' AMIR HANI MUSLIM, J.---Through this constitutional petition the petitioner has impugned the order passed by IVth Rent Controller, Karachi (South) in Rent Case No,713 of 1998, whereby he has dismissed the application of the petitioner under Order I, Rule, 10, C.P.C., against which order the petitioner preferred an Appeal before the learned District Judge, Karachi (South) in F.R.A. No,277 of 2006, which appeal was also dismissed affirming the order of the learned Rent Controller holding that the petitioner was neither necessary nor proper party.
2. The perusal of record reveals that the case has chequers history. The petitioner and the respondents Nos. 6 and 7 are paternal cousins. One Mullah Muhammad Ali was the owner of different properties inclusive of the Saifee House, which has a tenement, which is subject matter of these proceedings. Mullah Muhammad. Ali died on 16-8-1977, leaving behind widow namely Mst.
Zainab Bai and three daughters namely Mst. Asma Bai, the mother of the petitioner and respondents Nos. 6 and 7. The widow namely Mst. Zainab Bai filed proceedings in this Court for obtaining Letter of Administration and with the consent of the aforesaid three daughters the same was granted in favour of Mst. Zainab Bai. It is claimed by the respondents Nos. 6 and 7 that the properties were Administered by Mst. Zainab Bai under the strength of the said Letter of Administration. It is further claimed that Mst. Asma Bai, who was in Bangladesh carte to Pakistan in 1988 and objected to the Letter of Administration granted to the widow by this Court and made an application in the said disposed of proceedings. By order, dated 25-9-1998 her objections were overruled with,the observation that Mst. Asma Bai, if aggrieved, could object to the Letter of Administration by filing a suit. It appears that on the strength of such observation, Mst. Asma Bai filed a Civil Suit bearing No,55 of 1989 in this Court against respondents Nos. 6 and 7 as well as Mst.
Zainab Bai. The suit was titled as Suit for partition and accounts. This suit, however, was compromised on the application made by the parties under Order XXIII, Rule 3, C.P.C. In the application the terms of compromise were incorporated wherein the Property bearing Survey No,1, Sheet CL-1-1, measuring 4059 square yards, situated in Civil Lines Quarters, Karachi, was also mentioned. The terms of the compromise are as follows:--
(i) Property bearing Survey. No,1, Sheet No,CL 1-1, measuring 4059 square yards, situated in Civil Line Quarters, Karachi, shall be released and relinquished by the plaintiff and defendant No.1 in favour of defendants Nos. 2 and 3 having equal shares i,e, each of the defendant's Nos. 2 and 3 shall be entitled to 50% undivided shares respectively in the said property. The plaintiff further surrenders, releases and relinquishes all her tenancy rights in respect of the premises known as Saifee Printers and Publishers in the said property, in favour of defendants Nos. 2 and 3;
(ii) Property bearing No,55/1, Sheet No, WO-1, measuring 1525 square yards, situated in Wadhomal Odharam Quarters, Karachi, shall be released and relinquished by the defendants in favour of the plaintiff, who shall be entitled to 100% share in the said property;
(iii) Property bearing No,1, Sheet No,WO-5, measuring 333 square yards, situated in Wadhomal Odharam Quarters, Karachi, shall be released and relinquished by the defendants in favour of the plaintiffs, who shall be entitled to 100% share in the said property. The parties do hereby confirm and acknowledge that (late) MulIa Muhammad Ali was the real and beneficial owner of 100% share in the said property whereas as per the title documents Mr. Nooruddin Abdul Hussain was shown as 50% owner, however, in actual Mr. Nooruddin Abdul Hussain was only acting as Benamidar for
(late) Mulla Muhammad Ali;
(iv) Property bearing No,A-156, Block 'C', measuring 200 square yards, situated in Saify Cooperative Housing Society Limited, KDA Scheme No,2, North Nazimabad, Karachi, shall be released and relinquished by the plaintiff, defendants Nos. 2 and 3 in favour of defendant No,1 who shall be entitled to 100% share in the said property;
(v) Property bearing premises Nos. G-3 and 3-A, being part and parcel of property bearing No,23, Sheet No,SR-9, measuring 879 square yards, situated in the area of Serai Quarters, Karachi, shall be released and relinquished by the plaintiff, defendants Nos. 1 and 2 in favour of defendant No.3, who shall be entitled to 100% share in the said property; (vi) Property bearing No,S-81-R-2, measuring 103 square yards or thereabouts, commonly known as 1, Kutchery Road, Lahore, shall be released and relinquished by the plaintiff and defendants Nos. 2 and 3 in favour of defendant No,1, who shall be entitled to 100% share in the said property.
3. The above compromise was signed by the widow Mst. Zainab Bai, Mst. Fatima Bai, Mst. Shireen Bai and Mst. Asma Bai. The suit was decreed in terms of the compromise reached between the parties. By virtue of the compromise reached between the parties in Suit No,55 of 1989, which compromise was given effect through execution of different registered instruments inclusive of the Deed of Release and Relinquishment, duly signed by all the parties. This Deed of Release and Relinquishment, which is a registered document, was executed on 25-6-1996. The compromise was based on the agreement, dated 25-6-1996, duly signed by all the parties and it was stated in the said Agreement that all the earlier agreements, entered into between the parties, were superseded. The parties have also stated in the referred agreement that none of the properties of the deceased father/husband of which they became co-owners by operation of law, were subjected to charge by the parties nor they have transferred any right in respect of the properties as co-owners.
4. It is claimed by respondents Nos. 6 and 7 that after the matter was compromised and the properties were divided and handed over through Relinquishment Deeds to the parties, the properties were mutated in the names of the respective owners in the records of rights whereafter the tenants sitting in different properties were given notices under section 18 of Sindh Rented Premises Ordinance, 1979 ("Ordinance, 1979"). In this respect, respondents Nos. 6 and 7 had given notice to respondents Nos. 1 to 5 under section 18 of Ordinance, 1979, who had failed to tender the rent to them. Thereafter, the respondents Nos. 6 and 7 filed ejectment proceedings in respect of one of the tenements against the respondents Nos. 1 to 5, inter alia, on the ground that respondent No,1, who was the original tenant had sublet the tenement in dispute to respondents Nos. 2 to 5 without seeking permission from the owner/landlord and have failed to pay rent. The respondents Nos. 2 to 5 were neither the tenants nor had any lawful authority to occupy the property. It was further pleaded in the ejectment application that respondents Nos. 2 to 5 have made material alterations in the tenement. On the other hand, the respondents Nos. 2 to 5 had filed their written statement and had denied the relationship, inter alia, on the ground that the respondents Nos. 6 and 7 were not the owners and the rent was being collected by Mst. Asma since March, 1977. The respondents Nos. 2 to 5 have claimed that they have offered rent to the petitioner (the son of Mst.
Asma Bai), who refused to accept it, inter alia, on the ground that the respondents Nos. 6 and 7 have become exclusive owners of the property and rent of the property be paid to them. The respondents Nos. 2 to 5 started depositing rent in Miscellaneous Rent Case in the names of Mst.
Asma Bai and respondents Nos. 6 and 7.
5. After filing of the written statement by the respondents Nos.2 to 5, it appears that respondent No,2 filed two Miscellaneous Applications before the Rent Controller; one for summoning the petitioner as witness in the proceedings and the other for joining the petitioner as a party to the proceedings. The Rent Controller, however, has dismissed the applications against which no appeal was preferred and orders attained finality. Subsequently, the petitioner after dismissal of the applications of respondent No,2 had also filed an application under Order I, Rule 10, C.P.C., which application was dismissed after hearing the parties against which an appeal was preferred which too was dismissed. Through present proceedings both orders of the courts below are impugned. 6.
The learned counsel for the petitioner submits that through impugned orders the Courts below have denied his right to establish the ownership of the subject tenement. He further submits that Courts below were in error in losing sight of the fact that where a serious question and/or a genuine dispute in regard to ownership and or title is raised, the Court should allow such party to be joined as necessary and/or proper party. It was further contended by the learned counsel for the petitioner that the Rent Controller was of the opinion that such an issue requires regular trial, the Rent Controller ought to put the rent proceedings in abeyance and should have referred the issue of ownership between the parties to the Civil Court and on receipt of the findings of the Civil Court, should have decided the rent case. In this regard, the learned counsel in support of his contentions has relied upon the following case-law:--
(i) Rehmatullah v. Ali Muhammad (1983 SCMR 1064)
(ii) Province of Punjab v. Abdul Ghani (PLD 1985 SC 1);
(iii) Inayatullah Butt v. Umar Hayat Khan (1994 CLC 1323);
7. The learned counsel has also relied upon the case of Province of Punjab (supra), which follows the case of Rehmatullah (ibid) their lordships have held as follows:-- " that the Rent Controller has, in every such case, to make distinction between genuine and well founded dispute about the title and that which is vexatious (designed to achieve delay), frivolous or without foundation. Unless this aspect is willingly ignored, a Presiding Officer of ordinary experience would be able to make the distinction between the two. And in the latter case he shall be under a duty not to permit the challenge to the title
8. The above citations, relied upon by learned counsel, deal withthe authority of the Rent Controller to hold enquiry into the matter in regard to relationship between the parties as landlord/owner and tenants and there is no cavil to this proposition.
9. The learned counsel for respondents Nos. 6 and 7 has argued that the case set-up by the petitioner before the Rent Controller in the application under Order I, Rule 10, C.P.C. was distinct than the case which has been pleaded and argued before the appellate Court. According to him, the petitioner has not pleaded anywhere in the application before the Rent Controller that he was calming ownership of the property on the strength of the gift, alleged to have been made by his mother Mst. Asma Bai in his favour whereas in the appellate Court he has improved his case by pleading that on the strength of the gift made in his favour by his mother he claims ownership. He further submits that such a plea by which a party improves its case is not permissible in law and has relied upon the case of Ahmad Shah v. Bibi Sakhian (PLD 1990 Lah. 48), Abdul Hamid Khan v.
Muhammad Zameer Khan 1990 MLD 1617 and Aurarigzeb v. Muhammad Taffan (2007 SCMR 2367) where their lordships have held that a party cannot set up case different than the one, the applicant has pleaded in the pleadings.
10. The learned counsel has relied upon the case of Nawabuddin v. Qamar Mills (1989 SCMR 205) where their lordships have held that if Intervener sets-up his title adverse to the title of the landlord in respect of the rented property, which is subject-matter of rent proceedings, inter alia, on the ground of fraud and collusion, the Intervener in such proceedings as neither necessary nor proper part as such issue falls beyond the jurisdiction of the Rent Controller.
11. I have heard learned counsel and have perused the record. The question as to whether the petitioner, inter alia, is either proper or necessary party and whether the Courts below were obliged in law to examine the entitlement of the Intervenor as owner. The learned counsel for the petitioner himself has conceded that the petitioner has not filed any proceedings against respondents Nos. 6 and 7 objecting to the ownership of Saifee House which the respondents Nos. 5 and 6 claimed to have acquired on the basis of compromise entered into between legal heirs of the deceased Mullah Muhammad Ali. This fact, acceding to learned counsel for the petitioner, came to the notice of the petitioner in January, 2007. The present petition was filed on 29-11-2007 and till date neither the compromise, entered into between the parties, which includes the mother of the petitioner namely Mst. Asma Bai, has been objected and/or challenged by the petitioner either in a suit or before any other forum nor any plausible explanation has been offered by learned counsel for the petitioner before this Court. Additionally, I have carefully examined the contents of the Intervenor's application under Order I, Rule 10, C.P.C., supported by affidavit of the petitioner, filed before the Rent Controller. The , petitioner has not pleaded as to how has he acquired the ownership of the premises in dispute. As against this, the respondents Nos.6 and 7 have placed the entire material showing the basis on which they claim ownership. It appears that once these documents were filed by the respondents Nos. 6 and 7 before the Rent Controller, the petitioner has made an attempt to improve his case before the appellate Court by pleading the factum of ownership on the basis of alleged gift from Mst. Asma Bai. The question as to whether the Rent Controller or the appellate Court in exercise of jurisdiction under the Ordinance, 1979 is competent to hear the parties in regard to issue of ownership as is the case of the petitioner. All the judgments cited by learned counsel for the petitioner covers a dispute between the landlord's ownership and tenant. Their lordships in the case of Rehmatullah (supra) and in the other cited judgments have held that if a tenant takes a plea of his status as owner, the Rent Controller could hold enquiry and determine the issue in order to determine the relationship between the parties as landlord and tenant but if an applicant claims ownership against the tenant and co-owner or any other person claiming his interests adverse to the claim of the applicant seeks permission to be joined as Intervenor in the rent proceedings, the Rent Controller cannot entertain such an application of the Intervenor and such issue could only be adjudicated by a civil Court of competent jurisdiction. The case of Nawabuddin, referred to above, relied upon by the learned counsel for respondents Nos. 6 and 7 fully covers the case in hand. If such application of the petitioner is allowed it would amount to enlarge the scope of the Ordinance, 1979. The jurisdiction of the Rent Controller is limited and Rent Controller cannot be granted jurisdiction to hold regular trial as is available to a Civil Court. The issues raised by learned counsel for the petitioner in these proceedings are twofold; one is the dispute in regard to title or procedure and the second issue is with regard to validity of the gift alleged to have been made in his favour by mother of the petitioner, who was previously co-owner of the property and .thereafter became owner of some other properties under the compromise decree in Suit No,55 of 1989.
12. I am clear in my mind that issues, raised in these proceedings fall outside the purview of the Rent Restrictions Ordinance, 1979 and Rent Controller cannot give any findings on such issues. The Rent Controller in law cannot adjudicate the issue of validity of gift in favour of the petitioner as against the respondents Nos. 6 and 7 nor can he reopen the issue of compromise decree which has attained finality way back. Additionally, the learned counsel for the petitioner during proceedings has argued that he also intends to challenge the compromise, entered into between the parties, duly signed by his mother , on the ground that once his mother had gifted the property to him she had no authority to sign such compromise. I do not want to comment upon or express myself on the contention, except that on the alleged date the mother of the petitioner was not exclusive owner nor the properties were, partitioned, therefore, the, question of gift otherwise was doubtful. Moreover, there is, one document which states that Mat. Asma Bai mother of the petitioner, has never created any lien over the properties as co-owner or otherwise. However, such issue can be raised by the petitioner, if permissible under law.
13. For the aforesaid reasons, I am of the considered view that this petition is misconceived which has been filed after a lapse of 6/7 months for which no plausible explanation of delay has been offered by learned counsel for the petitioner. The impugned orders of the Courts below are in accordance with law and there is no legal infirmity which could warrant me to interfere in the said orders in exercise of Constitutional jurisdiction. Accordingly, the petition is dismissed in limine along with listed application with the direction to the Rent Controller to decide the proceedings pending before it within two months from the date of communication of this order. Office is directed to send Record and Proceedings of the case immediately.