This order would dispose of an application (CMA 1062 of 1988) moved by Bashir Ahmed under subsection (1) of section 12 of the Code of Civil Procedure for declaration that an order dated 28-5- 1985 passed in Rent Application No. 103 of 1968 and an order dated 31-5-1988 passed in Execution application No. 83 of 1985 were without jurisdiction and of no legal effect and so also the order dated 27-3-1988 passed in First Rent Appeal No. 164 of 1985. It was also prayed that the order dated 2.R-5-1985 and 31-5-1988 passed by the Rent Controller and the order dated 27-3-11?M passed by this Court cannot be pressed into service for execution against petitioners Bashir Ahmed.
2. Rent Application No. 103 of 1908 was filed by Shamsuddin predecessor of respondents Nos. 1 to 3, who was transferee of the disputed property bearing No. G/314 at Shah Makki Road, Hyderabad by virtue of a P.T.O. (Ex. 77) dated 17-9-1960 and a P.T.D. (Ex. 78) dated 18-9-1962, for eviction of Shaft Muhammad, Lai Muhammad, petitioner Bashir Ahmed and Zahoor Ahmed from the disputed property on the grounds of default in payment of rent and subletting. Earlier the transferee had issued notice under section 30 of the D.P. Act to Shaft Muhammad and Lal Muhammad, who were occupying two portions of the disputed property measuring 934 sq. Ft. And 2,500 sq. Ft.
Respectively. Said notice was replied by Shaft Muhammad and Lal Muhammad. The rent application was contested by all the persons against whom it was directed including the petitioner, who in their written statement denied being tenants of the transferee. A preliminary issue on that point was framed and it was found in favour of the transferee whose prayer for ejectment of Shaft Muhammad and others was accepted under an order dated 24-1-1976 passed by the Rent Controller, said order was challenged in the District Court, Hyderabad in Appeals Nos. 71 and 89 of 1976. Both the appeals were accepted and the order of ejectment was set aside and the matter was remanded to the Rent Controller, under an order dated 28-5-1985 learned IVth Senior Civil Judge and Rent Controller, Hyderabad allowed the ejectment application and directed respondents Shaft Muhammad, Bashir Ahmad and legal heirs of Zahoor Ahmad and Lal Muhammad to hand over vacant possession of the premises to L.Rs. Of Shamsuddin viz respondents Nos. 1 to 3, Petitioner Bashir Ahmed filed F.R.A. No. 164 of 1985 challenging order of the Rent Controller dated 28-5-1985. Said F.R.A. Was dismissed by my learned brother Mr. Justice Haider A.I Pirzada under an order dated 27-3-1988 by which the petitioner was allowed to vacate the premises on or before 30-4---1988.
3. L.Rs. Of Shamsuddin filed Execution Application No. 83 of 1985 for execution of the order dated 28- 5-1985 which was maintained by the High Court on 27-3-1988. Under the impugned order dated 31- 5-1988 learned Rent Controller ordered issuance of writ of possession in favour of L.Rs. Of Shamsuddin.
4. Shah Muhammad and 14 others filed Petition No. 235-K of 1988 for (cave to appeal in the Supreme Court of Pakistan against the High Court order dated 27-3-1988, said petition was, however, dismissed and leave to appeal was refused under an order dated 25-8-1988.
5. In his application under section 12(2) of C.P.C. Petitioner Bashir Ahmad alleged that he was not properly screed before the Rent Controller and his service was arranged by the respondents Nos. 1 to 3 by way of fraud and misrepresentation inasmuch as a fictitious person was produced in Court of the Rent Controller as Bashir Ahmed opponent No. 3 in the rent application petitioner denied having engaged any advocate to appear and plead on his behalf in said Court. Petitioner added that he came to know of the fraud in December 1981 and thereafter he rushed to the Court of the Rent Controller where he was allowed to file his affidavit in evidence which he did on 17-12-1981. On this ground petitioner challenged the orders dated 28-5-1985 and 27-3-1988 to be fraudulent and based on misrepresentation of facts. Jurisdiction of the Rent Controller to pass the order dated 28- 5-1985 was also challenged. Petitioner further stated that he was not served with any notice under section 30 of the Displaced Persons Act and hence the rent application did not lie against him. It was added that the Sind Rented Premises Ordinance did not apply because the respondents Nos. 1 to 3 had never accepted the petitioner as their tenant and the relationship of landlord and tenant was lacking between them. In this way all the impugned orders were challenged to be without jurisdiction and of no legal effect. It was also averred that the only ground for ejectment of the petitioner was that he had entered the premises as a sub-tenant and such ground was disbelieved by the Rent Controller, whose finding was not challenged any where on that point.
6. Said application (CMA 1062 of 1988) was opposed by respondents Nos. 1 to 3, who filed objections. They challenged maintainability of the application on the ground that after amendment of section 22 of the Sind Rented Premises Ordinance all questions of rising between the parties were to be determined by the tent Controller and that C.P.C. Was not applicable to the proceedings before the Rent Controller. Another objection taken by the Respondents Nos. 1 to 3 was that since the matter had gone up to the Supreme Court of Pakistan, hence the application under section 12(2) of C.P.C. Should have been filed in said Court. It was also stated that the order of the High Court dated 27-3-1988 had attained finality in view of section 21(3) of the Sind Rented Premises Ordinance and the same cannot be challenged in an application under section 12(2) of C.P.C. It was added that the petitioner had pleaded his case before the Court of the Rent Controller, District Court and the High Court and as such he cannot agitate the same points in his application under section 12(2) of C.P.C. That the petitioner whose appeal was time-barred and dismissed, cannot claim right of being heard again on his application. It was averred that the pleas about impersonation of the petitioner in the trial Court and about fraud and misrepresentation were not taken in the first round of litigation which went up to the Supreme Court of Pakistan and hence the same cannot be allowed to be taken in the application under section 12(2) of C.P.C. It was added that in the rent application the petitioner in his objections did not claim being tenant of the respondents Nos. 1 to 3 and that the plea taken now was not put to Abdul Sattar witness of the respondents Nos. 1 to 3 in cross-examination. It was added that the petitioner in his Appeal No. 89 of 1976 to the District Court, Hyderabad did not challenge relationship of landlord and tenant existing between the respondents Nos. 1 to 3 and Shafi Muhammad and Lal Muhammad it was further stated that the petitioner did not claim to be tenant in the premises during cross- examination of witness Abdul Sattar. It was stated that the petitioner was estopped from raising the pleas contrary to what he said in his objections and that he cannot claim notice under section 30 of the D.P. Act, because said Act was repealed.
7. I have heard Mr. A.I Ahmed Khanzada, Advocate for the applicant and Mr. Naimatullah Soomro, counsel respondents Nos. 1 to 3. I have also heard Mr. Abdul Hameed Khan, Advocate for Respondents Nos.4 to 17, who moved similar application in First Rent Appeal No. 144 of 1985.
8. Learned counsel for the appellant reiterated the arguments given in the application under section 12(2) of C.P.C. And contended that the impugned orders dated 28-5-1985 and 27-3-1.988 were obtained by fraud and misrepresentation and that the petitioner was never served and he was never accepted as tenant by Shamsuddin and that the issue of subletting was decided against the landlord and such decision was not challenged in any appeal. In respect of the decision of the Supreme Court of Pakistan dated 25-8-1988, it was argued that petitioner did not go to the Supreme Court of Pakistan where petition of Shall Muhammad and others was dismissed and that the petitioner did not even issue notice about such petition. It was argued that application under section 12(2) of C.P.C. Was moved in the High Court, because the final order was passed by the High Court. It was further argued that even if the petitioner was trespasser he could not be ejected, in view of the decision in the case of (i) Abdul Bari and others v. Muhammad Ishaque (1983 CLC 2193). Learned counsel also cited the cases of (ii) M.G. Gazdar v. Manzoor Hussain (1985 CLC 2438), (iii) Muhammad Yousaf v Wali Muhammad (1984 CLC 1690, (iv) Mst. Mariam and others v.
Haji Ail and others PLD 1985 Kar. 705; (v) Malik Inayatullah v. Government of Pakistan PLD 1985 Pesh.
23; (vi) Government of Sind and others v. Chaudhry Fatal Muhammad and others 1986 SCMR 1838; and (vii) Mansab A.I v. Amir and others PLD 1971 SC 124.
9. In (i) above, the Rent Controller struck off defence of the main tenant without deciding the issue if that tenant had sublet the premises to two others, whose possession was held to be protected on the ground that the writ of possession issued against the main tenant cannot be enforced against the others. One of whom was not in possession and the other was not adjudged to be sub--tenant.
In present case the decision was given on merits after recording of evidence. In (ii) above, it was observed that section 12(2) of C.P.C. Was applicable to the orders of the Rent Controller while in (iii) above it was held that section 12(2) of C.P.C. Was not applicable to the rent proceedings and that an ex parte order of Rent Controller can be challenged under section 9 of C.P.C. On ground of fraud, In (iv) above, it was observed that the persons who were not parties to the suit were not bound by the decree passed in such suit and they were not competent to move an application under section 12(2) of C.P.C. Challenging the validity of the decree. In (v) above the view taken was that an application under section 12(2) of C.P.C. Challenging an ex parte decree could be moved within three years from the date of accrual of the right of appeal and that an application under section 12(2) of C.P.C. Was not barred if the decree or the order being challenged were appealable. In (iv) above, the Supreme Court of Pakistan simply granted leave to appeal to consider if section 12(2) of C.P.C. Would not be attracted to a case where the party failed to take plea of fraud and misrepresentation. No any rule was laid down under the cited order. In (vii) above, it was held that when mandatory condition for exercise of jurisdiction was not fulfilled then all the proceedings which followed became illegal and without jurisdiction This was in a matter where criminal case of an accused was referred to Jirga without his being heard
10. Learned counsel for respondents Nos.4 to 17 supported the application of the petitioner. He argued that First Rent Appeal No. 164 of 1985 and First Rent Appeal No. 144 of 1985 were heard on different dates and were decided on 27-3--1988 and that such decision was not on merits, because the appeals were held to be time-barred. It was argued that a number of documents were filed to show that the suit land was a Government land and it did not belong to the respondents Nos. 1 to 3 and that the orders passed by the Rent Controller and by the appellate authority were without jurisdiction. Learned counsel cited the cases of (i) Ismail Brothers v.
Kewalram PLD 1981 SC 545, (ii) Tanweer Jamshed and another v. Raja Ghulam Hyder 1987 SCMR 2006. (iii) Government of Sind and another v. Chaudhry Fazal Muhammad 1986 SCMR 1838, (iv)
Bego Khan v. Ghulam Muhammad and others PLD 1988 Peshawar 162, (v) Ibrahim and another v.
Abid A.I and others 1988 CLC 1027 and (vi) order dated 9-3-1986 passed by the Sind High Court in First Rent Appeal No. 138 of 1985.
11. In (i) above, a civil suit was filed challenging the ejectment order granted by the Rent Controller, set aside by the Additional District Judge and restored by the High Court whose order was not interfered with by the Supreme Court of Pakistan, which refused leave to appeal. Under the cited judgment issuance of interim injunction in favour of the occupant was held justified but no rule was laid down on the point at issue. In (ii) and (iii) above, leave to appeal was granted by the Supreme Court of Pakistan without laying down any rule to be followed. In (iv) above the view taken was that a Civil Court had jurisdiction to examine cases where provisions of the statute had not been complied with or where statutory tribunal had not acted in conformity with fundamental principles of judicial procedure or of natural justice and likewise the civil Court could also go into the proprieties and legality of an order passed by a Collector in a pre-emption suit where decree of pre-emption was obtained on the basis of tenancy rights. 1n (v) above, a learned single Judge of this Court took view that any order passed by a Rent Controller without jurisdiction was not binding on the parties and the plea of limitation in filing appeal against such order cannot be pressed into service. In (vi) above, a review petition was ordered to be heard by a Division Bench, said order does not lay down any rule of law.
12. Learned counsel for respondents Nos. 1 to 3 repeated the grounds mentioned in the objections filed in this case. His first objection was that this application under section 12(2) of C.P.C. Should have been moved in the Supreme Court of Pakistan, which had passed the order dated 25-8-1988 refusing leave to appeal against the High Court order dated 27-3-1988. It was conceded that petitioner Bashir Ahmed had not moved the petition for leave to appeal to the Supreme Court but it was added that he was respondent in that case. Learned Counsel pointed out that before filing a petition for leave to appeal in the Supreme Court of Pakistan the petitioner had to intimate to all the respondents his intention to file such petition and that Shaft Muhammad and others, petitioners before the Supreme Court must have intimated to petitioner Bashir Ahmed that they were moving petition for leave to appeal in the Supreme Court against the order of the High Court dated 27-3-1988. It was further argued that under the new amendment of section 22 of the Sind Rented Premises Ordinance, the Rent Controller had been empowered to determine all questions arising between the parties relating to execution of his orders and consequently there was no scope for application of section 12(2) of C.P.C. It was further argued that in view of Article 189 of the Constitution of Pakistan the decision of the Supreme Court dated 25-8-1988 was binding on all the parties including the petitioner. It was also argued that order of the Rent Controller was merged in order of the High Court, which was again merged in order of the Supreme Court of Pakistan. It was further argued that the order passed on 24-1-1970 cannot be challenged in 1988 and that the order dated 31-5-1988 was appealable. It was argued that petitioner Bashir Ahmed filed his written statement in 1968 and he cannot say that he came to know of the rent proceedings in 1981. It was added that on 6-12-1975 petitioner Bashir Ahmad was represented by Mr. Obedullah Advocate, a junior of Mr. Kaze Munawar A.I, when deposition of P.W. Abdul Sattar Ex. 75 was recorded in presence of said Advocate who was given chance to cross-examine said witness. It was added that petitioner Bashir Ahmed was party in Civil Appeal No. 71 of 1976 and Civil Appeal No. 89 of 1976 against the order of the Rent Controller dated 24-1-1976. Learned counsel argued that the petitioner could not have filed his affidavit without filing his written statement in rent case and that in his appeal (First Rent Appeal No. 164 of 1985) the petitioner did not take the plea that some body else had filed written statement on his behalf. In support of his contentions learned counsel for the respondents Nos. 1 to 5 cited cases of (i) Muhammad Yaqoob v. Nooran etc. 1983 CLC 1948; (ii) Mst.
Rukha Rafiq and another v. Malik Muhammad Ishaq and others 1986 CLC 1211; (iii) Mst. Zaibunnissa v. Sultan and others 1986 CLC 1520; (iv) Ghulam Sarwar v. Muhammad Hussain and others 1987 SCMR 1440; (v) Majida Begum v. Sh. Zulfiqar A.I and another 1987 CLC 309; (vi) S. Sharif Ahmed v.
Chairman. Screening Committee 1987 SCMR 367; (vii) Karachi Development Authority v Fatima Bai and others 1985 MLD 1496 and (viii) Mamoor Khan v. Nasiruddin and others 1985 CLC 130.
13. There is force in the contention of learned counsel for the respondents Nos. 1 to 3 that since the matter went up to the Supreme Court, hence the application under section 12(2) of C.P.C. Should have been moved before said Court and not before this Court, where the First Rent Appeal No. 164 of 1985 was dismissed. Section 12(2) of C.P.C. Says that validity of a judgment or a decree or an order can be challenged on the plea of fraud, misrepresentation or want of jurisdiction by moving an application before the Court which passed "final judgment, decree or order". The order of learned Rent Controller dated 28-5--1.985 was merged in the appellate judgment dated 27-3-1988.
The appellate judgment was merged in order of the Supreme Court of Pakistan dated 25-8---1968.
The theory of merger has been propounded in the cases of Muhammad, Yaqoob v. Nooran and others 1983 CLC 1948 and Mst. Rukha Rafiq and another v. Malik Muhammad Ishaq and others 1986 CLC 1211 where the view taken was that the lower Court's judgment merges into the judgment of the appellate Court and consequently an application under section 12(2) of C.P.C. Challenging validity of the judgment and the decree of the trial Court on the plea of fraud or misrepresentation can be moved only in the Court where final judgment or order was passed. Similar view was taken by this Court in case of Mst. Zebunnissa v. Sultan and others 1986 CLC 1520 where reference was made to the case of Shabbir Hussain v. Anwar Sultana decided by this Court. No counter argument on this point was advanced by learned counsel for the petitioner who did not cite any authority taking converse view. Learned counsel for the petitioner put main stress on his contention that the order of learned Rent Controller dated 28-5-1985 was void and without jurisdiction. The existence of relationship of landlord and tenant between the parties was affirmed in an earlier order of the Rent Controller dated 24-1-1976. Although the matter was remanded in appeal do 29---3-1978 but finding of the Rent Controller about existence of relationship of landlord and tenant between the parties was not disturbed. After the decision of the Appeals (Nos. 79 of 1976 and 89 of 1976) on 29- 3-1978, the petitioner did not challenge before any forum the finding about existence of relationship of landlord and tenant between the parties. Consequently, the petitioner cannot ignore such finding while contending that the Rent Controller had no jurisdiction in the matter. Since the respondents Nos.4 to 17 and Bashir Ahmed were tenants of Shamsuddin in the rented premises, the Rent Controller had jurisdiction in the matter, I am unable to agree with learned counsel for the respondents Nos. 1 to 3 that section 22 of Sind Rented Premises Ordinance as amended on 12-5- 1986 has taken place of section 12(2) of C.P.C. Language of section 22 of said Ordinance as amended shows that it is in substitution of section 47 of C.P.C. And it has not taken place of section 12(2) of C.P.C.
14. After getting the case by remand, learned Rent Controller recorded evidence and then passed the impugned order dated 28-5-1985 ordering ejectment. He did not strike off defence of the main tenant or of any sub-tenant. Hence the case of Abdul Bari and others v. Muhammad Ishaq 1983 CLC 2193 would not be applicable to this case.
15. Learned counsel for the petitioner advanced a funny argument that some body else was put in the trial Court as petitioner Bashir Ahmed. That the person Impersonating Bashir Ahmed filed written statement on 11-10-1968 and signed a Vakalatnama in favour of M/s. Noor Ahmed and Saeeduddin Advocates on 6-7-1968. Learned counsel for the petitioner wanted the Court to compare the disputed signatures with the admitted signatures. 'Disputed signatures of Bashir Ahmed appear on the written statement filed on 11-10-1968 as Ex. 8 and on the Vakalatnama Ex. 6 dated 6-7-1968. Subsequent written objections Ex. 203 filed on 27-10-1983 bear admitted signatures of Bashir Ahmed. All the signatures mentioned above appear to have been made by the same person, although some variations are there. These variations are of trivial nature. It is worthy to note that depositions of D.W. Khan Muhammad Ex. 14 and P.W. Abdul Sattar Ex. 75 were recorded in presence of Advocate for the petitioner. Advocate for the petitioner did not choose to cross- examine Abdul Sattar Ex. 75 when examined on 6-72-1975. Abdul Sattar filed his affidavit Ex. 153 and then he was cross-examined by Mr. Jamali Advocate who represented all the opponents including the petitioner. In these circumstances, there is no scope to perceive that somebody else impersonated Bashir Ahmed in Court of learned Rent Controller.
16. There is force in the contention that the plea raised now about the order of the Rent Controller being void and of no legal effect, was not raised during the first round of litigation which went up to the Supreme Court of Pakistan. Consequently such plea does not deserve being accepted. Similar situation arose in the case of Majida Begum v. Zulfiqar A.I and others 1987 CLC 309, where plea of fraud was not raised at an earlier stage of litigation but it was taken for the first time through medium of review application and it was held that such plea could not form basis for review. In the case of S. Sharif Ahmed 1987 SCMR 367 it was observed that a void order is not always to be struck down regardless of the consequences of such a decision although it must be struck down provided there is no statute or principle of law making it unjust or inequitable to do so. However, the petitioner has failed to establish on record that the impugned order dated 28-5-1985 passed by the Rent Controller is void and of no legal effect. Since order of [lie Rent Controller dated 28-5-1985 was within the jurisdiction of the Rent Controller, hence no fault can be found with the appellate order dated 27-3-1988 which appears to be legal and intra vires.
17. It is unfortunate that the respondents Nos. 1 to 3 got a favourable order from the Rent Controller on 28-5-1985 but they have not been able to reap fruit of such an order, although the same was maintained upto the level of the Supreme Court of Pakistan, where the petitioner was one of the respondents. It cannot be believed that the petitioner had no knowledge of the proceedings in the Supreme Court of Pakistan. After losing the matter up to the Supreme Court of Pakistan, the petitioner has filed the present application which is motivated to further delay execution of the order dated 28-5-1995.
18. In view of my above discussion, I hold that the present application (C.MA. No. 1962 of 1988) is not maintainable in law, is without any basis and appears to be frivolous with a motive to deprive respondents Nos. 1 to 3 of reaping the fruit of the order dated 28-5-1985 as long as possible.
Consequently, the same stands dismissed with costs of Rs. 1,000 (Rs. One thousand) to be paid by the petitioner to the respondents Nos. 1 to 3. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.