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Civil Petition for Special Leave to Appeal No. 652 of 19 8, decided on 24th March 1981.

(On appeal from order dated 28-10-1978 of the Lahore High Court in Civil Revision No. 632/1976).

S. 13 read with Civil Procedure Code (V of 1908), O. XXI, r. 100 and Constitution of Pakistan (1973), Art. 185(3)-Eviction of tenant- Dispossession, complaint against-Respondent-landlord's eviction application against N granted and such order maintained in first and second appeals-Petitioners moving application before Rent Controller stating to have been in possession of premises in dispute hence not liable to be dispossessed in execution of decree against N-Application dismissed on ground of being not maintainable at instance of a person not a judgment-debtor yet to be dispossessed-Petitioners being nephew and son of tenant N and nothing stated in application as to how peti tioners claimed to be in possession of shop in dispute in their own right- Petitioners' counsel conceding as to petitioners not being in possession of any rent receipt in their own names-Petitioners, held, dishonestly avoiding eviction order made against N, hence, not entitled to invoke discretionary jurisdiction under Art. 185 of Constitution (1973).

Ali Hussain v. Rafiquddin P L D 1977 Lah. 418 ref.

Khalilur-ur-Rehman Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Mian Nusratullah, Advocate Supreme Court and Rana Maqbool Ahmad,

Advocate-on-Record for Respondents.

Date of hearing : 24th March, 1981.

The facts giving rise to this petition are that the respondent landlord filed an eviction application under the West Pakistan Urban Rent Restriction Ordinance against one Sh. Noor Hussain, which was granted which order was maintained in first appeal as well as in second appeal by the High Court. The petitioners then moved an application before the Rent Controller that they were in possession of the premises in dispute and, therefore, they should not be dispossessed in execution of the decree made against Sh. Noor Hussain. This application was dismissed by the Rent Con troller, which order was maintained in first appeal as well as in a revision before the High Court which was dismissed on the short ground that an application under Order XXI, rule 100, C. P. C., was not maintainable at the instance of a person not being a judgment-debtor who is yet to be dispossessed in an execution proceeding. In support, the High Court relied on Ali Hussain v. Rafiquddin (P L D 1977 Lah. 418). The High Court referred to the opening words in rule 100 of Order XXI, namely, "Where any person other than the judgment-debtor is dispossessed of immovable property . . ." and went on to hold that the appli cation under this rule could only be made by a person already dispossessed and it did not cover a person who was yet to be dispossessed.

In support of this petition, the learned counsel for the petitioners ques tioned the correctness of the decision in Ali Hussain's case, referred to above.

We, however, find that it is not necessary to examine this contention for petitioner No. 1 is the nephew of the tenant Sh. Noor Hussain and petitioner No. 2 is his son, and in the application under Order XXI, rule 100, C.P.C. nothing at all was stated as to how the petitioner were in possession of the shop in dispute in their own right. Before us, the learned counsel stated that the petitioners were direct tenants of the respondent landlord, but conceded that they did not possess any rent receipt in their own names. We are of the view that it was obligatory upon the petitioners to state in their application under Order XXI, rule 100, C. P. C., the basis on which they were claiming to be in possession of the shop in their own right. We are inclined to think that the petitioners are dishonestly avoiding an eviction order made against their uncle and father Noor Hussain, and in they circumstances, we will be justified in not exercising our discretionary jurisdiction under Article 185 of the Constitution.

This petition is, therefore, dismissed.

Petition dismissed.

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