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Civil Revision No. 188 of 1979, decided on 29th May, 1979.

S. 13-Ejectment-Even one co-owner held, can eject tenant on ground of default without impleading other co-owners.

A t, Khalique Ahmad v. Abdul Ghani and another P L D 1973 S C 214 rel.

Mst. Sabira Sultana v. Bangul Khan 1974 S C M R 510; Ahmad Din v. Faiz Ali P L D 1954 Lah. 414 and Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan P L D 1970 S C 139 distinguished.

O. XXXIX, r. 1-Injunction-Stay of proceedings-Pendency of 3 suit, challenging transfer of portion of property-No ground for staying proceedings of eviction of tenants brought by co-owner particularly on ground of default-West Pakistan Urban Rent Restric tion Ordinance (VI of 1959), S. 13.-[Injunction].

Zia Mahmood Mirza for Petitioners.

Ch. Azimud Din for Respondents.

Date of hearing 29th May 1979.

The plaintiff-respondents filed a suit against the petitioners to challenge a sale of 33/80 share to them on the ground that they had also inherited the property in dispute to the extent of that share. Their application for ad-interim injunction to restrain the petitioners from changing the status quo and from dispossessing their tenants of the property was allowed and the appeal against that order was dismissed by the learned Additional District Judge, Kasur on 8-1-1979. Hence this revision petition.

2. It is an admitted :fact that the petitioners are owners of at least 47/80 shares even if the plaintiff-respondents succeed in their suit. In. these circumstances they are co-owners of the property. The respondents had made out a case for injunction in regard to tatus quo other than proceedings of the dispossession of the tenant taken before the Rent Controller by the petitioners. The reason is that according to law even one of the co-owner can file proceedings for ejectment of a tenant on the ground of default without impleading the other co-owners as parties Khalique Ahmad v. Abdul Ghana and another (P L D 1973 S C 214). In this case it is not denied that ejectment of the tenants is sought by the petitioners before the Rent Controller on ground of default. In these circumstances those proceedings are maintainable even if it is held that the petitioners are entitled to only 47/80 share in the property in dispute.

3. The learned counsel for the respondents, however relied upon Mst. Sabira Sultana v. Bangul Khan (1974 S C M R 510) in that case injunction granted to restrain the eviction of the plaintiff from the entire house unless the property was partitioned was considered to be a proper injunction. This authority is not helpful since it does not apply to the facts of the present case.

4. The other case relied upon by the learned counsel is Ahmad Din v. Fiaz Ali (P L D 1954 Lah. 414) but that case is hardly helpful since what was held therein was that Order XXXIX, rule 1 can be invoked for staying judicial proceedings.

5. The last authority relied upon by the learned counsel is Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan (P L D 1970 S C 139 ) in which the scope of powers under section 115, C. P. C. has been discussed and it has been held that where the Court below has exercised its discretion it cannot be interfered with unless the discretion is fanciful and arbitrary.

6. There is no cavil with this proposition. If it is held that the trial Court or the appellate Court has exercised the discretion vested in it, it' cannot be interfered with but in the present case the learned Courts below have not at all considered this aspect of the case to which reference hash been made earlier The mere fact that there was a suit for challenging transfer of a particular portion of the property is no ground for staying B the proceedings of eviction of the tenants brought on behalf of a person who is admittedly a co-owner of the property particularly when those proceedings have been brought on the ground of default. The learned Courts below have acted illegally and with material irregularity in the exercise of their jurisdiction by failing to take into consideration the said point of law.

7. I, therefore, allow this revision petition, set aside the orders of the learned Courts below and modify the orders of injunction to the extent that it will not apply to the stay of proceedings before the Rent Controller against the tenants. The other portion of the stay, viz. the maintenance of status quo otherwise shall remain in force. The parties shall bear their own costs.

K. M. A. Petition accepted.

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