Tfirough this constitutional petition, the petitioner has assailed order dated 29.03.2010 and 15.05.2010 passed by learned Rent Controller and learned Appellate Court respectively.
2. Briefly stated the facts of case are that petitioner was married with Respondent No. 2 on 25.3.2001, out of their wedlock a son and a daughter born. Respondent No. 2 agreed to transfer half property to petitioner against her dower and remaining property to two minor children.
Subsequently Respondents No. 1 and 2 managed to transfer his property by way of an exchange deal. Respondent No. 1 filed an ejectment petition against Respondent No. 2 and on a consent statement of Respondent No. 2 an ejectment order was passed on 14.7.2005. The petitioner when came to know about the pendency of ejectment petition, she filed an application under Order I Rule 10 CPC for becoming party to the said petition. Learned trial Court dismissed the said petition and passed the final ejectment order. The petitioner assailed the ejectment order dated 14.07.2005 through application u/S. 12(2) CPC. The application was resisted by the respondents claiming that during pendency of ejectment petition the petitioner had filed an application under Order I Rule 10 CPC on the same grounds which was dismissed, no appeal was filed there against. It was further alleged that application is mala fide and as such the same is liable to be dismissed. Learned trial Court out of divergent pleadings of parties framed the following issues:-- "ISSUES.
1. Whether the order of this Court dated 14.7.2005 announced in ejectment petition titled Shamas- ul-Haq Khan etc. Vs. Khizar Muhammad Khan is liable to be set aside u/S. 12(2) CPC? OPA
2. Whether the petitioners have no cause of action against the respondents? OPR
3. Whether the instant petition is not maintainable in its present form? OPR
4. Relief.
3. Both the parties adduced their respective evidence and learned trial Court vide order dated 29.3.2010 dismissed the petition holding that a similar application under Order I Rule 10 CPC has been dismissed and as such the pendency of ejectment petition was in her knowledge and as such the application is devoid of merit. Petitioner assailed the said order through a revision before District Judge Multan. Learned District Judge Multan vide order dated 15.3.2010 dismissed the revision on the ground that revision does not lie against order of Rent Controller, hence the present petition.
4. Learned counsel for petitioner submits that orders of both Courts below are based on surmises and conjectures and are alien to facts. Both the Courts have failed to appreciate the facts that petitioner's application under Order I Rule 10 CPC was dismissed by the rent Controller and before expiry of limitation period provided for an appeal final ejectment order was passed and as such the petitioner has rightly assailed ejectment order under Section 12(2) CPC. He further submits that fraud was evident from the fact that Respondent No. 2's statement was recorded when he was not in Pakistan and thus the ejectment order was basically fraudulent order. He further submits that application u/S. 12(2) CPC was dismissed and as such the revision petition was maintainable and even if the learned appellate Court was of the view that revision is not maintainable, the same can be treated as appeal, as the same was filed within the prescribed period of appeal. Learned counsel for the petitioner relied on Mirza Allah Rakha Vs. Faheem-unDin Aziz and 10 others (2011 CLC 452), Mst. Zuhaida Begum Vs. Mst. Irshad Bibi (1994 CLC 1044), Mst. Rashid Jehan Vs. Muhammad Ashfaq (1991 MLD 2619), Mrs. Anees Haidar and others Vs. S. Amir Haidar and others (2008 SCMR 236), Tanveer Jamshed and another Vs. Raja Ghulam Haidar (1992 SCMR 917), AH.
International (Put.) Ltd. and 3 others Vs. Federation of Pakistan and another (2009 YLR 162), Muhammad Aqil Faridi Vs. Rent Controller, Lahore and 9 others (2000 YLR 1651), Asghar All Khan Vs. Mst. Feroza Begum and others (2004 YLR 1066), Akbar Ali and 4 others Vs. District Judge Faisalabad and 4 others (PLD 2006 Lahore 600), Ghulam Muhammad Vs. M. Ahmad Khan and 6 others (1993 SCMR 662), Mst. Fehmida Begum Vs. Muhammad Khalid and another (1992 SCMR 1908), Saeed Khan Vs. Mst. Rozina and 7 others (PLD 2002 Peshawar 84) and Tanveer Jamshed and another Vs. Raja Ghulam Haider (1992 SCI4R 917).
5. Learned counsel for the respondents submits that no application u/S, 12(2) CPC is maintainable under Rent Law being a special statute. He further submits that petitioner's application under Order I Rule 10 CPC was dismissed, the petitioner has not assailed the said order and as such it attained finality and her application u/S. 12(2) CPC was not maintainable on this score alone. He further submits that respondent is owner of property subject matter of rent petition on the basis of a registered exchange deed and Respondent No. 2 is his tenant who made the statement and consent ejectment order was passed. Learned counsel relied on Muhammad Hussain and others Vs. Muhammad Abdullah Khan (NLR 1986 CLC 111), Sheikh Khalid Mahmood Vs. Mallick Muhammad Irfan (PLD 1983 SC (AJ&K) 204), Sh. Barkat Ali Vs. Ch. Muhammad Latif and others (1991 CLC 1687), Zahur-ul-Hasan Vs. Mst. Ruqqia Begum and 4 others (PLD 1981 Supreme Court 112), Muhammad Hussain Shah Vs. Muhammad Farooq etc. (NLR 1986 CLJ 45 (1) and Mg. Asia Bano Vs. The Rent Controller, Gujranwala etc. (NLR 1991 Civil 340).
6. Heard, record-perused.
7. The Respondent No 1 filed an ejectment petition against Respondent No. 2 of the property detailed in the heading of petition claiming that petitioner, his father ani his mother were the owner of suit property vide exchange Deed No. 7347/1 registered on 30.12.2004 executed by Respondent No 2 and Respondent No 2 under a rent agreement dated 5.1.2005 is his tenant, the Respondent No. 2 submitted written reply on 16.5.2005 and admitted the contents of petition as under:--
8. The petitioner before passing an ejectment order filed an application under Order I Rule 10 CPC claiming that property subject matter of ejectment petition was owned by her husband Khizar Muhammad Khan and at the time of Nikah he transferred the property in lieu of her dower and from that date she is in possession of property and on ground floor of the property there are shops and she and her minor children are receiving rent from the tenants. Her husband is , residing in England where he got second marriage, he wanted to sell her property, she filed a suit before family Court, her husband appeared before the Court and made the statement to the extent of part of property, and the suit for remaining property was pending when the father of petitioner Abdul Haq sabotaged the agreement and tried to get possession of the property illegally. She has challenged the alleged exchange deed before Civil Court and suit is pending disposal.
9. The Rent Controller dismissed the application vide order dated 23.6.2006 and passed final ejectment order on 14.7.2005. This shows that order dated 23.6.2005 merged in final ejectment order and as such the petitioner was unable to assail the same. Learned Rent Controller while passing order dated 23.6.2005 came to conclusion that Nikaha Nama and a compromise between petitioner and Khizar Muhammad Khan reveal that a compromise was entered into between the parties and half share of property of Khizar Muhammad Khan in Pakistan was transferred in the name of petitioner in lieu of her dower but it is not clear if the rented premises are the part of that half share or not and as such application is not maintainable. The petitioner then assailed the ejectment order through an application u/S. 12(2) CPC claiming that Khizar Muhammad Khan at the time of Nikah has transferred one House No. 523 situated at Mohallah Qaisarabad Multan, Six Shops No. 55, 57, 58, 59, 60, 61 in 'T' Block New Multan, Twelve shops situated at Khan Market Samaija Abad Multan with upper portion for residence and the said property is in her physical possession. The so called landlord and tenant have not made her party to the petition. She further asserted that as per Columns No. 13 and 16 of Nikah Nama half property in. Pakistan belonging to Khizar Muhammad Khan will be the ownership of petitioner and 50% property will be the ownership of his children. It was further asserted that exchange deed has been challenged on the basis of fraud before the learned trial Court and a restraining order has already been passed. The Respondent No. 1 has become general attorney of her husband only with the mala fide intention to usurp their property. The ejectment order has been passed on the basis of a consenting statement.
Khizar Muhammad Khan has left Pakistan on 28.1.2005 and on 16.5.2005 a consenting written statement was filed on his behalf, which is sufficient to prove the fraud of so called landlord and tenant with the Court. The said application was replied by Respondent No. 1, 3 and 4. The facts stated in the petition were denied evasively and it was specifically mentioned as under:-- {{URDU TEXT}} "Birth right not recognised.",
10. The other facts were narrated in the reply are that out of first wife of Khizar Muhammad Khan there are 09 sons and 01 daughter who are residing in England and as such they all are entitled to half portion of property in Pakistan. Khizar Muhammad Khan was authorized to transfer the property in favour of Shamas-ul-Haq. An other story regarding the family dispute was also mentioned in the reply in reply to Para 5 of petition as under:-- {{URDU TEXT}} 11.From the contents of application u/S. 12(2) CPC and its reply it is clear that petitioner is owner 'of half partition of property owned by Khizar Muhammad Khan Respondent No. 1 and remaining half property is claimed by the children of Khizar Muhammad Khan who are residing in Pakistan as per terms of Nikah Nama and subsequent compromise between the parties, whereas the Respondent No. 1 is disputing the right of ownership in the half portion of property in favour of other 10 children who are residing in England inspite of the fact that he is not the party to compromise. The exchange deed the basis of Respondent No. l's ownership is the subject matter of a suit before the competent Court of law as admitted by respondents themselves in reply to application u/S. 12(2)
CPC. It is not understandable why learned trial court dismissed the petitioner's application under Order I Rule 10 CPC specifically when learned Rent Controller admitted this fact in his own order as under: "Both the petitioner and respondents have contested the application raising contentions that applicant lady has no concern whatsoever with the demised property. They with their reply have appended the relevant record of Nikah Nama and compromise between the applicant and respondent with regard to dower, which reveals that both of them fell in compromise a consequently half share of property of respondent in Pakistan was transferred in the name of applicant lady in lieu of dower, but it is not clear if the rental premises from part of that property as particulars of both the properties are not synonymous".
12.Learned trial Court when came to conclusion that there is a dispute of ownership between the parties and at least half portion of property is the ownership of petitioner, how learned Rent Controller without recording evidence came to the conclusion that property subject matter of ejectment petition and the ownership of petitioner are different. Learned Rent Controller has wrongly dismissed the application. The Rent Controller after coming to know the disputed facts was duty bound to record evidence for ascertaining the real facts. Likewise the learned Rent Controller while deciding the application u/S. 12(2) CPC has failed to appreciate the disputed admitted facts. Admittedly the ejectment order was passed on the statement of Khizar Muhammad Khan,s counsel, who as per compromise, between him and petitioner has already transferred his property in Pakistan in favour of petitioner and her two children before the execution of alleged exchange deed. These facts when were available on record, the learned Rent. Controller has wrongly dismissed the application u/S. 12(2) CPC. The learned Rent Controller has fallen in error while deciding the application u/S. 12(2) CPC on the ground that petitioner filed application u/S. 12(2) CPC on 22.7.2005 and throughout the application she did not disclose these, facts in her application under Order I, Rule 10 CPC, whereas all these facts are available in the said application.
The application under Order I, Rule 10 CPC was dismissed on 23.6.2005 and ejectment order was passed on 14.7.2005. The dismissal order under Order I, Rule 10 CPC and final ejectment order are in one serial and as such this was not the ground for dismissal of application u/S. 12(2) CPC. The learned trial. Court has failed to appreciate that suddenly after dismissal of application under Order I, Rule 10 CPC the Respondent No. 2 made the statement before the Court aceepting the ejectment petition and agreed to vacate the premises within 10 days. These facts should have taken into consideration by the learned Rent Controller, while deciding the application u/S. 12(2)
CPC. The other grounds for dismissal of petitioner's application u/S. 12(2) CPC is again illusory which is read as under: "Petitioner raised the ground that Khizar Muhammad Khan left for England on 28.1.2005, whereas consenting written reply was submitted on 16.5.2005. Khizar Muhammad Khan did not appear during the proceedings and has not made any request for setting aside ex-parte decree, therefore, Court presumes that the written reply was submitted with his free consent and he was consented with the orders of learned Rent Controller".
13. The petitioner has alleged that Khizar Muhammad Khan committed fraud as he was not authorized to make the statement but learned Rent Controller has wrongly held that the consenting statement could be challenged by Khizar Muhammad Khan only, it is established fact on record that the statement was recorded by the counsel of Khizar Muhammad Khan and as such the respondent has to establish that counsel was duly authorized to make the statement or not. If Khizar Muhammad Khan has failed to challenge the statement the inference should be that he has nothing to say. The facts available on record shows, that there is a dispute between petitioner and her husband Khizar Muhammad Khan and Khizar Muhammad Khan is residing in England and has contracted second marriage in England -and---as such why he will object the statement which admittedly was not recorded by him and was only to deprive the petitioner and two minor children.
The learned trial Court should have taken the caution while recording consenting statement on 16.5.2005.
14.Petitioner is claiming a compromise submitted before a Family Court arrived into between the petitioner and Khizar Muhammad Khan. For better appreciation of facts the same is reproduced as under:-- {{URDU TEXT}} 15.On the basis of said agreement the suit was decreed on 24.7.2006 in the following terms: "When parties personally appeared before the Court and recorded their statement, the defendant had handed over Rs. 2,00,000/- and has recorded his statement that he has no relation with the properties mentioned in Mark-A and the plaintiff whenever want can transfer the same in her name, therefore, in view of the statement the suit is decreed and compromise Mark-A shall be read as part of the decree sheet".
16.All the above evidence was available before the learned trial Court, but he dismissed the application u/S. 12(2) CPC. The learned appellate Court has dismissed the revision petition on the sole ground that in rent matters no revision is maintainable. Now it is an established law that the Tribunal or Special Court enjoying the inherent powers to set aside their own orders if the orders have been obtained by practicing fraud. No doubt the Rent Controller is a persona designata but it is established law that fraud vitiate all proceedings.
17. The other aspect of this case is even if the application u/S. 12(2) CPC is not maintainable even then Civil Court or Tribunal has the authority to recall their own orders if there are serious allegations of forgery and fraud. In the present case Rent Controller has not dismissed the application on the ground that application is not maintainable. He has decided it on merits after recording evidence but the Revisional Court has wrongly assumed that application u/S. 12(2) CPC is not maintainable and as such the revision against the order is incompetent in rent matters. The learned District Judge While hearing this civil revision was if of the opinion that in Rent matters application u/S. 12(2) CPC is not maintainable, he can treat this revision petition as an appeal against ejectment order. The argument of learned counsel for respondents that application u/S. 12(2) is not maintainable in the circumstances of the case has no force. It is now an established principle `of law that the Special Court/Tribunal are enjoying inherent powers to set aside their own orders if the orders have been obtained through fraud. The fraud was established on record and as such learned trial Court was bound to accept the application u/S. 12(2) CPC and to decide the ejectment petition by impleading petitioner as party on merits especially when learned trial Court itself while dismissing the application under Order I, Rule 10 CPC came to the conclusion that petitioner is claiming right of ownership in rented property. The finding of learned Rent Controller was without recording evidence and was based on personal assumption which is not the intention of law. The petitioner claim is that she is owner of half of property of Khizar Muhammad Khan in Pakistan and remaining half of property is the property of two children in Pakistan. Khizar Muhammad Khan allegedly executed an exchange deed in violation of earlier compromise as well as the terms of Nikah. If Khizar Muhammad Khan has any grievance against his children and wife he himself can agitate the same before competent Court of law. If for the sake of arguments, it is admitted that exchange deed is not a forged document even then exchanged property will be deemed to be the property of petitioner in terms of compromise with Respondent No. 2.
18.The upshot of above discussion is that the application u/S. 12(2) CPC succeeds and impugned orders dated 29.03.2010 and 15.05.2010 are hereby set aside. The petitioner is impleaded as party to the ejectment petition and case is remanded to the learned trial Court for deciding the same after hearing the parties and recording evidence.
19.There is no order as to costs.