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Civil Petition for Special Leave to Appeal No. K‑63 of 1974, decided on 25th April 1974.

(On appeal from the judgment and order of the High Court of Sind & Baluchistan, Karachi, dated the 6th February 1974, in Civil Revision No. 23 of 1974).

Civil Procedure Code (V of 1908)‑

‑‑ S. 115 & O. XIX, rr. 1 & 2‑"Case decided"‑Rejection of application under O. XIX, rr. 1 & 2 by executing Court‑Not a case decided‑Revision application filed in High Court‑Not falling under S. 115, hence, not competent.

A. H. Farooqi, Senior Advocate Supreme Court instructed by S. Inayat Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 25th April 1974.

WAHEEDUDDIN AHMAD, J.‑

Respondent No. 2 constructed a single storey 4‑roomed permanent building on a piece of land in Hasrat Mohani Colony, Karachi and has established therein a hotel called New Azad Hotel'. It is alleged that a shop in the said property was let out to respondent No. 1 since June 1963. It is further alleged that one of the three rooms of the said property was in possession of respondent No. 2 and the remaining two rooms were rented out to Muhammad Idris Bengali, Abdul Qasim, Noor Hussain and Noorul Islam.

The case of the petitioner is that on the 22nd March 1971, the respon dent No. 2 executed a general power of attorney in favour of one S. M. A. Haleem son of Abdul Mannan and left Pakistan in the last week of March 1971, and had not returned since then. According to the petitioner, on the 30th December 1972, the Attorney o f respondent No. 2 sold to the petitioner the entire superstructure for Rs.14,000 and asked both the tenants to sign a letter of attornment in favour of the petitioner. Muhammad Idris signed the letter but respondent No. 1 avoided to sign it.

Later on, respondent No. 1 claimed that he had purchased the property in dispute from respondent No. 2 and gave a public notice to this effect.

Thereafter, the petitioner filed an application for eviction under section 13 of the Urban Rent Restriction Ordinance an the Court of Rent Controller and Civil Judge, 2nd Class, Karachi, which is known as Rent Case No. 703 of 1973. The petitioner was surprised to learn that respondent No. 1 had filed on the 7th March 1973, Rent Case No. 660 of 1973 for the ejectment of respondent No. 2 before the Rent Controller and Civil Judge, 2nd Class, Karachi, describing the respondent No. 2 as his tenant. On the 29th August 1973, respondent No. 1 secured orders for issue of writ of possession and for its execution by breaking open the locks in the absence of respon dent No. 2. On the 1st September 1973, he obtained the possession of the entire part of the property in physical possession of the petitioner and her Bengali tenants. Thereupon, the petitioner moved an application on the 5th September 1973, under Order XXI, rule 100, C. P. C. for the restoration of possession and another application dated the 7th September 1973, under Order XXXIX, rules 1 and 2, C. P. C. for restraining respondent No. 1 from transferring any part of the property to any other person. Respondent No. 1 filed counter‑affidavits and objection to the said applications.

The petitioner moved an application on the 2nd November 1973, under Order XIX, rules 1 and 2, C. P. C. for permission to cross‑examine the deponent, namely, respondent No. 1. This application was dismissed by order dated the 28th November 1973. The petitioner challenged this order in Civil Revision No. 23 of 1974, and a learned Single Judge of the High Court of Sind & Baluchistan, Karachi dismissed the application summarily on the 6th February 1974. The petitioner seeks permission to file an appeal against the said order.

Mr. A. H. Farooqi, learned counsel for the petitioner, has contended that the learned Single Judge while deciding the revision petition has observed that the application under Order XXI, rule 100, C. P. C. was not maintain able and has thereby prejudiced the case of the petitioner. He further con tended that it was a fit case in which the learned Single Judge should have directed the respondent No. 1 to appear in Court for cross‑examination under Order XIX, rules 1 and 2, C. P. C.

After hearing the learned counsel for the petitioner, it appears to us that revision application filed by the petitioner in the High Court was not competent. The rejection of the application under Order XIX, rules 1 and 2, C. P. C. by the executing Court was not a case decided and therefore, dad not fall within the purview of section 115, C. P. C. In view of this, the learned Single Judge had no jurisdiction in the matter and the revision petition should have been dismissed on this ground alone. We, therefore, find no force in the petition and dismiss it. We will, however, observe that any opinion expressed by the learned Single Judge on the merits of the case will not be taken into consideration by the executing Court and the applica tion filed by the petitioner under Order XXI, rule 100, C. P. C. will be disposed of without taking into consideration these observations.

Subject to this remark the petition is dismissed.

Petition dismissed.

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