1. ' Appellant Mst. Zaitoon Begum has called in question an order dated 21-12-1988 passed in Execution Case No, 24/87 by Ist Senior Civil Judge, Karachi South.
2. ' Brief facts of the case are that respondent Ghulam Rasool filed Rent Case No,4862/82 for eviction of Mst. Shakooran widow of Muhammad Naqi from the premises in litigation viz. Room No,3 of Tayab All Building, Asylum Road, Ranchore Quarters, Karachi.
3. ' Admittedly, the room in litigation was in possession of Muhammad Naqi who died leaving behind Mst. Zaitoon Begum as widow, Mst. Najma Begum and Mst. Sajida Begum as daughters and Mohammad Saeed and Mohammad Rasees as sons. In his Rent Application No, 4862/82 the respondent alleged that Mst. Shakooran Begum widow of Muhammad Naqi was tenant after the death of Mohammad Naqi and that she had defaulted in payment of rent since October 1982. The respondent also put forth the grounds of personal requirement and re-construction. The rent application was contested by Mst. Zaitoon Begum who admitted that she was tenant in respect of the premises in litigation for preceding 36 years. Mst. Zaitoon Begum stated that original owner of said property was Mst. Hawa Bai and after her death the property devolved upon her sons Faqir Muhammad and Aboo and her daughter. It was added that Faqir Muhammad also died and his share devolved on respondent Ghulam Rasool and Mst. Fatima. After recording evidence of the parties, learned Rent Controller under an order dated 2-9-1984 accepted the application and ordered eviction of Mst. Shakooran from the premises in litigation. Mst. Shakooran filed FRA No,985/1984 against the order of eviction dated 2-9-1984 but her appeal was dismissed on 8-2- 1987 by a learned Single Judge of this Court whose order was not interfered with by the Supreme Court of Pakistan which dismissed on 30-8-1987, C.P. S.LA. No,169-K/87 filed by Mst. Shakooran Begum. On 4-10-1987 Mst. Zaitoon Begum moved an application under Section 12 (2) of C.P.C.
4. During Execution Application No,24/88 for re-calling of the judgment on the ground that the same was obtained by means of fraud and misrepresentation. Said application was dismissed by 1st Senior Civil Judge on 21-12-1988. Hence this appeal.
5. ' Mr. Rasheed A. Rini, learned counsel for the appellant argued that respondent Ghulam Rasool had filed the rent application against Mst. Shakooran Begum although name of widow of Muhammad Naqi was Mst. Zaitoon Begum and that the order of eviction was obtained fraudulently. In respect of the objections raised by learned counsel for the respondent that the application under section 12
(2) of C.P.C. Should have been moved in the Supreme Court of Pakistan, learned counsel for the appellant argued that the Supreme Court of Pakistan was created by the Constitution of Pakistan and it was governed by its own rules framed unde Article 191 of the Constitution of Pakistan and that the provisions contained in Civil Procedure Code will not apply to the said Court and hence the application under Section 12 (2) of C.P.C. Could be moved in the Court which had passed the judgment sought to be recalled. In support learned counsel for the appellant cited the cases of:
(i) M/s. Bambino Ltd v. M/s. Selmor International Ltd. And another (PLD 1983 S.C. 155).
(ii) Muhammad Ilyas v. Hafiz Abdul Malik and others (1991 CLC 1975).
(iii) Mamoor Khan v. Nasiruddin and others (1985 CLC 130)
(iv) M.G. Gazdar v. Manzoor Hussain (1985 CLC 2438).
6. Mr. Zahid Hussain Burhani, learned counsel for the respondent argued that in her application for permission to deposit rent in Court Mst. Zaitoon Begum had stated that she was widow of Muhammad Naqi. That in the Rent Application No,4862/1982 directed against Mst. Shakooran, the written statement was filed by the lady claiming to be Mst. Zaitoon Begum and as such the same lady who was widow of Muhammad Naqi was being called as Zaitoon Begum as well as Mst.
7. Shakooran Begum. In respect of the application under Section 12 (2) of C.P.C., learned counsel for the respondent was of the view that in the instant case the order of the Rent Controller dated 2-9- 1984 was merged in the appellate order of this Court dated 8-2-1987 which was merged in the order dated 30-8-1987 passed by the Supreme Court of Pakistan and consequently the application under Section 12 (2) of C.P.C. Could be moved only in the Supreme Court of Pakistan.
8. ' In support learned counsel for the respondent cited the cases of:
(i) Mir Salahuddin v. Qazi Zaheeruddin (PLD 1988 SC 221).
(ii) Abdul Baqi v. Malik Mitha Khan and another (1991 SCM R 379).
(iii) Islamuddin v. Abdul Rahman and another (PLD 1986 Kar. 70).
(iv) Mst. Nargis and another v. Abdul Razak and another (1987 CLC 1416).
(v) Sh. Muhammad Azim v. Basit Yar Khan (1989 CLC 302).
(vi) Mst. Parveen Akhtar and others v. Shafi Ahmed and another (1990 CLC 2019).
9. ' The first question arising in the case is about applicability of the provisions contained in Section 12
(2) of C.P.C. To the rent cases. In case of M/s. Bambino Ltd. (PLD 1983 SC 155), it was held that although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller by its force, the Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure and that this applied also to the cases under the Sindh Rented Premises Ordinance. In the case of Mamoor Khan, (1985 CLC 130) the view taken was that the provisions of section 12 (2) of C.P.C. As well as Order IX of C.P.C. Can be availed of by the parties litigating before the Rent Controller. In the case of M.G. Gazdar (1985 CLC 2438) a learned Single Judge of this Court disagreed with finding of a Rent Controller that the Civil Procedure Code is not applicable to the proceedings under Rent Restriction Ordinance and the view taken was that though all provisions of Civil Procedure Code are not applicable to rent matters but the principles laid down in said Code are applied to the proceedings under the Rent Restriction Ordinance and that Section 12 (2) of C.P.C. Was a special provision by which the Courts heve been empowered to set aside their own judgments and orders which have been obtained by fraud. In the same case it was held that the orders of the Controller are to be executed by the Civil Court as a decree and therefore on that score also the provisions of Section 12 (2) of C.P.C. Are applicable. In the case of Abdul Baqi (1991 SCM R 379) the Supreme Court of Pakistan declined to grant interim relief to a petitioner who filed an aplication under Section 12 (2) of C.P.C., challenging an order of ejectment passed against his brother. In said judgment no finding was given about the applicability of Section 12 (2) of C.P.C., but the interim relief was refused on merits. In light of the authorities discussed, it I appears that the principles contained in section 12 (2) of C.P.C. Are applicable to a case decided under the Ordinance.
10. ' The Rent Controller has dismissed the application under section 12 (2) of C.P.C. On the ground that it was directed against an order which was challenged and maintained by this Court in F.R.A. No, 985/84 decided on 8-2-1987. The position has been further complicated by the fact that the order of this Court dated 8-2-1987 was callenged in the Supreme Court of Pakistan, in C.P. S.L.A. No, 169- K/87 filed by Mst. Shakooran which was dismissed on 30-8-1987 on the ground that no question of law was raised requiring decision by highest Court of the country. In this situation it was contended on behalf of the respondent that an application under Section 12 (2) of C.P.C. If maintainable was to be filed in the Supreme Court of Pakistan. In reply learned counsel for the appellant relied on the case of Mohammad Ilyas (1991 CLC 1975) where an argument was addressed before a learned Single Judge of this Court that where final order of ejectment was passed by the Supreme Court of Pakistan the provisions of section 12 (2) of C.P.C. Would not be applicable as the Supreme Court is not governed by the provisions of C.P.C. But by its own rules framed under Article 191 of the Constitution of Pakistan. Dealing with such argument learned Single Judge. Observed in the said case that if the provisions of section 12 (2) of C.P.C. Cannot be invoked before the Supreme Court a suit challenging an order of ejectment passed by Rent Controller- cannot be held to be barred by the provisions of section 12 (2) of C.P.C. The question whether an application under section 12 (2) of C.P.C. Can be moved in the Supreme Court of Pakistan challenging an order of ejectment which has been maintained by the High Court and interference with which has been declined by the Supreme Court has not been answered by any authoritative pronouncement by the Supreme Court of Pakistan. If the contention raised in the case of Mohammad Ilyas (1991 CLC 1975) is accepted then it would follow that no application under section 12 (2) of C.P.C. Can be moved in the Supreme Court of Pakistan and consequently bar created by Section 12 (2) of C.P.C. Would not exist in the cases where the matter has gone up to the Supreme Court of Pakistan. The appellant has however chosen to move this Court under Section 12 (2) of the Civil Procedure Code. Even if such an application is maintainable in this Court, there is no case on merits.
11. ' On merits much can be said about conduct of the appellant. When the rent case was filed against the appellant with her name written as Mst. Shakooran she filed in said case her written statement mentioning her name as Zaitoon Begum. Admittedly respondent is widow of Muhammad Naqi, the original tenant in premises in litigation. There is nothing to show if Muhammad Naqi left behind two widows. In the circumstances it appears that Mst. Shakooran and Zaitoon Begum are two names of the same lady, who is widow of Muhammad Naqi and who was opponent in the rent case and appellant in the present case. The rent case was filed on 13-12-1982 and in the written statement filed in said case on 2-3-1983 by Mst. Zaitoon Begum, she did not contend that the rent case was not filed against her. She challenged competency of respondent Ghulam Rasool to file the rent case on the ground that the property in litigation was in name of Mst. Hawa. But she did not contend if the rent application was filed against wrong party. She did not plead that all the heirs of Muhammad Naqi were tenants of the premises in litigation. She did not raise any objection that the rent application was bad for non joinder of children of Muhammad Naqi. It was after exhausting all the remedies up to the Supreme Court of Pakistan, that the appellant decided to move an application under Section 12 (2) of C.P.C. By calling herself as an "Intervenor".
12. In the circusmtances, the appellant had not been able to make out that the trial Court's order or the appellate Court's order were obtained by fraud or misrepresentation or the same were ultra vires. Consequently this appeal stands dismissed with costs.