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be executed by civil Court: One made by Rent Controller under S. 13

as confirmed, modified, or varied on appeal under S. 15‑Original

order of Rent Controller‑Does not become merged with order passed

by High Court under S. 15 on appeal‑That on matter having been

taken in appeal only decree executable is one of Appellate Court and

order of Rent Controller altogether wiped out, held, not correct.

[Execution of decree]. [p. 903]A

S. M. Ratan Mala Mondal and another v. Gopal Lal Daga and others A I R 1955 Cal. 14 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑ Ss. 17, 15 & 13 read with Civil Procedure Code (V of 1908), S. 151‑Eviction of tenant‑Execution of decree‑Even assuming that on appeal being taken to higher Court execution application filed in Rent Controller's Court did not revive, landlord's application under S. 151, C. P. C., held, could be treated as a fresh application for execu tion notwithstanding its being not in prescribed form since it contained all material particulars required for purposes of execution.‑[Execution of decree]. [p. 90318

Central Exchange Bank Ltd. v. Ch. Dilawar Ali Khan and Others P L D 1965 Lah. 628 ref.

‑‑ S. 17 read with S. 10 (1) and West Pakistan Civil Courts Ordinance (1I of 1962), Ss. 10 (2) & 15‑Civil Judge jurisdiction Local limits of jurisdiction of a Civil Judge‑Extend to whole District to which such Judge posted by High Court unless directed to contrary Territorial jurisdiction of Civil Judge thus conferred ‑Can be removed only by a proper order and Notification by High Court ‑Conten tion that area under contest having been assigned by District Judge to another Civil Judge and rent cases pending with various Rent Controllers being withdrawn and transferred to new Rent Controllers but providing that "matters arising out of the disposed of rent cases shall however be dealt with by the Courts which disposed of such cases," such last direction empowering Civil Judges to execute orders of ejectment by him irrespective of fact whether he had or had hat at such time territorial jurisdiction in matter was illegal and contrary to proviso to S. 15, West Pakistan Civil Courts Ordinance, 1962‑Held: Administrative order of District Judge directing matters arising out of disposed of rent cases to be dealt with by Courts which disposed of such cases not illegal nor in contravention of S. 15, West Pakistan Civil Courts Ordinance, 1962 and Civil Judge being posted by High Court to whole district his, jurisdiction extended to entire district.‑[Jurisdiction].

Raja Jagannath Prasad Singh v. Sheonandan Sahay A I R 1921 Pat. 152 and Masrab Khan v. Debnath Mali alias Abhu Mali and others A I R 1942 Cal. 321 ref.

Mohammad Siddiq Nizamani for Applicant.

Ali Ahmed Fazeel for Respondents.

Dates of hearing : 8th and 22nd November 1976.

The applicant, Jamil Ahmad son of Hafiz Sadruddin, was tenant of the respondents in respect of a shop situate on Plot No. 71, Block II, Central Commercial Area, Tariq Road, PECHS., Karachi. The respondents filed a Rent Case No. 279 of 1965 in the Court of VIII Civil Judge, First Class and Rent Controller, Karachi, for ejectment of the applicant on the ground of default in payment of rent. That Application was granted on 19‑11‑1969. The respondents then filed an Execution application No. 41 of 1969 on 20‑12‑1969 and writ of possession was issued, but before it was executed, the applicant filed Rent Appeal and obtained stay of the execution. His appeal was allowed by the Additional District Judge, Karachi, but the respondents filed a Second Appeal to the High Court which was allowed and the applicant was directed to vacate the shop within a period of four months. As the appli cant failed to comply, the respondents filed an application under section 151, C. P. C. in the Court of the VIII Senior Civil Judge, Karachi, who passed the original order of ejectment , for issue of writ of ejectment. The applicant filed objection but the same were rejected on 23‑7‑1976 and writ of ejectment was ordered to issue. The applicant then filed an appeal to the Additional District Judge, Karachi which was also dismissed by the judgment dated 16‑8‑1976. The present Revision Application is directed against the said judgment.

2. Mr. Muhammad Siddiq Nizamani, learned counsel for the, applicant, has urged before me the same submissions made on behalf of the applicant before the Executing Court and on appeal. The first submission is that the Original Execution Application No. 41 of 19651 stood disposed of when the appeal of the application under section 15 (1) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was allowed by the Additional District Judge, Karachi, and that a fresh Execution Application was necessary after the respondents' Appeal was allowed by the High Court under section 15 (4) of the Ordinance. According to the learned counsel, section 17 of the Ordi nance provides, Inter alia, that it is the Order passed in appeal under section 15 which is to be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. Therefore, according to him, it is the final order passed in appeal by the High Court under section 15 (4) of the Ordinance which is to be executed. This submission was rejected by both the sub ordinate Courts, rightly in my opinion, on the ground that the proceedings in the Execution Application No. 41 of 1969 were stayed and remained suspend ed until the final disposal of the appeal by the High Court, when it stood restored. Under section 17 of the Ordinance, it is clear that it is the Order of the Rent Controller made under section 13 as confirmed, modified or varied on appeal under section 15 of the Ordinance, which is to be executed by the civil Court. As submitted by Mr. A. A. Fazeel learned counsel for the respondents. the original order of the Rent Controller did not become merged with the order passed by the High Court under section 15 of the Ordinance on appeal, or that the only decree which is executable is the decree of the Appellate Court, or that the Order of the Rent Controller was wiped outs altogether. In this connection he referred to S. M. Ratan Mala Mondal and another v. Gopal Lal Daga and others (A I R 1955 Cal. 14) wherein it was observed that the theory of merger has never been applied by a Court for the purpose of defeating execution of the decree of the trial Court when the Appeal has been dismissed and the decree of the trial Court confirmed. It was further observed ;‑

"Although it is true that technically the decree of the trial Court merges in the decree of the appeal Court, it cannot be said that oven whets the decree of the trial Court is affirmed in appeal, the decree of the trial Court is wiped out for all purposes. To apply the doctrine of merger in such cases would lead to palpably absurd inequitable results. The decree‑holder would be put to the inconvenience of filing a fresh petition for execution of the decree of the appeal Court which is noth ing but the same decree of the trial Court and pursue the execution proceedings 'de novo'. There could conceivably be no point in such senseless multiplicity of proceedings. Filing of the appeal does not operate as a stay of execution of the decree. On what principle can it be said that the dismissal of the appeal will operate as a dismissal of the pending execution case of the decree of the trial Court, when the appeal Court does nothing but dismiss the appeal and confirm the decree of the trial Court I can fine none."

Even if it is hold that the pending Execution Application No. 41 of 1969 was not revived, the application under section 151, C. P. C. filed by the respondents for revival could be treated as a fresh application for execution even though it was not in the prescribed form because it otherwise contained all the material particulars required for purposes of execution. Mr. A. A. Fazeel supported this submission by relying on Central Exchange Bank Ltd. v. Ch, Dilawar Ali Khan and others (P L D 1965 Lah. 628). The defect, if any, is of form only ant will not vitiate the application which is in effect and substance an application for execution of the ejectment order passed by the Rent Controller as a decree, For these reasons, I find no force in the first submission of Mr. Nizamani.

3. The next submission of Mr. Nizamani is that the VIII Senior Civil Judge, Karachi had no jurisdiction in the area in which the shop is situated and therefore, he was not competent to order the execution under section 17 of the said ordinance. The submission of the counsel is that by an order of the District Judge, Karachi, dated 24‑6‑1975, the area in which the shop is situated, falling within the Ferozeabad Police Station, was assigned to the XV Civil Judge, Second Class, and by a subsequent order of the said District Judge dated 6th M arch, 1976, all rent cases then pending in the Courts of the Civil Judges at Karachi, were withdrawn and transferred to three new Courts of Rent Controllers, but it was provided that "matters arising out of the disposed of the rent cases shall however, be dealt with by the Courts which disposed of such cases". The contention of Mr. Nizamani is that this last direction empowering the Civil Judge, who had disposed of the rent cases, to execute the order of ejectment passed by him irrespective of the fact whether he had presently territorial jurisdiction in the area in which the shop is situated or not, is illegal and contrary to the proviso to section 15 of the West Pakistan Civil Courts Ordinance, 1962. It is therefore contended by Mr. Nizamani that the VIII Senior Civil Judge had no jurisdiction in the area in which the shop is situated after 24‑6‑1975 when that area was assigned to a Second Class Civil Judge, and all orders passed by him in execution proceedings after that date were illegal, void and without jurisdiction. I have considered this submission and, in my opinion, it is misconceived. Under section W(2) of the West Pakistan Civil Courts Ordinance, 1962, when the High Court posts a Civil Judge to a district, the local limits of the district shall, in the absence of any direction to the contrary be deemed to be the local limits of his jurisdiction. Mr. Abdul Satter Shaikh was posted to Karachi on his transfer from Nawabshah under Notification of the High Court No. RHC/VI. M. 46 (i) (1975) dated 14‑1‑1975 to hold the post of VIII Senior Civil Judge. In the absence of any direction to the contrary he had territorial jurisdiction throughout the district of Karachi. Section 15 of the aforesaid Ordinance empowers every District Judge by written order to direct that any civil business cognisable by his Court and the Courts of the Civil judges under his control shall be distributed among such Courts in such manner as he thinks fit, provided that such direction shall not empower any Court to exercise powers or deal with any business beyond the territorial limits of his jurisdiction. The order dated 24‑6‑1975 of the District Judge was made, as it stated, under section 15 of the aforesaid ordinance by which all Second Class matters were distributed among Second Class Civil Judges by reference to zonal areas and Police Stations and, in particular the XV Civil Judge, Second Claus, was assigned F comprising, Inter alts, Ferozeabad Police Station within whose police jurisdiction, the area in which the shop is situated falls. But this order does not take away the territorial jurisdiction of the VIII Senior Civil Judge, who continues to have jurisdiction throughout the district. The territorial jurisdiction conferred upon him can only be removed by a proper order and Notification by the High Court under sec tion 10 (1) of the aforesaid Ordinance. Therefore, the VIII Senior Civil Judge bad jurisdiction under section 17 of the Rent Ordinance to order execution of the ejectment order which was passed by him earlier as Rent Controller and the latter part of the administrative order of the District Judge dated 6‑3‑1976 directing that matters arising out of disposed of rent cases shall be dealt with by the Court which disposed of such cases, is legal and valid and does not contravene the proviso to section 1 5 of the West Pakistan Civil Courts ordinance, 1962. In support of the above, Mr. Fazeel relied on Raja Jagannath Prasad Singh v. Sheonandan Sahay (A I R 1921 Pat. 152) and Masrab Khan v. Debnath Mall atlas Abhu Mali and others (A I R 1942 Cal. 321) on the analogous provisions of sec tion 13 (1) and (2) of the Bengal, Agra and Assam Civil Courts Act, 1887.

4. No other submission was made by Mr. Nizamani. The Revision Application has no merit. It is accordingly dismissed with costs.

S. A. H. Application dismissed.

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