2017 MLD 567 ISLAMABAD

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FAROOQ AHMAD VS ADDITIONAL DISTRICT AND SESSIONS JUDGE (WEST) ISLAMABAD 1992 SCMR 1908, 1992 SCMR 917, 2004 YLR 1066, 2013 CLC 411, 2014 MLD 109, Ss. 12(2), 104 & 115 & O. XLIII, R. 1---Islamabad Rent Restriction Ordinance (IV of 2001), S. 17---eviction order allegedly based on fraud and misrepresentation---Remedy for third party---Applicability of S. 12(2) of Civil Procedure Code, 1908 before the Rent Controller---Scope---Rent Controller dismissed application under S. 12(2), C.P.C. against which revision was filed which was dismissed observing that no such remedy had been provided under Islamabad Rent Restriction Ordinance, 2001---Validity---Order under S. 12(2), C.P.C. was not appealable and only remedy of revision was available---Order passed by the Appellate Court was not maintainable---If Rent Controller had entertained application under S. 12(2), C.P.C. that would mean that he exercised the jurisdiction in terms of Civil Procedure Code, 1908---No remedy of S. 12(2), C.P.C. was available under Islamabad Rent Restriction Ordinance, 2001 but parties could not be precluded from filing application under S. 12(2), C.P.C. in order to prove question of fraud and misrepresentation---Remedy for third party under such situation would lie under S. 12(2), C.P.C. for recalling or review of order based on fraud or to file separate suit but he could pursue that remedy which he initiated first or earlier in point of time---Petitioner had rightly filed application under S. 12(2), C.P.C. on his own grounds---If appeal was not maintainable then same could be converted into revision---Appellate Court had not provided both of such remedies to the petitioner and has committed an illegality which was not protected under any law---Impugned order passed by the Appellate Court was set aside---Matter was remanded to the Appellate Court with the direction to decide the same within one month---Constitutional petition was allowed in circumstances.