PLJ 2015
Lahore 738
MUHAMMAD
SARFRAZ--Petitioner
versus
NADEEM
TAHIR SYED, ADJ, etc.--Respondents
W.P. No.
4302 of 2015, decided on 19.2.2015.
----O.
XXI, R. 29--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Scope
of--Suspension of execution proceedings--Injunctive order--Dispute of ownership
of demised premises is pending, execution ejectment
order be stayed--It is well settled that only relationship of landlord and
tenant is relevant to exercise jurisdiction by Rent Tribunal under Punjab
Rented Premises Act, 2009--Controversy between parties with regard to plea of ejectment stood resolved through ejectment--Respondents
were not holding a decree of a Civil Court where petitioner’s suit for
declaration was pending rather an ejectment order
passed by Rent Tribunal against petitioner is being executed in accordance with
law--Provisions of Rule 29 of Order XXI of are not attracted.
[P. 741] A & B
----Wilful and mala-fide
concealment of material facts by petitioner in his plaint also disentitles him
to any relief under principle of equity.
[P. 721] C
----O. XXXIX, Rr. 1
& 2 and O. XLI, R. 29--Injunctive order--Restraining from interfering in
possession over suit properties--Execution proceedings--Validity--Status quo
order passed by civil judge does not attract provisions of R. 29 of Order XXI Rule
29 of CPC--Petitioner was not entitled to claim stay of execution proceedings
of ejectment order--Lawful order passed by a revisional Court of competent jurisdiction cannot be called
into question in exercise of constitutional jurisdiction. [P. 741]
D & E
Date of hearing: 19.2.2015.
Order
Petitioner has invoked the constitutional jurisdiction of this
Court under Article 199 of the Constitution of Islamic Republic of Pakistan,
1973 to impugn the order dated 7.2.2015 passed by learned Additional District
Judge Sargodha whereby application for suspension of execution proceedings
before the learned trial Court has been declined.
2. It is argued by
learned counsel for the petitioner that the learned revisional
Court erred in law and failed to exercise its jurisdiction while declining his
application to stay the execution proceedings before the learned trial Court
through the impugned order which is untenable and liable to set aside.
3. Arguments heard.
Record perused.
4. Brief facts leading
to this petition are that respondents’ ejectment
petition against the petitioner was accepted by the learned Rent Tribunal
Sargodha vide order dated 14.10.2010.
Respondents lodged execution petition before the learned Rent Tribunal on
23.10.2010. Petitioner’s appeal against the ejectment
order dated 14.10.2010 was dismissed by the learned Additional District Judge
Sargodha vide judgment dated
20.1.2011. Being aggrieved petitioner assailed the ejectment
order and the said judgment before this Court through Writ Petition No. 3031 of
2011 which was also dismissed vide order
dated 6.8.2014. Being aggrieved of the order dated 6.8.2014 petitioner
preferred an appeal before the Hon’ble Supreme Court
of Pakistan which he later on withdrew. In the above state of affairs the ejectment order dated 14.10.2010 passed by learned Rent
Tribunal Sargodha against the petitioner in favour of
the respondents has attained finality. In the meanwhile on 9.12.2014 petitioner
lodged a suit for declaration etc. against the respondents and others claiming
his ownership in various properties including the subject matter of the ejectment petition. Along with the said suit petitioner
also lodged an application under Order XXXIX Rules 1 and 2 CPC restraining the
respondents and others from interfering in his possession over the suit
properties. Learned Civil Judge vide order
dated 9.12.2014 issued ad-interim temporary injunction i.e. “status quo in
respect of alienation and possession of the suit property be maintained till
next date of hearing”. On the basis of said injunctive order petitioner lodged
an application before the learned revisional Court
under Order XXI Rule 29 of the Code of Civil Procedure, 1908 with a prayer that
since the dispute of ownership of the demised premises between the parties is
pending before the Civil Court therefore execution of the ejectment
order be stayed. The said application was resisted by the respondents. The
learned executing Court after providing opportunity of hearing to the parties
dismissed the petitioner’s application under Order XXI Rule 29 of the CPC through
the order dated 4.2.2015. Petitioner being aggrieved assailed the said order
through a revision petition before the learned Additional District Judge
Sargodha along with an application to suspend the execution proceedings which
was declined by the learned revisional Court through
the impugned order dated 7.2.2015, hence this constitutional petition.
5.
At the outset it may be expedient to reproduce the provisions of Rule 29
of Order XXI of the Code of Civil Procedure, 1908 which reads below:--
“29. Stay of execution pending suit between
decree-holder and judgment debtor:--Where a suit is pending in any Court
against the holder of a decree of such Court, on the part of the person against
whom the decree was passed, the Court may, on such terms as to security or
otherwise, as it thinks fit, stay execution of the decree until the pending
suit has been decided.”
6. The expression “against
the holder of a decree of such Court” used in the above quoted provisions of
Rule 29 of Order XXI of CPC is significant and of great importance. It is well
settled that only relationship of landlord and tenant is relevant to exercise
the jurisdiction by the learned Rent Tribunal under the Punjab Rented Premises
Act, 2009. The controversy between the parties with regard to plea of ejectment stood resolved through the ejectment
order dated 14.10.2010 maintained up-till the Hon’ble
Apex Court. It is pertinent to mention that in this case respondents were not
holding a decree of a Civil Court where petitioner’s suit for declaration was
pending rather an ejectment order passed in favour of the respondents by the learned Rent Tribunal
against the petitioner is being executed in accordance with law therefore
provisions of Rule 29 of Order XXI of the Code of Civil Procedure, 1908 are not
attracted to the facts of this case. The execution of ejectment
order passed by the learned Rent Tribunal therefore cannot be interfered with
in terms of Rule 29 of Order XXI of the Code of Civil Procedure, 1908. Besides
careful reading of the contents of the plaint in the suit for declaration
lodged by the petitioner against the respondents and others clearly manifests
that petitioner willfully concealed the factum of lawful ejectment
order dated 14.10.2010 passed by learned Rent Tribunal in favour
of the respondents against him. Wilful and mala-fide concealment of material facts
by the petitioner in his plaint also disentitles him to any relief under the
principle of equity. The status quo order passed by the learned Civil
Judge in the suit for declaration lodged by the petitioner does not attract the
provisions of Rule 29 of Order XXI of CPC therefore the petitioner on that
basis is not entitled to claim stay of execution proceedings of the ejectment order. I do not find any factual or legal infirmity
or jurisdictional error in the impugned order dated 7.2.2015 passed by learned
Additional District Judge Sargodha. Needless to say that a
lawful order passed by a revisional Court of
competent jurisdiction cannot be called into question in exercise of constitutional
jurisdiction.
7.
For the above reasons this writ petition having
no merit is dismissed in limine.
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