KHADIM HUSSAIN M. SHAIKH, J.---Through this petition the petitioner Dr. Masuma Hassan has called in question order dated 19.5.2014, passed by IInd Senior Civil Judge/Rent Controller Karachi East, whereby the application under section 12(2) of the Code of Civil Procedure (Act V of 1908)
(hereinafter will be referred to as the Code), moved by the petitioner, seeking setting-aside of the judgment dated 27.05.2011, passed in Rent case No,243 of 2009, re-Muhammad Hafeez v. Dr. Masuma Hassan, has been dismissed.
2. Briefly the facts of the case are that respondents Muhammad Hafeez and others had filed Rent Case No,243/2009 re-Muhammad Hafeez and others v. Dr. Masuma Hassan and others, seeking eviction of petitioner, Dr. Masuma Hassan from House No,C-106/1,K.D.A. Scheme No,1 Karachi (hereinafter will be referred to as the demised premises) under the provisions of the Sindh Rented Premises Ordinance, 1979, (hereinafter will be referred to as the Ordinance), which was allowed and the Petitioner/tenant was directed to handover vacant possession of the demised premises to the respondents within a period of sixty days from the date of the judgment, which was passed on 27.05.2011. Having felt aggrieved from the said judgment, petitioner Dr. Masuma Hassan filed an appeal before the District Court Karachi East being FRA No,168/2011, which was ultimately heard and decided by the learned 5th Additional District Judge Karachi East, dismissing the same vide judgment dated 23.11.2011. The petitioner Dr. Masuma Hassan then filed Constitutional Petition bearing C.P No,S-1286/2011 re-Dr. Masuma Hassan v. Muhammad Hafeez and others, which was dismissed by this court vide order dated 24.02.2014, allowing 30 days' time to the petitioner to vacate the demised premises and hand over its vacant possession to the respondents. The petitioner Dr. Masuma Hassan then filed an application before the Rent Controller, under section 12(2) of the Code, seeking for setting-aside of the ejectment judgment dated 27.5.2011, on the ground that the applicant/landlord had obtained it by concealing/misrepresenting the material facts with a view to practice fraud upon the court, which was dismissed by the Rent Controller vide order dated 19.5.2014, hence this petition.
3. Learned Advocate for the petitioner has mainly contended that the Rent Controller has decided the application under section 12(2) of the Code, filed by the petitioner, without framing issues and allowing, the parties to lead their evidence, per him, the questions involved in the matter could be established through evidence; that the Rent Controller has committed material irregularity by dismissing the application under section 12(2) of the Code summarily; which, per him, is violative of the principles of natural justice. He, therefore, prays that the impugned order dated 19.5.2014, passed by the Rent Controller may be set-aside and the case may be remanded to the Rent Controller for deciding the petitioner's application under section 12(2) of the Code after framing issues and allowing the parties to lead their evidence. He has placed his reliance on the cases of Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another (PLD 2016 Supreme Court 358), Abdul Razzaq v. Muhammad Islam and 3 others (1999 SCM R 1714), Dr. Syed Ateeq Ahmed v.
Mst. Nargis Jamal (1989 CLC 160), Mst. Shamim Akhtar v. Zakaria Yousuf and others (1998 CLC 410), Abdul Fayyaz Khan v. IIIrd Additional District Judge Karachi, South and 4 others (2012 CLC 793) and Mst. Zaitoon Begum v. Ghulam Rasool (1991 CLC 1743).
4. The learned Advocate for the respondent No,1 has mainly contended that ejectment proceedings were initiated against the petitioner, which were allowed vide judgment dated 27.05.2011; and, that the petitioner then after having already exhausted all the remedies upto this court, filed application under section 12(2) of the Code before the Rent Controller with mala fide intention just to protract the proceedings and to cause harassment to the respondent No,1 and other co-owners. He, therefore, prays that the petition may be dismissed.
5. I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
6. From a perusal of record it would be seen that the learned II-Senior Civil Judge/Rent Controller Karachi East vide judgment dated 27.5.2011, allowed the Rent Application after considering and appreciating the evidence brought on record by the parties with direction to the petitioner to vacate and hand over vacant possession of the demised premises to the respondents within sixty days from the date of the judgment; the petitioner then assailed the said judgment dated 27.05.2011, in an appeal being FRA No,168 of 2011 re-Dr. Masuma Hassan v. Muhammad Hafeez and others in the Court of District Judge Karachi East, which was dismissed by the learned 5th Additional /District Judge Karachi East vide judgment dated 23.11.2011, after reappraisal of the evidence on the merits of the case; the petitioner then filed constitutional petition bearing C.P No,S- 1286/2011 re-Dr. Masuma Hassan v. Muhammad Hafeez and others, which was dismissed by this court vide order dated 24.2.2014, allowing 30 days' time to the petitioner to vacate the demised premises and hand over its vacant possession to the respondent No,1; the petitioner then filed application under section 12(2) of the Code before the Rent Controller on 25.3.2014, i,e, after thirty days' time allowed to the petitioner by this Court to hand over vacant possession of the demised premises to the respondent No,1, and, thus, the petitioner had already exhausted each and every remedy available to her; and, the matter has already been decided on merits upto this court in constitutional petition, discussing and deciding each and every aspect of the case, which attained finality. For the sake of convenience, the operative part of the order dated 24.02.2014, passed by this court, is reproduced here:- "I have perused the documents and evidence whatever available on record. It appears that the ejectment has only been sought on the ground of personal bona fide need for the respondent No,1 and his family members. The respondent No,1 in his affidavit-in-evidence has mentioned that the premises in possession of the petitioner is required to him for his family members for personal bona fide need. This witness has been cross-examined by the petitioner's advocate in length but this witness has not shaken in cross-examination. No circumstances are available on record to show that desire of landlord to use his own property for himself or his family members was tainted with malice or any evil design. The statement of respondent No,1 being consistent with the case pleaded by him must have been accepted on its face value and giving due weight. In this case, the conclusion drawn by Rent Controller as well as Appellate Court to the effect that landlords need was bona fide, could not be dislodged in the absence of any strong evidence to rebut the presumption of truth in the statement off landlord. In my view the landlord has the absolute right to acquire and deal with the property in the manner best suited to him and tenant has no right to dis-entitle the landlord of his valuable rights, to acquire, deal and possess his property, which right was guaranteed by Article 23 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the findings of the two Courts below on the point of personal need appears to be justified and in accordance with law.
Learned counsel for the petitioner has failed to point out any illegality or infirmity in the impugned orders. The case law cited by the learned counsel for the petitioner has been perused and considered by me but did not find applicable to the facts of the present case, therefore, the said case law is not helpful for petitioner."
7. There is no cavil to the legal proposition that either of the parties, who had contested the matter in the first round of the litigation with full opportunity and that too after exhausting all the remedies, cannot legitimately resort to proceedings under the provisions of section 12(2) of the Code, for, remedy of moving application under section 12(2) of the Code is mainly provided to a person, who is either not party to the proceedings and/or if was a party to the proceedings, had no proper and fair opportunity to contest the matter, but he must have the right to challenge the same if he is aggrieved or is adversely affected by the judgment or decree or order and at the same time, a person who is aggrieved or is adversely affected by a decree or order has the right to file an appeal provided under the provisions of the Ordinance, thus, it is open to the aggrieved person to choose either of the two remedies, but the person, who after contesting the matter and having exhausted all the remedies available to him, cannot re-agitate the same matter by filing the application under section 12(2) of the Code and that too before the first forum, which would not only amount to review of the judgments and orders, whereby the matter was already decided on merits by all the forums, but it would also definitely shatter or frustrate such judgments and orders passed by the courts, depriving the decree holder(s) fruits of their decree. Even otherwise the remedy provided under section 12 (2) of the Code would not be available like, regular suit; and, the court may dispose of an application under section 12(2) of the Code without framing of the issues and recording evidence of the parties. In my humble view the remedy of filing application under section 12(2) of the Code was not available to the petitioner. Patently the petitioner had filed application under section 12(2) of the Code in order to retain the possession of the demised premises with herself and to deprive the landlord fruits of the eviction order in his favour as long as she could, by making absurd assertions. There is nothing available on the record even to remotely suggest that any fraud or misrepresentation was committed with the court. The learned advocate for the petitioner has also not been able to even prima facie establish, if any fraud or mis- representation was committed with the court. The learned Rent Controller has dismissed the application under section 12(2) of the Code filed by the petitioner, after proper application of mind and appreciating the record and, thus, the Rent Controller was justified in not framing the issues on such absurd assertions. Reference can be made to the case of Mrs. Amina Bibi v. Nasrullah and others (2000 SCM R 296), wherein the Hon'ble Supreme Court of Pakistan has held that:- "Where a suit has been decreed ex parte, various remedies are available to an aggrieved person for redressal of his grievance. Firstly, an application under Order IX, Rule 13, C.P.C, secondly, an appeal from the ex parte decree under section 96(2), C.P.C.; a petition for review under section 114 read with Order XLVII and a civil suit on the ground of fraud and want of jurisdiction. The latter remedy is now substituted by section 12(2), C.P.C. Here, the petitioner has exhausted her remedies by filing an application under Order IX, Rule 13, C.P.C. and, therefore, on the same ground she cannot be permitted to re-agitate the same issue b means of afresh petition under section 12(2), C.P.C."
In the case of Mst. Zarin Begum v. Muhammad All and others (2012 YLR 2681), learned High Court Lahore while dismissing the constitutional petition involving the ejectment order in rent proceedings, filed against the order of dismissal of application under section 12(2) of the Code, has observed that:- "6. The plea of the learned counsel for the petitioner that the petitioner had exercised her option to avail one remedy out of the two is equally untenable for the reason that the Punjab Rented Premises Ordinance, 2007 itself provides the remedy of appeal in the case where an ejectment order is passed. In this situation, no other option can be exercised by any party except the one which has been specifically provided by the statute itself The case cited by the learned counsel for the petitioner no doubt provides that an application under section 12(2), C.P.C. can be filed against an order passed in the ejectment petition but it also provided that the elements of fraud and misrepresentation should be alleged in that petition. When the application filed under section 12(2), C.P.C. by the petitioner has been kept in juxtaposition with the ejectment order passed by the learned Rent Controller, it follows that the order of the ejectment was neither procured fraudulently nor any misrepresentation was made when the same was passed. It was a case where the court had exercised its jurisdiction under the statute when it found that the petition to 'contest the ejectment had not been filed within the statutory time thus, the court proceeded to strike of the defence of the petitioner followed by an ejectment order. Accordingly, it can be observed that order dated 5-7-2008 was neither procured fraudulently nor any misrepresentation was made before the court. Needless to add that court had jurisdiction to pass such order. In these circumstances, the petition under section 12(2), C.P.C. was not the remedy for the petitioner for challenging vires of order dated 5-7-2008 rather she was required to challenge the ejectment order by an appeal. In this situation, this court does not feel any hesitation in holding that in such like circumstances the petitioner has to follow the statute, provisions of relevant law and any extraneous step. taken by the petitioner would not be of any help to her.
7. It has rightly been argued by the learned counsel for the respondents that the constitutional petition is not maintainable where an efficacious and adequate remedy has been provided by the law. The appeal under section 28 of the Ordinance (ibid) was an efficacious and adequate remedy for the petitioner to challenge order of her ejectment which she missed and proceeded to seek the remedy which did not make out from the facts of the case. In this situation, this court has no other option except to hold that the petitioner had the remedy of appeal to challenge the ejectment order which has not been availed by her, as such, this constitutional petition is not maintainable.
8. As observed above, the application under section 12(2), C.P.C. in the circumstances of this peculiar case was not maintainable nor is the constitutional petition as such the objection raised by the learned counsel for the respondent is upheld. Resultantly, this petition stands dismissed being not maintainable."
In case of Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 S. C 226), Hon'ble Supreme Court of Pakistan has held that:- "8. The petitioner-defendant sealed his own fate by not challenging the judgment and decree of the High Court dated 18-5-2000 passed in R.F.A. No,53/2000, dated 23-1-2001 and passed in R.F.A.
No,509/2001 whereby the High Court upheld the decree in the sum of Rs,1,01,87,500. That decree attained finality and the arguments now being submitted against this decree could have been examined if the petition for leave to appeal/appeal against the decree was filed in this Court.
Application under section 12(2) or under section 151, C.P.C. is no substitute to regular appeal or revision or review nor these provisions can be construed as something over and above the normal modes of questioning a decree by way of appeal, revision or review. It is unfortunate that some litigants attempt to frustrate the decree/its execution by resorting to provision of section 12(2) and section 151, C. P.C., unnecessarily."
In the case of Tanveer Siddiqui and another v. Muhammad Rashid (2010 YLR 1851), learned Single bench of this court while deciding the First Rent Appeal has held that:-- "12. Thus the remedy of section 12(2) of the Civil Procedure Code or available to a person who is either not a party to any proceedings or if is a party but was not duly served with summons or notice and decision has been given against him as if summons or notice was duly served upon him. The provisions of section 12(2) of the Civil Procedure Code can be invoked only in a situation where a judgment, decree or an order has been obtained against a person who had no knowledge of the proceedings in which a judgment, decree or order has been passed. On the other hand where a person was himself contesting a legal proceedings, or was served but abstained from contesting the matter then for such a person the only remedy left with him is to invoke remedies of Appeal, Revision, Review or Petition for Leave to Appeal as provided in law and not by filing application under section 12(2) of the Civil Procedure Code. The right to invoke provisions of section 12(2) of the Civil Procedure Code cannot be extended to a person who is himself a contesting party but on account of his own default was ordered to be proceeded ex parte. Likewise, where a person who may have a right to invoke the provision of section 12(2) of the Civil Procedure Code, if he avails regular remedy before the appellate forum then too he is estopped from challenging the validity of any decision under the provision of section 12(2) of Civil Procedure Code. Section 12(2) of the Civil Procedure Code cannot be allowed to be used as an opportunity to attack the validity of a decision on the plea of fraud, misrepresentation or want of jurisdiction, once the opportunity to challenge the same in Appeal, Revision, Review or Petition to Leave to Appeal was available but has either been allowed to lapse by efflux of time or if availed was given up subsequently."
8. The case law cited by the learned counsel for the petitioner being patently distinguished on facts and circumstances are not attracted and helpful for the petitioner in the case one in hand.
9. In view of what has been discussed above, I am of the considered view that the impugned order dated 19.05.2014, passed by the learned Rent Controller dismissing the application under section 12(2) of the Code, filed by the petitioner, does not suffer from any jurisdictional defect, attracting the exercise of jurisdiction by this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The learned advocate for the petitioner has also not been able to point out any illegality committed by the Rent Controller while passing the impugned order or any jurisdictional defect in the impugned order. Accordingly the instant petition being devoid of merit is dismissed.