a decree by virtue of section 96 of the Code of Civil Prodecure. Admittedly no such appeal was filed by the petitioner. As to the second contention of the learned counsel it may first be pointed out that the petitioner had conceded before the High Court that her objections were covered by Order XXI, rule 100 of the Code of Civil Procedure and the High Court proceeded on the basis of this concession. The petitioner cannot be allowed to aprobate and reprobate by raising the contention that the Code of Civil Procedure is not applicable. However, section 17 of the Urban Rent Restriction Ordinance clearly lays down that an order passed by the Rent Controller shall be executed by a Civil Court having jurisdiction in the area as it were a decree of that Court. Manifestly, therefore, the execution proceedings in respect of the order of eviction were filed before the Civil Court and since such order had the effect of a decree passed under the Code of Civil Procedure the provisions of Order XXI of the Code of Civil Procedure were attracted."
(iv) Mir Salah-ud-Din v. Qazi Zaheer-ud-Din (PLD 1988 SC 221); ' In the above case, facts were that an ejectment application was filed against Mir Ala-ud-Din, a brother of the appellant Mir Salah-ud-Din, which was allowed by the trial Court on 12-11-1975.
Appeal filed by Mir Ala-ud-Din was dismissed on 5-6-1978 by learned Additional District Judge and a Regular Second Appeal filed by him was also dismissed by the High Court on 7-4-1979, in which 15 days time was allowed to Mir Ala-ud-Din. After that, a suit was filed by Mir Salah-ud-Din claiming that he could not be ejected from the property otherwise than in due course of law, as he was in possession of it without disclosing the factum of the above litigation between the landlord and his brother Mir Ala-ud-Din. The learned trial Court, upon hearing of the application for injunction filed by the appellant along-with the above suit, dismissed the same and also rejected the plaint under Order 7, Rule 11, C.P.C. Against the above order, the appellant filed an appeal which was allowed by the learned Additional District Judge on 5-11-1979 by holding that the provisions of Order 7, Rule 11, C.P.C. Were not attracted to and the case was remanded. Against the above order, the landlord filed a civil revision, which was allowed by a learned Single Judge of the Lahore High Court by holding that the remedy, if any; available to the appellant was under Order 21, Rule 103, C.P.C. Read with Rule 100 of the above Order. The appellant filed a petition for leave to appeal against the above judgment of the Lahore High Court, which was granted. Upon hearing of the appeal, this Court explained the scope of the judgment of this Court in the case of Rehmatullah v. All Muhammad 1983 SCMR 1064, which deals with the question of filing of a suit in respect of the subject-matter of ejectment proceedings and dismissed the above appeal by observing as follows:- "the appellant, who claims also to be a person using the property in dispute when living in the same city, would not be aware of the litigation and the subject-matter thereof. A copy of the High Court's judgment dismissing the SA.O. Filed by Mir Ala-ud-Din brother of the appellant having been found in the original record has revealed that Ala-ud-Din had vahemently contested the respondent-landlord's assertion that he (Mir Ala-ud-Din) was a rent defaulter with a positive assertion that the rent was collected by the landlord from aim i.e, Alaud-Din in lump sum as and when it suited him. It appears that the judgment was announced and dictated by a learned Single Judge of the High Court on 7-4-1979 in presence of the learned counsel for Mir Ala-ud-Din. The last para of the judgment is very revealing in connection with the position taken by the appellant vis-a- vis the claim of his brother."
(v) Muhammad Yasin v. Sheikh Ghulam Murtaza and another PLD 1988 SC 163; ' in which, the appellant instituted an application under section 13 of the Rent Restriction Ordinance on 3-2-1980, seeking eviction of respondent No,2 Sh. Muhammad Ilyas from a shop situated in Gujranwala Urban Area, on the grounds of default and personal requirement. A compromise took place on 29-10-1980 whereby respondent No, 2 undertook to vacate the shop by 28-4-1983 and till that date, he was to deposit rent at the rate of Rs,400 per month. Failure to pay for three months rent, was to result in initiating execution proceedings. On 18-2-1982, the appellant filed ejectment proceedings against respondent No,2 Sh. Muhammad Ilyas on the ground that he defaulted in compliance of the above consent order and, therefore, forfeited the protection of the order. During the pendency of the above execution application on 27-4-1983 Sh. Ghulam Murtaza, a brother of respondent No,2 Sh. Muhammad Ilyas, instituted a civil suit claiming declaration and injunction that he was the tenant of the shop and was paying the rent. The suit was dismissed on 25-2-1984 by holding that he was the real brother of Sh. Muhammad Ilyas, respondent No,2, and that the remedy, if any, was under Order 21, Rule 103, C.P.C. And not a suit. After that, Sh. Ghulam Murtaza filed objection petition under Order 21, Rules 97, 100 and 103, C.P.C., which was dismissed summarily on 19-4-1984 by the Rent Controller with the following observations:- "The petitioner has filed the objection petition on 28-1-1984 when the time already granted is almost going to be expired. It does not appeal to the reason that one brother had been facing the trial of the ejectment petition for a long time but other brother (petitioner) does not know whether an eviction petition had been pending adjudication against his brother respondent No,2 the forum entrusted with the execution of the ejectment order being not a Civil Court but special Tribunal, the objections filed by the petitioner under Order XXI, Rules 97, 99 and 103, C.P.C. Were incompetent."
' His appeal against the above order, was dismissed. He filed two revisions, one against the judgment holding that the suit was not competent, and the other dismissing his above objections in the execution. The revision against the dismissal of the objections (Civil Revision No,1600 of 1984) was dismissed, but the revision against the judgment holding that the suit was not competent (Civil Revision No,748 of 1985) was allowed by the High Court with the following observations:- "He is entitled to seek this relief from the Court on the ground that he being not a party to the proceedings in which the order of ejectment was passed is not bound by the order passed by the Rent Controller. He has no other legal remedy except to file a suit in Civil Court in such a case."
' Sh. Ghulam Murtaza did not file any appeal against the above judgment of the High Court but the appellant-landlord filed an appeal with the leave of this Court which was allowed by this Court on the ground that as under substituted section 17 of the late Ordinance, the Controller was to execute inter alia an order of ejectment as if it were a decree of the Civil Court, he was a Civil Court for all logical consequences including the power to decide objections to the ejectment order. The relevant observations are as follows:- "A Controller has no power or control over a decree of a Civil Court except for this deeming provision. Where a power to execute an order in the manner of a decree of a Civil Court is conferred then on the ordinary rule of interpretation all the powers necessary or enjoyed by the executing authority for effectively and completely executing a decree of a Civil Court shall be available to the Controller. The deeming clause cannot stop short of boggle. To hold that the Controller will have the power to execute the order as a decree of the Civil Court but will have no power to decide objections to the order, and to its executability, will amount to in fact denying the Controller the very power to execute the decree itself. Such cannot be the result or the effect of the deeming clause. It has to be given full effect and the logical consequence of the empowering provision must follow."
(vi) Haji Abdur Rashid v. Ch. Fateh Muhammad (1989 SCMR 237).
' In the above case, the facts were that the petitioner, the tenant, filed an application under section 12(2), C.P.C. Before the High Court, which passed the ejectment order, seeking the stay of eviction order, which was declined on the ground that the above ejectment order was passed by consent on the basis of a compromise. Against the above order, a petition for leave was filed in this Court, which was declined.
(vii) Muhammad Hussain Tahir v. Ashfaq Hussain and another (1989 SCMR 258); ' in which the facts were that the first respondent, who was the landlord, filed rent proceedings in 1978 for eviction of the second respondent on the ground of default. The second respondent contested the same. However, during the pendency of the rent application, the second respondent's defence was struck off under section 16(2) of the Ordinance for non-compliance of the tentative rent order. An appeal filed by the said respondent was dismissed by the Sindh High Court and consequently, a writ of ejectment was issued. Thereupon, the petitioner filed an application under section 22 of the Ordinance read with section 12(2), C.P.C. Praying for recall of the order of eviction on the ground that he was the real tenant of the demised premises and the proceedings initiated by the first respondent were void, ab initio and illegal, as the same had been initiated by the first respondent collusively with the second respondent. The learned trial Court, after hearing the parties, rejected the above application on the ground that "The petitioner had not produced any evidence to prove that he was the tenant of the demised premises". First Rent Appeal filed by the petitioner, against the above order, was dismissed by the High Court. After that, a petition for leave to appeal filed in this. Court, was declined through the above order by quoting with approval the following portion of the judgment of the High Court:- "In the present case the learned Controller has considered the documentary evidence produced by the appellant. The claim that the appellant is a tenant has not been accepted. The appellant had produced an application for obtaining electricity connection allegedly approved by the respondent No,1, the bills of the electricity company showing that electricity connection is in his name, the Nikahnama and identity card. These documents necessarily do not imply that the appellant is a tenant. They can only establish that the appellant was occupying the premises in dispute. The appellant had not produced a single rent receipt or any affidavit of any independent, person to show that he had been paying rent to respondent No,1. The learned counsel argued that money orders were sent to the respondent No,1 but they were refused. The receipts of money orders or their copies have not been produced with the memo of appeal nor they were produced before the Controller. According to the learned counsel, these money order receipts which are lying in his file are dated 3-1-1986 and 12-1-1986. They can hardly substantiate' his claim. The rent proceedings have been pending from the year 1978 and it is at the execution stage that this application has been filed by the appellant without specifying how he came to know about the proceedings and why he was not aware of the ejectment proceedings for the last eight years. The application seems to be collusive and is intended to defeat the ejectment order. The learned Rent Controller has rightly observed that there is no iota of evidence of any nature to prove that the appellant is a tenant in respect of the premises."
15. The legal position, which emerges from the above case-law, seems to be that under section 17 of the Ordinance, the jurisdiction to execute an order of ejectment passed therein was executable by the Civil Court and, therefore, the provisions of the C.P.C. Relating to the filing of objections to the execution order were attracted to. However, after the substitution of section 17 in Punjab in 1969 by Punjab Ordinance No,9 of 1969, an ejectment order was to be executed by the Rent Controller as if it were decree of a Civil Court and this Court in the case of Muhammad Yasin (supra) has held that since the Controller has been conferred power to execute an order in the manner of a decree of a Civil Court, then by virtue of the ordinary rule of interpretation, all the powers necessary or enjoyed by the executing authority for effectively and completely executing a decree of a Civil Court shall be available to the Controller. It may further be observed that, as pointed out hereinabove, the original section 22 of the Ordinance did not provide that the Controller shall be competent to decide the question arising between the parties and relating to execution, discharge or satisfaction and that a suit would not be competent, but this Court in the case of Messrs Bambino Limited (supra) held that the Rent Controller was competent to have invoked the provisions of section 151 read with section 141, Order 21, Rules 100 and 101, C.P.C. The above view was reiterated by this Court in the case of Mst. Kulsoom Bhai (supra). It also seems that the above cases of Haji Abdur Rashid and Muhammad Hussain Tahir (supra) proceeded before this Court on the assumption that an application under section 12(2), C.P.C. Is competent before the Rent Controller and that it can be filed even by a person who was not a party to an ejectment proceeding keeping in view the judgment of this Court in the case of Ch. Jalal Din (supra). It is, therefore, evident that if a person wishes to challenge the validity of an ejectment order on the plea of fraud or misrepresentation, he may file an application under section 12(2), C.P.C., before the Rent Controller, whereas if a person claims restoration of possession of a property on the ground that he was in possession of his own account or on account of some person other than the judgment-debtor but was ejected fraudulently, he may file an application for restoration of the possession under Rule 101 of Order 21, C.P.C. Or if he claims right or interest in or possession of immovable property under Rule 97 or Rule 100 of Order 21, C.P.C., he may file an application under Rule 103, C.P.C. Before the Rent Controller.
16. The question which requires consideration is, as to whether if a person who was neither a tenant nor was claiming through him or under him nor was a party to the ejectment proceeding after having been ejected from the property owned by him under provisions of the Ordinance, on account of fraud practised by the landlord on the Court instead of opting to file an application under section 12(2), C.P.C. Or an application under Order 21, Rules 101 and 103, C.P.C. Can file a civil suit. This Court has not held in any of the above cases that either on account of the original or substituted section 22 of the Ordinance, a civil suit would not be competent by such a person, but what has been laid down, is that if such a person opts to file objections either under section 12(2) or under Order 21, Rule 100 or Rule 103, C.P.C., he would have to agitate the question before the hierarchy of the forums provided thereunder and after having lost before such forums, he cannot re-agitate the same question by filing a suit. This being so, it does not lead to an inference that if a person, who was not a party to the ejectment proceedings and who claims to have been ejected from the property owned by him, opts to file a suit in respect of an ejectment order on the ground that the same was obtained by practising fraud on the Court, his suit would be barred either under section 12(2), C.P.C. Or Order 21, Rule 103, C.P.C. Such a suit would be competent provided it is patently bona fide and is based prima facie on reliable documentary evidence and is not actuated to undo a lawfully executed ejectment order.
17. It may be observed that section 9 of the C.P.C.Provides that the Court shall, subject to the provisions herein contained, have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. I am unable to find any provision in the Ordinance on the basis of which it can be concluded that the jurisdiction of the Civil Court in a case like the one in hand is either barred expressly or impliedly. I am, therefore, of the view that the respondents' suit was competently filed and the view taken by the appellate Court and the High Court seems to be in consonance with law. I would, therefore, dismiss the above appeal, but there will be no order as to costs.
18. Before parting with the above discussion, I may observe that there has been controversy in the High Courts on the question, whether an application under section 12(2), C.P.C. Was competent or not before the Controller? In the cases, namely, in the case of Malik Muhammad Shafi v.
Muhammad Saleem PLD 1982 Lah. 702 and in the case of M. Yousuf v. Wali Muhammad and another 1984 CLC 1690, it has been held that an application under section 12(2), C.P.C. Is not competent, wheras in the case of Mamoor Khan v. Nasiruddin alias Nasir Muhammad and 5 others 1985 CLC 130 and in the case of Munir Ahmad Memon v. Mst. Mumtaz Begum 1990 MLD 1689 a contrary view has been taken. Whereas in the case of Haseen Ahmed Khan v. Irshad Khan through his Legal Heirs and another PLD 1987 Kar. 16, it has been laid down on the basis of the judgment of this Court in the case of Messrs Bombino Limited (Supra) that the Rent Controller could evolve his own procedure under section 22 of the Ordinance for executing an ejectment order and while doing so, he could press into service Order 21, Rule 100 and Rule 101, C.P.C. The above controversy is no longer alive in view of the above judgments of this Court. In any case, this controversy stands resolved by this judgment.
' ZAFFAR HUSSAIN MIRZA, J.---I have had the advantage of perusing the proposed judgment written by my brother Ajmal Mian, J, and I agree generally with the reasoning and conclusions recorded by him. However, I would like to add a few observations of my own to highlight certain aspects of the matter under consideration. Section 22 of the Sindh Rented Premises Ordinance, 1979, as amended by Act I of 1986, is not attracted in the present case, as already observed by my brother. However, the aforesaid amendment in section 22 has materially restricted its scope in one respect which may be pointed out. The section now reads as under: "Section 22.--Execution of Orders. Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and 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."
' It is important to note that this section now provides a statutory bar upon the jurisdiction of the Civil Court to entertain a suit in relation to "all questions arising between the parties and relating to the execution, discharge or satisfaction" of the final order passed under the Ordinance. Therefore, by virtue of section 9, C.P.C., since the cognizance of the Civil Court is expressly barred in respect of such matters, no suit' shall be competent in respect of matters covered by section 22. However, what must be noted particularly is that section 22 deals with question arising between the "parties".
Therefore, a person who was not a party to the proceedings under the Ordinance cannot maintain an application under section 22. A third party who is claiming any right in the subject-matter of adjudication in an order passed under the Ordinance, cannot invoke the remedy provided by section 22 of the Ordinance. Even a party to the proceedings is required to make an application under section 22 and is debarred from instituting a separate suit in respect of questions relating to "excecution, discharge or satisfaction of the order". In other words if a question relates to any matter other than execution, discharge or satisfaction of the order passed under the Ordinance, such question would be outside the ambit of section 22 and can well form the subject-matter of a separate suit, which will not be hit by the bar contained in this section. It will be observed that the language employed in section 22 has been partly lifted in its essential features from subsection (1) of section 47 of the C.P.C. Before the amendment of section 2(2), C.P.C. By the Law Reforms Ordinance, 1972, the extended meaning of word "decree" included the determination of any question under section 47 and therefore an order passed thereunder was deemed to be a decree and was appealable as such under section 96, C.P.C. However, by amendment in 1972, from the definition of word "decree" determination of any question under section 47, was omitted. On the other hand, orders passed, inter alias, under Rule 101 and Rule 103 of Order XXI were substituted, with result that such latter orders are now deemed to be decrees and appealable as such. Whereas an order passed under section 47 has been made appealable as an order by adding clause (ff) to section 104, C.P.C. Prior to 1972 amendment orders passed on the application of a person resisting execution of a decree for possession of immovable property or a person other than the judgment- debtor who is dispossessed in execution, of such a decree could file an application to the Court under Rules 97 and 100 of Order XXI, C.P.C. And if an adverse order was passed against such a person who was not the judgment-debtor then under rule 103 of the said Order, such a person could institute a separate suit to establish the right which he claimed to the present possession of the property. However, except where the dispute was between the parties to the suit, any such order was not appealable under any provision of the Code either as a decree or as an order.
However, by the amendment Rule 103 was substituted and now reads as under:- "Rule 103.--Certain orders conclusive and suit barred. All question 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.
' The result is that even questions arising between a party to the suit and a stranger relating to title, right or interest in, or possession of immovable property, are to be adjudicated in the proceedings under Order XXI, C,.P.C. And a separate suit is barred. Any adverse order is appealable as a decree by virtue of the extension of definition of the word "decree". The recent history of the legislation has been referred to in order to bring out in bold relief the position that, the legislature while enacting the Code of Civil Procedure initially, did not envisage a claim of third party under sections 97 and 101 as a question falling under section 47, C.P.C. Unless such questions arise between the parties to the suit. Therefore, I am of the view that a claim by a stranger as in the present case will not fall within purview of section 22 of the Ordinance as it stands at present as the language used therein is in pari materia with the provisions of section 47(1), C.P.C.
However the question still remains whether a stranger to the proceedings whose interests are affected by an order passed under the Ordinance, has a remedy thereunder: Such remedy on the grounds contemplated by subsection (2) of section 12, C.P.C., namely, fraud, misrepresentation, or want of jurisdiction are required to be raised in the proceedings governed by the Civil Procedure Code, before the Court and a separate suit is barred. However, since the C.P.C. Is not applicable to the proceedings before the Rent Controller as such, obviously the barring provisions contained in section 12(2) will not destroy the remedy of an aggrieved person who institutes a separate suit in respect of orders passed under the Ordinance. Before the amendment of section 22 of the Ordinance, the Controller, or the appellate authority was empowered to execute orders passed by these forums "in such manner as may be determined", by such Forums themselves. On the basis of this legal discretion to adopt any procedure deemed fit, and the well-settled rule laid down by judicial precedents, that the equitable principles of C.P.C. Can be applied in the proceedings under the Ordinance, it was held in Messrs Bambino Ltd. v. Messrs Selmor International Ltd. And another PLD 1983 SC 155 that the provisions of Order XXI could be made applicable in respect of execution of orders under the Ordinance. This case has been referred to by my learned brother but it may be pointed out that it proceeds on the aforesaid provisions of section 22 before its amendment and substitution by the present provisions reproduced herein above. Whether the provisions as they stand today the same rule can be applied so far as the interests of third party are concerned is a question yet to be determined. However, since in the present case we are concerned with the unamended provisions, it is not necessary to pursue the point any further and I would leave the matter for determination in an appropriate case. It may, however, be pointed out that the cases arising out of decisions from the Lahore High Court jurisdiction referred to by my learned brother, pertain to provisions materially different as section 17 of the Urban Rent Restriction Ordinance, 1979, as applicable to the Punjab, makes use of legal fiction to the effect that an order passed by the Rent Controller shall be executed as if it were decree of a Court. The rest of the cases referred to by my learned brother pertain to the unamended provisions of section 22, whereunder there was sufficient scope to adopt the provisions of the C.P.C. As contained in Order XXI in view of the peculiar language used thereunder as discussed above.
Whether an application under section 12(2), C.P.C. Would be competent under the provisions of the Ordinance is a matter which does not present much difficulty even if the provisions of C.P.C. Are not applicable by their own force. As expressed by me in Civil Appeal No,29-K of 1987, Ismail v. Subedar Gul Inayat Shah, the Rent Controller, as a Tribunal of limited jurisdiction is, on the general principles recognized in our jurisprudence, competent to recall or review an order obtained by fraud or misrepresentation. In that case this aspect of the matter was expressed by me in the following words: "There cannot be any doubt that section 12(2), C.P.C. Is in recognition of the well-settled principle that every Court or Tribunal has inherent jurisdiction to rescind or recall a void order passed by itself. In the Chief Settlement Commissioner v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, it was held that the preponderance of judicial authority supports the proposition that every authority, Tribunal or Court has power to even suo motu recall or review an order obtained from it by fraud, on the general principles that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his own fraud. On this principles in that case the Court held that there can be no distinction between the powers available in this behalf to a Court of general jurisdiction and a Court or Tribunal of a special or limited jurisdiction, for in either case the effect of fraud is the same and the duty to undo that effect must lie on the authority on which fraud is practised. Therefore, on the rule that the equitable principles of C.P.C. Can be invoked by the Rent Controller and that fraud vitiates the proceedings of a Court or a Tribunal, there can be no escape from the conclusion that the Rent Controller under the Rented Premises Ordinance has the power to set aside any order which has been secured by practising fraud or misrepresentation upon him."
However, it is one thing to concede a power to the statutory forum to recall an order obtained from it by fraud, but another to hold that such power of adjudication or jurisdiction is exclusive so as to hold that a suit filed in a civil Court of general jurisdiction is-barred. I am therefore in agreement with my brother that a stranger to the proceedings, in a case of this nature has two remedies open to him. He can either go to the special forum with an' application to recall or review the order, or file a separate suit. Once he acts to invoke either of the remedies, he will, on the general principles to avoid a conflict of decisions, ultimately before the higher appellate forums, be deemed to have given up and forfeited his right to the other remedy, unless as held in Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221, the order passed by the hierarchy of forums under the Sindh Rented Premises Ordinance, leaves scope for approaching the Civil Court.
' I, therefore, fully concur with my learned brother in his conclusion as recorded in para. 17 of his opinion that the suit filed by the respondent was maintainable and the High Court rightly held that the respondent's suit was not barred by law. I would accordingly agree that this appeal be dismissed with costs.