2018 PLD 828 SUPREME-COURT

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TRADING CORPORATION OF PAKISTAN VS DEVAN SUGAR MILLS LIMITED 1992 SCMR 1908, PLD 1988 SC 221, Ss. 11, 12(2), 47, O.IX, R. 13, O. XXI, Rr. 99, 100, 101, 102 & 103---Cantonments Rent Restriction Act (XI of 1963), S. 24---Execution of ejectment order---Tenant seeking successive remedies against the same impugned order on substantially same set of facts and pleadings---For a tenant confronted with ex-parte order striking out its defence resulting in his ejectment order, quite a few remedies may be available against such order; namely appeal under S. 24 of the Cantonments Rent Restriction Act, 1963; application under O.IX, R.13 C.P.C.; application under S.12(2), C.P.C.; application under O. XXI, Rr. 99 to 103, C.P.C. and not the least application under S.47, C.P.C.---All such remedies armed the tenant/ judgment debtor to effectively resist ex-parte ejectment order passed against it---In the present case respondent-tenant, chose not to file appeal under S. 24 of the Cantonments Rent Restriction Act, 1963 against the ejectment order but had chosen to invoke provisions of S.12(2), C.P.C., which application was dismissed on merits by the Executing Court and maintained by High Court---Tenant after almost five years from date of ejectment order, ventured to invoke S.47, C.P.C. on substantially same facts and grounds---Even if it was assumed that grounds as available under S.47, C.P.C. to question executability, discharge or satisfaction of ejectment order passed as a consequence for non-compliance of tentative order, set down different parameters to resist and defend execution of eviction order, then too, all such grounds were very much available when first application under S.12(2), C.P.C. was initially made---Case of the landlord was squarely covered by Explanation IV of S.11, C.P.C.---No reservation was made or avenue kept open while deciding application under S.12(2), C.P.C. either by Executing Court or for that matter by the High Court for the tenant to explore other remedy---Where the tenant failed to raise all objections as may be available at the time when execution was resisted by invoking one out of few other available remedies then he was precluded by his conduct to raise any such objection, and all such objections and challenges, if any, would be deemed to have been raised and decided against him---After exhausting one of the remedies under S.12(2), C.P.C. against the order striking out defence, judgment debtor could not be allowed to go on expedition to venture another remedy for the same malady, which though available was not invoked---Permitting such course would be nothing but abuse of the process of law and would amount to encourage multiplicity of proceeding, which could not be approved---Tenant was directed to vacate the premises within a period of nine months subject to payment of rent and utility charges, and it was directed that in case of default and or failure to hand over vacant and peaceful possession on or before expiry of period allowed, writ of possession, without notice shall be issued with police aid and breaking open the lock---Petition for leave to appeal was converted into appeal and allowed accordingly.