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Suit No.441 of 1986, decided on 9th December, 1986.

---O.VII, R.11 & O.XXI, R.103--Plaintiff availing remedy available to him in execution proceedings which was complete and final--Suit by plaintiff for said remedy, held, barred--Plaint in suit rejected under O.VII, R.11, C.P.C. in circumstances.

P L D 1981 Lah. 289; P L D 1982 Lah. 702; P L D 1983 Lah. 234 and 1985 S C M R 1274 rel.

---O.VII, R.11 & O.XXI, Rr.97, 98, 99, 100 & 103--Plaintiff expressing apprehension that on rejection of his plaint under O. VII, R.11, C.P.C., defendant would turn him out of premises in question--Plaintiff had already appeared in execution proceedings and adopted remedy available to him under O.XXI, R.100, C.P.C.--Defendant was not likely to take law in his own hands by ejecting plaintiff until his objections were disposed of by executing Court--Apprehensions expressed by plaintiff being ill-founded, were rejected in circumstances.

Syed Ishtiaq Ali and Iftekharuddin Siddiqui for Plaintiff.

Z.U. Ahmad with Naushad Shafqat for Defendants.

Date of hearing: 20th November, 1986.

This is an application under Order VII Rule 11 C.P.C. read with Order 21 Rule 103 C.P.C. praying for the rejection of the plaint on the ground that the plaintiff has chosen a remedy by filing an application a/o 21 Rules 97, 98 and 99 in the execution, proceedings (Ex.No.10 of 1986) and therefore, the present suit is barred by Rule 103 of Order 21 C.P.C.

2. The dispute in this case relates to tenement No.5 which is a part of the building constructed on plot No.249 Staff Lines, Fatema Jinnah Road, Saddar Karachi. This plot belonged to the Cantonment Board and was given on long term lease to the Defendants No.3 to 5. These Defendants gave lease of this plot to M/S Sind Trading Company. M/S Sind Trading Company leased out the building to Marina Hotel, Defendant No.6 in the suit. According to the learned counsel for the defendants No.1 and 2, this was an unauthorised sub-letting. The defendants No.3 to 5, therefore, filed ejectment proceedings against the lessees before the Rent Controller, Cantonment Board, Karachi and obtained an ejectment order against the lessees M/S Sind Trading Company. M/S Sind Trading Company did not file any appeal against this order, but their sub-lessee Marina Hotel filed an appeal, which was also dismissed.

3. The Plaintiff in the suit is occupying tenement No.5 and he claims to be tenant directly under the original owner, namely Defendants No.1 to 5 since 1977, although no tenancy agreement has been filed with the plaint nor any receipt of rents from the defendants No.3 to 5 has been produced.

4. The present plaintiff has taken several steps to protect his tenancy under Defendants No.3 to 5. As stated in para 1 above he has filed- objections in the execution proceedings No.10/96 filed by the Defendants No.1 and 2. Mention may also be made of suit No.1579/84 filed on 3-5-1984 in the Court of XXVII Civil Judge, Karachi for a declaratory relief that the plaintiff is a direct tenant under defendant No. 3 to 5. This suit is pending.

5. The property in the suit has been purchased by the Defendants No-1 and 2 from the Defendants No-3 to 5 and they are pursuing ejectment proceeding against the occupants occupying different units of the property.

6. I am concerned here with the execution proceedings which the defendants have filed against Marina Hotel etc. In these execution proceedings the present plaintiff has appeared to resist the execution of the decree against him and I am informed that he has pleaded that the decree cannot be executed against him, because he was not a person claiming under or through the Judgment Debtor in those proceedings and as such a decree cannot be executed against him. In the amended law this is the only remedy available to him. He can, in those proceedings, establish his tenancy directly under the original owners defendants No.3 to 5 and if he succeeds, the decree would not be executed against him, because the remedy available to the plaintiff in the execution proceedings would be complete and final and the present suit is barred by Rule 103 of Order 21 C.P.C. Rule 103 of Order 21 is as follows:-

All questions arising as to title, right or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite-party, or between an applicant under rule 100 and the opposite-party, shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter."

The learned counsel relying on the words "no separate suit shall lie for the determination of any such matter," argues that under Clause (d) or Rule 11 of Order VII C.P.C. the suit is barred and the plaint must be rejected. In support of this contention the learned counsel has relied on several reported cases in which the above view has been taken. Mention may be made of (1) P L D 1981 Lah. p.289, (2) P L D 1982 Lah. p.702, (3) P L D 1983 Lah. p.234, and (4) 1985 S C M R p.1274.

7. As the question involved has been decided by the Supreme Court, I would not burden this order with further citations and would respectfully follow the dictum laid down by the Supreme Court. This was also a case of a tenant, who was resisting execution filed against him by the landlord, who was armed with a decree for possession. The tenant had filed a suit for declaration and injunction claiming that the decree of ejectment passed by the Rent Controller was based on fraud and misrepresentation. This suit was dismissed under Order VII Rule 11 C.P.C. The first appeal was also dismisses; and a revision filed before the High Court met with the same fate. The tenant then filed a petition for leave to appeal. The petition was dismissed and leave was refused. It would be pertinent to quote the following portion of the judgment of the Court:-

"On a plain reading of the aforesaid provision the right claimed by the petitioner as a tenant in the execution proceedings was to be adjudicated upon and determined by the Court in such proceedings and no separate suit was competent on any such question. If therefore, the Code of Civil Procedure was applicable, manifestly the suit filed by the petitioner was barred under the aforesaid provision of law. The petitioner's remedy lay in filing an appeal from the order of the Civil Court dismissing her objections as such an order is now a the effect of a decree by virtue of section 2(2) of the Code of Civil Procedure, therefore, an appeal would lie therefrom finder section 96 of the Code of Civil Procedure. Admittedly no such appeal was filed by the petitioner."

8. Paced with this situation the plaintiff expresses apprehension that on the rejection of the plaint in this suit the Defendants No.1 anal 2 may throw him out of the premises. As a matter of fact this apprehension has remained upper most in his mind. The relief claimed in the plaint itself shows that in filing this suit the defendant had no other relief in mind than an urge for security of his possession till his rights are adjudicated by the competent Court, and his pleas are accepted or rejected. He has sought no other relief except that the defendants No.1 and 2 should be restrained from dispossession or disturbing the peaceful and physical possession of the plaintiff over shop No.5 on plot No.249, Staff Line, Fatema Jinnah Road, Saddar, Karachi, otherwise than in due course of law.

9. This apprehension seems to be ill founded. The Plaintiff has already appeared in the execution proceedings and has adopted the remedy available to him under Order 21 Rule 100 C.P.C. as is evidence from his own affidavit dated 20-8-1986. The defendants cannot be expected to take law in their own hands by ejecting the plaintiff until his objections are disposed of by the executing court.

The application (C.M.A. No.3894/1986) is granted and the plaint in this suit is rejected under Order VII Rule 1 C.P.C. The suit stands disposed of.

M.Y.H./G-16/K Suit dismissed.

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