IQBAL HAMEED-UR-REHMAN, C J.---This judgment shall also dispose of Writ Petition No,357 of 2010 as common questions of law and facts are involved in both these writ petitions.
2.
Through the instant constitutional petition the petitioner has impugned the order dated 3-7-2009 passed by the learned Rent Controller, Islamabad, whereby the ejectment petition filed by respondents Nos. 3 to 7 was accepted and the judgment dated 11-1-2010 passed by the learned Addl: Sessions Judge, Islamabad whereby, the cross-objections filed by the petitioner as well as appeal filed by Muhammad Imran (petitioner in Writ Petition No,357 of 2010) were dismissed.
3. Briefly the facts as mentioned in the writ petition are that respondent No,3 (Mrs. Rehana Syed), attorney of respondents Nos.4 to 7 filed an eviction petition before the learned Rent Controller, Islamabad in respect of Shop No, 19-B, Block No,12-B, Jinnah Super Market, Islamabad on the grounds of default in payment of rent by the tenant, expiry of the lease agreement and bona fide personal need of the rented premises. The said eviction petition was contested by the tenant, Naseem Khan/respondent No,8, by filing written reply. During the pendency of the eviction petition, Naseem Khan, the tenant moved an application before the learned Rent Controller, Islamabad for handing over the possession of the shop. However, on 26-11-2007 Naseem Khan/respondent No,8 withdrew the said application. In the meantime, the tenant Naseem Khan handed over the possession of the demised shop to the petitioner/Liaquat Ali. Liaquat Ali filed an application under Order I, Rule 10, C.P.C. Before the learned Rent Controller, Islamabad for his impleadment as party in the eviction petition on the ground that he is one of the co-sharers of the demised shop and his valuable rights are involved in the demised property, however, said application of the petitioner was dismissed by the learned Rent Controller vide order dated 17-7-2008. Petitioner assailed the said order through civil revision before the learned District Judge, Islamabad. Petitioner has alleged that he is a real brother of respondents Nos.3 to 7 who are legal heirs of one Mian Rehmat Ali. Mian Rehmat Ali was the owner of a number of properties including the demised shop. Mian Rehmat Ali on 8-4-1996 had orally gifted these properties including the demised shop to the petitioner as well as respondents Nos.3 to 7 and the said gift was accepted by the petitioner and respondents Nos.3 to 7. Respondents Nos.3 to 7 appointed the petitioner as their General Attorney vide registered deed dated 30-6-1996, however, the same was revoked on 7-8-2006. The demised shop was leased out by the petitioner to Naseem Khan/respondent No,8, as a co-sharer of the demised shop. A suit for partition, separate possession, mesne profit and permanent injunction, filed by the petitioner, in respect of the properties left by Mian Rehmat Ali deceased is also pending. During the pendency of the eviction petition filed by Mrs. Rehana Syed etc./landlords, the petitioner being one of the co- owners of the shop in question rented out the same to one Muhammad Imran through lease agreement dated 19-11-2007. The learned Rent Controller, Islamabad vide order dated 3-7-2009 struck off the defence of the tenant/respondent under section 17(9) of the Islamabad Rent Restriction Ordinance,2001, being defaulter in payment of rent and further ordered that landlords be put in possession of the demised shop. Muhammad Imran (petitioner in Writ Petition No,357 of 2010), who at that time was in possession of the demised shop assailed the order of eviction passed by the learned Rent Controller by filing an appeal before the learned Addl: District Judge, Islamabad and Liaquat Ali/petitioner also filed cross-objections, however, the appeal filed by Muhammad Imran as well as cross-objections filed by the petitioner were dismissed by the learned Addl: District Judge. Islamabad vide judgment dated 11-1-2010, hence, the instant writ petition.
4. In Writ Petition No, 357 of 2010, the petitioner Muhammad Imran has alleged that Shop No, 19-B Block No,12-B, Jinnah Super Market, Islamabad was leased out by Liaquat Ali to him vide lease agreement dated 19-11-2007 for a period of three years commencing from 20-11-2007 till 19-11-2010 and the monthly rent of the shop was fixed Rs, 25,000. Thereafter, F.I.R. No,24 dated 22-11-2007 at Police Station Kohsar, Islamabad under sections 457, 448, 427, P.P.C. Was got lodged against him by one Javed Syed, husband of Mrs. Rehana Syed, alleging therein that Muhammad Imran had committed criminal trespass over the demised shop and had also removed the wall separating the demised shop from other shop. Thereafter, an order of eviction of the tenant from the demised shop was passed by the learned Rent Controller, Islamabad. The petitioner, Muhammad Imran, on acquiring knowledge of the eviction Order assailed the same through appeal before the learned District Judge, Islamabad which was dismissed vide order dated 11-1-2010.
5. Learned counsel for the petitioner-Liaquat Ali has argued with vehemence that the petitioner is one of the co-owners of the demised shop in view of the oral gift by his father to the extent of 12.50% share and the learned courts below have erred while holding him mere attorney of the landlords/respondents Nos. 3 to 7. The General Power of Attorney in favour of petitioner Liaquat Ali was executed by respondents Nos.3 to 7 on 30th June, 1996 while demised shop was leased out by the petitioner Liaquat Ali to one Naseem Khan on 13-4-1996, hence, the petitioner at the time of execution of the lease agreement had not acted as attorney of respondents Nos. 3 to 7, rather he had executed the lease agreement as one of the co-owners of the shop. Petitioner is the landlord of the demised shop in terms of the definition of the landlord mentioned in section 2(g) of the Islamabad Rent Restriction Ordinance, 2001. Furthermore, the petitioner, being co-owner of the property also falls within the ambit of the definition of landlord. During the pendency of the eviction petition before the learned Rent Controller, the premises was vacated by the tenant i,e, Naseem Khan/respondent No,8, hence, the eviction petition had become infructuous and the learned Rent Controller had illegally proceeded with the eviction petition and passed the order of eviction without any legal authority. No issue was framed in this respect by the learned Rent Controller and the learned appellate court below has also failed to consider this aspect of the case. Both the courts below have committed material irregularity while passing the impugned order/ judgment.
The learned Rent Controller had wrongly held that default in payment of rent was committed by the tenant, whereas, during the pendency of the eviction petition a new tenancy was grown out.
The petitioner's suit for partition and separate possession, mesne profits and permanent injunction in respect of the demised shop, is pending and prior to decision of the said suit, it had been wrongly held that the petitioner was a mere attorney of owners of the landlords and not a co- owner of the demised shop. Respondents Nos.3 to 7 had also lodged F.I.R. Against the petitioner wherein it was alleged that he had removed the intervening wall of the demised shop. Learned counsel has alleged that criminal as well as civil proceedings cannot run together. The proper remedy available to respondents Nos. 4 to 7 is the filing of suit for possession through ejectment under the Specific Relief Act, 1877. Learned counsel in this regard has relied upon 2005 CLC [Lahore] 792 and 1990 MLD [Karachi] 2217.
6. Learned counsel for the petitioner Muhammad Imran (in Writ Petition No,357 of 2010) argued that the petitioner is a tenant in the demised shop and the tenancy was created vide lease agreement dated 19th November, 2007 and the possession of the demised shop was also handed over by the lessor, Liaquat Ali. The monthly rent was fixed Rs,25,000 and the petitioner had also paid Rs,300,000 as one year's advance rent and no default has been committed by him. The eviction petition was filed against Naseem Khan, previous tenant and after the vacation of the premises by the said Naseem Khan, Liaquat Ali had shown him all the documents regarding ownership of the shop and all these proceedings were well in knowledge of Javed Syed husband of Rehana Syed, one of the co-owners. The petitioner filed appeal against the eviction order dated 3-7-2009 passed by the learned Rent Controller, Islamabad, however, the same was dismissed by the learned appellate Court. Learned counsel further stressed that respondents Nos. 3 to 7 were well in knowledge that the possession of the premises is with Muhammad Imran, but despite that he was not impleaded as a party in the eviction petition and the learned courts below have not considered this fact while deciding the eviction petition as well as the appeal. A suit for partition of the property left by Mian Rehmat Ali, deceased, is also pending and the demised shop is also the subject-matter of that suit, hence, till the decision of the suit for partition of the property, the petitioner's possession be protected. Learned counsel further submitted that she also adopts the arguments advanced by the learned counsel for the petitioner in Writ Petition No, 317 of 2010.
7 Conversely, learned counsel for respondents Nos.3 to 7 argued that Liaquat Ali is the real brother of respondents Nos.3 to 7 and he is trying to deprive his sisters who are residing abroad from the valuable property which was inherited by them from their father. The demised shop along with other properties was owned by Mian Rehmat Ali deceased who had gifted away all the properties in Pakistan to respondents Nos.3 to 7. Liaquat Ali was given a power of attorney by Mian Rehmat Ali and he himself had transferred some property situated in District Faisalabad in favour of respondents Nos.3 to 7. An acknowledgment of gift was executed by Mian Rehmat Ali on 13-4-1996 in favour of respondents Nos.3 to 7 and the said acknowledgment was also a subject-matter of civil suit which was decreed in favour of respondents Nos.3 to 7 on 31-7-1996. In pursance of the decree passed by the civil court, Gift deed was incorporated in the record of CDA on 14-11-1997 and 31-12-1997, however, at the time of execution of the gift, respondents Nos.3 to 7 were abroad and they had executed a General Power of Attorney in favour of their brother i,e, Liaqat Ali. On realizing that the brother is playing havoc, respondents Nos.3 to 7, on 7-8-2006 revoked the General Power of Attorney in favour of the petitioner and appointed Mst. Rehana Syed as their Attorney and Liaquat Ali was also informed about the revocation of the Power of Attorney. Respondents Nos.3 to 7 filed ejectment petition in the year 2005. Meanwhile Liaquat Ali, in order to grab the properties of his real sisters, while acting as attorney of respondents Nos.3 to 7 executed an agreement to sell in favour of his real son Tariq Ali, and Tariq Ali filed a suit for specific performance of the agreement to sell. Liaquat Ali appeared before the court and made the statement that he has no objection if the suit is decreed in favour of Tariq Ali, however, the suit could not be decreed as the Capital Development Authority was also party in the same. On knowledge of the proceedings, respondents Nos.3 to 7 filed application under section 12(2), C.P.C., whereupon, Tariq Ali withdrew the suit.
Thereafter, another suit was filed by Tariq Ali against Zarafat Ali, brother of the petitioner Liaqat Ali.
In the said suit again Liaquat Ali appeared as attorney of Zarafat Ali and made a statement that he has no objection, if the suit is decreed in favour of the plaintiff. In the said suit along with other properties, demised shop was also mentioned. However, on knowledge of the proceedings, an application under Section 12(2), C.P.C. Was filed by Zarafat Ali and it was categorically mentioned therein that the executant of the Attorney has revoked the same and Liaquat Ali is no more attorney, thereafter, the suit was withdrawn by Tariq Ali son of Liaqat Ali. Thereafter, another suit was filed by one Muhammad Iftikhar for specific performance of the agreement to sell dated 16th April, 2005, mandatory and permanent injunction. Liaquat Ali, while filing written statement in the said suit mentioned in reply to para-2 of the plaint, that "defendant No,3 being attorney of defendants Nos.1 and 2 entered into the said agreement".
8. Learned counsel further stressed that Liaquat Ali had absolutely no concern with the demised shop and even in para-1 of the written reply filed by Naseem Khan, tenant, the ownership of the demised shop by respondents Nos.3 to 7 was categorically admitted. During the pendency of the eviction petition, Naseem Khan, had filed an application through Adnan Muhammad Khan Advocate, for surrender of possession of the demised shop, however, the same was later on withdrawn by him and in the meantime, Naseem Khan, respondent No,8 had handed over the possession of the demised shop to Liaquat Ali. Liaquat Ali had filed an application for his impleadment as party in the eviction petition which was dismissed by the learned Rent Controller, Islamabad, vide order dated 17-7-2008 and the said order was subsequently challenged through a revision petition before the learned Addl: District Judge, Islamabad. The learned Rent Controller passed the eviction order after affording a number of opportunities to the tenant of the demised shop, to submit the receipts of the payment of rent. The tenant i,e, respondent No,8/Naseem Khan had not assailed the order of ejectment in appeal, rather the same was assailed by one Muhammad Imran. The shop of Muhammad Imran and the demised shop are adjacent to each other, however, the petitioner/Liaquat Ali, after breaking the wall separating both the shops converted the two shops, into one shop, whereupon, respondents Nos.3 to 7 had filed a civil suit for restraining the petitioner from breaking the wall and F.I.R. Was also got lodged against Liaquat Ali and Muhammad Imran. Learned Rent Controller passed the eviction Order as provided under section 17(9) of the Islamabad Rent Restriction Ordinance, 2001. The appeal filed by the subsequent tenant Muhammad Imran, was also rightly dismissed for non-impleading the necessary parties and impleadment of unnecessary party. The Order/judgment of both the tribunal and court below do not suffer from any legal frailty. Learned counsel in this regard has relied upon 2009 SCMR 893, 1994 SCMR 1507, PLD 1971 Quetta 10, 1968 SCMR 734, 1986 CLC (Karachi) 1378 and 2009 SCMR 837. By the dent of above submissions, the learned counsel has prayed for dismissal of both the writ petitions.
9. I have heard the learned counsel for the parties at length, perused the record and pondered and mulled over the issue from diverse angles.
10. Petitioner, Liaquat alleges that he is a co-owner of the demised shop, hence, he being a landlord of the demised shop had/has the authority to receive the rent of the premises and lease it out to some one else, hence, the proceedings conducted by the learned Rent Controller do not have the legal backing and are liable to be struck down, whereas, Muhammad Imran who is tenant of the demised shop has taken the stance that he is a lawful tenant, hence, the proceedings of eviction petition were nullity in the eye of law, as he was not a party to those proceedings and his appeal was also wrongly dismissed by the learned Addl: District Judge, Islamabad and he cannot be evicted from the demised shop as a lawful tenant.
11. It is evident from the record that the demised shop was leased out by Liaquat Ali to Naseem Khan vide lease agreement dated 13-4-1996. Bare reading of the said lease agreement reflects that in the said agreement it was categorically mentioned that Liaquat Ali had executed the lease agreement as attorney of Mrs. Rashaida Ahsan, Mrs.Kishwar Sultana, Mrs. Rehana Syed, Mrs. Rukhsana Parveen and Mr.Zarafat Ali, respondents Nos. 3 to 7. It was nowhere mentioned in the said lease agreement that Liaquat Ali is also co-owner of the demised shop. Liaquat Ali had acted as an attorney of the owners of the demised shop and his rights and privileges came to an end on revocation of the General Power of Attorney by respondents Nos. 3 to 7. Furthermore, the tenant- Naseem Khan/respondent No,8 under the above mentioned tenancy agreement was also well in knowledge that Liaquat Ali is a merely an attorney of the landlords and, as such, Naseem Khan/respondent No,8, while filing written reply to the eviction petition conceded the said factor.
Petitioner Liaquat Ali has alleged that he on the basis of art oral gift deed dated 8-4-1996 is a co- owner of the demised shop, however, while executing the lease agreement dated 13-4-1996, Liaquat Ali had not mentioned himself to be co-owner of the demised shop, hence, his status to the extent of the demised shop, as per the agreement dated 13-4-1996 was that of a lessor, authorized through a General Power of Attorney, to lease out the demised premises. The General Power of Attorney was revoked by respondents Nos.3 to 7 on 7-8-2006 and thereafter, the petitioner-Liaquat Ali, had no concern with the demised premises, however, he obtained the possession of the shop from the previous tenant on 17-11-2007 and thereafter leased it out to Muhammad Imran.
12. Learned counsel for the petitioner has stressed that Liaquat Ali is the landlord of the demised shop in terms of section 2(g) of the Islamabad Rent Restriction Ordinance, 2001, hence, had the every right to rent out the premises. Section 2(g) of the Islamabad Rent Restriction Ordinance, 2001 reads as under:- "landlord" means the owner of the premises and includes any person for the time being authorized or entitled to receive rent in respect of any building or rented land, whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian or receiver, and or a tenant. Who, being authorized under the terms of his lease so to do, sublets the building and every other person for the time being deriving title from the landlord."
' From the perusal of the above quoted section of IRRO, 2001, it is crystal clear that after revocation of the General Power of Attorney by the landlords, the petitioner had ceased to act as landlord of the premises. Petitioner has further alleged that the learned Rent Controller, Islamabad had wrongly held that any default was committed by the tenant and has erred while holding that the landlords be put in possession as the rent of the demised premises was paid by Naseem Khan, tenant to Liaquat Ali, pursuant to the lease agreement dated 13-4-1996. The record reveals that the General Power of Attorney, the very basis of the said lease agreement was revoked on 7-8-2006 and thereafter, the rent of the premises was required to be paid by the tenant to the landlords i,e, Mrs. Rehana Syed etc. And on non-payment of the rent to the landlords, the learned Rent Controller rightly passed the order for eviction of the tenant in accordance with section 17(9) of the Islamabad Rent Restriction Ordinance, 2001.
13. As regards the plea, that the petitioner Liaquat Ali was a necessary party in the proceedings before the learned Rent Controller, Islamabad and the learned Rent Controller had wrongly dismissed his application under Order I Rule 10, C.P.C. For his implement as party in the eviction petition, the same has no force because after revocation of the General Power of Attorney, he was neither landlord nor tenant in the proceedings, hence, could not be impleaded as party in the eviction petition. Learned counsel for the petitioner has argued that during the pendency of the eviction petition, the demised premises was further leased out by Liaquat Ali to Muhammad Imran vide lease agreement dated 19-11-2007, as such, the eviction petition before the learned Rent Controller had become infructuous, as a new tenancy was holding the field and the learned Rent Controller had wrongly proceeded with the eviction petition. However, the plea of the petitioner has no legs to stand, because after revocation of the General Power of Attorney, Liaquat Ali had no authority whatsoever to lease out the premises, hence, he being a stranger, if had executed any lease agreement in respect of the demised shop, was rightly not taken into consideration by the learned Rent Controller, Islamabad.
14. Petitioner has also taken the stance that his suit for partition, separate possession, mesne profits and permanent injunction is pending and prior to the decision of the civil suit, the eviction proceedings in respect of the demised shop, which is also one of the properties mentioned in the suit, are required to be stifled. This plea of the petitioner cannot be adhered to, as having no legal footing because the ownership of the demised shop in favour of the landlords i,e, Mst.Rehana Syed etc. Is established from the documents available on record arid they cannot be deprived of from the fruits of the property owned by them, whereas, the alleged claim of co-ownership of the petitioner/Liaquat Ali, prima facie, stands no where and mere filing of a suit in respect of any property does not create any right in respect of the property, unless decided by the court of competent jurisdiction. Furthermore, the eviction proceedings undertaken by the learned Rent Controller, Islamabad, in any way does not impinge on the alleged claim of co-ownership of the petitioner-Liaquat Ali, as the same is to be decided by the court of competent jurisdiction in the suit for partition, separate possession, mesne profits and permanent injunction. I have also given due consideration to the citations referred to by the learned counsel for the petitioner, however, the principle enunciated in the esteemed citations is not helpful for the case of the petitioner and the facts and circumstances of the lis in hand are quite distinguishable. In 2005 CLC 792 (Lahore), his lordship has held that co-owners were the necessary party in the ejectment proceedings, whereas in the present case, co-ownership of the petitioner/Liaquat, prima facie, has not been established on the face of the record. In 1990 MLD 2217 [Karachi], his lordship has held that question of title shall remain open to be determined by the court of competent jurisdiction and finding of Rent Controller shall not binding on the Civil Court. In the present writ petition, the issue to the extent of ejectment petition has been ponddred and mulled over and the findings of the courts below to the extent of ejectment of the tenant from the demised shop are brought under consideration.
15. Muhammad Imran,, the petitioner (in Writ Petition No,357/2010) has alleged that he is a tenant in the demised shop through a tenancy created vide agreement dated 19th November,2007, however, he was not impleaded as party in the proceedings before the learned Rent Controller, Islamabad and as such had not been provided an opportunity of being heard, therefore, the proceedings undertaken by the learned Rent Controller and the order dated 3-7-2009 have no legal effect, hence, are liable to be declared illegal and the learned appellate court has erred while rejecting his appeal vide order dated 11-1-2010.
16. From the record available on file, it is established that Muhammad Imran was inducted in the demised shop by Liaquat Ali posing himself to be co-owner of the shop, whereas, the landlords i,e, Mrs. Rehana Syed etc. Had not consented the lease of the premises to Muhammad Imran, hence, he could not be impleaded as party in the eviction petition before the learned Rent Controller, Islamabad. The status of Muhammad Imran prima faice, is that of unauthorized tenant. In this regard, I am fortified by the case of Messers Noorani Travels, Karachi v. Muhammad Hanif and others (2008 SCMR 1395), wherein it has been held that:- Unauthorised sub-tenant can be evicted along with the tenant against whom the eviction order is passed by Rent Controller and he is not a necessary party to the proceedings, being unauthorisedly in occupation of the premises.... In order to become a party to the proceedings it is to be established by the Intervener or the interceptor that he has a "legal right in the property which is enforceable law", otherwise he cannot claim to be a necessary party in the proceedings."
Petitioner Muhammad Imran had got the possession of the demised shop from Liaquat Ali, who at the time of execution of the lease agreement had allegedly no legal right in the demised shop, hence, the tenancy created through a stranger cannot be enforced by legal means, hence Muhammad Imran, the tenant in the premises cannot press any legal right and court cannot come forward for his rescue. Reliance is also placed on Taj Muhammad and others v. Ali Hassan Manghi and others (1987 SCMR 565), wherein it has been held that:- "Ejectment order passed---Petitioner/sub-lessees against tenant resisting execution of such ejectment order--Having been inducted in suit tenements without consent of landlord, sublessees, held, had no right to remain in occupation of demised premises on ejectment of tenant and were bound by order of ejectment passed against tenant none of such sub-lessees fulfilled requirements of O.XXI, Rr. 99,100 & 103, C.P.C."
17. Section-17 of the Islamabad Rent Restriction Ordinance, 2001 deals with the eviction of the tenant. A perusal of subsection 2 (ii) of Section-17 of IRRO, 2001 clearly depicts that a tenant would be liable to eviction, if he has no written consent of the landlord. The demised shop was not leased out by the landlords i,e, Mrs. Rehana Syed etc. To the tenant Muhammad Imran and no written consent of the landlords is also available on record in order to maintain the tenancy in favour of the petitioner/Muhammad Imran. As the demised shop was not rented out by the landlords to Muhammad Imran/tenant, therefore, he cannot seek any relief on the basis of the tenancy executed by a person who, prima facie, is not the landlord of the demised shop.
18. It is also settled principle of law that constitutional petition is not maintainable against the concurrent findings of facts of the courts below arrived at after proper appreciation of material available on record, as per dictum laid down by the Hon' ble Supreme Court in Khuda Bakhsh v.
Muhammad Sharif (1974 SCMR 279). Both the tribunal/appellate court, below after properly appreciating the material available on record have concurrently decided the issue against the petitioner and this court under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973, has no jurisdiction to substitute its own findings in place of the concurrent findings of the courts below in view of the law laid down in the case Raham Dil v. Province of Punjab (1999 SCMR 1060). The findings of the Tribunal as well as of the appellate Court are based on elaborate, careful and correct appraisal of material and do not suffer from any legal infirmity.
19. In view of the above perspective, both the writ petitions have no merits and the same are hereby dismissed.