C.M. 1 of 1999 Allowed and disposed of.
C.M. 2 of 1999 ' For the order to be passed in the main case no order is required to be passed in this C.M. The same is accordingly disposed of. Main case ' Respondent No,3 filed a suit against the petitioner on 11-7-1995. The suit was contested by the petitioner. Issues were framed and ultimately the suit was decreed by a learned Civil Judge, Lahore vide judgment and decree, dated 28-1-1998 (Annexure I). The decree granted to the said respondent was for permanent injunction restraining the present petitioner from dispossessing him from the shop in question. The said relief was granted on the findings recorded on facts, by the learned Civil Judge who found the said respondent to be in exclusive possession of the shop in question.
2. On 20-7-1998 the petitioner filed a petition for ejectment of respondent No,4 from the same shop on the plea that the latter is his tenant therein, he has failed to pay the rent and that the shop is required for his personal use. In this petition notice was issued by the Rent Controller to the said respondent for 30-7-1998. The case, however, was taken up on 25-7-1998. Wakalat Nama purporting to be on behalf of the respondent in the ejectment petition was filed and a person stating himself to be Nafees Ahmad got recorded a statement that a compromise has been entered into between the parties. This compromise was marked as Exh. C.1 and Annexure L/4 of this writ petition. According to this agreement the respondent in the ejectment petition undertook to deliver possession of the shop to the petitioner within three days. The learned Rent Controller adjourned the matter to 30-7-1998 for orders. On the said date ejectment order was passed directing the respondent in the ejectment petition to immediately deliver possession to the petitioner.
3. On 15-9-1998 an execution petition was filed alleging that the possession has not been delivered to the petitioner. A warrant for possession was issued. The bailiff made a report on the warrant that the judgment-debtor was present on the spot who resisted the execution. This report was made on 8-10-1998. Consequently, the police aid was ordered and on 17-10-1998 possession was delivered to the petitioner. However, this time it is reported that one Abid Ali son of Salamat Ali was found in possession of the shop who was dispossessed.
4. On 21-10-1998 the said respondent No,3 filed an application before the Executing Court complaining that the petitioner had in the garb of the said proceedings and orders dispossessed him from the said shop and that the possession be restored to him. Notice was issued to the petitioner who filed a reply to the said application. The Executing Court summoned the parties in person and recorded their statements. The petitioner in his statement recorded on 29-1-1999 stated without demur that on the spot the possession was taken over from Abid son of respondent No,3. He also admitted that the decree afore-refererd dated 28-1-1998 had been passed against him and that an appeal is pending against the same. Regarding the possession of the son of respondent No,3, he stated that Nafees Ahmad was the tenant but he ran away and Abid took the possession and from Abid the bailiff had taken over the possession and delivered to him. Nafees Ahmad was also examined by the Executins Court who categorically stated that he had never come to the Court in the said ejectment petition and did not make any statement therein and that he has nothing to do with the shop in question. In the above state of affairs the learned Executing Court proceeded to allow the application and directed immediate restoration of possession to the respondent No,3 vide order, dated 8-2-1999. An appeal filed by the petitioner was heard by a learned Additional District Judge, Lahore who dismissed the same on 24-9-1999. Learned counsel contends that the learned Rent Controller erred in treating the application under section 12(2), C.P.C. And thereafter proceeded to decide the same without framing issues and recording evidence. He relied upon Haji Ghulam Hassan and 13 others v. Muhammad Siddique and 3 others 1992 M LD 2318. Further contends that the proper remedy for respondent No,3 was to have filed a suit under section 9 of the Specific Relief Act, 1877. He relied upon Bahadur Kamal v. Muhammad Ashraf (1993 CLC 1236).
5. I have gone through the certified copies of the relevant record appended with the writ petition with the assistance of the learned counsel for the petitioner. Learned counsel, in my opinion, is correct to some extent to say that the application was erroneously treated to be one under section 12(2), C.P.C. But nothing turns on this. The specific allegations made in the application for restoration clearly make out a case under Order XXI, Rule 100, C.P.C. And under the law the matter regarding question of possession was to be dealt with by the Executing Court. So far as the second limb of the contention is concerned, the facts narrated above are borne out from the several documents appended with this writ petition. In my opinion in the facts and circumstances of the present case there was no need of framing issues or to record evidence. Reference be made to the case of Mst. Ume Kalsoom v. Zahid Bashir through legal heirs and another (1999 SCM R 1696). So far as the argument based on the case of Bahadur Kamal is concerned, suffice it to say that the only remedy available in the circumstances was an application to the Executing Court for restoration of a suit under section 9 of the Specific Relief Act, 1877 was not at all an efficacious remedy and it is doubtful if such a suit would be competent in view of the bar contained in Order XXI, Rule 103, C.P.C.
No other point has been urged. This writ petition is, therefore, dismissed in limine.