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First Rent Appeal No.518 of 1984, decided on 31st May, 1984.
---S.19(2)--Civil Procedure Code (V of 1908), S. 12(2)--Ejectment order passed by Rent, Controller confirmed in appeal--Execution proceedings started--Application filed by tenant before Rent Controller under section 12(2), C.P.C. alleging fraud against landlord, rejected--Order impugned in appeal which was dismissed on ground that decree passed by. Rent Controller became final subject to order in appeal--Rent Controller has no power/ jurisdiction to rescind final ejectment order on ground that it was obtained by fraud--Appeal dismissed.
Ahmed Ullah Farooqui for Appellant.
Muhammad Akram Zuberi for Respondent on pre-admission notice.
Date of hearing: 31st May, 1984.
This appeal has been filed against the order, dated 8th May, 1984 passed by VIII Senior Civil Judge and Rent Controller, Karachi issuing writ of possession against the appellant in pursuance of ejectment order passed in Rent Case No.2407/1971. The appellant had filed appeal against the said order, to this Court which was F.R.A.No.23/1979 which was dismissed by this Court by order, dated 15-4-1981.
2. When the respondent started execution proceedings, the present appellant filed an application under section 12(2), C.P.C. on 2-10-1983 alleging that the respondent has fraudulently got the premises in question transferred to himself and that the matter regarding its transfer is still pending before the Settlement Authorities. This application was dismissed by the learned Rent Controller by order dated 8-5-1984, whereby he also directed that writ of possession may be issued against the appellant.
3. This appeal is misconceived because the ejectment order had become final after it was confirmed in appeal by this Court on 15-4-1981. The proper course for the appellant was to have filed appeal before Supreme Court.
4. In execution proceedings the learned Rent Controller had no jurisdiction to set aside the decree on the ground that it was obtained by fraud. Once a decree is passed by a Rent Controller, it becomes final subject to the order in appeal. Since the ejectment order has been confirmed in appeal, hence the Rent Controller had no jurisdiction to discharge execution proceedings on the application of the appellant under section 12(2) of C.P.C., which in terms does not apply to proceedings under the Rented Premises Ordinance of 1979.
5. Subsection (2) of section 19 of the said Ordinance lays down that even if an ex parte order has been made by the Rent Controller, he shall have no power to rescind such order. On the same analogy it can be said that the learned Rent Controller shall have no jurisdiction or power to rescind the final ejectment order on the ground that it was obtained by fraud. The proper remedy for the appellant would be to file a Civil Suit. It is stated at the bar by Mr.Ahmed Ullah Farooqui that he has already filed a suit for declaration and injunction in respect of the premises in question.
In view of the above legal and factual position, this appeal is without any substance and is dismissed.
M. I. Appeal dismissed.
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