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Writ Petition No. 200 of 1983, decided on 27th February, 1984.

‑‑‑Ss. 13 & 15‑‑Civil Procedure Code (V of 1908), Ss. 12(2) & 151‑ Ejectment order passed against .tenant confirmed in appeal on his statement before appellate Court and tenant given eight months' time for handing over possession‑‑Tenant moving application under S.12(2), C.P.C. before Rent Controller when stipulated period was about to expire. that ejectment order was obtained through fraud and misrepresentation‑‑Held, final order was passed by appellate Court‑‑Application if at all lay, it could only be entertained by Appellate Court Proceedings before Rent Controller were entirely without jurisdiction.‑‑[Jurisdiction].

‑‑‑Ss. 13 & 15‑‑Civil Procedure Code (V of 1908), Ss. 12(2) & 151‑ Tenant moving application for additional evidence before appellate Court, having come to know that landlord had no right whatsoever to house in dispute, yet not persuing application‑‑Tenant voluntarily giving up his right to have additional pleas and making statement before appellate Court that he had entered into compromise and would vacate house after eight months‑‑Filing application under S. 12(2), C.P.C. when period of eight months was about to expire‑‑Application, held, made to frustrate eviction order and was a dishonest attempt to prolong possession over house in dispute.

Ch. Khalid Mahmud and Ch. Bashir Hussain Khalid for Appellant.

Irshad Ahmad Qureshi for Respondent.

Dates of hearing: 6th, 12th and 13th December, 1984.

Ihsan Elahi Sial, respondent No. 1, was residing in a house bearing No.359‑G, Rehmanpura Colony, Lahore, as a tenant under one Muhammad Ibrahim. The house belonged to the Housing and Planning Department and had been allotted to Muhammad Ibrahim. He sold his rights in this house to Mst. Farida Khanum, petitioner. She applied to the District Housing Officer for the transfer of the property in her favour. The sanction was granted and subsequently a sale‑deed was also executed by the Communication and Works Department in her favour. She served a notice upon respondent No.1 informing him about the transfer and calling upon him to pay rent to her. On 11‑4‑1978 she filed an application before the Rent Controller for the eviction of respondent No.1 on a number of grounds including default in payment of the rent and personal requirement. The application was resisted by respondent No.1. In his reply he disputed the ownership of the petitioner over the house. On the pleadings of the parties the learned Rent Controller framed a number of issues. During the course of the trial the petitioner examined an inspector of the Housing Department who produced a copy of the registered sale deed executed in her favour. By the order dated 1‑7‑1980 the learned Rent Controller directed the ejectment of respondent No.1 holding that he was a defaulter in the payment of the rent, the house was required for personal need by the petitioner and that she wanted to reconstruct the premises. From the order of the Rent Controller respondent No.1 went in appeal before the Additional District Judge. While the appeal was pending respondent No.1 moved an application for leading additional evidence to show that the petitioner was a different person from the one to whom the house was sold by the Housing Department. This application was resisted by the petitioner. However on 13‑10‑1981 the parties appeared before the learned Additional District Judge and made the following statement:‑----

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Quite clearly by becoming a party to the consent order respondent No.1 gave up his objection both with regard to the petitioner's ownership of the house and her identity. Nevertheless, on 31‑5‑1982 when the stipulated period of eight months was about to expire he moved an application before the Rent Controller under section 12(2), read with section 151 of the Code of Civil Procedure for setting aside the order of ejectment on the ground that it had been obtained through fraud and misrepresentation. In his application he reiterated that the petitioner was not the transferee of the house arid that Farida Khanum in whose favour the Housing Department had soul the house was a non‑existent person. Together with his application he also asked for a temporary injunction under rules 1 and 2 of Order XXXIX for staying the execution proceedings. The learned Rent Controller granted the temporary injunction sought for and the petitioner's appeal against the interim relief was dismissed by the learned Additional District Judge on the ground of competency. The petitioner has now challenged the legality of the proceedings before the learned Rent Controller.

2. It is contended on behalf of the petitioner that as the Code of Civil Procedure did not apply to the proceedings under the Punjab Urban Rent Restriction Ordinance, 1959 the learned Rent Controller not competent to entertain any application under section 12(2) of the said Code. In support of his contention the learned counsel relied upon a decision of this Court reported as Muhammad Shafi v. Muhammad Saleem P L D 1982 Lah. 702. In this case Muhammad Ilyas J. observed:‑--

"It was contended by learned counsel for the petitioner that the provisions of subsection (2) of section 12 of the Code of Civil Procedure were not attracted to proceedings before a Rent Cont roller and, therefore, the suit brought by the petitioner was not hit by those provisions. In view of the words "suit", "Court", "Code", "Judgment" and "decree" used in section 12 it appears that its provisions apply to suits and not to applications made to the Rent Controller under the Punjab Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance. I, therefore, agree with the learned counsel that the suit brought by the petitioner was not barred by subsection (2) of section 12 of the Code of Civil Procedure".

3. Apart from the fact that the observations made by the learned Judge do support the contention of the petitioner there is another aspect of the case also. Even if it be assumed that the application under section 12(2) was maintainable I am quite clear in my mind that it did not lie before the Rent Controller. Section 12(2) reads as follows:‑

"Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit".

Here in this case the final order was made by the learned Additional District Judge. If an application did at all lie it could only be entertained by the learned Additional District Judge. The proceedings therefore before the Rent Controller are entirely without jurisdiction.

4. Before I conclude I may mention that according to the application for additional evidence which respondent No.1 moved before the Additional District Judge he had already come to know while his appeal was still pending that the petitioner had no right whatsoever to the house in dispute yet he did not pursue the application. On the other hand he voluntarily gave up his right to have the additional pleas put to trial when he made the statement before the learned Additional District Judge that he had entered into a compromise with the petitioner and vacate the house after eight months. Then he waited till about the expiry of the said period before moving the application under section 12(2). I am, therefore inclined to think that this application has been made to frustrate the eviction order and is a dishonest attempt to prolong his possession over the house in dispute.

5. For the reasons stated in paragraph 3 above I quash the proceedings pending before the Rent Controller. The respondent No.1 shall pay the costs of this petition.

M . A . K . Petition dismissed.

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