SHAFT-UR-REHMAN, J.-Leave to appeal was granted in this case to examine whether the grounds on which the respondent had obtained an evic--petition order from the Rent Controller, viz. The bona fide personal need of his son and daughter and for raising construction on the plot, were available to him at all in law, if he had made a true and complete disclosure of his interest in that property, and for that reason, the appellant had a good prima facie case justifying the grant of an ad interim injunction against such an eviction order during the pendency of the civil suit.
2. The respondent claimed to be the landlord of the appellant in respect of a plot of land bearing City Survey No. 92, R. B. 6, measuring 431 square yards, Rambagh Quarters, Karachi. He sought the eviction of the appellant on the twin grounds of personal need and construction of a building on the plot. He obtained an order of eviction from the Rent Controller on both the grounds on 23-10- 1971. On appeal filed by the appellant the Additional District Judge . Reversed that order and dismissed 'the ejectment application on 5-5-1973. In second appeal by the respondent the eviction order passed by the Rent Controller was restored on 6-5-1973. The appellant sought leave to appeal against that order of the High Court but was refused leave on 14-1-1980. He thereafter filed a review petition but withdrew it on the ground that he bad instituted a civil suit taking up all the fresh grounds on which review was sought.
3. The case of the appellant, for the purposes of ad interim relief, was that the respondent had obtained the order of his eviction from the premises by suppressing material facts concerning his title and interest in the disputed property, which suppression according to him, amounted to a clear fraud vitiating the earlier decision. The antecedent fact viz, that the appellant was inducted as a tenant on the property in 1954, by the respondent, who repeatedly sued him for eviction and every time the appellant has been since then acknowledging him as the landlord was not disputed. The specific a-.t of fraud alleged against the respondent was that, his son, Narayana Kevalram Shahani, had instituted a Civil Suit (No. 294/65) claiming that-
(i) he and his other brother and sister and the respondent belonged to and followed the Mitakshara School of Hindu Law;
(ii) the joint family property (including the property now in dispute) stood partitioned amongst the various members of the family in 1963;
(iii) the property now in dispute had fallen to the share of Narayana plaintiff of that suit;
(iv) the respondent and his son and daughter were threatening to go back on that partition and also threatening to interfere in the peaceful enjoyment of the properties by him;
(v) the cause of action arose on 27-12-1963 for the purpose of declaration and on 1-10-1966 for the purpose of injunction.
On these facts it was sought in that suit that the plaintiff be granted a declaration that he was owner of the property and the respondent and his son and daughter be permanently prohibited from interfering in the peaceful possession and quiet enjoyment of the plaintiff.
4. The respondent admitted every one of these facts and allowed a decree to be passed on 13th December, 1966, whereby Narayana was declared to be owner of this property and the respondent and his other son and daughter were permanently prohibited from interfering in his peaceful possession and quiet enjoyment of the property.
5. The eviction order which is under challenge was passed on proceed--ings initiated before the Rent Controller on 28-7-1966. The respondent claimed to be the landlord of the property and sought eviction of the appellant on the ground that he "intends to construct a new building on the said plot and required the premises for his personal use and purpose of construction". The proceedings concluded with the order of Rent Controller dated 23-10-1971 who accepted both the grounds. The District Judge reversed the finding. The High Court in restoring the eviction order held that- "it is clear from the evidence of P. Ws. Beharilal and Prem that appellant requires the rented land to construct building thereon to enable his son Prem to locate his business office and his daughter who is a lady doctor to have. Her clinic on the upper-floor. Prem says his business is suffering because it does the business in his house building at Clifton. Both the son and the daughter of appellant are not occupying any other building in Karachi for their business purposes."
6. In the civil suit filed by the appellant challenging this eviction order the appellant particularized the fraud in the following words:- "On 29th October, 1980, the plaintiff came to know that the defendant is no more the landlord of the property under the tenancy and the occupation of the plaintiff and the defendant has concealed this fact from the honourable Courts right from the beginning and thereby played fraud on the Courts and thereby concealed the fact and by misrepresentation and fraud obtained the ejectment order from the honourable Courts and now the defendant wants to evict the plaintiff in execution of the order of ejectment so obtained by fraud and misrepresentation.
Along with the plaint he also filed an application under Order XXXIX, rules 1 and 2, C. P. C. Claiming an ad interim injunction stay--ing the execution of the order of the Rent Controller directing his ejectment from the property on the two grounds already mentioned. The learned Judge in Chambers rejected the prayer for an interim relief on the grounds that the appellant was inducted as a tenant in the property in 1954, by the respondent, that at no stage was his interest as landlord disputed either by the appellant or by any one else, and that prima facie it appeared that the order of the Rent Controller was without any jurisdictional or legal infirmity."
7. An appeal was preferred and the learned Judges of the Appellate Bench affirmed the refusal of the interim relief on the grounds that the appellant was prima facie estopped under section 116, to question the respondent's title as landlord, that the paramount title of Narayana Kevalram Shahani had not ousted the character and interest of the respondent who continued to deal with the property and to manage it notwithstanding the decree of the Civil Court and that even after such assignment under order XXIV, rule 10, C. P. C. The. Respondent could continue the proceedings before the Rent Controller against the appellant. It was also noted that only the Rent Controller's order was challenged but not the orders passed on appeal by the, High Court or by the Supreme Court refusing leave to appeal in the proceedings against the eviction order passed by the Rent Controller.
8. The learned counsel for the appellant submitted that the most solemn judgment, even the judgment of the highest Court in the land, can be challenged in the Courts of plenary jurisdiction on the grounds and on proper disclosure and proof of fraud practised in obtaining it. 1n the case of M. Moosa v. Muhammad and others (1975SCMR115this Court held that "if the judgment of this Court or of a High Court have been obtained by practising a fraud upon the Court, even then the remedy lies by filing a suit against the defendants and not by asking for the review of the judgment": There are, according to the learned counsel for the appellant, two courses open for the affected party, one is to proceed under section 12-A of C. P. C. Or in accordance with principle laid down by this Court in . Chief Settle--ment Commissioner v. Raja Muhammad Fazil Khan PLD1975SC331), and approach the same forum for relief against judgments obtained by fraud. The other course is to institute a civil suit. As the forum of Rent Cont--roller is not a Court nor provisions of C. P. C. Apply to proceedings in Supreme Court and an elaborate factual enquiry into the fraud disclosed by the appellant was necessary a civil Court having plenary jurisdiction in the matter was the more appropriate forum in this case.
9. The appellant had, according to the learned counsel at no stage challenged the status of the respondent as landlord "at the beginning of the tenancy", in this case in 1954, and there was no question of estoppel under section 116 of the Evidence Act against him. In support the learned counsel referred to Mst. Bilas Kunwar v. Desraj Ranjit Singh and others (AIR1915PC96), Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd. And others (AIR1937PC251), Rev.
Luckman Chaplain v. Pearey Lai (AIR 1939 All. 670and Krupasinghu Routra and another v. Purna Chandra Misra and others (AIR 1973 Orissa 44Besides, it is contended that as a tenant the appellant enjoyed statutory protection against eviction and mere proving or inferring the existence of relationship of landlord and tenant was not enough. The landlord had to prove a reasonable and bona-fide need for personal use as well as for construction on the plot. If the landlord and other beneficiaries for whom eviction of the appellant was sought had submitted in most solemn judicial proceedings that they had no connection whatsoever with this property and were under a perpetual legal restraint from intermeddling with this property, their right of occupation and construction could not on any plane be considered either bona fide or reasonable or tenable at all.
The learned counsel has referred to a decision of this Court in D. Miss A.I Muhammad v.
Muhammad Shafiq (PLD 1971 SC 494highlight the possible legal limitations on the rights of even an acknowledged landlord when seeking eviction of tenant on the ground of personal need.
10. The learned counsel for the appellant has also taken us through the principles of Hindu law applicable to the respondent's family to demonstrate that for effecting partition a definite unequivocal indication of his intention by a member of a joint family to separate himself from the family enjoying his share in severalty is required and the mere filing of a suit is sufficient indication of intention and accomplished partition. He has in this coniext referred to para. 332, page 372, of Mulla Principles of Hindu Law (13th Edition) as elaborated in Kawal Nain and others v. Budh Singh and others (AIR 1917 P C 39), Alluri Venkatapathi Raju and another v. Dantuluri Venkatanarasimha Raju and others (AIR 1936 P C 264), Malik Harkishan Singh v. Malik Partap Singh and others (AIR 1938 P C 189), Puttrangamma and others v. M. S. Rangamma and others (AIR 1968 SC 1018) and Hakim A.I Ahmed v. Ramchand Manji Mal (PLD 1976 Kar. 933
11. The learned counsel for the respondent, Mr. Abdul Hafeez Pirzada, on the other hand, contended that the learned Judges in the High Court had concurrently held that the appellant had no prima facie case and on that finding denied him a discretionary relief. Unless this Court come to the conclusion that this finding itself was perverse, or suffered from some basic error or was against a substantive provision of law, following its own practice this Court should not interfere with it.
Besides, according to the learned counsel, the suit itself was not maintainable for more than one reason. The appellant had exhausted all the stages of the first round of litigation and in the review petition filed in this Court had taken the same grounds and by not pursuing the review petition and withdrawing it un--conditionally he precluded himself from reagitating the same grounds by means of a suit. Besides, according to the learned counsel section 12-A of the C. P. C. Barred such a suit. The learned counsel has also contended that what plaintiff alleges does not amount to fraud at all. The appellant had at the very initial stages, at least since 1969, full notice and was quite aware of the fact that the entries in record showed Narayana and not the respondent as owner and that the appellant was in no manner and at no stage prevented from properly defending that case. Any insistence on such enquiry by the Rent Controller as is sought by the appellant will, according to the learned counsel for the respondent, be destructive of the entire Rent Restriction Law, for it revolves round and is confined to the relationship of landlord and tenant and does not concern itself at all with varying shades and numerous facets of the incidence of ownership of property. As regards the principles of jointness of Hindu family property the learned counsel contended that the coparceners could as easily reunite as they could separate. Keeping in view the relationship of Narayana with the respondent, and omission of Narayana to effectuate his paramount title or to oust the respondent or to seek attornment from the appellant the decree in the earlier suit could have no effect, whatsoever on the relationship of appellant and respondent. According to the learned counsel for the respondent the relief sought for by the appellant being discretionary, he was undeserving of it. He had not stood by his solemn commitments and undertakings given in Court to hand over possession by a specific date He had disobeyed the directions of the Court. He had after, the withdrawal of the review petition in this Court inordinately delayed the institution of the civil suit. He did not specifically deny the subsistence of relationship of landlord and tenant. It was substantially the proprietary interest which was disputed. The extended definition of landlord in Rent law, as interpreted in Muhammad A.I v. Haji Abdur Rahman and others (1980SCMR29fully entitled the respondent to seek and obtain the ejectment of the appellant on the grounds which he had taken.
12. After hearing elaborate arguments from both the sides, we find that the basic question required to be examined in the civil suit is whether the respondent had committed fraud in obtaining the eviction of the appellant in proceeding under the Rent Restriction Ordinance. Allegations of fraud, as held in the case of Raja Muhammad Fazil Khan PLD 1976SC331, "generally raise mixed questions of law and fact which can only be established by an elaborate inquiry". Keeping also in view the stage at which the matter has reached this Court, no finding, not even a determinative observation is required to be made on the controverted questions of law and fact raised in this appeal. What can possibly be done in such a proceeding and at such a stage is to keep, in the background the controverted facts of the case and to refer to the broad principles of law likely to be applied in resolving them with a view to determine whether there exists a prima facie case, whether the balance of convenience is in his favour and whether on refusal of an interim order irreparable injury would result to him. In seeking interim order even from this Court, as held in Mian Muhammad Latif v. Province of West Pakistan PLD1970SC180), "the plaintiff has only to make out that he has a good prima facie case meaning thereby that a serious question is to be tried in the suit and that in the event of success if the injunction is not issued he will suffer irreparable injury".
13. The allegations of fraud for avoiding judgments have certain special features for they involve competing claims of public policy. It has been observed in Horne v. Edwards (1), that "the demand of public policy that there should be an end of litigation for repose of society yields to ends of justice where extrinsic fraud had been practised only because main characteristic of such fraud is that it deprives party of opportunity of presenting his case or defence and renders as to him no trial at all in legal sense". The prominent features of such a fraud have been summarized (49 C J S 741) as follows: "In general the fraud must be such as prevented the unsuccessful party from fully and fairly presenting his case or defence; it must be such as prevented the losing party from having an adversary trial of the issue. Where a party to an action had a good case or defence but was prevented from setting it up by the fraud, artifice, deceipt or misrepresentation of the opposite- party, without negligence or fault on his own part, and a judgment was thereby obtained against him, a proper case is made out for equitable relief."
14. The same principle has also been summarized (46 Am Jur 2d 862) as follows:-- "Fraud, misrepresentation and circumvention used to obtain a judgment are generally regarded as sufficient cause for the opening or vacating thereof, particularly where the judgment was ,obtained against a person without his knowledge, where the party was prevented from presenting the merits of his case to the Court, where the Court was misled as to material circumstances -r where the fraud worked an imposition upon the jurisdiction of the Court. It has been held that a judgment wilt be set aside where the defendant neglected to interpose valid defences in reliance upon promises made by the plaintiff without any intention to perform them. Courts are constituted to decide actual questions existing between real parties involved in a real controversy and the submission of anything but a real controversy is recognized judicially as a fraud upon the Court."
15. This being the law with regard to taint of fraud in judgments, one has to take a second look at the allegations in the suit. Narayana, a son of the respondent, a coparcener in joint Hindu family property governed b Mitakshara School pleaded private partition of the family property b metes and bound claimed a perpetual injunction against respondent, his other son and a daughter prohibiting them from intermeddling in any manner with that property. The respondent and his son and daughter whole-hearted submitted to such declaration and injunction and placed themselves under a perpetuated restraint. In proceedings contemporaneously going on before the Rent Controller the respondent and his son and daughter continued to plead their personal need of that very property seeking eviction in their own right of the appellant from that very property and their own induction into that property and succeeded in so convincing the Rent Controller. Was there not a manifest contradiction and inconsistency?, Did not the solemnity of the proceedings require a more specific disclosure of this interest to bring out the "real controversy" before the Controller, to make appropriate defence possible, and to eliminate the apparent inconsistency in the judicial decree of declaration and injunction and the quasi-judicial order of Rent Controller benefiting those who on their own admission and under the injunction were restrained from benefiting in any manner from the property. Could their need at all) considered reasonable, bona fide and proper?
These are serious questions which require elaborate examination in the light of law applicable, in the light of discretionary jurisdiction possessed by the Rent Controller in the matter and the principles governing the exercise of such a discretion.
16. The Rent Restriction Ordinance supplants the contract between the landlord and the tenant and has the manifest object of restricting "the increase of rent of certain premises within the limits of urban area and of the eviction of tenants therefrom". Ejectment cannot take place except on establishing the grounds specified in the Ordinance. The extended definition of landlord leaves a possibility that a landlord by estoppel against the tenant, or a landlord qualifying as such on account of a mere rent receiving interest possessed by him, may yet fail in spite of his genuine personal need to establish his legal need of the premises or his good faith in the matter. An illustrative case on the point is of Dr. Miss A.I Muhammad (35 E D 2d. I
17. So far as principles underlying section 116 of the Evidence Act, or estoppel as such are, concerned, the express words of the law restrict and confine it to the status and character of the landlord "at the beginning of the tenancy". The tenancy does not prima facie begin at the stage of renewal of a continuing tenancy. A determinative finding, for which the stage has not yet arrived will have to be recorded whether the principle of such an estoppel possibly be extended to foreclose an examination of subsequent change in character and status of the landlord. Be that as it may, the mere establishment of relationship of landlord and tenant, by proof or estoppel, accomplishes nothing more than a jurisdictional fact, enabling the Controller to proceed thereafter to determine the other issues. What is important for obtaining an order of eviction from the Rent Controller is that the landlord must have a bona fide claim and mast strictly prove any one of the statutory grounds on which alone an eviction order can be passed under the Rent Restriction Ordinance. If the two pleas, that a person has absolutely no concern with a property, has no legal interest in it and the other that he needs it personally and in good faith for his own use and that of his children and that he wants to reconstruct it, do not look and sound inconsistent and are not capable of yielding different results on the legal plane then- there would be no failure to disclose material facts, no effort to avoid the "real controversy" no element of fraud. But at this stage of the suit it cannot be so inferred, the inconsistency being manifest. There is there--fore a substantial controversy, a prima facie case which requires consideration of the Court in depth.
18. It requires serious consideration whether on the facts of this case it can be said that the bona fide personal need of a particular landlord if established can be the subject-matter of a valid assignment or that the requirement of the plot for reconstruction with attendant criminal liability remains unaffected by assignment of landlords interest pendente lite.Provision of Order XXIV, rule 10, C. P. C. May not be directly applicable or attracted to such a case at all.
19. As regards the balance of convenience and nature of injury likely to be caused the fact that the premises have since 1954, been put tot commercial use and dispossession would not only mean physical outer but financial and economic disruption, the reparation or restoration of which may not be possible in the event of ultimate success of the appellant ii sufficient to justify the claim of the appellant on this score.
20. There are certain technical pleas, as regards form of suit, its maintainability in a particular forum and under a particular, law, the omission, if any to seek relief against all the orders in the filed the want of proper stamp and registration of earlier decree etc. These can await decision on merits and need not be dealt with here at any length.
21. In view of the foregoing discussion this appeal is accepted, the order under appeal is set aside and the interim order staying the ejectment of the appellant, in execution of Rent Controller's order of eviction is being granted. The trial Court shall take all necessary steps to expedite the trial. In view of the nature of the controversy the parties are left to bear their own costs.