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Civil Petition for Special Leave to Appeal No. 1115 of 1980, decided on 23rd December, 1981.
(On appeal from the judgment and order of the. Lahore High Court, Lahore, dated 3‑5‑1980 in C. R. 1443/79).
Art. 185 (3)‑Leave to appeal‑Question whether suit maintainable for restraining plaintiff from ejecting him from premises on ground of being not served with statutory notice despite his being in possession of premises and having acquired status of statutory tenant and whether without impleading him as a party order of eviction could not be passed, held, requires consideration‑Leave to appeal granted‑[Leave to appeal].
Ali Hussain v. Rufiquddin and others P L D 1977 Lah. 418 and Ismail Brothers v. Keval Ram P L D 1.981 S C 545 ref.
Hakam Qureshi, Advocate and Rana M. A. Qadri, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing : 23rd December, 1981.
The dispute in this petition relates to the ejectment of the petitioner from a godown consisting of two verandahs and a room on the ground floor of a building bearing No. SE‑II‑20‑S‑28, Ram Gali No. 4, Lahore. The petitioner claims to be .in possession of it as a statutory tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, whereas the respondent, who is the transferee of it, sued his brother Alauddin for his eviction of which proceedings he had no notice. By order dated 12th of November, 1975, the prayer was allowed and an appeal against that order was dismissed on 5th of June, 1978. The Second Appeal also met the same fate as it was dismissed on 22nd of April, 1979.
The petitioner learnt about the fate of these proceedings and filed a suit for restraining the respondent from ejecting him from this premises on the ground that he was not served with a notice under section 30 although he .was in possession of the premises and had acquired the status of a statutory tenant; and further that without impleading him as a party in the suit, the order of eviction was passed. He also applied for an interim injunction which was refused by the trial court and his plaint was also rejected under Order, VII, rule 11, C. P. C. by order dated 3rd of May, 1979, which was set aside in appeal by the Additional District Judge, Lahore, on 3rd of November, 1979, and the case was remanded to the trial Court for decision on merits.
Being aggrieved, the respondent filed a Revision in the Lahore High Court and succeeded as it was held that the suit was barred in view of the provisions of Order XXI, rule 103, C. P. C. which bars the filing of a fresh suit in regard to the matters specified therein. It was further held that even if he was ejected in execution of the decree, it would still be open to him to file an application for the restoration of possession under Order XXI, rule 100, C. P. C. Reliance for this view was placed on Ali Hussain v.Rafiyuddin and others (P L D 1977 Lah. 418). The petitioner, however, relies on Ismail Brother v. Keval Ram (P L D 1981 S C 545) for submitting that such a suit was maintainable. This question, accordingly, requires consideration and we would grant leave to appeal to the petitioner.
Security for costs Rs. 2,000. Interim order to continue. The appeal arising out of this petition shall be heard on the present record with liberty to the parties to file fresh documents, if any.
Leave granted.
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