1. This judgment would dispose of the aforesaid two appeals as common questions of fact and law are involved and also because the parties as well as property involved in both the appeals are the same.
2. Dispute between the parties relates to a portion of the premises bearing No.M.II.-E/C-14, Block 'B', Shershah, Karachi. Respondents filed Rent Case No. 2736 of 1984 against one Abid Hassan for his eviction from the house built on a portion of the premises measuring 50 sq. Yards consisting of two rooms, latrine, bath room, kitchen and a small courtyard on the ground of default in payment of rent and sub-letting. Said Abid Hassan though duly served with the notice of the ejectment proceedings did not contest the same with the result that an ejectment order ex parte was passed against him on 19-1-1985.
3. Respondents on 8-9-1985 filed Execution Application No. 34 of 1985 against the said tenant when the appellant on 15-1-1986 filed two applications (1) under Order I, rule 10 read with Order XXI, rule 99, C.P.C. Read with section 151, C.P.C. And (2) under Order XXI, rule 26 read with section 151, C.P.C.
4. Claiming that he was the owner/landlord in respect of demised premises and in physical possession thereof by virtue of Qabala dated 5-3-1961 from Syed Saleh Shah. Besides he claimed to have invested huge amount on construction over the plot in question. Both these applications were seriously contested by the respondents but later on as appellant did not pursue these applications these were dismissed by learned Controller for non-prosecution on 29-10-1986.
5. Subsequently on 24-11-1986 appellant filed objections under section 22 of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) as well as an application under Order XXI, rule 26, C.P.C. Raising the claim of his ownership by virtue of an agreement of sale his continuous possession of the demised premises. Objections as well as the application filed by the appellant were resisted by the respondents who filed counter-affidavits denying the claim of the appellant. After recording evidence of the appellant learned Controller by his order dated 21-10- 1987 dismissed the application as well as the objection F. R. A. No. 1003 of 1987 has been filed to assail this order.
6. F.R.A. No.222 of 1992 was, however, filed against an order dated 24-2-1992 passed by learned Controller in Rent Case No. 2734 of 1984 renumbered as Rent Case No. 148 of 1985 filed against the appellant directing his eviction from the premises constructed over an area of 200 sq. Yards on the same plot. In this case, respondents sought eviction of the appellant on the ground of default in payment of rent w.e.f. 1st January, 1983 to 31st July, 1984 and sub-letting. In his written statement, appellant denied relationship of landlord and tenant between the parties and disputed to be tenant in the demised premises. He, however, claimed to be in occupation of the premises on Plot No.14/25, B-Block, Shershah Colony, measuring 400 sq. Yards. After recording evidence of the parties, learned Controller by his order dated 28-8-1988 held that there was no relationship of landlord and tenant between the parties and dismissed the ejectment application. This order was impugned in F.R.A. No.818 of 1988 which was decided by my learned brother Muhammad Aslam Arain, J. On 20-1-1991 allowing appeal and setting aside the order of the Controller after holding that the respondents had proved to be the owners of the demised premises and the appellants as their tenant. The case was remanded to the learned Controller for decision on merits. The judgment in the FA.A. Was challenged in Civil Petition for Leave to Appeal No. 144-K of 1991 which was dismissed by the Hon'ble Supreme Court.
7. On remand of the case, learned Controller found that the appellant having been found tobe tenant of the respondents in F.R.A. He could not avoid his ejectment as no rent had been paid at all.
8. Accordingly he directed eviction of the appellant which is the subject-matter of F.R.A. No.222 of 1992.
9. Mr. Nizamuddin Memon, learned counsel for the appellant vehemently assailed the claim of the respondents to seek eviction of the appellant .On the ground that in fact they had never remained in possession of the demised premises and were not the landlords. It would appear that the respondents did not ask for ejectment of the appellant in Rent Case No.2736 of 1984 which had been filed against Abid Hassan. For the first time, appellant claimed his ownership of the premises by virtue of an agreement of sale in his favour purported to have been executed by Syed Saleh Shah which could not have been validly considered by the Rent Controller during the execution proceedings. Contention, raised is, therefore, without any substance.
10. In the case of Messrs Haji Ahmed Haji Essa v. Rent Controller and 2 others PLD 1983 Kar. 164 a Division Bench of this Court examined the scope and authority of the Controller under section 22 of the Ordinance with reference to section 17 of the repealed Sindh Urban Rent Restriction Ordinance, 1959. In this case, it was held that Controller could not entertain objections in which the objection claimed a tenancy right in his favour as the same Will be a question foreign to rent proceedings, in which the ejectment order was passed. Status of objector agitating to be a tenant much before the passing of ejectment order could be determined by a competent forum but not in executing proceedings ~by the Controller. Dealing with the powers of the Controller under section 20 of the Ordinance Division Bench observed that given limited powers of a Civil Court would indicate that Legislature did not intend to place the Rent Controller at par with the Civil Court and, therefore, section 47 and Order XXI, C.P.C. Could not be pressed into service by a stranger to the rent proceedings.
11. Similar question came up for consideration in Islamuddin v. Abdul Rehman and another PLD 1986 Kar. 70 in which Sajjad Ali Shah, J. (as his Lordship then was) held that under the repealed Sindh Urban Rent Restriction Ordinance, 1959 there was a provision that order of ejectment was to be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Such provision, however, does not exist in the Ordinance, 1979, hence section 47, of C.P.C. Or Order XXI, C.P.C. Cannot be applied to execution proceedings emanating from order of ejectment passed under the provisions of Ordinance, 1979. It was held that scope of execution proceedings under the new rent law is very much limited and the Rent Controller cannot entertain objections filed by Intervenor who claims tenancy right in his favour as the same would be question foreign to rent proceedings.
12. In case the Rent Controller is not competent to examine validity of the claim of an Intervenor raising tenancy right it is difficult to accept that Rent Controller could entertain claim of a stranger with regard to his ownership in relation to execution proceedings to which he was not a party.
13. Objections filed by the appellant in the execution proceedings emanating from ejectment order passed in Rent Case No. 2736 of 1984 were, therefore, clearly not maintainable and misconceived.
14. Needless to emphasize that learned Controller could not assume the powers of a Civil Court to enter into question of title raised by the appellant within the limited scope of authority conferred on him by section 22 of the Ordinance. Controller has been authorised to determine all questions arising between the parties and relating to the execution, discharge or satisfaction of the order. The objections filed by the appellant were thus rightly dismissed and there is no scope for interference with the exercise of discretion by the learned Controller.
15. Mr. Nizamuddin Memon has filed a certified copy of the judgment in F.R.A. No.767 of 1987, decided on 29-5-1988 in an appeal filed by respondents against Fida Muhammad in relation to another portion of the premises bearing similar number. In this case, a learned Judge of this Court held that there appeared to be dispute over the ownership of the plot in dispute as such proper forum to decide and determine such dispute would be the Civil Court. Be that as it may, it is not known whether the respondent in this appeal had challenged the judgment passed in F.R.A. Before the Supreme Court and in any case the said judgment would be of no assistance to the appellant in this appeal arising out of an order passed in execution proceedings.
16. Adverting to F.R.A. No.222 of 1992 appellant was found to be tenant of the respondents in F.R.A.
17. No.818 of 1988 which judgment attained finality after leave to appeal was refused in Civil Petition for Leave to Appeal No. 144-K of 1991. After an authoritative finding of fact establishing relationship of landlord and tenant between the parties, learned Controller was left with no option but to strike off the defence of the appellant as admittedly not a single 8 pie had been paid by him by way of rent to the respondents. There was thus no occasion for recording any evidence on the issue of default which was manifest from the attitude and stand adopted by the appellant from the commencement of the proceedings. The impugned order, therefore, does not suffer from any legal infirmity and must be upheld.
18. In the result, there is no merit in both the appeals which are hereby dismissed. Appellant is, however, allowed a period of 30 days to deliver vacant possession of the premises.