Muhammad Khurram Butt vs Sh.Sfandyar Siddique

Form No.HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

Civil Revision No.368 of 2022

Muhammad Khurram Butt Versus Sheikh Asfandyar Siddique S.No. of order/ Date of order/ Order with signature of Judge and that of parties or counsel, Proceeding proceeding where necessary

27.06.2022 Maulvi Ejaz ul Haq, Advocate.

This petition under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “CPC”) is an offshoot of ejectment proceedings conducted by the learned Special Judge (Rent), Rawalpindi in a petition filed by the petitioner under Section 19 of the Punjab Rented Premises Act, 2009 (hereinafter referred to as “Act, 2009”). The ejectment petition was moved seeking eviction of the respondent from shop No.7 situated in Liaquat Market, Iqbal Road, Rawalpindi (hereinafter referred to as “premises in question”). In order to resist the ejectment proceedings, the respondent moved an application for leave to contest, which was declined and eviction order was passed on 13th January, 2021. Feeling aggrieved an appeal was though preferred by the respondent but of no avail, as the same was dismissed through judgment dated 01st March, 2021. The respondent then filed Writ Petition No.1039 of 2021, which was finally accepted vide judgment dated 08th February, 2022 and matter was remanded to the learned Special Judge (Rent), Rawalpindi to decide the same afresh after framing of issues. During the pendency of the constitutional petition the possession of the “premises in question” was taken over from the respondent in the execution proceedings. After acceptance of the constitutional petition, the respondent moved an application under Section 144 of “CPC” seeking

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restitution of possession. The application was initially dismissed by the learned Special Judge (Rent) through order dated 28th May, 2022 against which the respondent preferred an appeal before the learned Additional District Judge, Rawalpindi, which was accepted by way of judgment dated 20th June, 2022, hence this petition.

2.Learned counsel for the petitioner contended that the respondent has though denied the existence of relationship of landlord and tenant but he failed to bring on record any cogent material to that effect. Learned counsel maintained that possession of the “premises in question” was taken over from the respondent in execution proceedings and he is precluded to re-claim the same. Learned counsel submitted that Section 144 of the “CPC” cannot be pressed into service in the circumstances. It is contended with vehemence that learned Special Judge (Rent) has rightly dismissed the application and the learned Appellate Court has erred in law while allowing the same through impugned judgment. Placed reliance on Mst. NAEEMA BEGUM versus IQBAL ALI KHAN and others (1999 CLC 1432).

3.Heard. Record perused.

4.The petitioner claiming himself landlord of “premises in question” filed an ejectment petition under Section 19 of the “Act, 2009” seeking eviction of the respondent on multiple grounds including default in payment of rent. In order to resist the ejectment proceedings, the respondent moved an application under Section 22 of the “Act, 2009” seeking leave to contest wherein he canvassed following plea :-

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5.It appears from the record that initially the application for leave to contest was declined by the learned Special Judge (Rent) vide order dated 13th January, 2021 and resultantly while accepting ejectment petition, the respondent was directed to hand over the possession of the “premises in question” to the petitioner within thirty days. Feeling aggrieved the respondent though preferred an appeal before the learned Additional District Judge, Rawalpindi but his appeal was not acceded to and dismissed vide judgment dated 01st March, 2021. This followed Writ Petition No.1039 of 2021 which was initially admitted for regular hearing vide order dated 22nd April, 2021 and operation of the impugned eviction order was suspended, in the meanwhile. Finally the constitutional petition was accepted by way of judgment dated 08th February, 2022 and while setting aside the eviction order dated 13th January, 2021 as well as judgment dated 01st March, 2021 passed by the learned Additional District Judge, Rawalpindi, the matter was remanded to the learned Special Judge (Rent), Rawalpindi while allowing the application for leave to contest filed by the respondent. It was also observed that ejectment petition shall be deemed to be pending before the learned Special Judge (Rent), who shall frame appropriate issue regarding existence of relationship of landlord and

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tenant between the parties and then decide the same within the time frame given under the “Act, 2009”.

6.It evinces from the record that in the meanwhile possession of the “premises in question” was taken over from the respondent in the execution proceedings. On acceptance of constitutional petition, the respondent filed an application seeking restitution of possession. The application was in fact under Section 144 of the “CPC” which reads as under :-

“144. Application for the restitution. -- (1) Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

(2)No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1).”

It is thus manifestly clear from the above that where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed.

7.The doctrine of restitution undoubtedly based upon the maxim “actus curiae neminem gravabit” which contemplates that no one should be prejudiced by an act of the court. It is an oft repeated principle of law that whenever a property has been received under the order of the court which later on was reversed or varied, the possession so obtained becomes wrongful.

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8.The judgment in the case of Mst. Naeema Begum supra heavily relied by learned counsel for the petitioner has though outlined the scope of Section 144 of the “CPC” but it was structured on entirely different facts and circumstances, which has no nexus with the facts at hand. To this effect judgment in the case of MUHAMMAD ATIF IQBAL and others versus ZEESHAN ALI and others (2020 CLC 1813) is very relevant. The relevant extract from the same is reproduced below :-

“3...........There is no cavil to say that doctrine of restitution is based upon cardinal maxim "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man). It contemplates a case where property had been received through order of the Court, which latterly was reversed or varied. In such situation, it becomes wrongful possession, hence imperative upon the beneficiary of said erroneous order/decree to make restitution to the other party for what he had lost, otherwise Court is armed with the powers to place the scourger/applicant in the position in which he would have been, if the order had not been made, else it would be inequitable and un-just with the latter. The concept of restitution is as old as the law itself. The provision ibid provides procedure, whereas the power to order restitution is inherent in Court and sparingly exercised whenever justice demands. It cannot be taken as a case of restoration of possession, but of restitution of possession because order of dispossession is reversed. It is made clear that when the expression 'the act of the Court' is used, it does not merely the act of primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court, which entertains jurisdiction over the matter upto the highest Court and finally disposes of the case. It would be expedient to clarify that it is not necessary that the Court reversing the order/ decree should specifically direct restitution of the property, rather such right arises automatically, which is enforceable before the Trial Court. Even any subsequent event cannot defeat the right of restitution, rather to be enforced against the person, who was benefited under such order/decree as well as his transferee or assignee, even if such person had not been party to the proceedings in which such order or decree reversed. See K. Anantharam Singh and another v. Marwadi Thara Chand and others (AIR 1936 Madras 634). S.A Latif v. J.B. Dubash and 5 others (PLD 1970 Karachi 220). Zia Ullah v. Muhammad Hussain Afzal and 3 others (2003 CLC 1321). Parvaiz and 4 others v. Muhammad Ramzan and 5 others

(2009 CLC 513).”

Reference to the above effect can also be made to PARVAIZ and 4 others versus MUHAMMAD RAMZAN and 5 others (2009 CLC

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9.In the case of AASIA JABEEN and 3 others versus LIAQAT ALI and others (2016 SCMR 1773), while dealing with a similar proposition, the Hon’ble Supreme Court held as under :- “15. The argument of the learned counsel that possession could not be restored to the respondents in terms of the petition under section 144 read with section 151, C.P.C. in view of the fact that the petitioners had not been put in possession on the basis of a decree of the Court has not impressed us. There is nothing on record to substantiate the assertion that Aasia Jabeen had taken possession of the suit property even before the judgment and decree of the High Court on the basis of any lawful transaction. On the contrary, it is an admitted fact that Aasia Jabeen was put into possession through warrant dakhal and mutation No.13626 dated 01.02.1998 was sanctioned on the basis of the judgment and decree of the High Court.

16.It is settled law that restitution is ordered against the holder of a decree who has deprived the other party of some benefit on the basis of such decree and upon variance or reversal of the decree, the Court calls upon him to restitute the said benefit. In this regard, reliance has been placed on Fazal Karim v. Rawal Malik and another (1998 SCMR 1200) and Abdul Bari v. Muhammad Rasheed Khan (1995 SCMR 851). In the case of Fazal Karim, a decree for possession by pre- emption was passed and possession obtained in execution. Upon setting aside of the decree, restitution of possession was ordered and such order was upheld by this Court. We find that Fazal Karim's case is on all fours with the present case. Likewise, in the case of Abdul Bari, a party was dispossessed on the basis of a decree which was subsequently set aside. Possession was restored by the executing Court and such order was upheld by this Court.”

After having an overview of the well settled principles of law referred hereinabove it can safely be inferred that after setting aside of eviction order by this Court in the constitutional petition, the respondent has every right to seek restitution of possession taken from him in the execution proceedings in pursuance to the said order. The learned Special Judge (Rent) was surely oblivious of the mandate of Section 144 of the “CPC”. The appeal filed by the respondent was rightly accepted by the learned Additional District Judge, Rawalpindi.

10.Needless to observe that scope of revisional jurisdiction is circumscribed to the eventualities mentioned in Section 115 of “CPC”. The revisional powers are limited and can only be exercised when the petitioner(s) succeed(s) in establishing that the impugned judgment or order suffers

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legal infirmities, hedged in Section 115 of “CPC”. The revisional jurisdiction can only be invoked, if some patent illegality is floating on the surface of record. No jurisdictional defect or material irregularity is pointed out by the petitioner in the judgment under challenge, therefore, I am not inclined to exercise the revisional jurisdiction. As a sequel thereof, instant petition being devoid of any merits is dismissed in limine.

(MIRZA VIQAS RAUF)

JUDGE

Approved for reporting

JUDGE

Shahbaz Ali*