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First Rent Appeal No. 278 of 1986, decided on 3rd November, 1986.

‑‑‑O.XXI, R.99‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss.21(1) & 22‑‑Execution of ejectment order‑‑Jurisdiction of Rent Controller‑‑ Ejectment order in respect of disputed premises having been passed against tenant, person other than tenant found to be in occupation of disputed premises‑‑Such person claimed that he had been staying in premises as tenant of landlord and has been paying rent to him‑‑Rent Controller empowered under S.22 of Ordinance XVII of 1979 to execute ejectment order, held, was required to have determined, while executing ejectment order, whether claimant was in possession of premises on his own account or on account of judgement debtor/tenant or on account of some person other than judgment‑debtor‑‑Executing Court having failed to do so, Appellate Court setting aside order of Rent Controller, remanded case for decision afresh in accordance with law after affording parties opportunity to produce evidence.

Messrs Bambino Ltd. v. Messrs Selmor International Ltd. And another P L D 1983 S C 155 ref.

G.M. Qureshi for Appellant.

Shafaat Hussain for Respondent.

Date of hearing: 3rd November, 1986.

This First Rent Appeal is directed against the order dated 4‑5‑1986 passed by the Vth Senior Civil Judge and Rent Controller Karachi (East) whereby she dismissed the application under Order XXI, Rule 99 CPC filed by the appellant.

The facts which give rise to the present appeal are that the respondent is the landlady of building, constructed on plot No.D‑46, Delhi Mercantile Cooperative Housing Society Karachi. The respondent filed eviction application No.4099 of 1979 against Muhammad Naqi Kalia on the ground of personal requirement. It was averred in eviction application that the respondent came to know that the said Mohammad Naqi Kalia vacated the premises and ceased to occupy the same since more than four months and shifted to some other place. The eviction was resisted by the said Mohammad Naqi Kalia. During the pendency of the case the respondent filed an application under section 16(2) of the Sind Rented Premises Ordinance which was allowed by order dated 27‑11‑1983. The said Mohammad Naqi Kalia preferred First Appeal in the Court which was also dismissed on 8‑3‑1984. As the said Mohammad Naqi Kalia did not vacate the premises the respondent filed execution application No. 19 of 1984. The notice was ordered to be issued to the said tenant. The present appellant had filed an application under Order XXI, Rule 99, C.P.C. The respondent filed counter‑affidavit. The learned Controller after taken into consideration the arguments advanced by the learned counsel for the parties, dismissed the application vide order dated 4‑5‑1986. The appellant being aggrieved has preferred this appeal.

I have heard the learned counsel for the parties perused the record of the case and gone through the impugned order.

It is an admitted position that the said Mohammad Naqi Kalia was not residing in the premises in dispute. I have perused the Bailiff's report dated 20‑10‑1979. A perusal of the report shows that the service was effected on Ashraf and on enquiry from Ashraf the Bailiff came to know that the said Mohammad Naqi shifted from the premises in dispute. It is also an admitted position that father of the respondent sent a report to the Inspector‑General of Police on 31‑7‑1980. A copy thereof annexed to the counter‑affidavit filed by the respondent. A perusal thereof shows that after vacating of the premises in dispute, the appellant illegally occupied the premises by trespassing. A perusal of the report also shows that the father of the respondent sent two letters dated 17‑9‑1979 and 18‑10‑1979 to the S.H.O. Ferozabad Police Station.

It is the case of the respondent that the said Mohammad Naqi Kalia vacated the premises in dispute and thereafter the appellant trespassed into the disputed premises. The case of the appellant is that he has been staying in the premises in dispute as a tenant of the respondent and has been paying rent regularly to her at the rate of Rs.700.

It seems that the learned Controller has not considered this aspect of the case, that is, the appellant was in possession of the premises in his own account or on account of the said Mohammad Naqi Kalia or on account of some other person than the said Mohammad Jaqi Kalia.

In the case of Messrs Bambino Ltd. v. Messrs Selmor international Ltd. and another P L D 1983 S C 155, the Hon'ble supreme Court laid the following dictum:‑

" the settled view in this Court has been that though the Code of Civil Procedure was not applicable in terms of proceedings before the Rent Controller by its own force, the Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure. There is no reason, therefore, to take a different view so far as the provisions of the Sind Rented Premises Ordinance are concerned which governed the proceedings for execution of the order in this case. Under the repealed Ordinance of 1959, the Order passed by the Controller or in the 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 Controller or the appellate authority has to be executed in such a manner as may be determined by the Controller or as the case may be, the appellate authority. Plainly, therefore, 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 decree 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 principles that a decree passed by Court ordinarily bind the parties to the suit or their assignees and persons claiming through them."

The dictum laid down by the Hon'ble Supreme Court is fully applicable to the facts of this case. In view of the legal position both the learned counsel jointly submit that the case be remanded to B the learned Controller for disposal in accordance with law after giving opportunity to the parties.

For the above reasons, the FRA No.278/86 is allowed and the impugned order is set aside. I direct that learned Rent Controller to decide the case on merits in the light of the above observations. The parties undertake to appear on 22‑11‑1986 before the Vth Senior Civil Judge Rent Controller Karachi (East). The learned counsel for the appellant undertakes to supply copies of the affidavit in evidence before 22‑11‑1986. The learned counsel for the respondent undertakes to cross‑examine the appellant and his witnesses, if any on 22‑11‑1986. The learned counsel for the respondent also undertakes to file affidavit in evidence of the respondent and her witnesses within two weeks thereafter I further direct the learned Controller to dispose of the case within three months from 22‑11‑1986.

In the circumstances of the case the parties will bear their own costs. The office is directed to remit the R & P and the copy of this order forthwith.

H.B.T./A‑63/K Case remanded.

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