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Revision Application No. 56 of 1986, decided on 9th September, 1986.

..S 11‑‑Small cause suit‑‑Question of title‑‑Finding of Small Causes Court is not res judicata.

‑‑‑S. 22‑‑Civil Procedure Code (V of 1908) 0. XXI, R. 103‑‑Ejectment‑ Execution of orders‑‑Rent Controller while executing his order, held, not debarred to exercise any power under 0. XXI, C . P . C . , with regard to investigation of matter or determining bona fide claim of a person who resisted or obstructed order of eviction claiming himself to be in possession of disputed premises in his own right‑‑All questions arising between parties and relating to execution, discharge or satisfaction of order would be determined by Rent Controller and not by a separate suit.

P L D 1977 S C 220 ref.

P L D 1983 S C 155; 1985 S C M R 1175 and 1982 S C M R 650 rel.

M. Shah for Appellant.

Hyder Raza for Respondent.

Date of hearing: 28th August, 1986.

Respondent Syed Sibtain Ahmad had filed D.W. Application for the recovery of rent against Muhammad Shafi in the Court of Judge, Small Causes Court in the year 1973. According to the respondent Muhammad Shaft was his tenant. In the said proceedings the present applicant appeared as intervenor and filed objection claiming himself to be the tenant of premises in dispute. His application was rejected on 14‑12‑1973. The applicant filed an application under Order I, Rule 10, C.P.C. in the said case in the Court of IIIrd Rent Controller, Karachi to be made a party claiming himself to be the tenant of the respondent. His application was rejected on 15‑4‑1977. The rent case was decided in favour of the respondent on 31‑7‑1977. The respondent then filed an Execution Application No. 92 of 1977 in which applicant filed his objections which were dismissed on 16‑4‑1978. As the applicant and his counsel were absent it' was also observed by the Senior Civil Judge 'and Rent Controller that the intervenor claims to be tenant in possession of the premises but he had not filed any document in support of his claim though he has referred to certain documents in his objection. He had filed an application under Order I, Rule 10, C . P . C . in the main ejectment application but that was dismissed for non‑prosecution. In the affidavit filed alongwith the application he had not filed any document and had made no mention of the rent receipt or ration card as he has mentioned now in his objections. The applicant then filed a civil suit No. 2374 of 1973 in the Court of Civil Judge, Karachi. Alongwith the suit an application under Order XXXIX, Rules 1 and 2 was also filed. The Civil Court passed an order of status quo but later on said order was vacated and the applicant filed an appeal in the Court of District Judge, Karachi. The District Judge granted the injunction order against the respondent on 5‑8‑1979. The respondent challenged that order High Court of Sind. The High Court dismissed the revision application filed by the respondent and the injunction was ordered to continue and remanded the case to the trial Court with the direction to frame and decide two preliminary issues with regard to the maintninability of the suit under Order XXI, Rule 103, C.P.C. and section 11, C.P.C. The trial Court framed the two issues:‑‑

"(1) Whether the suit is barred by section 11, C.P.C.

(2) Whether the suit is not maintainable under Order XXI, Rule 103, C.P.C. "

2. The trial Court dismissed the suit and answered both the issues in affirmative. The applicant filed an appeal against the said order but the same was dismissed by the learned Additional District Judge, hence the present revision application.

3. It is contended by the learned counsel for the applicant that the findings of the two Courts below on the question of res judicata are erroneous because proceedings taken before the Court of Small Causes is not res judicata as the question of title was not subject‑matter before that Court. Though ordinarily a decision of a Court of small causes on a question of title is not a res judicata. Before the principle of res judicata is applied to a particular cause it must be established that the matter must be directly and substantially in issue in the two suits, (2) prior suit should be between the same parties or persons claiming under that (3) parties should be litigating under the same title (4) the Court of competent jurisdiction had decided the earlier suit and (5) the matter in controversy had been finally disposed of in the prior suit. The respondent had filed suit for the recovery of arrears of rent and, therefore, the question of title was not before that Court but the applicant himself moved that Court to be impleaded as the party. On his application the documents were sent to the handwriting expert and according to the report of the handwriting expert the documents were not genuine. The applicant through these documents wanted to show that he was tenant of the respondent and not Muhammad Shafi, against whom proceedings had been launched by the respondent. In the suit also the applicant had claimed the title on the basis of these documents and no further evidence was led. The onus was upon the applicant which he has failed to discharge. Counsel for the applicant has referred to 1983 P S C 302 which lays down that finding of a Small Causes Court is not res judicata as the question of title in a small causes suit can be regarded as incidental only to the substantial issue. The observation in this case is the correct enunciation of law and there is no dispute with the principle laid down in this case but the applicant has failed to bring on record any additional evidence in support of his claim of title.

On the other hand learned counsel for the respondent has referred to P L D 1977 S C 220 wherein it has been held that as a result of the application of this principle as embodied in section 11 of the C.P.C. all future litigation at any length between the parties must proceed on the presumption of correctness of the previous decision. In fact the question of res judicata is not as important because the applicant had a remedy to move the executing Court for determination of big title and under Order XXI, Rule 103 all questions arising as to title, right or interest in, or possession of, immovable property shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter. Rule 103 was subsituted by Law Reforms Ordinance, 1972. Thus, there is specific bar of separate suit. Learned counsel contends that Rule 103 was not applicable because under section 22 of the Sind Rented Premises Ordinance the order made by the Controller or the appellate authority shay big executed in such manner as may be determined by the Controller or as the case may be, the appellate authority. Under West Pakistan Urban Rent Restriction Ordinance, order of the Controller had to be executed as a decree of the civil Court. Learned counsel. therefore, contends that as the order of the Controller under section 22 of the Sind Rented Premises Ordinance is to be executed by the Controller himself and not by the Civil Court as such the provisions of Civil Procedure Code are not applicable. This contention has no force. Though the Controller has been authorised to execute his order in such manner as he may determine it but it does not mean that he is debarred to make any enquiry and investigation about the dispute of the parties. Order XXI is a complete code and the Controller has the authority to determine the dispute of the parties in the proceedings pending before him. The Sind Rented Premises Ordinance is a special enactment and the object of the Ordinance is to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within urban areas: The intention of the law is to shorten the litigation and not to involve the parties in multiple litigations. In executing the order the Controller is not debarred to exercise any power under Order XXI with regard to investigation of the matter or determining the bona fide claim of a person who is resisting or obstructing the order of eviction claiming himself to be in possession of the disputed premises in his own right. Now section 2 has been substituted by Sind Rented Premises (Amendment) Act, 1986, Act I of 1986. Final orders passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit. This amendment was gazetted on 12‑5‑1986.

Learned counsel for the applicant has submitted that in view of this amendment it is quite clear that previously the Rent Controller had no jurisdiction to determine the questions arising between the parties and relating to the execution, discharge or satisfaction or the order and proper remedy by a third party was a regular civil suit. This contention has no force. After all Controller had to adopt some procedure in executing the order. If the third person obstructs the execution of order claiming himself to be in possession of the property in his own right the Controller could after enquiry decide this matter and would not stay the proceedings till the controversy was resolved by the civil Court.

Learned counsel for the respondent has relied upon P L D 1983 SC 155 which advances the case of the respondent. In this case application for ejectment was filed in July 1976 and ex parte ejectment order was passed on 30‑11‑1977. Execution application was filed : , February 1978. The operative part of the judgment reads as under:‑

"Under the repealed Ordinance of 1959, the order passed by l the Controller or in appeal by the appellate authority was to be executed under section 17 of the said Ordinance, by a civil Court having jurisdiction in the area as if it were a decree of that Court. However, under section 22 of the Sind Rented Premises Ordinance. 1979 an order passed by the Controller or the appellate authority has to be executed in such manner as may be determined by the Controller or as the case may be, the appellate authority. Plainly, therefore, the Controller was competent to adopt any procedure deemed by him suitable for the purpose of execution of his order. Order XXI, Rules 100 and 101 of the Code of Civil Procedure amply authorised an executing Court for investigating and adjudicating upon the matter of dispossession from immovable property by the holder of a dacree for possession of such property of a person other than the judgment debtor. If the Court is satisfied upon such enquiry and determination, that the applicant was in possession of the property on his own account or on account of some person other than the judgment‑debtor, the executing Court has the jurisdiction to direct that the applicant be put into the possession of the property. It is a rule of procedure based on equitable principles and on the principle that a decree passed by Curt, ordinarily binds the parties to the suit or their assignees and persons claiming through them."

Learned counsel for the respondent has also referred to 1985 S C M R 1175 and 1982 S C M R 650.

5. In the result the present revision application has no force. The same stands dismissed with no order as to costs.

M.Y.H./5088/K Petition dismissed.

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