SYED HASAN AZHAR RIZVI, J. Being aggrieved and dissatisfied with the order dated 16.03.2016 passed by the respondent No.2 the learned VII Additional District Judge, Karachi-East in Civil Revision No.38/2013 and orders dated 06.04.2013, 27.09.2012 and 10.07.2012 passed by the respondent No.3 the learned VIth Senior Civil Judge, Karachi-East in Suit No.01/2010/Execution Application No.14/2010, the Petitioner filed present Petition.
2. Brief facts of the case are that the wife of the petitioner No.1 Mst. Farida Bano was the tenant of Malika Safia Begum in respect of Shops Nos.4 and 5 constructed on Plot No.25/28/29, Riaz Manson, Ali Akbar Square, Bahadurabad, Karachi at the rent of Rs.400/- per month. Whereas the petitioner No.2 is also the tenant of Malika Safia Begum in respect of Shops Nos.1 and 2 of the same building.
Photocopy of tenancy agreement executed between the petitioner No.2 and landlady Malika Safia Begum signed on 08.08.1992 is enclosed at page-583 along with MoP. Petitioners were paying monthly rent regularly to their landlady. However, on her refusal to receive the rent, the petitioners started sending monthly rent of the subject premises through postal/money orders upto June, 2005, which were accepted by the landlady. Acknowledgment receipts of the money orders are available at pages-451 and 465, 467, 471, 473, 475, 477, 479, 481, 483 and 4a5 with MoP. Signatures on the acknowledgement match with the Court file with signature of Malika Safia Begum, which she made on the alleged sale agreement filed by the respondent No.1 in Suit No.0142010. Malika Safia Begum acknowledged petitioner No.1 as her tenant through legal notice issued on 14.02.1980 served by her counsel Messrs Habib-ur-Rehman and Company Advocates to the petitioner. Copy thereof is also enclosed at page-549 and its reply sent by the counsel for the petitioner No.1 is enclosed at page-551. On 05.07.2005 wife of the petitioner N0.1 Mst. Farida Bano tendered the advance rent for the period of July, 2005 to December 2005 through money order No.1846 dated 05.07.2005 but Malika Safia Begum, the landlady refused to receive the same. Money orders coupons are enclosed at pages-435 and 437 with MoP. On refusal to accept the rent of the subject premises by the previous landlady the petitioner No.1's wife filed an application to deposit the rent in Misc. Rent Case No.244/2005 in the Court of 1Xth Rent Controller, Karachi-East and started depositing rent from July, 2005 therein. Photocopy of ledger in the aforesaid MRC maintained by the office of the Rent Controller is enclosed at page-439 with MoP and certified copy of MRC No.244/2005 showing deposit of rent by the tenant, wife of petitioner No.1 to Malika Safia Begum is enclosed at page-425.
Petitioner No.2, who was tenant in respect of shops Nos.1 and 2 of the same building, was regularly paying monthly rent of Rs.600/- to the landlady but on her refusal, started sending the rent through money order upto December, 2005. On 21.01.2006 the petitioner No. 2 tendered rent for the period from January, 2006 to December 2006 in advance vide money order No.2583 dated 21.01.2006 but it was returned back having been refused by the landlady. Copy thereof is enclosed at page-571 with the MoP. On refusal of the landlady Malika Safia Begum, petitioner No.2 also started depositing rent in M.R.C. No.77 of 2006 in the Court of IXth Rent Controller, Karachi-East and deposited rent for the month of January, 2006 to December, 2006 by increasing rent of Rs.600/- per month by exceeding rent deposited at the rate of Rs.785/- per month in M.R.C. No.77/2006. Certified copy of the M.R.C. is enclosed at page-563 of the MoP Respondent No. 1 on 07.08.2007 lodged FIR bearing No.227/2007 under sections 448/34, P.P.C. against the petitioners at Police Station New Town and on 08.08.2007 respondent No.1 dame at the shops of the petitioners along with police mobile of Police Station New Town and tried to dispossess the petitioners from their shops. Petitioners showed to the police party documents relating to their tenement and legal possession and an the intervention of the shopkeepers of the vicinity the police party went away.
3. Wife of the petitioner No.1 Mrs. Farida Bano and petitioner No. 2 on 11.08.2007 filed Suits No.1034/2007 and 1035/2007 in the Court of VIIIth Civil Judge, Karachi-East against their landlady Malika Safia Begum and the respondent No.1 in this petition for permanent injunction and damages. Photocopy of the plaint in Suit No.1034/2007 is enclosed at page-541 and Suit No.1035 at page-577 with MoP. Service of the summons in both the aforesaid suits was effected on 27.05.2008, the respondent No.1 who was defendant No.2 in that suit appeared in that case before Civil Judge, Karachi-East but he neither denied claims of the plaintiffs in those suits .petitioners of this petition regarding holding of lawful tenancy of the suit shops, nor he disclosed that he had purchased the building where suit shops were situated from Malika Safia Begum or her son. Respondent No.1 filed statement in both the suits that he will not dispossess' the plaintiff from the demised shops without due course of law. Respondent No.1 in this petition did not file written statements in those suits denying the averments of the memo of plaint Statements in writing as referred to above filed by the respondent No.1 in two suits were to the extent that he will not dispossess the plaintiffs present petitioners without due course of law. Photocopies of the statements made by the respondent No.1 are enclosed at pages-91 and 93. Learned VIIIth Civil Judge, 'Karachi-East while placing reliance upon the statements in writing of the respondent No.1, passed the judgment on 27.05.2008 in both the suits and disposed of the same along with pending applications. Certified copies of the judgments are enclosed at pages-95 and 101 with MoP.
4. Respondent No.1 filed suit No.01/2010 on 27.07.2009 for declaration, permanent injunction and recovery of possession against both the petitioners in the Court of VIIIth Civil Judge, Karachi-East.
Copy of memo of plaint in that suit is enclosed at page-107. In the said suit respondent No.1 in para-2 submitted that the respondent No.1 has entered into a registered sale agreement with its previous owner Syed Mumtaz Hussain Shah son of Syed Riaz Hussain Shah in respect of Commercial building known as Riaz Mansion constructed on Plot Nos.HC-25, HC-28 and HC-29, situated at Market H-Central Commercial Area Block-3, Karachi Cooperative Housing Society, Union Ltd., Ali Akber Square, Bahadurabad, Karachi. Such registered Sale Agreement as per available record was never produced before this Court or any other Court by the respondent No.1.
Nowhere in the memo of plaint the respondent No.1 has referred to filing of statement in writing in Suits No.1034/2007 and No.1035/2007 in the Court of VIIIth Civil Judge, Karachi-East. Plaint of the suit filed by the respondent No.1 as referred to above was rejected under Order VII, Rule 11, C.P.C. by order dated 20.07.2009 passed by the VIth Civil Judge, Karachi-East. Respondent No.1 filed Civil Appeal No.146/2009 against the order of rejection of plaint in the Court of Ilnd Additional District Judge, Karachi-East. Photocopy of the judgment passed on 23.12.2009 in the aforesaid appeal is enclosed at page-115 with MoP. Order dated 28.07.2009 for rejection of the plaint was set-aside with the direction to the learned Trial Court to admit the suit and after service upon the defendants the case should be decided on merits. After remand of the suit, learned VIth Senior Civil Judge, Karachi-East assigned it as Suit No.01/2010 and summons were issued to the defendants through Bailiff, registered A/D, T.C.S. as well as publication daily Nawa-e-Waqt, Karachi on 24.03.2010 but the defendants/the petitioners in this case failed to appear therefore, suit was decided by an ex pane judgment and decree, copies thereof are enclosed at pages-121 and 133 with MoP. Respondent No.1 filed execution application bearing No.14/2010 in Suit No.01/2010 in the Court of VIth Senior Civil Judge, Karachi-East. On receipt of notice of the execution application, petitioners filed application under section 12(2) read with section 151, C.P.C. against the judgment and decree dated 18.05.2010 in that execution application on 03.09.2010 (available at page-137) wherein the petitioners alleged that the respondent No.1 obtained the judgment and decree by cheating/fraud and by misrepresentation, concealment and suppressing of facts from the Court. It was further stated in the said application that the petitioners neither were served through bailiff, registered post A/D or T.C.S. and the petitioner No.1 had nothing to do with the premises as his wife Mst. Farida Bano is the tenant of Shops Nos.4 and 5 in the subject building, which was rented out by Malika Safia Begum: Reference of filing of Suits Nos.1034 and 1035 of 2007, statement made by the respondent No.1 in both suits and the judgment passed on 27.05.2008 in those suits were given. Filing of M.R.C.
Nos.244/2005 and 77/2006 was also referred to in that application. Respondent No.1 filed counter affidavit to that application on 13.02.2013 (copy thereof is enclosed at page-149 with MoP). Learned VIth Senior Civil Judge, Karachi-East on 06.05.2011 decided the application (copy of order is enclosed at page-167 with MoP) after framing the following two issues:- "01. Whether the plaintiff/decree holder obtained ex parte Judgment and ' decree dated 18.05.2010 by way of fraud or misrepresentation.
02. What should the order be?"
5. Both petitioners filed their affidavit-in-evidence in May, 2011 in compliance of the Court order.
Copies thereof are available at pages-177 and 187. By order dated 10.07.2012 in the absence of the petitioners, the trial Court discarded the evidence of the petitioners. Copy of the order is enclosed at page-79 with MoP. On 19.07.2012 petitioners' counsel filed application under section 151, C.P.C. for recalling the order dated 10.07.2012. Copy of the order is enclosed at page-187 with MoP. Application of the _petitioners for recalling the order dated 10.07.2012 was dismissed, in default by order dated 27.09.2012. Copy thereof is enclosed at page-73 with MoP. On 06.10.2012 petitioners' counsel filed application under section 151, C.P.C. for recalling the order dated 27.09.2012 and 10.07.2012, which was dismissed on 06.04.2013 by the learned Trial Court. Petitioners challenged the Trial Court's order dated 06.04.2013 by filing Civil Revision No.38/2013 before the learned District Judge, Karachi- East. Copy of memo of revision is enclosed at page-355 with MoP. Learned VIIth Additional District Judge, Karachi-East by the impugned order dated 16.03.2016 dismissed the Revision Application.
Certified copy of the order is enclosed as annexure "P/1" at page-27 with MoP.
6. Learned counsel for the petitioner contends that the impugned order passed on 16.03.2016 in Civil Revision No.38/2013 by the learned VIIth Additional District Judge, Karachi-East and the orders passed on 27.09.2012 and 06.04.2013 in Execution Applications No.14/2010 arising out of Suit No.01/2010 are absolutely illegal, void, passed while committing material illegality and irregularity.
Per learned counsel for the petitioners, the impugned orders as referred to above, are in violation of the settled principle of law. Per learned counsel, both the courts below have passed the orders in hasty manner without considering the material facts involved and ignored the fact of commission of fraud apparently. done by the decree holder/plaintiff/respondent No.1 while supressing and concealing the facts deliberately to the extent that petitioners were tenant of the predecessor-in- interest of the respondent No.1 since 1992 and this fact was fully in the knowledge of the respondent No.1 when he himself filed statement in writing in Suits Nos.1034 and 1035 of 2007 in the Court of VIII Civil Judge, Karachi-East for not dispossessing the petitioners from the subject premises without due course of law. Learned counsel for the petitioners further states that in suit No.01/2010 filed by the respondent No.1, the plaint was initially rejected under Order VII, Rule 11, C.P.C. and after filing of the Civil Appeal No.146/2019 judgment was passed on 23.12.2009 when the order for rejection of the plaint dated 28.07.2009 in the aforementioned suit was set-aside and the learned Trial Court was directed to admit the suit and after service upon the defendants case has to be decided on merits.
Per learned counsel for the petitioners, after remand of the case the learned Trial Court proceeded with Suit No.01/2010 in very hasty manner and passed ex parte judgment on 18.05.2010 without affecting proper and lawful service upon the petitioners. Learned counsel for the petitioners further submits that soon after having knowledge of the passing of the judgment, the petitioners filed application under section 12(2), C.P.C. during execution proceedings when learned Trial Court framed the issue on 06.05.2011.
Per learned counsel, the petitioners were diligently pursuing that application but the delay in deciding the application was not exclusively on the part of the petitioners. Petitioners after settlement of issues promptly filed their affidavits-in-evidence in May, 2011. Per learned counsel, from the order-sheets of the Execution Application it reveals that mostly the adjournments were sought by the counsel for the decree holder or due to strike in Court and non-availability of the presiding officer. Per learned counsel for the petitioners on 10.07.2012 affidavits-in-evidence of the petitioners were discarded by the order of the learned Trial Court under Order XVII, Rule 3, C.P.C.
Petitioner's counsel filed application on 19.07.2012 for recalling of the order. Learned counsel for the petitioners further states that the matter was fixed on 11.09.2012 in Court when the counsel for the respondent No. 1 filed counter affidavit to the petitioners application under section 151, C.P.C. and matter was adjourned for 14.09.2012. On 14.09.2012 Vakalatnama of counsel was filed on behalf of respondent No.1 and case was adjourned for 17.09.2012. On 17.09.2012 due to strike in Court matter was adjourned. Thereafter, on 25.09.2012 matter was adjourned to 27.09.2012. Application of the petitioners under section 12(2), C.P.C. was dismissed on 27.09.2012 by the learned Trial Court without any Justifiable reasons and without affording fair opportunity of being heard to the counsel for the petitioners. He submits that petitioners counsel on 06.10.2012 tiled another application under section 151, C.P.C. for recalling of the order dated 27.09.2012 and respondent No.1 tiled counter affidavit to said application but the said application was dismissed by the learned Trial Court on 06.04.2013. Main contention of that learned counsel for the petitioners was that after learned Trial Court framed issues for deciding the application tiled by the petitioners under section 12(2), C.P.C. the matter should have been decided on merits and not on technicalities. Learned counsel for the petitioners has relied upon the cases, reported in 2012 SCMR 361 (Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another), PLD 1991 SC 1109 (Qutab-ud-Din v. Gulzar and others) and 2006 SCMR 152 (Allies Book Corporation v. Sultan Ahmad and others).
7. Messrs Usman Shaikh and Muzamil Soomro, learned counsel for the respondent No. 1 vehemently submitted that no fraud has been committed while obtaining order/judgment by the respondent No.1 in Suit No.01/2010. He further submits that application filed by the petitioners under section 12(2), C.P.C. is frivolous and baseless. They contends that the petitioners were fully aware of pendency of suit but they deliberately avoided to contest that suit. Learned counsel urged that petitioners are trespasser and illegally and has forcibly retained the subject shops. Learned counsel for the respondent No.1 submitted that delay waned by the petitioners in having the application under section 1. C.P.C. decided on merits. Per learned counsel for the respondent No.1, ample opportunities were given by the respective Courts to petitioners and their counsel to present their case but they miserably failed, and rather avoided to adduce their evidence and their counsel mostly remained absent. They further contended that the concurrent findings are against the petitioners. They supported the orders passed by both the courts below. Per learned counsel for the respondent No.1, the present petition is not maintainable and liable to be dismissed. Learned counsel for the respondent No.1 in support of their contentions relied upon the cases reported in 2015 SCMR 1401, 1997 SCMR 924, 2013 YLR 1545, 2014 SCMR 637, 2015 YLR 15 and 2000 SCMR 431.
8. We have heard learned counsel for the petitioners and respondent No.1 and carefully perused the record enclosed with the pleadings of the respective parties.
9. It is admitted fact that two civil suits bearing Nos.1034 and 1035 of 2007 were filed by wife of the petitioner No.1 and the petitioner No.2 against the respondent No.1 in respect of the subject shops for permanent injunction and damages wherein one plaintiff is wife of the petitioner No.1 and other plaintiff is petitioner No.2, who were tenants in respect of the shops on the subject plot and they were depositing monthly rent in the name of the previous landlady/owner Malika Safia Begum in MRC No.244/2005 and MRC No.77/2006 in the Court of IXth Senior Civil Judge and Rent Controller, Karachi-East. Aforesaid suits were decided on 27.05.2008 by separate judgment as per knowledge and information of the respondent No.1 much prior of filing of Suit No.01/2010. Respondent No.1 filed Suit No.01/2010 on 28.07.2009 and concealed material facts at the time of filing of said suit against the petitioners. Plaint in that suit was rejected by the Court even before service upon the petitioners. On filing of the appeal by the respondent No.1 the order of rejection of plaint was set- aside with specific direction to the learned Trial Court to decide the case on merits.
10. It transpired from the record that wife of the petitioner No.1 and petitioner No.2, on refusal of landlady to receive the rent through money order started depositing monthly rent of the subject shops in MRC No.244/2005 and MRC No.77/2006. Even after filing application under section 12(2), C.P.C. by the petitioners in Suit No.01/2010 the learned Trial Court vide order dated 06.05.2011 framed issues with regard to the commission of fraud by the respondent No. 1. However, after filing of the affidavits-in-evidence of the petitioners, the said application was dismissed for non-prosecution even the applications filed by the petitioners for opening of the side were dismissed and Revision application filed by the petitioners was also dismissed.
11. Reverting to the contentions advanced by the learned counsel for the respondent No.1, learned counsel for the petitioners while vehemently argued that fraud has been committed in obtaining order/ judgment by the respondent No.1 in Suit No.01/2010, which is contrary to the material available on record as on bare reading of the pleadings of the parties it transpires that wife of the petitioner No.1 and petitioner No.2 both were tenants of the previous owner/landlady and they were paying rent regularly to the landlady through money orders as well as by depositing the same in respective MRCs in the Court of Rent Controller. With regard to the contention of learned counsel for the respondent No.1 regarding delay caused by the petitioners in producing their evidence it is apparent from the record that the delay in producing the evidence after settlement of issues for the commission of fraud was not only upon the petitioners but the respondent No.1 was also responsible for such delay. With regard to the contention of the learned counsel for the respondent No.1 that there were concurrent findings of two Courts below, from the contents of both orders passed by the two Courts below it appears that both the orders were passed on technicalities and not on merits. Both Courts have failed to appreciate the material facts made available on the record. With regard to the payment of rent through money orders as well as depositing the same in respective MRCs, it must be kept in mind that the respondent No.1 on purchase of the building where subject shops are situated ought to have issued notice to the tenants of the building including the petitioners under Section 18 of the Sindh Rented Premises Ordinance, 1979 but no such notice was issued by the respondent No.1 to the petitioners. Respondent No.1 in his statement in writing filed in Suits Nos.1034 and 1035 of 2007 never raised the plea before the Civil Court in those suits that the petitioners were trespassers and not the tenants of the previous landlady. Possession of the petitioners on the subject shops on the basis of material produced by them before the Courts in their pending litigation establishes that they were tenants, who not only deposited rent in Court in respective MRCs but they also made payment of the electricity bills and placed the same on record in this petition through an statement dated 14.09.2019 on the directions of this Court.
12. In the case of Mst. Nasra Khatoon and another v. Mst. Aisha Bai and others reported in 2003 SCMR 1050 it was held that concealment of facts by a person having knowledge or belief of such facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud lies on the party which alleges fraud except in a case in which the fraud is floating on the face of record. In the present case it has been brought on record that the judgment and decree were obtained by concealment of facts and by committing fraud and the petitioners on receipt of notice of the execution application only got to know about the proceedings, whereupon the petitioners maliciously filed application under section 12(2) read with section 151, C.P.C. against the judgment and decree dated 18.05.2010 in that execution application on 03.09.2010 wherein such plea of obtaining the judgment and decree by cheating/fraud and by misrepresentation, concealment and suppressing of facts from the Court was alleged, alien to the fact and circumstances of this case(s).
13. The apex Court in a number of cases has observed that the Courts were to act in the aid of justice and no person is to be deprived of his legal rights on mere technicalities, rather the technicalities of law to be avoided and discouraged in order to do complete justice. If a party c had a case on merits then it would be within safe administration of justice to exercise discretion towards dispensation of justice and not to allow the opposite party to continue enjoying illegal gains in the name of technicalities. If any authority is needed, reference may be made to the cases reported as 1999 SCMR 105 (Zahoor Ahmed v. Mehra), 1997 SCMR 260 (Jameel Ahmed v.
Saifuddin), 2020 CLC 1458 (Khaeri Khan and 5 others v. Muhammad Siddique alias Siddiqo and 8 others), 2019 CLC 1483 (Mst. Gulfama v. Mst. Jamsheda and 14 others), PLD 2019 Lahore 723 (Saeed Ahmad v. Ghulam Fatima), 2019 YLR 1055 (Aamir Hameed v. Alloo and Manocher Dinshaw Charitable Trust), 2020 MLD 1127 (Haji Ghano Khan v. Dr. Bhagwandas) and 2019 PLD Lahore 723 (Saeed Ahmad v. Mst Ghulam Fatima).
14. For the forgoing reasons, we reach to this irresistible conclusion that this petition be allowed and the impugned order dated 16.03.2016 passed by the respondent No.2 in Civil Revision No.38/2013 and orders dated 06.04.2013, 27.09.2012 and 10.07.2012 passed by the respondent No.3 in Suit No.01/2010/Execution Application No.14/2010 be set-aside to meet the ends of justice. Ordered accordingly. Respondent No.3 is directed to record the evidence of the parties in terms of order already passed on 06.05.2011 in Suit No.01/2010 and to decide the matter preferably within a period of forty-five (45) days' time on the receipt of a copy of this order to the Executing Court and after reasonable opportunity of, hearing given to both the parties.
The observations made hereinabove are of tentative nature and the Trial/Executing Court should not be influenced by such observations and decide the case on its own merits.