' MUNIB AHMED KJ-IAN, J.---This petition has been filed against the judgment dated 13-8-2002, passed by the learned Vth Addl. District Judge, Karachi West in FRA No,15/2001, whereby the order of the Rent Controller dated 28-2-1994 in Rent Case No,86/1990 dismissing the ejectment application, has been maintained and appeal has been dismissed.
2. Learned counsel for the petitioner submits that the Rent Controller and the Additional District Judge have passed incorrect orders, whereby, the issue of tenancy has wrongly been decided against the petitioners. Learned counsel submits that admittedly there was a tenancy as decided in the civil Court. He has traced out the history by stating that the respondents filed Suit No,180/1988 in the High Court but same was transferred to the civil Court on the ground of pecuniary jurisdiction and was allotted new No,49/1997. The said suit was dismissed by judgment dated 2-4-2002 and it was held that the respondents are tenants of the petitioners. The said judgment was challenged in civil appeal but said civil appeal was also dismissed by judgment dated 12-1-2005. He has further pointed out that even during the pendency of above mentioned suit filed by the respondents for declaration injunction etc., the High Court, at the initial stage, by its order dated 3-12-1989 allowed the petitioners for legal action in following terms:-- "Mr. Zaheeruddin Khan, learned counsel for the defendants Nos.1 to 4 gives undertaking on their behalf that the plaintiff shall not be dispossessed from the suit property except in due course of law."
3. He further submits that following the above undertaking, rent case was filed but same was dismissed by order dated 28-2-1994 simply on the ground that since the suit filed by the opponent/respondent was pending, therefore, ejectment application was not maintainable, and that the petitioners may file the rent case after decision in the suit. He states that the said judgment prevailed upon the appellate Court on the ground that the title is disputed between the parties in respect to the subject plot, which was sub judice, hence, the appeal was dismissed. It is worth mentioning that suit of the respondent was dismissed on 2-4-2002 while order in FRA was passed on 13-8-2002 but the appeal was dismissed on the ground that since civil appeal against the judgment of civil Court has been tiled, therefore, FRA was dismissed. He states that, thereafter appeal of the respondent was also dismissed while revision against the same before this Court was dismissed too and same was the result of CPLA filed before the Honourable Supreme Court. He submits that throughout, the title of the petitioners has been maintained and there was no material before the Rent Controller or the Court adjudicating the FRA contrary to title and stand of the petitioner but still both of them have passed contrary orders and have not discharged their duties by taking the material available on their record while this Court has held and observed in Suit No,180/1988 that the petitioner may initiate legal action and he should not dispossess the respondents except in due course of law. He submits that in the circumstances when the title of the petitioners is perfect and has been confirmed from civil Court to the Honourable Supreme Court while the issue of the tenancy has also been decided in favour of the petitioners, therefore, the orders of the Rent controller as well as appellate Court are totally incorrect and contrary to the factual position and may be set-aside.
4. Learned counsel for the respondents has argued that there is a concurrent finding of both the Courts below on the issue of non-existence of tenancy, therefore, further action contrary to that is not envisaged under constitutional jurisdiction. He further submits that the premises in question is a factory and does not fall within the meaning of the building therefore, the Rent law is not applicable and that machinery and fixtures fitted in the premises are not subject of rent law. He has cited 1985 SCM R 2024, PLD 1976 SC 781, 1983 CLC 390, PLD 1993 Kar 181, PLD 1965 SC 90 and 2007 PLC 64. He submits that when the ejectment application has been dismissed by the Rent Controller and the said judgment has been maintained in the FRA then this Court may also maintain the same order. He further submits that the petitioner himself had filed a suit but the suit was dismissed, therefore, there was no option to file the rent case.
5. After hearing the learned counsel, it appears that the proceedings in the Suit No,49/1997 (Old Suit No,180/1988 in High Court) have not been denied while it has also not been denied that the orders of the civil Court and appellate Court were maintained in the revision application as well as in the CPLA before the Honourable Supreme Court, as pointed out by Mr. Iqbal Kazi, learned counsel for the petitioners. The above factual position as well as judicial finding show that in the suit before the Civil Court there were issues including the issues in respect to the tenancy relationship in the following words';--
(i) Whether the plaintiffs were inducted as tenants on the said plot by the said defendants?
(ii) Whether the plaintiffs have any claim of ownership on the said plots of lands.
6. Both these issues were decided against the respondents as it was held that the respondents have no claim of ownership of the premises while they were inducted as tenants in the said premises. Keeping in view this finding, which has been maintained throughout to the Honourable Supreme Court, it is clear that the respondent has no right or title of ownership over the premises and they were simply the tenants. It has further been noted from the written statement filed by the respondents in the rent case that they have only taken the issues of non-existence of the tenancy while no plea of applicability of the Rent Law on the ground that the premises is a factory has been taken, therefore, this plea cannot be allowed in this petition, nor even there was any stand nor any evidence brought on record. The basic issue in respect to the tenancy and ownership, after decision by the civil Court and appellate Court including this Court as well as by Honourable Supreme Court have been taken a conclusive shape, which cannot be disputed in the rent proceedings. It is being noticed that findings of both the Rent Controller as well as the appellate Court are totally contrary to the findings of the Civil Court They have simply banked upon the pendency of the litigation but did not bother to decide the said issue themselves notwithstanding the fact that the relevant documents were also available with them and me petitioner, in the suit of the respondent, was allowed to take legal action and that there was no order which restrain them to decide the issue of tenancy. They simply ignored their duties and sidetracked the issues. Their attitude in such a situation is deplorable. As far as the respondents are concerned they are still challenging the ownership of the landlord in this petition i.e, the petitioner as well as the relationship of the tenancy notwithstanding the fact that they have exhausted all the remedies.
Their adamant attitude in this respect needs some reprimand from this Court as their stand is totally vexatious and frivolous.
In such a situation this petition is allowed with cost throughout and both the orders dated 28-2- 1994 of Rent Controller and dated 13-8-2002 of Additional District Judge are set-aside and ejectment application is allowed. The respondents are directed to handover the vacant and peaceful possession of the premises to the petitioners within the period of thirty days from the date of this order otherwise writ of possession with police assistance with permission to break upon the locks to be issued by the Rent Controller without notice to the respondents; The responsibility of unpaid rent will remain upon the respondent.