MUHAMMAD NAEEM ANW AR, J. Mst. Rozina Waseem, the respondent No.1, filed four ejectment applications bearing No. 07/RC,174/RC, 08/RC and 10/RC before the Rent Controller , Peshawar , against Ahmad son of Adam Khan, Reheem ud Din son of Feroz Din, Gul Zareen son of Shamooz Khan, Asmat Ullah son of Gul Muhammad regarding the properties, the details whereof have been given in head notes of each the petition, under section 13 of the "West Pakistan Urban Rent Restriction Ordinance, 1959 ", on the grounds of "default and personal need " in petition No. 07/RC and 10/RC where as in petitions No. 174/RC and 08/RC on the ground of "default in payment of monthly rent". In response to the notice, issued by the Rent Controller , the respondent of ejectment petitions No. 07/RC, 08/RC and 10/RC were proceeded against ex parte and after recording ex parte evidence, ex parte decree were passed against them whereas respondent of ejectment petitioner No. 174/RC appeared before the Rent Controller alongwith petitioner , recorded their joint statement, according to which, the respondent agreed to hand over vacant possession of the disputed godown to the petitioner , respondent No.1 herein.
2. The petitioner herein, namely , Pak Muhammad, filed applications under section 12(2) C.P.C before the Rent Controller challenging the decree passed in the above referred ejectment petitions on the ground of fraud and collusion between respondents No. 1 and 2 by stating that he had purchased the disputed premises from Mst.
Naseem Akhtar widow of Mukhtair Ahmad in lieu of Rs. 1,20,000,00/- and after payment of sale consideration, possession was also handed over to him by the vendor and, now, he has become owner of the disputed properties, therefore, the respondent No.1 has got no connection whatsoever with it. The decree holder/respondent No.1 filed an application for rejection of the application under section 12(2) C.P.C on the ground that Pak Muhammad, petitioner herein, has got no locus standi as his claim is without proof and the applications do not disclose cause of action as such deserve dismissal summarily . The petitioner herein filed written reply . The learned Rent Controller , after hearing the parties, while accepting the application of respondent No.1, rejected all the application filed by him under section 12(2) C.P.C on the ground that before him neither there was any question of title nor could he enter into the disputed question of title as it has decided the matter of tenancy i.e., relationship of landlord and tenant and the present petitioner was neither tenant nor landlord, thus, has got no locus standi. The petitioner challenged the orders of the learned Rent Controller by filing four appeals and the learned appellate Court dismissed all the appeals on merits, after hearing the contesting parties. The petitioner still not satisfied filed the instant revision petition bearing No. 1231-P/2019 as well as CR No. 1232/2019, 1233/2019 and 1235/2019 before this Court.
Admittedly , all the revision petitions have been filed against the judgment and order of learned Additional District Judge-VI, Peshawar , whereby the appeals filed by the petitioner against the dismis sal of applications under section 12(2) C.P.C, were dismissed but as the order of dismissal of application under section 12(2) C.P.C was revisable and no appeal could lie, however , the petitioner filed appeals before the District Judge, which should have been treated as revision petitions, thus, all the civil revisions are converted into writ petitions. Office is directed to make necessary entries in the register concerned.
3. Since in all the four petitions common question of law and fact is involved, therefore, I intend to dispose of this as well as the connected petitions referred to ibid through this single judgment.
4. During the course of arguments, learned counsel for the petitioner contended that the petitioner has become owner of the disputed property through sale deed dated 13.06.2009 whereby he had purchased it from Mst.
Naseem Akhtar but as the property was not entered in his name, thus, he had instituted a civil suit No. 109/1 dated 24.02.2015 which is pending adjudication before civil court at Peshawar , wherein defendant Mst. Naseem Akhtar has filed written statement by negating categorically the version of the petitioner/ plaintif f and has also submitted that the disputed property has already been transferred by her through registered deed No. 548 dated 25.3.2010 in favour of respondent No.1, her daughter . After submission of written statement, the petitioner with the leave of civil court has amended his plaint and has challenged the deed No. 548. He requested that all these facts requires recording of evidence but both the courts below whiteout even asking for written reply have dismissed their applications summarily , which was without lawful justification and unwarranted in law , hence, these petitions.
5. I have considered submissions of learned counsel for the petitioner and perused the record.
6. It is not denied that title of the petitioner is still subjudice before the civil court against the vendor , who has undoubtedly denied the version of the petitioner . It is for the petitioner to prove his title before the civil court through solid and concert evidence. It is also admitted that at the moment Mst. Naseem Akhter has transferred the property through registered deed in favour of respondent No.1. Pendency of civil suit would not affect the proceedings before the Rent Controller because he has nothing to do with the title. Recently , in a case titled Muhammad Akbar Ali vs. Mst. Fatima Bibi and others ( 2019 YLR 1763 ), it was held by the Sind High Court that "12. Although, the respondent No. 1 has filed a civil suit for the specific performance of the contract but the same did not debar the petitioner from proceedings before learned Rent Controller . Besides, the civil suit bearing number 782/2005, filed by the respondent No.1 was dismissed vide order dated 27.11.2006 and an appeal against the said dismissal order being Civil Appeal No. 06/2007 was also dismissed vide order 20-01-2009 and the revision petition against the said dismissal order of civil appeal was also dismissed in 2009 in non-prosecution. No doubt, presently no civil proceeding is pending pertaining to the property in question. Even it civil proceeding was pending, it would make no difference . It is now settled that merely pendency of a civil suit does not chang e the status of a tenant and as long as his status remains as tenant, he will be dealt with accordingly . On the pretext of a dispute regarding relationship of landlord and tenant and even because of pendency of a civil suit, the respondent cannot claim continuity of his possession of the rented premises. In this respect, reliance may be taken from the case reported as Barkat Masih v.
Manzoor Ahmed (deceased) through L.Rs. ( 2006 SCMR 1068 ), in which their lordships held as: "Even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences."
This is constant view and reliance can also be placed on Mrs Ghazala Arif vs. Muhammad Aftab (2016 CLC 120), Dr. Shabbir Hussain Hyderi vs Syed Rizwan Hussain Rizvi (2017 MLD 953), Sharafat Ali Khan vs. Akram Ali Khan (2012 CLC 1368) and Haji Altaf Ahmad vs. Haji Ahmad Din (2006 MLD 1240).
7. Similarly , framing of issues in every application under section 12(2) C.P.C is not sine qua non. Reliance is placed on the case law Basharat Amjad Hussain vs. Additional District Judge (2019 CLC 252), wherein it has been held that:- "7. So far as the contention of the learned counsel for the respondent No.2 that application under section 12(2) of the Code cannot be dismissed without framing of issue and recording of evidence is concerned, it is observed that the same is misconceived and ill-founded. It is not a universal principle that in each and every case, the Court is bound to frame issues before deciding the fate of an application under section 12(2) of the Code, rather the Court can decide such like application without framing of issues while considering the material made available on the record. In this regard reliance is placed on Nazir Ahmed v.
Muhammad Sharif and others ( 2001 SCMR 46 ), wherein it has invariability been held:- '8. In Amiran Bibi and others v. Muhammad Ramzan and others (1999 SCMR 1334 ) this Court has laid down the rule which reads as follows:- "it is not the requirement of law that the Court while dealing with the allegati on under section 12(2), C.P.C. must in all circumstances frame issue s, record evidence and follow procedu re prescribed for decision of the suit. The question whether or not the issues are to be formulated and evidence of the parties recorded in resolving the allegations of fraud and misrepresentation, depends upon the facts of each case in consonance with justice."
It was further observed that:- "the impugned order was passed by the learned Judge in Chambers after hearing both the parties but the petitioners never sought permission to produce evidence in support of their application nor there was any prayer for formulation of issue at the time of hearing of the application."
The above principle has again been reaffirmed by this Court in Mrs. Amina Bibi through General Attorn ey v.
Nasrullah and others 2000 SCMR 296 in the following terms:- "While dealing with allegations under section 12(2), C.P.C., it was not incumbent upon Court that it must, in all circumstances, frame issues, record evidence and follow procedure prescribed for the suit."
Reliance is also placed on (2018 CLC 1471 ) 2014 YLR 2329, 2012 CLC 1536 and 2011 MLD 1956 .
8. Another important question is that the alleged fraud or misrepresentation must be before the court and not outside. The said proposition has been discussed in the case of Muhammad Yousaf vs. Haji Fiaz Muhammad and others ( PLD 2014 Sindh 374 ), wherein it has been observed that:- "11. The petitioner has failed to establish any fraud or misrepresentation duly committed by the respondents upon the Civil Court, while admittedly parties had settled their dispute outside the court and entered into compromise, and consequently the subject suit was decreed by way of compromise."
The said view is also fortified from the case law titled Majid Ahle Hadees vs. Mst. Akram Noor (2009 CLC 1421 ) wherein it has been held that :- "11. Adverting to the competence and maintainability of the instant application. The validity of judgment or decree can be challenged through application under section 12(2), C.P.C., on the plea of fraud or misrepresentation. The application lies in the cases, where the fraud has been practised or played on the Court in obtaining the impugned judgment. The applicants have not pleaded collusion between the respondents Nos. 1 to 10 on one hand and respondents Nos.1 1 to 25 on the other hand Mst. Hassan Jan claimed that she was real sister of Fazal Din and suit property was gifted to her by the owner in his life time. She challenged the will as well as sale in favour of Mirza Muhammad Zaman and Mirza Muhammad Khan (predecessors of respondents Nos.1 1 to 25). Issues Nos.6 to 11 encom pass the controversy inter se the contesting parties, which are reproduced hereunder:--- "(6) Whether Ghulam Din made a gift of the suit property in favour of Mst. Hussan Jan as alleged in para. No.1 of the plaint?
(7) Whether Fazal Din deceased made a registered deed dated 8-12-1923 in respect of the suit property in favour of Jamia Masjid Ahl-e-Hadees as alleged in para. No.1 of the written statement?
(8) Whether the suit property was in possession of Mst. Hussan Jan till her death on 4-1-1991?
(9) Whether Mst. Hussan Jan filed a suit for recovery of the house out of the suit property as alleged in para. No.2 of the plaint?
(10) Whether the mosque sold the suit property in favour of Mirza Muhammad Khan and Mirza Muhammad Ramzan, predecessor-in-interest of the defendants Nos.1 to 15 against the law and the rights of the plaintiffs?
(11) Whether the sale made by Fazal Din in favour of Jamia Masjid Ahl-e-Hadees regarding the suit property during the year 1923 and sale-deed dated 20-7-1940 is illegal, fictitious and ineffective and inoperative on the rights of the plaintiffs?"
These issues (reproduced as above) restrict the dispute to the extent of contesting parties. The applicants' claim that property was dedicated to Masjid Ahl-e- Hadees and so was the stance of Anjuman-e-Ahl-e-Hadees. Revision Petition No.242 of 1997 was decided through impugned judgment, dated 19-2-2003 on three (3) points, which are:--
(i) Whether Mst. Hussan Jan or Lai Din who claim to be real sister and brother , were related to Fazal Din?
(ii) Whether Fazal Din made gift in favour of Mst. Hussan Jan?
(iii) Whether bequeathed property can be transferred by Mutawalli of mosque?
It was concluded in the judgment that respondents Nos. 1 to 10 failed to prove points Nos. 1 and 2. The Court, however , found that Mutwalli was empowered by the deed of Wakf to sell the property . Honorable apex Court while refusing to grant leave to appeal (Civil Petition No.501 of 2003) observed in the judgment dated 6-5-2003 that findings recorded in Civil Revision No.242 of 1997 on the above noted points are absolutely correct and no interference is warranted."
9. As the petitioner in all the petitions could not point out his locus standi and factum of fraud practiced upon the court, thus, there was no need for filing of written reply and framing of issues.
10. I have also gone through the impugne d judgments of both the courts below and found no illegality and infirmity or jurisdictional defect in the findings of courts below and, as such, the petition being without any substance is hereby dismissed.