JUDGMENT M.L. SHAHANI, J.- The applicant had assailed judgment and decree by the IInd Additional District Judge, Karachi West allowing Civil Appeal No. 133/1985 thereby decreed the suit filed by respondent No. 1 and thereby reversing judgment and decree passed by III rd Senior Civil Judge, Karachi dismissing the Suit No.1 754/1969 filed by the respondent No. 1, '
2. The facts that emerge from the record are that the applicant had fib d a Rent Case No. 149 of 1964 against the respondent No. 1 on the ground of default in payment of rent. Earlier the parties i.e. The applicant and the respondent No. 1 were also arraigned as respondent in Section 145 Cr.P.C, proceedings and in sub proceedings they filed compromise order (which is at page 191 of the paper book prepare' on the first appellate Court). One such condition of the compromise in paragraph 2 reads follows: "2. The said house and the plot up to the area of 113 sq. Yards shall remain in possession of Muhammad Umer Shah subject to the decision of the Rent Case No. 149/1964 pending in the Vth Court of Civil Judge, First Class Karachi."
The learned Rent Controller framed the issue of relationship between the applicant and the respondent. No. 1 and came to the conclusion that the respondent No. 1 Is tenant of the applicant.
The respondent No. 1 filed appeal against that order but withdrew such appeal as he wanted to file suit against such order and that application was allowed. The respondent No. 1 challenged findings of the Rent Controller, regarding relationship of landlord and tenant in Suit No. 253/1966 which was renumbered as Suit No. 1754/1969. That suit was filed on 7.9.1966 and the Respondent No. 1 prayed for the following relief: (1) Declaration that the respondent No. 1/plaintiff is the owner of the structure of with the red in the plan annexed and that the defendant/petitioner has no right, title or interest either in the suit structure or in the plot whereon the same stand and that the order dated 31-5- 1965 in R.C. No. 149/64 of the Court of Vth Civil Judge/Controller is erroneous inoperative and void.
(2) Permanent injunction restraining the defendant (petitioner) from interfering in plaintiffs(respondent No. 1) possession of the premises in suit.
(3) Cost of the suit.
(4) Any other, further and/or additional relief or reliefs which this Honourable Court deems fit and proper."
3; The applicant contested the case denied the ownership of the respondent No. 1 and the learned trial Court framed the following issues:
(a) Whether the plaintiff is the tenant of the defendant in respect of suit premises?
(b) Whether the boundary wall around the area and their suit premises is the property of the defendant?
(c) Whether the finding of the Controller in respect of the title ownership of the suit premises is conclusive?
(d) Whether the construction of the suit premises was made by plaintiff?
(e) Any other relief.
4. In support of their claim the respondent No. 1 examined himself and S. Akbar, Raja Muhammad Hanif, S. Mir Badshah, Khursheedul Hassan, S. Manzoor Hussain and Syed Faqir, While the applicant examined himself and witnesses Habibullah, Mr. Sharif, Din Muhammad and Abdul Razzak.
5. After hearing the parties the learned Civil Court dismissed the suit vide judgment dated 8.11.1982 and decree dated 8.12.1982,
6. The respondent No. 1 filed and appeal being Civil Appeal and No. 133/1985. The learned Appellant Court allowed the appeal and decreed the suit filed by the respondent No. 1. This Revision Application is directed against that judgment.
7. While assailing the impugned judgment learned counsel for the applicant contended that in view of Section 15(5) of the Rent Restriction Ordinance, 1959. The prayer of the respondent No. 1 could not be granted and in view of statement made in plaint the Court ought to have rejected the plaint, as barred by law. The said sub-section reads as follows: "(5). No order passed by the Controller, the Appellate Authority of the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance,"
8. He relied upon the judgment of the Hon'ble Supreme Court reported as (Zahurul Hassan v. Mst.
Ruqaia Begum & 4 others, PLD 1981 S.C. 112) at page 116. He further contended that the learned Appellate Court did not take into consideration the rent receipts which are available on record. He further contended that 6 the learned Appellate Court framed a new issue which is reflected at page 49 of the record and answered the same and such framing of issue and it was stated as to whether the applicant is owner is un-warranted. It was in fact the respondent No. 1 who had filed the suit and the issue should have been whether the appellant before the Appellate Court (before me respondent No. 1) was-owner or not.
9. Against the above contentions Mr. Rashid Yousuf Zai, learned counsel appearing for the respondent that the only point which needs to be determined is whether the applicant is owner by virtue of gift or the respondent No. 1 owner by virtue of purchase from Salah Shah since 1953.
According to him the judgment of the Appellate Court has taken into consideration the entire evidence available on record and the judgment passed by him is not assailable and no exceptions can be taken against the judgment.
10. I have given anxious consideration to the various pleas urged by the parties and have gone through the record with the assistance of the learned counsel.
Perusal of the plaint reveals that in paras 3 and 4 the proceedings before the Rent Controller are mentioned. In para 5 he mentioned that he filed appeal which was withdrawn. The order of Appellate Court is at page 63.
11. This appeal against the order dated 31.5.1965 was withdrawn and the Court passed the following order: "The appeal is allowed to be withdrawn. The appellant can file a Civil Suit if he wishes Sd/- Additional District & Sessions Judge, Karachi.
12. In my humble view the suit filed by the plaintiff in which declaration was sought in relation to the order passed by the Rent Controller dated 31st May, 1965 illegal, inoperative, misconceived and void was hit bv the provisions of Section 15(5) of the Rent Restriction Ordinance, 1959 and the plaint ought to have been rejected in terms of Order VII Rule 11 CPC as it is specifically barred under the law i.e. Section 15(5) of the Rent Restriction Ordinance, 1959. The plaint, therefore, is rejected.
13. I also find that the permanent injunction could not be granted, as the respondent No. 1 has undertaken before the Magistrate that he shall abide by the decision in the rent case in paragraph No. 2 of their compromise which is quoted in the earlier part of this judgment. In view of such statement prayer for dysfunction in terms of Section 56"56). An injunction cannot be granted cj) when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the Court;
14. Since I looked to the evidence and found that the respondent No. 1 is not entitled to the injunctions under Section 56(j) of the Specific Relief Act, as such I would agree with the Trail Court and would dismiss the suit although for different reasons.
15. The contention of the learned counsel for the respondent No. 1 six that the applicant has given no objection when his rent appeal was withdrawn which is apparent as such he is estopped from challenging the jurisdiction of Civil Court. The jurisdiction of a Court is conferred and regulated by the law. The orders of the Court do not confer jurisdiction. There is no estoppel against the law nor there can be waiver against the statute. The contention of the learned counsel has no force.
16. In view of the above discussion on the principles of law applicable to the case I find that the respondent No. 1 was not entitled to the relief prayed by him in the suit. His suit is barred by law and the plaint is rejected, and also suit is dismissed.
This Revision Application is allowed and impugned judgment of the Trial Court is restored dismissing suit. The parties are left to bear their on. Costs.