QADEERUDDIN AHMAD, J.----This letters patent appeal has been filed to question the judgment of a learned Single Judge of this Court dated the 6th of May 1968, by which he dismissed an application of the present appellant in Suit No. 55 f 8 under Order XXXIX, rules 1 and 2 and section 151, C. P. C. Mr. Hafeez Pirzada says that the application was made "to restrain defendants 3 to 6 (the present respondents 3 to 6) from executing the decree in Suit No. 1579/59 pending in the Court of II Civil Judge First Class, Karachi and/or dispossessing the plaintiff in persuance of the order dated 2nd March 1968 made in the said suit until the final decision of this suit."
2. In order to understand the various pleas that have been urged it is necessary to note that the facts which, according to counsel for the parties, form the background. The facts are that the dispute relates to a premises which consists of three parts, viz., a workshop, a show-room and a loft. The tenancy of the show-room and the loft is only in question.
3. Originally, the tenant of the entire premises was Kishinchand predecessor-in-interest of defendants-respondents 3 to 6. A suit was filed against them by the landlords, who are the defendants-respondents 1 and 2 being Suit No. 1597/59, for ejectment. It was decreed on the 8th of December 1961 and Kishinchand filed an appeal in the Court of the District Judge, Karachi. During the pendency of the appeal, the decree was executed with the result that the possession of the show room and the loft was obtained by the landlords on the 5th of March 1962. On the next day, that is the 6th of March 1962, the landlords let out those two parts of the premises to the present plaintiff, namely S. A. Latif. On 16-5-62 Kishinchand died and his legal representatives, who are defendants-respondents 3 to 6, were brought on record. After his death, his appeal was accepted on the 31st of January 1963 and the decree for ejectment was set aside. The landlords then preferred a second appeal to the High Court which was dismissed on 3-11-66, therefore, the tenants applied for restitution to them of the show room and the loft. S. A. Latif, though not a party to the suit, submitted objections to that application and also filed an application under Order XXI rule 100 read with section 151, C. P. C. The parties were heard and the Court accepted the application for restitution and dismissed the application which was made under Order XXI rule 100 read with section 151, C. P. C.
4. The Landlords preferred their appeals on the 4th of March 1968 and S. A. Latif on the 25th of March 1968. On the 4th of March 1968 S. A. Latif filed a fresh suit bearing No. 55/68 with the following prayer :-
(i) For a declaration that the defendants 3 to 6 are not entitled to execute any decree or order made in Suit No. 1597 of 1959, against the plaintiff or to prosecute any proceedings against the plaintiff.
(ii) For an injunction restraining the defendants 3 to 6 from executing the said decree against the plaintiff.
(iii) For costs."
Para. 9 of the plaint is as follows :- "9. The plaintiff submits in the premises, he is entitled to file the present suit under Order XXI, rule 103, C. P. C.
On the date on which the suit was instituted he also applied for injunction under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. As mentioned above. This application was dismissed by a learned Single Judge of this Court on the 6th of May 1968, against which this letters patent appeal has been preferred.
5. Mr. S. M. Hafeez has advanced the following arguments ash in support of it :-
(1) The order of the learned Single Judge has taken support from section 52 of the Transfer of Property Act which is not applicable in view of the Transfer of Property and the Registration (Sind Amendment) Act, 1939, but this aspect of the case has not been considered by the learned Single Judge.
(2) The former tenants who are respondents 3 to 6 are alien enemies and, therefore, not entitled to any relief.
(3) S. A. Latif, the present appellant, has acquired tenancy rights which he claims independently of any background.
(4) The proceedings of restitution under section 144, C. P. C. Are not to be granted if it results in injustice. In support of this contention he has referred to AIR 1953 SC 136.
6. In addition to the above contentions Mr. Hafeez Pirzada has emphasised that at present the tenancy is created in terms of special laws, such as the West Pakistan Urban Rent Restriction Ordinance, 1959; therefore the tenancy rights are not matters of contractual obligations but create statutory rights which deserve to be given effect even if agreements made by the landlord and the tenant may be open to attack as arrangements made by themselves. The change in the relationship of landlord and a tenant is further manifested by the provision made in the said Rent Restriction Act that a tenant cannot be ejected except in accordance with the provisions made in that Act.
7. In summoning up the conclusion, the learned Single Judge of this Court has observed as follows in para. 4 of the judgment :- "4. In order to succeed in obtaining relief of this nature, the applicant in the first place must prove that he has a prima facie case ; secondly, that refusal of this relief would cause irreparable injury to him and, lastly, that the balance of convenience was in his favour. The main objection taken by defendants 3 to 6 is that the suit was not competent. They have denied the allegations regarding collusion between them and defendants 1 and 2. All this discussion shows that the plaintiff has failed to make out a prima facie case in his favour. During the pendency of litigation defendants 1 and 2 had handed over possession of the premises under dispute to the plaintiff. The only remedy available to defendants 3 to 6 after the second appeal was decided in their favour was to approach the trial Court under section 144, C. P. C. Their request was granted and the objections filed by the defendants have been dismissed. In view of this position. I agree with the contesting defendants 3 to 6 that no prima facie case is made out. The application is, therefore, dismissed with costs. The interim relief granted by an order dated 4-3-68 is hereby discharged."
We also propose to examine the contentions raised by the learned counsel for the appellant in the light of the above observations.
8. The precise nature of the defence taken by the appellant in his application under Order XXI, rule 99, C. P. C. Is evident from paras. 4 and 11 of the memo. Of appeal, which are reproduced asunder :- "4. That in the restitution application under section 144, C. P. C. Made on 23-1-67 the plaintiff also filed objections under Order XXI, rule 99, C. P. C. On the ground that he not being a party to the original suit in which section 144, C. P. C. Application was made, he could be bound by virtue of section 52, T. P. Act as held by Mr. Dhani Bux, the learned Civil Judge while allowing the same on 2- 3-68 because section 52, T. P. Act was rot applicable to the appellant's case by virtue of Sind Amendment Act XLIII of 1939.
11. That the learned Judge has erred in relying on the rulings cited by the respondent which do not apply to the facts of this case. The appellant's contention was not on any provision of W. P. Urban Rent Restriction Ordinance, but on Order XXI, rules 36 and 96, C. P. C. That when the property is in possession of a tenant, which land could not be kept vacant for 6 or 7 years and was meant for tenants premises, then a decree-holder or auction-purchaser may be given symbolical possession only. The appellant was and is also ready to pay the agreed monthly rent of Rs. 500 to the respondent until proper oral and documentary evidence is produced before the Court or the ejectment case against the respondents 3 to 6 is decided."
9. Before we deal with the legal contention we may make it clear that the stand taken by the appellant in filing his objections under Order XXI, rule 99, C. P. C. Was wholly misconceived. There was no execution proceeding then pending. It was only after the dismissal of the second appeal that respondents 3 to 6 had filed an application for restitution under section 144, C. P. C. And, according to us, the whole case has to A be considered from this angles. Rules 36, 96, 97, 99 and 101 of Order XXI, C. P. C. Could be applicable only in execution proceedings. At that stage, a s observed earlier, the power of the Court bad been sought under section 144, C. P. C. With a view to "place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed."
10. The question which, therefore, now resolves for consideration is as to whether the appellant is included within the meaning of the word `parties' occurring in section 144, C. P. C. We now propose to examine the first contention of the learned counsel for the appellant in this light. Mr. S. M. Hafeez has relied on section 2 of the Transfer of Property and Registration (Sind Amendment) Act, 1939, which is reproduced as under :- "2. Section 52 of the Transfer of Property Act, 1882, shall be re-numbered as subsection (1) of section 52 of the said Act, and
(i) in subsection (1) so re-numbered, after the word `question', the words and figures "if a notice of the pendency of such suit or proceeding is registered under section I8 of the Registration Act, 1938", and after the word 'property' where it occurs for the second time the words "after the notice is so registered", shall be inserted ; and
(ii) after the said subsection (1) so re-numbered the following shall be inserted, namely :-
(2) Every notice of pendency of a suit or proceeding referred to in subsection (1) shall contain the following particulars, namely-
(a) the name and address of the owner of immovable property or other person whose right to the immovable is in question ;
(b) the description of the immovable property the right to which is in question';
(c) the Court in which the suit or proceeding is pending ;
(d) the nature and title of the suit or proceeding ; and
(e) the date on which the suit or proceeding was instituted."
According to this amendment, a notice of the pendency of the suit or proceeding is required to be registered under section 18 of the Registration Act, 190 3 and that it is only after the notice is so registered that the property cannot by transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the right of any party thereto under any decree or order. On the basis of the above amendment it is urged by him that since no notice of the proceedings was registered, the amended section 52 of the Transfer of Property Act is not applicable and the transfer thus not being prohibited the appellant is not bound by the result of the suit and that, therefore, in restitution proceedings he cannot be dispossessed as he was not a party in the suit and that his induction as a tenant after partial execution of the decree will not make him a party within the meaning of the word `parties' occurring in section 144, C. P. C. We are not inclined to agree with this contention. It is an admitted position that the appellant had taken possession on the 6th of March 1)68 from respondents 1 and 2, in whose favour the trial Court had decided the ejectment application. This was after decree was partially executed on the 5th of March 1962. It cannot therefore, B be denied that the appellant is claiming through respondents 1 and 2. It .Is not clear from the contention as to how by invoking the non-applicability of amended section 52 of the Transfer of) Property Act, the appellant claims to be excluded from the definition of the word `parties'. He has also not taken a stand on any provision of the West Pakistan Urban Rent Restriction Ordinance. His main reliance is on rules 36 and 96 of Order XXI, C. P. C.
11. Rule 36 only applies to the occupant or a tenant who is not bound by the decree to relinquish such occupancy. Similarly, rule 96 protects the occupancy of a tenant or other occupant entitled to occupy the property in case where the property is sold in execution of the decree. In this rule as well only that C tenant or occupant is protected who is not bound by the decree to relinquish such occupancy. Since respondents 1 and 2 were bound by the result of the proceedings and the appellant had admittedly obtained possession from them as their tenant he was equally bound by the result of the proceedings. These rules will therefore, have no application to his case. The learned counsel has not supported his proposition by any authority before us. Section 52 of the Transfer of Property Act is not an overriding provision so as to control the operation of section 144, C. P. C. The question is not one of the recognition of the title of the transferee who is not effected by the doctrine of lis pendens. The C point is whether the appellant can be regarded as a legal representative of respondents 1 and 2If the argument is that the word `parties' in section 144, C. P. C.
Must be read as `parties' only, then this would also exclude heirs, if this contention is taken to its logical conclusion which cannot be the intention of the Legislature. According to us, the word `parties' must include legal representatives whether by assignment or devolution.
12. It is true that neither the learned II Civil Judge First Class has considered the effect of the amended section 52, nor the learned Single Judge of this Court, but we are of the view that the applicability of the amended section 52 would not have altered the legal position in any manner as contended in view of that we have observed above.
13. With regard to the second contention that respondents 3 to 6 are alien enemies and, therefore, not entitled to any relief, we are of the view that this contention is also without substance.
Respondents 3 to 6 are Pakistani citizens. All that is said against them is that they are now residing in India. Mere residence will not make them alien enemies. The learned counsel for the appellant has not been able to substantiate this allegation by any authentic material apart from the above assertion.
14. As for the third contention that the appellant has acquired tenancy rights, which he claims independently of any background, we are of the view that this contention is also misconceived.
Admittedly the appellant was inducted as a tenant in a portion of the premises in dispute after partial execution of the decree. The decree was reversed in first appeal and on the reversal of the decree the position was altered and by operation of law respondents 3 to 6 continued to be the tenants of that portion as well. If we are to accept the contention of the learned counsel for the appellant it would create an anomalous position. The appellant cannot be said to occupy the position of a tenant vis-a-vis respondents 1 and 2 after the reversal of the order of ejectment as the tenancy of respondents 3 to 6 continued. The right of the appellant to continue in possession was subject to the appellate order and on the reversal of the order of ejectment the appellant ceased to be a tenant. His possession cannot, therefore, be sustained as he cannot continue to remain as a tenant of respondents 1 and 2. In view of that we have observed earlier this contention is also of no consequence.
15. Lastly, the learned counsel for the appellant has urged that restitution should not be ordered if it results in injustice. In support of this contention he has relied on Lal Bhagwati Singh v. Sri Kishen Das (AIR 1953 SC 136). There is no analogy between that case and the instant one. In that case, the question of restitution arose between the decree-holder who had obtained a final compromise decree on the foot of two simple mortgages executed in his favour by the judgment-debtor. In execution proceedings a number of objections were taken but before they could be disposed of the U. P. Agriculturists Relief Act and the U. P. Encumbered Estate Act were promulgated. The judgment-- debtor thereupon filed applications for taking benefit of these two enactments and consequently by an order dated 11th January 1936 the decree was altered to the extent that the decretal amount was reduced as well as the judgment-debtor was given the further facility to pay the amount in 12 equal instalments. Against this order a revision was filed by the decree-holder in the Chief Court which was allowed and the Chief Court ordered the execution of the deed of sale in his favour on the basis of the compromise decree and in due course possession of the villages in question was delivered to him. Thereafter an appeal was preferred to His Majesty-in-Council and the order of the Chief Court was reversed. It was in these circumstances that the question of restitution arose and their Lordships of the Supreme Court, while denying the benefit of restitution to the judgment-debtor, had come to the conclusion that if the sale is set aside and possession of it is restored to the judgment-debtor and mesne profits are decreed in his favour, the decree- holder will be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity ; it would place the judgment-debtor in a position of advantage which he is not entitled. This conclusion was arrived at because the judgment-debtor had defaulted in the payment of instalments as ordered by the trial Court and that, therefore, the sale was a necessary consequence. In the instant case, the appellant cannot be said to be placed in the position of decree---holder. The benefit of section 144, C. P. C. Has reference to the state of things as obtaining before the change. The appellant cannot satisfy this requirement. If the appellant had expended money he must have done so at his own risk, for he should have known that the proceedings were then pending and he could be affected by the result of it. This authority can, therefore, be of no assistance to the case of the appellant.
16. Lastly, Mr. Hafeez Pirzada appearing for respondents 1 and 2 urged that the tenancy in favour of the appellant was created in terms of special law, such as West Pakistan Urban Rent Restriction Ordinance, 1959, and therefore the appellant cannot be dispossessed otherwise than in accordance with the provisions of this law. He did not elaborate his argument but merely contended on this bald contention. We are of the view that no relationship of landlord and tenant existed after the reversal of the decree between respondents 1 and 2 and the appellant as the necessary consequence of reversal of the order of ejectment is that respondents 3 to 6 continued to be the tenants of the portion of the premises let out to the appellant during the pendency of the proceedings. Restitution has been ordered by the trial Court at the instance of G respondents 3 to 6 and in this circumstance the relationship of landlord and tenant cannot be pressed as by no stretch of imagination can respondents 3 to 6 be described vis-a-vis the appellant. The protection of the Ordinance applies to a case where there exists relationship of landlord and tenant and it is only then that the tenant can be ejected in accordance with the provisions of that Ordinance. '1 his is not the position here. We are, therefore, of the view that the trial Court has jurisdiction to dispossess the appellant under section 14t, C. P. C.
17. We have observed from the judgment of the learned Single Judge that respondents 3 to 6 had argued that the suit was not competent in view of rules 9 ', 98, 99, 100 and 103 of Order XXI, C. P. C.
As observed earlier the application of these rules was not attracted in the instant case as it is a case of restitution and not of resistance or obstruction during the pendency of the proceedings.
This was presumably because the appellant in para. 9 of the plaint had claimed to file the present suit under Order XX1, rule 103, C. P. C. This was obviously misconceived. It is not necessary here to determine as to whether the suit is or is not maintainable since we are of the opinion that the appellant has failed to make out a prima facie case for the issuance of injunction.
18. We have examined the contentions in the light of the above determination and our conclusion should not be taken to have decided the merits of the suit, we would dismiss this appeal with costs.
Since respondents 1 and 2 have to an extent supported the appellant's case they will not be entitled to costs.