FAHIM AHMED SIDDIQUI, J.---Through the instant First Rent Appeal (FRA), the appellant assailed the impugned judgment dated 23-01-2012 passed by learned Additional Controller of Rent, Clifton; Karachi whereby he has dismissed an application filed by the appellant under Section 12(2) read with Order IX, Rule 13 and Section 151, C . P. C .
2. The factual milieux of the case is that the appellant/applicant claims that he has purchased a property bearing House No, 40, 22nd Street, Phase-V , DHA, Karachi from its previous owner Major Muhammad Aslam son of Abdul Salam through sale agreement dated 20-05-1970 for a lump sum sale consideration of Rs, 22,000/- After receiving entire payment, the said Major Muhammad Aslam executed a General Power of Attorney dated 29-06-1970 in the favour of appellant/applicant and also handed over the vacant physical possession to the appellant/applicant. In the year 1983, the property was rented out to respondent No, 2/opponent at the rate of Rs, 15,000/-per month and also paid a security deposit of Rs, 40,000/- and a Tenancy Agreement dated 13-09-1983 was executed between the parties. Since, the appellant/applicant is permanently residing in USA; therefore, he appointed his nephew Zulfiqar to collect the monthly rent from the respondent No, 2/opponent. The rent was being paid regularly to the said nephew of the appellant till the month of December 2011. Due to numerous engagement of Zulfiqar (nephew of the appellant), the appellant, on his visit to Pakistan, appointed one Lt. Col. (Retd.) Imran Haseeb son of Muhammad Hussain as his attorney on 02-04-201 4 empowering him to collect/receive rent from the respondent No, 2/opponent. The said attorney of appellant contacted his nephew Zulfiqar and to get beforehand information regarding rental affairs of the premises in question. Zulfiqar informed the attorney of appellant that the rent was gradually enhanced to Rs, 40,000/- and the same was paid up to December 2011 and thereafter the respondent No, 2/ opponent failed to pay the monthly rent. The attorney of appellant then visite d the premises and found that it was locked. Allegedly , appellant's attorney made various efforts to collect rent from the respondent No, 2/opponent but he remained failed. As respondent No, 2/ opponent could not pay the monthly rent; therefore, after waiting some time, the appellant filed a rent case being Rent Case No, 38/2016 before the lower forum. As respondent No, 2/opponent remained failed to appear to defend the said rent case in spite of service through all mode; therefore, the rent case was decided in favour of the appellant and an ejectment order was passed.
3. After passing ejectment order , the respondent No, 1 filed an application under Section 12 (2) read with Order-IX, Rule 13 and Section 151, C.P.C., wherein she claimed ownership of the said property by alleging that she had purchased the same from the attorney of one Mujibur Rehman and the said Mujib ur Rahman was claiming to be appointed as attorney by Brig (Retired) Muhammad A slam son of Abdul Salam. The appellant/applicant has filed his counter affidavit to the above application filed by the respondent No, 1 denying all the allegations and/or particulars mentioned by the respondent No,
1. After hearing the parties, the learned Rent Controller allowed the application filed by the respondent No, 1 and set aside me ejectment order and dismissed the rent case filed by the appellant/applicant.
4. The learned counsel for the appellant preferred his arguments at length. He submitted that the appellant is the owner and rented out the premises to respondent No 2. He submits that the ejectment application filed by him through attorney was allowed and an application for execution of the ejectment order was filed and when the matter was at the edge of execution, the respond ent No, 1 appeared before the lower forum and filed an application under Section 12(2) with a prayer for setting aside the ejectment order . According to him, the power of attorney shown to be executed in the name of Mujibur Rahman is bogus and a fabricated docume nt. Since the power itself is not genuine; therefore, the sub-power through which the respondent No, 1 claimed her right is also having no value and worth. Regarding civil suit, discussed by the learned Rent Controller , his contention is that the appellant/applicant is not a party of the said civil suit; therefore, the same has no binding effect upon the appellant/applicant. According to him, the rent case was competently filed by the appellant/applicant and the learned Rent Controller has travelled beyond .his jurisdiction by allowing the application under Section 12(2), C.P.C. and giving declaration that the respondent No, 1 is the owner of the property . According to him, a declaration for ownership can only be given by a competent civil court and not by the tribunal. He submits that even an application under Section 12(2), C.P C. is not maintainable before the learned Rent Controller . He seeks restoration of ejectment order on the same terms and condition.
5. Conversely , the learned counsel for the respondent No, 1 submits that while dealing with this matter , a report was called by this Court from authorities and the authorities concerned furnished report verifying that the respondent No, 1 is the owner of the property in question. According to him, since the property stands in the name of respondents Nos, 1 and 'B- lease' was executed in her favour; therefore, the learned Rent Controller has rightly reached to the conclusion that the ejectment order in favour of the appellant is not proper and the same was obtained by concealment of real facts. He submits that in the peculiar circumstances of the case, the learned Rent Controller's order of setting aside the 'ejectment order' and dismissing the rent case is proper and do not require any interference. According to him, FRA does not lie against an order passed under Section 12 (2); therefore, the same is required to be dismissed on this point also.
6. The learned counsel for the appellant/applicant in rebuttal submits that the court has to see that one person has executed and got registered general power of attorney (GPA) twice. According to him, the first power was executed in 1972 while the 2nd power was executed in 1978, as such, amongst both the powers, the power (GPA) executed first shall prevail.
7. I have heard the arguments advanced and have gone through the relevant record. Although the appellant succeeded in getting an ejectment order in his favour by showing himself as owner of the demise premises.
However , the respondent No, 1, after passing such order , approached the Rent Controller by filing an application under Section 12(2), C.P.C. and the learned Rent Controller after hearing the parties came to conclusion that the ejectment order in favour of the appellant/applicant was improperly passed, as such he not only set aside the ejectment order but also put the entire rent case at an end. The learned Rent Controller , being a tribunal, has inherent power to set aside his own order in case a fraud or misrepresentation is committed during the proceedings. The appellant/ applicant has presented himself as the owner of the premises while at least presently it is not the situation because the instrument of ownership is not in his name. During pendency of this appeal, a report has been received from Sub-Registrar concerned, from which it is evident that 'B-Lease' has been executed in the name of respondent. No,
1. I would like to reproduce the relevant portion of the said letter of Sub- Registrar-I, Clifton Town, Karachi as under: "It is submitted that this office relevant manual record viz: Index-II has been verifie d/found that the Form 'B' Lease in respect of property bearing Plot No, 40, 22nd Street measuring 944 Square Yard, Phase-V , DHA, Karachi, executed Pakistan Defence Officers Housing Authority Karachi in favour of Brig. (Retired) Muhammad Aslam son of Abdul Salam through attorney Mr. Mujibur Rahman son of M. A. Salem and further through Mrs. Lala Rukh wife of Samad Afzal Khan and daughter of Khaled Shamsul Hasan vide R. D. No, 1627 Book-I dated 08.4.2013 MF Roll No, 2553538463 dated 15- 4-2013."
8. On the basis of that registered document mentioned above; which was placed before him by the respondent No,1, the learned Rent Controller has rightly presumed that there is no need to enter in the question of relationship.
I am not in agreement with the learned counsel for the appellant that the learned Rent Controller has given any declaration regarding the ownership and as such he has travelled beyond his jurisdiction. The factual position is that as long as a register document in the shape of B-Lease is in existence in favour of the respondent No, 1, the presumption of ownership will go in his favour unless a civil court declares contrary to it Since, there is no such declaration; therefore, a tribunal is not authorised to controvert his status, as such the learned Rent Controller has rightly avoided to enter into the discussion of relationship.
9. As far as the contention of the learned counsel for the appellant that the General Power of Attorney (GPA) executed earlier must prevail to the GPA executed at the later period of time. In this respect, my observation is that such intricate questions can only be decided by a competent civil court, and neither the learned Rent Controller in its original jurisdiction nor in an FRA before the forum.
10. The upshot of the above discussion is that the order passed by the learned Rent Controller appears to be proper and befitting to the existing scenario, as such the same does not require any interference by this Court Rent Appeal dismissed.