JUDGMENT ; Khawaja Ghulam Rabbani respondent is in occupation of Shop No.V/485 Sauri Gali Nimak Mandi, Rawalpindi, as a tenant. Muhammad Saleem Qureshi and Muhammad Saeed Qureshi respondents, claiming to be the landlords thereof, filed an ejectment petition on 18-4-1987 under the Rent Restriction Ordinance against above-mentioned Khawaja Ghulam Rabbani, who submitted reply on 6-7-1987 and then on 26-7-1987. The case of the landlords was that the shop had been gifted to them by their father Muhammad Azeem Qureshi (the writ petitioner) vide registered deed dated 26-4-1982, Khawaja Ghularn Rabbani had become a tenant under them at a monthly rent of Rs.2,500 which he had failed to pay since April, 1982 and furthermore, the shop was required ingood faith for personal use. The pleas were controverted by Khawaja Ghulam Rabbani. He denied the relationship of landlord and tenant and asserted that he was tenant since long under Muhammad Azeem Qureshi, the writ-petitioner, at a monthly rent of Rs.1,000 which he had been paying regularly, rather he had advanced an amount of rupees two lacs to him under an agreement dated 30-4---1987 rupees five hundred were adjusted from the said advance money and Rs.500, rupee paid each month. He also pleaded that the landlords must get their title cleared from the Civil Court and that he had learnt about their claim of gift when notice was served upon him by the said landlords in 1987.
2. The ejectment petition was at the stage of framing of issues when on 26---7-1987 the learned Rent Controller recorded the statement of Najam Naeem, the son and attorney 9f Ghulam Rabbani respondent (whose statement was again recorded on 4-10-1987) and the defence of the tenant was struck of and ejectment order passed. This order was not appealed against by Khawaja Ghulara Rabbani. The tenant. Instead, Muhammad Azeem Qureshi, the original owner and the father of the two landlords, preferred an appeal which was dismissed by a learned Additional District Judge, Rawalpindi, vide order dated 5-3-1988 mainly on the ground that he had no locus stand to file the appeal.
3. The order of the Rent Controller dated 4-10-1987 and that of the learned Additional District Judge dated 5-3-1988 have been challenged by Muhammad Azeem Qureshi, the original owner of the property, in this writ petition. His case is that there is no gift from him to his sons, the gift deed was the subject of a civil suit filed by him, he was the actual landlord and not his sons and that the ejectment order adversely affected his interests and so he was an `aggrieved person' and thus entitled to prefer the appeal.
4.The foremost question that falls for determination is whether Muhammad Azeem Qureshi, the writ-petitioner, is an `aggrieved person'. If the answer is the positive, then the appeal against the order of the Rent Controller granting ejectment was competent on his behalf and the failure to dispose of the same on its merits amounted to refusal to exercise jurisdiction by the learned Additional District Judge. Before the learned Additional District Judge reliance was placed upon H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 and Shehzad Ahmad v. Muhammad Hayat and others PLD 1983 Lab. 234 by the learned counsel for the petitioner, but it appears from the impugned order that without appreciating and discussing the full scope of the reports and by making a passing reference to Haji Syed Ainullah v. Abdul Rashid 1985 SCM R 1991, relied upon by the opposite side, the learned Additional District Judge proceeded to short--circuit the discussion to hold that the petitioner had no locus standi to file the appeal in the light of the statement of Najam Naeem, the attorney of Khawaja Ghulam Rabbani, the tenant. Even in the case relied upon by the respondents' side before the learned Additional District Judge, the principle laid down was that where the petitioner who wanted to be impleaded as a party under Order 1 Rule 10 C.P.C. Was not a necessary party to the proceedings, he could not be said to have the locus stand to file appeal in the High Court. So, the question that was to be addressed by he learned Additional District Judge was whether the writ --petitioner (appellant before him) was a necessary party to the ejectment proceedings. This aspect he failed to take proper note of. In Saya's case it was clearly laid down that if the decree or order appealed from adversely affects a person, he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings. The same dictum seems to have been followed in Ghulam Hyder v. Muhammad Haneef and others PLD 1979 Kar.
167. It was laid down that an `aggrieved party' as used in section 15 of the Urban Rent Restriction Ordinance means not a party to a case, but any person p aggrieved by an order and claiming. That the order complained against is prejudicial to him and affects his interests adversely. Even in Shehzad Amhad's case, referred to above, it was observed that section 15 of the Ordinance covered all orders passed by the Rent Controller, appellate authority or the High Court and these cannot be called in question except as provided under the Ordinance itself, either by the parties to the proceedings or by any person whose interest is adversely affected although he may not be a party of the proceedings.
5. In view of the principles laid down and the observations made in the above cases, it is to be seen whether, in the circumstances of the case, the petitioner can be said to be an aggrieved party.
After hearing the learned counsel for the parties and going through the record, the answer must be in the positive. It is clear from the pleadings of the ejectment petition, that the petitioner was admittedly the owner of the disputed shop and the claim by his sons, i.e. The two landlords- respondents, was 'based upon a gift deed in their favour executed in 1982, who did not serve notice upon the tenant under section 13-A of the Ordinance until April, 1987. It is also to be noted that right from the E date of execution of the gift deed, i.e. Since April, 1982, admittedly no rent was paid to the landlords by Ghulam Rabbani the tenant. The case of the tenant also was that he was a tenant under the petitioner and had been regularly paying rent, so much so that he had even advanced an amount of rupees two lacs to him under a written agreement and a part of the rent was to be deducted/adjusted from the said advance, as indicated above. But when the better statement of the attorney of the tenant was recorded by the Rent Controller, in an oblique manner, the tenancy which was previously denied, was admitted and it was in view of this admission that the defence was struck of and ejectment order passed by the learned Rent Controller. Not only this, but note must also be taken of the application made by the petitioner before the Additional District Judge to bring on the record certain documents which had come into existence after the filing of the appeal.
In this connection, we have on the record the statement of Khawaja Ghulam Rabbani as a witness for the respondents-landlords in another ejectment petition recorded on 14-12-1987 (Annexure `H').
While going through this statement one can well imagine and judge the contradictory stand of Ghulam Rabbani respondent and even the falsehood which he dared to commit on oath. He stated that the property had been gifted to the sons under a registered gift deed by Muhammad Azeem Qureshi petitioner. He was an attesting witness to the gift deed. He admitted that previously he used to pay rent to the petitioner but when he received notice from the respondents-landlords he started paying rent to them. He admitted that Muhammad Saleem Qureshi respondent was the father-in-law of his son and he himself was in possession of Shop No.V/485 (the disputed property of the present writ petition). He denied the suggestion that in the ejectment petition of the landlords (with respect to Shop No.V/485) he had denied the title of the landlords and asserted that he had admitted them as landlords. Now this clearly is a false statement. He denied the suggestion and thus again told a lie by saying that in that ejectment petition he had denied the relationship of landlord and tenant. He admitted that the ejectment petition of the landlords had been granted against him vide order dated 4-10-1987 and that he had not filed any appeal against the same. He came up with the version that there had been a compromise between them orally as they were all related, but he declined to give the details of the compromise on the plea that it was their family affair. He told he had paid rent up to August 1987 to Muhammad Azeem Qureshi petitioner to whom he had advanced an amount of rupees two lacs under a written agreement in which it was recited that the advance money was with respect to the shop on rent with him, but at the same time he had the tongue in his cheeks to say that the advance was not with respect to his tenancy. When confronted with a definite question in this respect, he carne out with the clear statement that the deduction was made from the advance money towards the rent of his shop.
Thus, the position that crystallises is that the landlords claimed their relationship on the basis of the gift deed executed in their favour by their father and after more than five years of the execution thereof they served notice upon Ghulam Rabbani respondent (under section 13-A of the Ordinance) who, as is clear from his statement, is a close relative of the parties and he initially denied the tenancy but later on admitted the same, allowed his defence to be struck of and ejectment order passed, against which he did not file appeal, and thus the '" order certainly adversely affected the writ petitioner whose claim was that he had not made any gift, still continued to be the landlord and admittedly had filed a Civil suit challenging the gift deed. The conclusion is, therefore, inescapable that the petitioner was certainly on `aggrieved party' and thus had the locus stand to file the appeal. The failure to hear and adjudicate the appeal on merits was an r abdication of the exercise of jurisdiction vesting in the learned Additional District Judge, and so the writ petition is the only proper remedy for correcting the jurisdictional fault.
6.In view of the fact that the petitioner had already filed a civil suit challenging the gift deed, further argument was raised that the writ petition was not the proper remedy, rather the proper remedy (civil suit) had already been availed of by the petitioner. In this connection, learned counsel for the petitioner referred to Rehmatullah v. Ali Muhammad and another 1983 SCM R 1064 and Mir Salah- ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221 to highlight his difficulty in the situation. The question of title, even if decided by a Rent Controller, the decision is final and not open to challenge in Civil Court on the principle of general res judicata, the provisions contained in section 12(2) read with section 9 C.P.C. And section 15(7) of the West Pakistan Urban Rent Restriction Ordinance. The principle laid down and the exceptions thereto are well brought out by the Supreme Court in Rehmatullah's case (referred to above) and a passage quoted in, Mir Salah-ud-Din's case may be reproduced with advantage:- "A matter involving even a dispute of title having once obtained finality in the Rent Controller's forum (including the hierarchy of appeals and thus the appellate and superior Courts), cannot be reagitated in a suit before a Civil Court of general jurisdiction, inter alia, because of principle of general res judicata, the provisions contained in section 12(2) C.P.C. Read with section 9 C.P.C. And, the provisions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance 1959 ,as amended). Exception: held some possible exceptions to this rule have also been spelled out in the same case of Rehmatullah. They are that the finally attachable to the orders passed under the Rent Restriction Laws by different forum will be neutralised when the order itself says that it is not final regarding a particular issue and that the same could be reagitated in the Court of general jurisdiction; or, when otherwise the said order in itself conveys a clear undisputed intendment that it is not final and visualises a final determination by a Court of general jurisdiction as was in the case of Rehmatullah; or, when the relevant issue is determined on the basis of doubts; or when the party concerned itself instead of getting the final determination in that hierarchy gives up the contest therein with a positive statement in this behalf, so as to agitate the question before Court of general jurisdiction which in some cases would be at the risk of a temporary adverse conclusion and/or action against him,"
7. I, therefore, accept the writ petition, set aside the impugned order of the learned Additional District Judge and direct that the appeal filed by the petitioner shall be considered as pending, he being an `aggrieved party', and the same would be decided on merits, including the application for production of additional documents. If the Additional District Judge and or the Rent Controller in their jurisdiction under the Rent Restriction Ordinance feel that the question of title is so complicated that it cannot be decided in the proceedings under the Ordinance before them, then the parties may be referred to get the same decided from the Civil Court in general jurisdiction. The parties are left to bear their own costs.