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Before Muhammad Zahoorul Haq and A. V. Akhund, JJ
Mst. ZUBAIDA BAI‑Petitioner
versus
II ND RENT CONTROLLER, CITY COURT, KARACHI
AND ANOTHER‑Respondents
Constitutional Petition No. D‑63 of 1980, decided on 1st October 1980.
(a) Civil Procedure Code (V of 1908)
.‑.‑‑ Ss. 144 & 151 and West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Possession, restoration of‑Tenant ejected by order of Rent Controller and possession given to‑ landlord- Ejectment order set aside on appeal and Rent Controller on tenant's applications under S. 151, Civil Procedure Code, restoring possession to tenant‑‑Held : Power of Court to direct restitution of possession inherent in Court itself and order not passed under S. 144 of Code‑‑‑‑Court under duty to order restoration where circumstances so demand and to restore parties to position obtaining previous to reversal of order of ejectment.
Sh. Mehrajuddin v. Ghulam Muhammad P L D 1'965 Lah. 374 and Messrs Southern Commercial 'Corporation v. Abdul Hussain P L D 1976 Kar. 918 ref.
(b) Civil Procedure Code (V of 1908)‑
..‑..‑‑‑ Ss. 144 & 151 and West Pakistan Urban Rent Restriction 6rdi nance (VI of 1959), S. 15‑Possession, restitution of‑Appellate Court setting aside ex parte ejectment order and remanding case to Rent Controller but not ordering restoration of possession‑Order having been varied or reversed, restitution held, must follow automatically and Court bound to put back parties to their original position.
Mehaj Din v. Ghulam Muhammad P L D 1965 Lah. 374 ref. Muhammad Sharif Khatak for Appellant/Petitioner.
Ibrahim A. Rao for Respondents.
Date of hearing : 1st October 1980.
A. V. AKHUND, J.‑‑Petitioner, Mst. Zubaida Bai, is landlady‑of premises No. 227/2, Federal B' Area, Karachi which she had rented, out to respondent No. 2.‑Haroon Mian Noor.
2. On 30th May, 1977, petitioner brought an ejectment application against respondent No. 2 under section 13 of the West Pakistan Urban Rent Restriction‑ Ordinance,. 1959, on the grounds that the latter was a defaulter in payment of rent, and the premises were required by her in good faith for her own occupation. On 11th July, 1977, IInd Rent Controller, Karachi, on the endorsement of the bailiff on the notice that the respondent No 2, who was not known to him previously, refused to accept the service, held the service good on the respondent No. 2, and, ordered ex parte proceedings. On the 17th August 1977, on the affidavit of the petitioner, the Rent Controller ordered ex parte ejectment of respondent No. 2. The petitioner filed Execution application notice of which was issued to respondent No. 2 which .too the bailiff returned with an endorsement that respondent No. 2 refused to accept, it. This time also the Rent Controller held the service good on respondent No. 2. On 10th October, 1977, the respondent No. 2 was ejected from the rented premises with the aid of Police, and petitioner was put in possession thereof.
3. On 12th November, 1977, respondent No. 2 filed an appeal in the District Court, Karachi under section 15(1) of the West Pakistan Urban Rent Restriction Ordinance, 195'9. By an order dated 31st January, 1979, VIII Additional District Judge, Karachi, accepted the appeal, set aside the order dated 17th August, 1977, passed by the Rent Controller, and remanded the case to him for disposal, holding that respondent Haroon Mian Noor was not duly served.
4. On ,16th July 1979, respondent No. 2 made an application to .he Rent Controller, under section 151, Code of Civil Procedure to put hint back in possession of the rented premises from which he had been illegally ejected. On 18th December, 1979, the Rent Controller after hearing the counsel of the parties, allowed this application, and, directed that respondent No. 2, Haroon Mian Noor be restored possession of the premises.
5. On 14th January, 198(1, the petitioner brought this Constitutional petition that the aforesaid order dated 18th ',December, 1979, was illegal and without jurisdiction.
6. In the course of his arguments, learned' counsel for the petitioner raised the following two contentions :‑
(a) The impugned order was passed against natural justice without hearing the parties; and
(b) sine the provisions of section 144 of the Code of Civil Procedure do not extend to the Rent Restriction Ordinance, the Rent Controller bad no jurisdiction to order, that possession be restored to the respondent No. 2.
7. The contention (a) is devoid of force because the impugned order itself reads inter alia : .
" . ., . . The notice of this application :was given to the other side . . I have heard both the learned counsel of the parties . : . . ."
It clearly shows that impugned order is not passed at the back of the parties and/or, without notice to them. There is nothing to show that the assertions made in the order are incorrect. In the absence of proof to the contra y, the presumption is that what the Rent Controller has stated in his odder is‑correct and the order is not passed against principle of natural justice.
8. As regards contention (b), the application was not made under section 144, :. P. C. It was made under section 151 of the Code of Civil Procedure and the order passed by the Rent Controller restoring possession, was made obviously under that section. The power o restitution, is not derived from section 144 of the Code of Civil Procedure, as the power of Court to direct restitution in the Court itself. Section 144 merely specifies one of the methods by which the right of restitution can be enforced. The fundamental principle of law is that act of Court should not injure any person. It is the duty of the Court to order restoration where circumstances so demand and to restore the parties to the same position they were in prior to the order that has been varied or reversed. In this case respondent No. 2 was ejected and possession given to the petitioner in a matter where the respondent was not served with notice of application and execution. Since the order under which the respondent was ejected, was set aside, the parties were to be restored to the same position in which they were prior to the order. In Sh. Mehrajuddin v. Ghulam Mohammad (1) the tenant who had been evicted in pursuance of an ejectment order, was restored possession by the Rent Controller, where the ejectment order was set aside by the District Judge, and, the High Court at page 376 remarked in para. 4 of the judgment:
'The doctrine of the restitution is based upon the cardinal principle of law that the act of the Court should not be allowed to work injury on the suitors. It contemplates a case where property had been received through Court under the order of an authority which was later on wholly or partly reversed or varied. In such a case the law impose an obligation on a party who had received the benefit of the erconeous order to make restitution to the other party for what he; had lost, and it is the duty of the Court to enforce that obligation in the interest of justice between the parties."
In Messrs Southern Commercial Corporation v. Abdul Hussain (2), the landlord obtained possession of premises in execution proceedings in pursuance of an ex party ejectment order which was later on set aside and it was held that premises be restored to original tenant.
9. It is true that the Additional District Judge while setting aside ex parte ejectment order and remanding the case; to the Rent Controller did not order that respondent No. 2 who had been ejected in execution of the order which is set aside by him, should be put back in possession. But such order was not necessary because as a result of the order of the.. first Court having been varied or reversed in appeal, the restitution is to follow automatically, and in such a case duty is cast upon the Court to put B the parties back to their original position: See P L D 1965 Lab. 374 remark at pages 377‑378.
10. The petitioner did not raise objection as to the jurisdiction of the Rent Controller to pass the impugned order restoring, possession to respondent No. 2. She is not entitled to the extraordinary remedy. Reference is invited to the case of, Ghulam Mohiuddin v. C7hkf Settlement Commissioner and others (3).
" . that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
11. The order impugned in this case is not passed by the Rent Controller without lawful authority, and, the petition is dismissed.
M. A. K. Petition dismissed.
(1) P L D 1965 Lab. 374 (2) P L D 1976 Kar.918
(3) P L D 1964 S C 829
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