1. ' This second appeal is filed against the impugned order dated 9-7-1979 of learned First Addl.
2. District Judge Karachi whereby appeal filed by the present appellant namely Qutubuddin Ahmed against the two orders of learned Rent Controller striking off the defence of respondent No, 2 tenant and rejection of application filed by the appellant under Order I, rule 10, C. P. C. To be impleaded as intervenor has been dismissed.
3. ' Briefly stated the facts are that respondent No. 1 landlady namely Afst. Zuhra Mussarat filed an application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against respondent No, 2 tenant namely English Biscuit Manufacturers Limited, a Private Limited Company, from demised premises which is a residential building on Plot No, B-213, Block No, A in North, Nazimabad, Karachi. The rent was at the rate of Rs, 450 per month and the premises in question were obtained by the tenant-Company for the residential use of its officers. Ejectment was sought on the grounds of default in the payment of rent, damage to the demised premises and requirement of premises for bona fide personal need. Written statement was filed by respondent No, 2 tenant, wherein it was admitted that respondent No, 2 as per terms of agreement has served one month's notice for termination of tenancy, which was to come to an and in December 1975. Allegations with regard to default and requirement of premises for personal need were denied. It was also pointed out in the written statement that premises in question were in possession of Mr. Qutubuddin Ahmed, who was no more an employee of respondent-Company as such he was a trespasser. Tentative rent order was passed on 12-4-1978. Subsequently no rent was deposited by respondent-Company hence- application was filed for striking off the defence and after service of notice of the said application no objections were filed by the respondent-Company which chose to remain absent. Consequently on 17th July 1978, order was passed on the said application striking off defence off respondent-Company.
4. ' In the meantime the present appellant filed an application under Order I, rule 10, C. P. C. On 16-5- 1977 to be impleaded as opponent No, 2 in the ejectment proceedings as intervenor for the reason that he was in physical possession of the demised premises as employee of the respondent company and after leaving the service he used to tender rent through the Company which was accepted by the landlady and later on rent was paid directly to the landlady who accepted the same as such he had become tenant of the landlady. Notice on this application was issued and the landlady filed counter-affidavit in which allegation that she ever collected rent from the intervenor was denied and assertion was made that the respondent-Company was her tenant and not the intervenor. The respondent-Company did not file any objections against this application and after hearing both the parties the learned Rent Controller dismissed the said application on the ground that the intervenor has not produced any evidence to establish that he is tenant or was accepted as tenant by the landlady and further that the relationship of landlady and tenant was between the respondent-Company and the landlady hence the intervenor was in physical occupation of the demised premises as employee of respondent-Company as such he is not a necessary party and his application was finally rejected.
5. ' It is obvious that the order of the Rent Controller against the respondent-Company striking of defence was passed on 17th July 1978 and the application of the Intervenor under Order I, rule 10, C.
6. P. C. Was rejected by the Rent Controller vide his order dated 13-3-1978. Against both these orders the intervenor had filed appeal before the First Appellate Authority on 5-8-1978. It is apparent that the intervenor could not file appeal against the order of striking of the defence and consequent eviction of the tenant respondent-Company for the reason that intervenor was not a party to the proceedings. Any way the learned Additional District Judge vide his impugned order dated 9-7- 1979 has dismissed the appeal including the appeal against the order of eviction of respondent- Company. As a matter of fact the respondent-Company has not filed any appeal against the order of eviction passed against him by the Rent Controller.
7. ' The question which relates for consideration is whether application filed by the intervenor under Order I, rule 10, C. P. C. Before the Rent Controller was rightly rejected and appeal against the rejection of his application was competent before the appellate authority. The learned Rent Controller after hearing the parties has given very cogent reasons for not allowing the intervenor to be joined as party in the proceedings in which the real parties were landlady and respondent- Company. Although it appears that an agreement of tenancy was executed between the landlady and the respondent-Company on 19th September 69 but the same has not been produced and is not on the record. It is admitted in the written statement filed by the respondent-Company before the Rent Controller that according to the terms of that agreement the respondent-Company had served one month's notice on the landlady that the demised premises would be vacated and the respondent-Company did not wish to remain as tenant from December 1975. It is mentioned in the written statement of the respondent-Company that the demised premises were at that time in physical occupation of Qutubuddin who was employed by the Company and at the relevant time of filing written statement was no more in their service. Even in the affidavit filed in support of application under Order I, rule 10, C. P. C., the intervenor has admitted that while he was in the service of respondent-company be was provided the dismissed premises as his residence by the respondent-Company. He has admitted that he had left the service of the said Company but has further asserted that even after leaving the service he used to tender the rent through the Company, which was collected by the landlady and sometimes he used to pay rent directly to the landlady which was accepted by her. On this premise, it was alleged by the intervenor that he had become tenant of the landlady and as such was a necessary party to the proceedings. It is further stated by the intervenor in his affidavit that when the landlady refused to take the rent from him directly, he sent notice and rent by cheque through his lawyer which was refused by her, hence he deposited the rent in the Court of IInd Rent Controller, Karachi. As against this the landlady has filed counter-affidavit against the application of intervenor in which she denied the relationship of landlady and tenant so far the intervenor was concerned and denied to have accepted any rent from him directly. She has asserted in the affidavit that only respondent-Company was her tenant and the intervenor was in occupation of the demised premises through the respondent-Company who was paying the rent. It is further stated in the said affidavit of the landlady that she had accepted the rent from the respondent-Company, up to the end of April 1976 and the respondent- Company had promised to vacate the premises vide letter dated 19th May 1976 written by the said Company to the landlady. This letter is on the record and shows that the landlady was informed by the said Company that the house in question would be vacated by Mr. Qutubuddin Ahmed on or before 30th June 1979. She has also produced another letter dated 23rd June 1976 written by the respondent-Company addressed to her whereby rent of Rs, 91.0 was sent to her by cheque for the month of March and April 1976. She has also produced another letter dated 26-6-1976 addressed by her to the respondent-Company in which she has asked the said Company as tenant to send an authorised person to hand over vacant possession of the demises on 30th June 1976 at 10 O'clock in the morning. In support of his plea before the Rent Controller the intervenor failed to produce any evidence to show that any rent was accepted from him directly by the landlady.
8. Letter dated 23rd June 1976 addressed by the respondent-Company to the landlady also clearly proves that rent for the months of March and April, 1976 was tendered by the respondent- Company and was accepted by the landlady. The landlady was quite justified in refusing the rent directly from the intervenor when it was sent by him through his Advocate alongwith a notice obviously for the reason that she did not recognise the intervenor as a tenant because he was in occupation of the demised premises through the respondent-Company, which was recognised tenant of the landlady. The position had become very clear when it was admitted by the respondent-Company in the written statement that the intervenor was no more in service of the respondent-Company and was in occupation of the demised premises as trespasser. Acceptance of the rent by the landlady after the expiry of agreement in December 1975 does not indicate that she had accepted the rent directly from the intervenor but is indicative of the fact that she accepted the rent from her own recognised. Tenant i,e, the respondent-Company as is quite obvious from the letter dated 23rd June 1976. Further-more the landlady has clearly stated in her counter-affidavit against the application of intervenor that she has not collected the rent which has been allegedly deposited by the intervenor in the Court in her name hence there is absolutely no proof furnished by the intervenor that he has tendered rent directly to the landlady which has been accepted by her to make him entitled to claim the tenancy from her. In such circumstances factually speaking the order of the Rent Controller rejecting the application of intervenor under Order I, rule 10, C. P. C. Is perfectly valid and justifiable. Jurisdiction is conferred upon Rent Controller only when there is relationship bet been the parties of that of landlord and tenant. The intervenor ha failed to satisfy the Rent Controller by producing any evidence that h had become the tenant of the landlady. So far the legal position concerned the matter of dispute before the Rent Controller was between the landlady and the respondent-Company, which was tenant of the former. There is order of ejectment passed by the Rent Controller, which is proper and has not been challenged by the respondent-Comp any in appeal before the learned Additional District Judge. It appear that the only interest the intervenor has is that he is in physical occupation of demised premises through the respondent-Company. Ejectment of respondent-Company automatically includes ejectment of the intervenor.
9. ' Needless , to point out that the Rent Controller is persona designate and Civil Procedure Code is not applicable in the proceedings before him. The intervenor as in the instant case has no right and cannot be treated as party to the proceeding because his application under Order I, rule 10, C.
10. P. C. Has been rejected. Appeal against the order of the Rent Controller is competent under section 15 of the West Pakistan Urban Rent Restriction Ordinance 1959 only when such order is passed under sections 4,10,12. Or 13. Order rejecting application under Order I, rule 10, C. P. C. Is no covered by the sections specified above therefore, appeal against the rejection of application under Order I, rule 10, C. P. C. By the Rent Controller is not competent. Moreover question, whether intervenor is tenant or not is a question of fact on which the findings of the two Courts below are concurrent that he is not tenant hence no interference is called for in second appeal.
11. ' Before I part with this appeal by passing order of dismissal, I take up one other application under section 2(3) of the Contempt of Court Act read with section 151, C. P. C., filed by the Advocate for the appellant for taking action against one Azizuddin bailiff of District Court Karachi, Malik Amin Muhammad Khan, husband of respondent No. 1, Mst. Zuhra Mussarrat (landlady) and 5th Rent Controller, Karachi for having violated the order of interim stay granted by the High Court at the time of admission of second appeal. The sections mentioned in the application are not correct and it appears that this application purports to have been made under section 3 of the Contempt of Court Act, 1978. It is stated in the affidavit filed in support of this application by Zainul Abdin, attorney-of the appellant that on 15-9-1979 the second appeal was admitted by the Court and on miscellaneous application notice was issued and in the meantime stay of ejectment proceedings was granted. The order of admission of appeal and stay was communicated to the lower Court on 4-10-1979, which was duly received by that Court on 6-10-1979 and on 11-11-1979 the bailiff of the District Court named in the application as contemnor No. 1 took with him writ of possession issued by Vth Rent Controller, Karachi (Mr. All Saindino) alongwith police party and executed the same at 5-15 p.m. In the result whereof the family members of the appellant were dispossessed from the demised premises. It is further stated in the affidavit that the bailiff was informed about the admission of second appeal in the High Court and grant of stay but he did not pay any heed and in the meantime somebody informed Mr. Zamirul Haq Advocate for the appellant who came to the spot and informed the bailiff that stay has been granted by the High Court but he did not listen. It is further alleged in the affidavit that Malik Amin Muhammad Khan, husband of the landlady was present at the spot at the time of possession. In such circumstances it is alleged that the order of stay granted by the High Court has been deliberately flouted and contumaciously disregarded by the contemnors. On the scrutiny of the record of the High Court it was discovered that the order of admission of second appeal and stay was duly communicated to Mr. Shahnawaz Awan Additional District Judge (First Appellate Authority) against whose order the second appeal was filed. It was also found that part of the order of the High Court with regard to the summoning of R & P was complied with by the learned Additional District Judges and sent to this Court on 21-10-1979. In these circumstances remarks of Mr. Shahnawaz Awan Additional District Judge were called for and show-cause notices were issued to the contemners named in the application. On the next date of hearing of this application the remarks sent by First Additional District Judge were perused and it was stated by him that he had received the requisition for R & P from the High Court on 6-10-1979 and sent it to the Record Keeper on 7-10-1979 for onward transmission to the Rent Controller. Mr. Ali Saindino, Civil Judge and Rent Controller stated that he had received requisition letter from the Record Keeper on 14-10-1979, which was received by his Serishtedar and be had absolutely no intimation that there was stay in the matter. It was further stated by him that writ of possession was issued on 10-10-1979. Remarks of the Additional District Judge were found to be unsatisfactory for the reason that the communication received by him was a certified copy of the order of the Court containing order of admission of second appeal, grant of stay and at the bottom of that order was requisition for R & P in the rent appeal as well case. Notice was therefore issued to Mr. Shahnawaz Awan, Additional District Judge also to appear and show cause why action should not be taken against him for contempt of the Court for having disobeyed the order of the High Court by not communicating the order of the stay to the Rent Controller. Notice was also issued to the learned Advocate-General to assist the Court in this context.
12. ' All the contemners mentioned above appeared before this Court and Mr. A. G. Mangi represented Malik Amin Muhammad Khan husband of the landlady. On 23-12-1979 Mr. Shahnawaz Awan Additional District Judge submitted written unqualified apology and has stated therein that after receiving the order of the High Court communicated to him, he inadvertantly misunderstood that he had to send only R & Ps. Of First appellate Court as well as Rent Controller's Court to the High Court hence he referred the matter to Record Branch for compliance. He has further stated in that written statement and tendered unconditional apology for not communicating the order of stay of the High Court to the Court of Rent Controller through over-sight and rush of work.
13. ' Mr. Ali Saindino Civil Judge and Vth Rent Controller has made a submission in writing in which it is stated that stay order granted by the High Court was never communicated to him and after the dismissal of appeal on 9-7-1979 by Mr. Shahnawaz Awan First Additional District Judge, writ of possession was issued by him on 10-10-1979 after service of notice upon Judgment-debtor. On 13- 10-1979 requisition letter from Record Keeper, District Court Karachi was received by his office for sending R & Ps. To the High Court. True copy of the letter is annexed which shows that it was issued from the office of the District Judge on 7-10-1979 addressed to the Serishtedar of Vth Rent Controller with a direction that R & P be sent immediately to the record room for onward transmission to the High Court in Second Appeal No, 325/79. Mr. Ali Saindino has further stated that he made inquiry from his office whether there was any stay order in this matter from the High Court he was informed that no other letter or stay order has been received in his office. It is further stated by the learned Rent Controller that the letter of requisition on the record clearly shows that there is no mention in it of the stay granted by the High Court. It is further stated that from the High Court the copy of the order of admission of appeal is sent to the First Appellate Court only and then the first appellate Court forwards the copy of stay order to the original Court for compliance which was not done in the instant case as such he had absolutely no knowledge that there was stay in the matter. The learned Rent Controller alongwith his written statement has also annexed a written submission by his reader who has stated therein that he had verified the record of the Court of the Rent Controller and has found that no stay order has been communicated to the Court of Rent Controller by the office of the 'First Additional District Judge Karachi or by any other person. He had received only a requisition letter for sending R & P to the Record Keeper on 13-10-1979 which letter has also been annexed. Mr. Ali Saindino has also submitted Annexure 'D' which is a copy of the order of High Court in some other case in which order of admission, order of stay and order of requisition are stated. It is further stated by the Rent Controller that in such cases where the stay is granted by the High Court the copy of the whole order of admission and stay as passed by the High Court is communicated to the Court of Rent Controller alongwith requisition for the record.
14. ' Azizuddin bailiff of the District Court has submitted counter-affidavit in which he has stated that he was entrusted with writ of possession in this case which he executed on 11-11-1979 at 4 p.m. With the aid of police party and in presence of Malik Amin Muhammad Khan, husband of landlady. It is further stated by him that after the house was vacated and the possession was taken over by Malik Amin Muhammad Khan and he had already prepared the mashirnama to this effect, at about 7 p.m. An Advocate came to the spot and threatened him with serious action for executing the writ of possession and also informed him that there was stay order granted by the High Court which he did not produce. He has denied other allegations and has submitted that he has not violated or disobeyed the stay order of the High Court because it was not produced before him and this fact was not within his knowledge and the Advocate had come to the spot after the occupant was dispossessed and vacant possession of the premises was handed over to the decree-holder.
15. ' Malik Amin Muhammad husband of the landlady has also filed his affidavit and has stated therein that he is attorney of his wife and till 11-11-1979 when the writ of possession was executed and demised premier were handed over to him, he had no knowledge that second appeal has been filed and admitted and stay has been granted by the High Court He has further stated 11 it on that day at about 7 p.m. The possession of the disputed premises was handed over to him by the bailiff of the Co and even during the process of eviction of premises no body informed about the stay granted by the High Court nor any document was show to that effect.
16. ' It will be pertinent to point out here that when this application for contempt was filed in the Court by the learned counsel for the appellant alongwith it he had filed another application under section 151, C. P. C. For restitution of the possession of the disputed premises till the disposal of appeal to conform with the order of stay granted by this Court. After hearing both the parties an Order was passed on 25-12-1979 for restitution of possession of the disputed premises to the appellant, who was dispossessed in violation of the stay order granted by the High Court. This order of restitution of possession was complied with by the parties and on 19-1-1980 Mr. A. G. Mangi Advocate for Malik Amin Muhammad Khan made a statement in the Court that the possession has been handed over to the appellant in compliance of the order of the Court and this fact was confirmed by Mr. Zamirul Haq Advocate for the appellant. Thereafter some dates were taken by the parties as they were negotiating compromise between themselves outside the Court and Mr. Zamirul Haq informed the Court that in view of the compromise which was being negotiated, he might withdraw this appeal.
17. Ultimately the talks about compromise failed and the appeal was taken up for regular hearing alongwith miscellaneous application.
18. Now so far the contempt of the Court is concerned, the legal position is very clear that for breach of a prohibitory order issued be the Court it is not necessary to actually prove service of the order upon the party against whom it has been granted. Disobedience of the stay order of the Court then depends upon the circumstances and facts of that particular case. In a proceedings of a criminal or quasi-criminal nature, it is a fundamental rule that before a person can be saddled will the penal consequences of a breach of an order, he must at least be shown to have had some definite and authentic information of the nature of the order which he is alleged to have violated. What amount of proof will be sufficient to fix a person with such knowledge will of course depend on the facts and circumstances of each case but this much can safely be stated that the mere verbal assertion of a rival party can hardly be regarded as sufficient for this purpose. Reliance is placed on the case of Syed Ahmad Shah v. State and another (1). In the reported case mentioned above the facts were somewhat similar. Second appeal was filed in the High Court, which was dismissed in limine and the aggrieved party applied for grant of certificate of fitness for appeal under Clause 10 of the Letters Patent and alongwith it filed a miscellaneous application for stay of order of ejectment passed by the subordinate Court. This application was heard on 2nd March 1964 and was disposed of ex parte by granting the certificate as well as an order for the maintenance of status quo with regard to the possession during the pendency of the Letters Patent Appeal. On that day the other party had already obtained a warrant for execution of the decree for ejectment, took the bailiff to the disputed premises and wanted to execute the warrant for possession. The concerned party present in the disputed premises informed the bailiff that stay order has been obtained from the High Court. In the meantime the Advocate of the concerned party in possession of the disputed premises arrived at the spot and informed that stay has been obtained from the High Court and offered to make an endorsement to that effect on the back of writ. On receiving this information, the bailiff stayed his hands from further executing the order of ejectment. Upon these facts respondent No, 2 applied for conviction of the appellant for contempt of Court alleging that appellant No. 1 and the bailiff had deliberately' refused to pay heed to the information that he personally conveyed to them {{FOOT NOTE}}
(1) PLC 1967 S 42 {{FOOT NOTE}} ' about the passing of the stay order. The appellants on the other hand took the stand that as soon as they received authentic information of the stay order from the learned Advocate concerned the writ possession was not executed as such there had been no violation of the stay order and they were not bound to accept the oral statement of the opposite party as to the passing of stay order.
19. The High Court had convicted the contemners in that case and in appeal the Supreme Court held that as has been pointed out in more than one case this jurisdiction to punish by such a short- handed method should be exercised with circumspection only in extreme cases upon clear proof of a wilful disregard. Such proof was not only plainly lacking but, on the other hand the evidence disclosed that as soon as authentic information was received the execution was not proceeded with and there was in fact no violation of the stay order. It was further held that oral information conveyed by the opposite-party was not sufficient to fix the appellants with the knowledge of stay order.
20. ' In the instant case from the facts as narrated in detail above it is clear that when the bailiff came to the disputed premises to execute the writ for possession, he had no knowledge that there was stay order from the High Court. Malik Amin Muhammad Khan attorney of the landlady also claims to have had no such knowledge. It is stated by the bailiff in his affidavit that during the process of eviction, no body informed him of the stay order and only when the eviction was complete and he had prepared the mashirnama and handed over vacant possession of the premises to the attorney of the landlady, an Advocate came and informed him about the stay order granted by the High Court. It is obvious that the Advocate did not show the copy of stay order and there was no need to endorse on the back of writ by the Advocate about the fact of stay order granted by the High Court for the reason that eviction had already taken place and the possession was taken over by the attorney of the landlady. First the application for contempt was filed in this Court which is supported by the affidavits of the attorney of the appellant and Mr. Zamirul Haq Advocate. In both these affidavits it is asserted that Mr. Zamirul Haq came to the spot and informed the bailiff about the stay granted by the High Court but the bailiff refused to listen In reply thereto affidavit has been filed by the bailiff in which he has clearly stated on solemn affirmation that the Advocate for the appellant came to the spot after the process of eviction was complete at about 7 p.m. And he had prepared the mashirnama and handed over the possession to the attorney of the landlady. The Advocate for the appellant after everything was over orally informed him about the order of stay by the High Court and did not give anything in writing. Mr. Zamirul Haq Advocate for the appellant has not filed any counter-affidavit refer ting the allegation of the bailiff that he came to the spot after everything was over and possession was taken over by the attorney of the landlady. This shows that the assertion of the bailiff is not challenged. In the affidavit of the attorney of the appellant in support of contempt application, witnesses are not named before whom the bailiff was informed that stay has been granted by the High Court nor Mr. Zamirul Haq has named the witnesses in his affidavit in whose presence the bailiff was informed by him about the stay order of the High Court. In these circumstances there is no satisfactory evidence on the record to prove the allegation made in the contempt application.
21. ' It is also very clear that initially certified copy of the order of the High Court admitting the appeal and granting interim stay was communicated to Mr. Shahnzwaz Awan (First Appellate Court), who has admitted his mistake that inadvertently he thought that it was only an order from the High Court for requisition of the record as such he had referred it to record branch to collect the same and send it to the High Court. In fact if he had read the whole order, the order of stay was also there and he was bound to communicate it to the Rent Controller. Since Mr. Shahnawaz Awan has tendered unconditional written apology and has admitted his mistake, I accept his apology. In these circumstances the explanation is convincing that stay order was not communicated to him nor to his office by the first appellate Court. The bailiff has also tendered his unconditional apology that he had no knowledge of the stay order at the time when writ for possession was executed and that the possession was already handed over to the attorney of the landlady after which Mr. Zamirul Haq came and informed him verbally and he was helpless because by that time everything was over. Malik Amin Muhammad Khan had also explained his position in his affidavit as stated above and pleads that he had no knowledge of the order of stay granted by this Court. In these circumstances it appears from the record that none of the alleged contemners had intentionally and deliberately violated or disobeyed the order of stay granted by this Court. Show causes notices issued against alleged contemners are hereby withdrawn in consequence of which contempt application is dismissed.
22. ' For the facts and reasons mentioned above the second appeal is dismissed with costs. Appellant is directed to hand over vacant possession of the demised premises to the landlady within two months from the date of this order. {{FOOT NOTE}}
(1) PLD 1967 SC 42 {{FOOT NOTE}}