MUHAMMAD IJAZ KHAN, J. Through this single judgment this Court shall decide this i.e WP No. 492- A/2014 as well as the following three connected petitions, as all these petitions are having common question(s) of law and fact(s). i). WP No. 493-A/2014.
District Police Officer, Abbottabad Vs. Mst. Noor Jehan & others. ii). WP No. 494-A/2014.
District Police Officer, Abbottabad Vs. Mst. Noor Jehan & others. iii). WP No.495-A/2014.
District Police Officer, Abbottabad Vs. Mst. Noor Jehan & others.
2. Brief but relevant facts of all these petitions are that initially in the year 2008, the respondent No. 1 namely Mst. Noor Jehan widow of Muhammad Suleman (hereinafter shall be referred as respondent/landlady) had filed four different rent petitions under section 13 of The West Pakistan Rent Restriction Ordinance, 1959 with respect to four shops bearing No. 2492/1, 2492/2, 2492/3 and 2492/4 before the worthy Rent Controller, Abbottabad, for the ejectment of private respondents (hereinafter shall be referred as respondents/tenants) on the ground of default in payment of rent.
Respondents/tenants were summoned in each rent petition, who appeared and contested their respective petitions by filing their written replies. From the divergent pleadings of the parties, the worthy Rent Controller framed issues and then after recording of pro and contra evidence, the worthy Rent Controller vide its separate judgments of even date i.e 13.12.2010 accepted the petitions of Mst. Noor Jahan and directed the respondents to vacate the demised shops. Feeling aggrieved from the judgments and decrees of the Rent Controller, the respondents/tenants namely Rahim Gui, Saeed-ur-Rehman, Abdul Jalil and Rustam Khan preferred their respective appeals and it was during the pendency of those appeals, when the present petitioner i.e Police Department through District Police Officer, Abbottabad also filed applications for its impleadment in these cases on the ground that it is the police department who is the owner of the demised shops and the learned appellate Court vide separate judgment dated 07.06.2011 set-aside the judgment of the Rent Controller dated 13.12.2010 and remanded the cases to it with the directions to frame proper issues in the case and parties may be allowed to produce additional evidence if, they so wish. In the said judgment(s) the appellate Court also held that the police department through District Police Officer, Abbottabad may file application(s) for its impleadment before the worthy Rent Controller in the remanded rent petition(s).
3. After the remand, the worthy Rent Controller framed the issues and the petitioner (District Police Officer, Abbottabad) was also impleaded as a necessary party in the rent petition(s) vide order(s) dated 24.01.2012 and all the contesting parties were directed to produce their respective evidence, which they have accordingly produced. After completion of evidence and then after hearing of the learned counsel for parties, the worthy Rent Controller (Civil Judge-XI, Abbottabad) vide separate judgments dated 10.07.2012 held that respondent No.1 (Mst. Noor Jahan) is the landlord of the shops whereas, the plea of the petitioner of being the owner-cum-landlord of the rented premises was declined and respondents/tenants were directed to vacate the shops and also to pay the outstanding rent.
4. Being aggrieved and dis-satisfied from the above judgment(s), the petitioners (District Police Officer, Abbottabad) as well as private respondents namely Muhammad Younus, Muhammad Miskeen, Abdul Jalil and Mst. Noor Jahan filed fourteen (14) number of separate appeals, which were decided by the learned appellate Court/ Additional District Judge-II, Abbottabad vide consolidated impugned judgment dated: 21.04.2014, who modified the judgment of learned Rent Controller with the following findings: Resultantly, I held that the landlord of the suit shops is Mst. Noor Jehan w/o Suleman while its ownership is, of the Federal government under the administration of settlement authorities. The police department has got no concern with the suit property. The tenants cannot be condemned for changing their position, due to the interference of the police department nor can be kept at the mercy of landlord. There is no default in payment of rent. The payment of rent since Jul, 2006 till to date is regularly received by the police department for which they were not competent.
It is further held that henceforth, the tenants shall pay rent to the landlord Mst. Noor Jehan regularly without default. Mst. Noor Jehan if so desired, may enter into fresh rent agreement with the tenants, however, in case of default, she may file fresh petition against the tenant under the Rent Restriction Ordinance. The rent received by the Police Department w.e.f July, 2006 till today shall be deposited by the Police Department with the Nazir of this Court within a month, whereafter the same shall be disbursed to the landlord (Mst. Noor Jehan).
5. Being dis-satisfied with aforesaid consolidated judgment of learned appellate Court, the petitioner i.e District Police Officer, Abbottabad has filed the above mentioned petitions, whereas, the respondents/tenants have not challenged the aforesaid order/judgment of the appellate Court.
6. Arguments of learned counsel for the parties were heard in considerable detail and the record/evidence was gone through with their able assistance.
7. The record would show that initially the respondent No.1 namely Mst. Noor Jahan had filed four ejectment petitions with respect to the four shops bearing No. 2492/1, 2492/2, 2492/3 and 2492/4 for the ejectment of her tenants namely Shahzad Khan, Raheem Gul Khan, Abdul Jalil, Muhammad Miskeen, Rustam Khan, Saeed-ur-Rehman and Muhammad Younis, on the ground of subletting and default in payment of rent, which ejectment petitions were contested by the respondents/tenants and after recording of pro and contra evidence, the same were allowed, however, the respondents/tenants being not satisfied with the same filed their respective appeals and it was during the pendency of those appeals when the present petitioner i.e Police Department through District Police Officer, Abbottabad filed application(s) for its impleadment in the pending appeals. The record further shows that the learned appellate Court allowed those appeals and cases were remanded back to the worthy Rent Controller for framing of proper issues, whereas, the present petitioner/District Police Officer, Abbottabad was also directed to file application(s) for its impleadment before worthy Rent Controller. After the remand, the present petitioner was impleaded as party and the petitioner alongwith private respondents/tenants contested the ejectment petitions, however, after a full-fledged trial, the said ejectment petitions were allowed and the respondents/tenants were directed to vacate the suit shops for the respondent No.1 namely Mst. Noor Jahan, whereas, the plea of present petitioner qua being the owner-cum- landlord of the demised shops was also declined on the ground that its plea of ownership with respect to the property beneath the suit shops has already been refused up to the apex Court. The record further shows that the aforesaid order and judgment of the worthy Rent Controller was challenged by the present petitioner as well as by the tenants and Mst. Noor Jahan, as 14 number of appeals were filed before the district appeal Court vide rent appeals No. 1/RC to 14/RC of 2012, where too, the plea of present petitioner as well as private respondents was declined vide consolidated order and judgment of the appellate Court dated 21.04.2014. The aforesaid order and judgment has not been challenged by the respondents/tenants, whereas, the present petitioner has challenged the same through the instant writ petitions, therefore, this Court would address the grievance and plea of present petitioner through this judgment.
8. It is part of the record that the husband of the respondent/landlady namely Muhammad Suleman was an employee of the police department, who obtained an area of 874 sqf through a lease agreement in the year 1988 and thereafter, as per record of the case as produced by PW-1 i.e letter regarding acceptance of application of Muhammad Suleman for construction of shops (Ex PW-1/1), copy of form "B" (Ex PW-1/2), copy of admission fees (Ex PW-1/3), copy of lease agreement (Ex PW-1/4) and approved map for construction of shops (Ex PW-1/5), the husband of respondent/Mst. Noor Jahan had constructed four shops and also executed tenancy agreement(s) with the respondents/tenants, who too during the course of their statements have admitted that initially they have been being paying the rent to the respondent/landlord, however, it was in the month of July, 2006 when respondents/tenants stopped paying the rent to the respondent/landlady and instead started payment of rent to the police department, which default in payment of rent continued up to December, 2007, therefore, the respondent/landlady felt the need to file the instant ejectment petition on 15.01.2008.
9. It is part of the record and as spelling out from the evidence of this case as well as from the previous litigation carried out by one Muhammad Aslam against the present petitioner/District Police Officer, Abbottabad that the subject property as well as property which is in the possession of petitioner was an evacuee property, as per record, the official residence of the Senior Superintendent of Police, Hazara now DIG, Hazara was transferred to the police department vide PTD dated 27.01.1965 and apart from the area allotted to the petitioner through aforesaid PTD, there was an excess area too which was occupied by some private persons having their houses on the same. The record also indicates that subsequently, the police department obtained an amended PTD on 04.09.1979 whereby, the excess land apart from the area which was allotted to the petitioner vide PTD dated 17.01.1965 was also included to the ownership of the police department. The said amended PTD was challenged by one Muhammad Aslam through a suit filed in the year 1976 and ultimately, it was held by this Court as well as by the apex Court that the amended PTD was void ab-initio and unlawful, therefore, the excess property granted to the police department vide amended PTD was declared as illegal, however, despite this, the petitioner till date is insisting that it is also the owner of an excess property beyond the property given to them vide PTD dated 17.01.1965.
10. It is relevant to mention here that in the earlier proceedings a commission was sent for spot inspection and measurement of land was carried out, who had, accordingly measured the house of Senior Superintendent of Police now DIG, Hazara alongwith two barracks, which was granted to it vide PTD dated 17.01.1965 and it was found that the area beneath them is 18177sqf, which measurement is exactly the same which was granted to the petitioner's department vide PTD of 1965, whereas, the excess area was found as 193,148sof and thus, the total area comes out as 211,325sqf. It is also part of the record that the suit shops have been constructed on khasra No. 1720 having corresponding old khasra No. 1185 alongwith other khasra numbers i.e 1182 to 1184 & 1190, which were included in the amendment PTD of 1979, and thus, when the plea of the petitioner regarding ownership over the excess area on the basis of amended PTD has already been declined by this Court as well as by the apex Court in CP No. 105-P of 1998 decided on 20.05.1999, then it could not be allowed to re-agitate the same plea in these proceedings, which plea of the petitioner has already been laid to rest by this Court as well as by the apex Court. In the case of Messrs Khurshid Soap and Chemical Industries (Pvt), Ltd-Vs-Federation of Pakistan reported as PLD 2020 Supreme Court 641, the apex Court has held that once a controversy with regard to a right in property or a right to office is adjudicated upon and attains finality through a judicial pronouncement of a competent Court of law, it no more remains open to agitate in any subsequent judicial proceedings. The said principle is intended not to afford a litigant more than one opportunity for resolution of a judicial dispute and thus eliminates the chances of repetition and successive litigation on the same issue. The apex Court in an another case title Quetta Development Authority-Vs-Abdul Basit and others reported as 2022 PLC (C.S) 288 has held that when an earlier part of litigation it come an end and had attained finality between the parties, the questions in the earlier round of litigation once decided, by the competent Court of law, could not be re-agitated again, such issue would act as res-judicata.
11. It is also relevant to mention here that ownership and land-lordship have distinct meaning, as a man may not be the owner but he may be the landlord and conversely a man may not be a landlord but he would be an owner, however, in the present case, the petitioner is neither the owner of the suit shops, as its such plea has already been discarded up to the apex Court, nor it is the landlord of the these shops, as respondents/tenants have admitted in Court statement(s) that initially they were paying rent(s) to the respondent/landlady, however, under the influence of police department, they started paying rent(s) to the petitioner, therefore, receiving of such rent(s) by the petitioner, if any, is prima facie on the basis of forceful authority of the police and thus, the same would not confer any right of ownership or land-lordship on the petitioner. As stated hereinabove that the term landlord and owner are not synonymous as interpreted by the apex Court in the case of Khaliq Raza Khan-Vs-Messrs. Pakistan State Oil Company reported as 1998 SCMR 2092 wherein, it was held that landlord means owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises, whereas, the owner means a person in whom the property for the time being is beneficially vested or who has a control or occupation of it.
12. It is also relevant to mention here that after passing the impugned order dated 21.04.2014 of the learned Additional District Judge where it was held that henceforth the respondents/tenants shall pay rent to the respondent/landlady namely Mst. Noor Jahan and she may enter into a fresh agreement with the tenants, however, in case of default, she may file fresh petition(s) against the tenants under The Rent Restriction Ordinance. The record would show that even thereafter, respondents/tenants made default in payment of rent, so respondent/landlady filed ejectment petitions on 11.05.2017, which were duly contested by the respondents/tenants, however, the said applications have ultimately been allowed as well vide order and judgment dated 22.03.2018 but astonishingly, the present petitioner has not challenged the aforesaid order either before the appellate Court or before this Court, therefore, on this ground too, the desired writ could not be issued.
13. It is also relevant to mention here that through the instant writ petition the petitioner is seeking the issuance of writ of certiorari to declare the impugned order and judgment dated 21.04.2014 of the learned Additional District Judge-II, Abbottabad as well as order of worthy rent controller dated 10.07.2012 as illegal, unlawful & arbitrary, and consequently of having no legal effect, however, the learned counsel representing the petitioner could not pointed out any excess of jurisdiction or improper or illegal exercise of jurisdiction vested in them. Furthermore, during the course of arguments learned counsel for petitioner was confronted that as to whether in absence of any ground of lack of jurisdiction or excess of jurisdiction or improper exercise of jurisdiction, the desired writ could be issued, however, he was unable to wriggle out of this legal impediment in his way, therefore, when the two fora below have properly exercised their jurisdiction, then their orders could not be interfered by this Court in its constitutional jurisdiction. In the case of Amjad Khan vs. Muhammad Irshad (deceased) through LRs reported as 2020 SCMR 2155, the Hon'ble Apex Court has held that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower Courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter. Similarly, in the case of "Chief Executive Mepo & others v/s Muhammad Fazil & others" reported as 2019 SCMR 919, the Hon'ble Apex Court has declared that where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed-out, such determination cannot ordinarily be interfered with by the high Court while exercising jurisdiction under Article 199 of the Constitution. In the case of "Chairman NAB v/s Muhammad Usman & others" reported as PLD 2018 Supreme Court 28, the Hon'ble Apex Court has held that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge's hands, however, the same shall not be exercised in a case where discretion is exercised by the subordinate Court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner.
14. In view of the above discussion and exposition of law, the impugned orders & judgments of fora below are neither arbitrary nor perverse nor the result of excess, improper or illegal exercise of jurisdiction vested with them, therefore, same are maintained & upheld, and consequently, the instant writ petition alongwith connected writ petitions, being bereft of any merit, are hereby dismissed.