1. ' This. First Rent Appeal is directed against the order dated 31st May, 1988; passed by the learned III Senior Civil Judge and Rent Controller, Karachi, dismissing application filed by the appellant under section 12(2), C.P.C. For setting aside the ex parte order passed by the learned Rent Controller on 5- 11988.
2. ' The brief facts giving rise to the present First Rent Appeal are that on 14-1-1987, respondent Mst.
3. Mumtaz Begum filed an ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979 against the appellant Munir Ahmed stating therein that he is her tenant in respect of ground floor tenement situated on Plot No, 240 Block 7-8, C.P. And Berar Housing Society, Karachi, on monthly rent of Rs,2,500 payable in advance by 5th of each calendar month; for which the receipt had to be obtained. The opponent was further liable to pay one-half of water and conservancy charges. That the opponent never paid rent in time and in the past the applicant waited till 5th and thereafter sent receipt of advance payment of rent which was paid by the opponent after some days. That in the month of October, the applicant waited for payment of rent till 5-10-1986 and thereafter sent receipt in advance of payment of rent. After some days the opponent sent Rs,2,000 through his son and when balance of Rs,500 was demanded from Aslam Ahmed Khan, the'son of opponent, he refused to pay the same saying that he has deducted Rs,500 from monthly rent for repairs allegedly carried out by him in the premises. The applicant was never informed about necessity of any repairs for which she might be responsible under the terms of Tenancy Agreement. There was no question of repairs as the premises were given to the opponent only ten months back after renovation and in good condition. The untileral act on the part of the opponent in deducting Rs,500 from rent after obtaining receipt for Rs,2,500 is against the terms of tenancy as well as against the law/equity and good conscience. That the applicant cancelled rent receipt for October, 1986, showing Rs,2,500. By legal notice dated 22-10-1986, as explained above, he asked the opponent to return the said receipt and having committed default in payment of rent he was asked to vacate the premises. The opponent falsely denied that he had paid Rs,500 less vide reply dated 8-11-1986. That since the opponet has failed to pay the amount of Rs,500 towards rent of October, 1986, and his share of water and conservancy charges 1986-87, he is defaulter and is liable to be ejected. She also filed copy of Agreement as Anx. "A", copy of notice dated 22-10-1986 as Anx. 'B' and reply of the opponent dated 8th November, 1986 as .Anx. 'C' and the bill paid by her and the demand notice as Anx. "D" and Anx. 'E'. That the opponent was served with notice and he filed his written statement in which he admitted the relationship and rate of rent. However, it was further stated that he had paid Rs,310 to the applicant in the month of September, 1986 as half share of water and conservancy charges. The applicant promised to send the receipt but it was never sent. However, since the relations between the parties were cordial the opponent did not insist for issuance of receipt and it was why there was no allegation in the notice dated 22nd October, 1986, regarding non-payment of water and conservancy charges. That the opponent has been paying the rent regularly on the due date but when the applicant and her son delayed in issuance of rent receipt the opponent suspected foul play and tendered rent by money orders and has been doing so till today. The contents of paras. 3, 4, 5 and 6 of the application were denied being false. It was further stated that the factual position regarding payment of water and conservancy charges has been explained in para 1 of the written statement. That the applicant is not entitled to any relief and the application is liable to be dismissed. It was further stated that Rent Agreement was insufficiently stamped and, therefore cannot be received as evidence. That the application was frivolous and vexatious and she wants to sell the bungalow and, therefore, has filed this ejectment application.
4. ' Alongwith the written statement, he has filed photostat copies of rent receipts for the rent paid in January, 1986 to September and October 1986. He has also filed bill regarding payment of electricity and photostat copy of money order sent on 5-114986 and thereafter.
5. ' In support of the contention of the applicant, her son and Attorney Aslam Ahmed Khan had filed his own affidavit in which he has reiterated the facts mentioned in the application. He has also filed Special Power of Attorney as Ex.4-A. However, since Aslam Ahmed Khan was not cross-examined nor any evidence was led by the opponent in rebuttal, the learned Rent Controller was pleased to pass ejectment order on 5-1-1988. That on 14-4-1988, the opponent/appellant filed an application under section 12(2) and 151, C.P.C. Inter alia alleging therein that in September, 1987 he was transferred from Karachi to Sukkur and while he and his family were leaving for Sukkur after locking rented premises, the applicant and her son Muhammad Aslam came down and inquired from him as to whether he was vacating the premises. The opponent replied that he has been transferred to Sukkur and will vacate the premises as soon as he gets suitable accommodation. On which the applicant and his son volunteered that they will withdraw the ejectment case, if that was the situation. The applicant further requested the opponent to pay the rent to her directly instead of tendering it by money order. That after a few days, the opponent came back to Karachi and stayed in the house. He met the applicant and her son and they informed him that the ejectment case has been withdrawn and he would pay them rent directly. On 20th September, 1987, the opponent came to Karachi and tried to contact the applicant and her son in order to make payment of rent but could not meet them. In the above circumtances, he sent rent for October, 1987 by money order on 14-10-1987, and on the coupon of money order form, recited their assurance that they had withdrawn the ejectment case filed against him. That in the above circumstances, the opponent could not contact his Advocate as on one hand he was transferred to Sukkur and on the other hand, he was assured by the applicant and her son that they had withdrawn the case against him.
6. That on 9th November, 1987, the opponent came to Karachi and met the applicant and her son and paid them rent for the month of October, 1987. However, since the applicant is an old lady, she asked her son Aslam Ahmed Khan to pass on receipt under his signature and he while doing so in presence of witnesses re-affirmed that he had withdrawn the ejectment case. Since the opponent used to come to Karachi with his official duties without any schedule he could not contact the applicant or her son and, therefore, sent rent for the months of November and December, 1987, January, February and March, 1988 by money order which was duly received by the applicant; On one hand, Aslam Ahmed Khan attorney and son of the applicant used to receive rent and on the other hand he misrepresented the fact that the case has been withdrawn. However, in the Court, he filed a false affidavit that the opponent had removed all house hold effects and had just put lock in order to retain possession without making any payment of rent, and in this way, obtained ex parte order by practising fraud upon the Court. That on 12th April, 1988, the opponent came to Karachi where he saw that the applicant had put her own locks on the demised premises and the household effects of the opponent were lying inside. That on inquiry, he came to know about ex parte eviction order. He contacted his Advocate on the same day who told him that applicant's son and attorney Aslam Ahmed Khan had told him that the opponent had taken away his entire household articles and put locks on the demised premises just to retain the possession and caused difficulties in her way. By this, the Advocate was made to understand that the opponent had vacated the premises. That alongwith the above application photostat copy of the money order form, receipt regarding payment of rent and receipts regarding money order were filed. In addition thereto affidavits of Abdul Ghaffar and Muhammad Siddique were filed.
7. ' A notice of the above application was sent to the applicant/respondent, who filed a preliminary objection, that the application under section 12(2), C.P.C. Is not maintainable.
8. ' The learned Rent Controller after hearing the Advocates for the parties came to the conclusion that the application was not maintainable and accordingly the application was dismissed.
9. ' I have heard Mr. Maroof All Khan, learned counsel appearing for the appellant, Mr. Muhammad Saleem Qureshi, learned counsel appearing for the respondent and have gone through the R & P of the case.
10. ' It was contended by Mr. Maroof All Khan, learned counsel appearing for the appellant that the appellant had paid rent of Rs, 2,500 towards rent for October, 1986 and, such receipt was issued by the respondent. That as far as the water and conservancy charges were concerned, the appellant had paid Rs,310 to the respondent which is supported by the fact that the respondent did not ask the appellant in her notice to pay the said charges, and had only mentioned the fact regarding non-payment of Rs,500. Even thereafter the respondent had been accepting rent which is clear from the receipts and money order coupons produced by the appellant. That the above facts clearly show that the respondent had obtained ex parte order mala fide and that the respondent and her son had asked the appellant that they have withdrawn ejectment application and, therefore, he continued to send rent to them by money order. That from the above circumstances it was clear that the appellant was not a defaulter and the ex prate order was obtained by fraud. He has further contended that application under section 12(2) C.P.C. Was maintainable and the learned Rent Controller had erred in holding that the said application was not maintainable in law.
11. In support of his contentions he has relied upon:-
(1) 1986 CLC 903
(2) 1989 CLC 937
(3) 1983 SCMR 1421
(4) 1989 SCMR 237 ' Mr. Muhammad Salim Qureshi, learned counsel appearing for the respondent has contended that the application under section 12(2) C.P.C. Was not maintainable in law and, therefore, the learned Rent Controller has rightly dismissed the said application. As far as the other contentions of Mr. Maroof All were concerned, the same could be adjucated upon only by the learned Rent Controller, if the application was held to be maintainable. In support of his contentions, he has relied upon:--
(3) 1986 CLC 2471 ' I have considered the contentions of the learned counsel. Since the application filed by the applicant under section 12(2) C.P.C. Has been dismissed by the learned Rent Controller, on the ground that it was not maintainable and he has not gone into factual aspect of the application, I agree with Mr. Muhammad Salim Qureshi that it is not necessary for me to go into the factual aspect of the application and to decide the same one way or the other. As far as the question regarding maintainability of the application was concerned, Mr. Maroof All Khan has relied upon the following cases:--
(1) Shabbir Hussain v. Mst. Anwar Sultana thorugh her legal heirs 1986 CLC 903 wherein it was observed that:- "Where the order of the Rent Controller directing ejectment was confirmed by the High Court and Civil Petition for Leave to Appeal had also been dismissed by the Hon'ble Supreme Court, application under section 12(2), C.P.C. Could be filed only before the Court which passed the final judgment, decree or order. Even a separate suit after the amendment, introduced by Ordinance X of 1990 by incorporating subsection (2), of section 12, C.P.C. Could not be filed."
(2) Shafi Muhammad and 13 others v. Muhammad Farooq and others 1989 CLC 937; wherein the various orders passed by the learned Rent Controller were challenged by way of application under section 12(2) C.P.C. On the ground of fraud and misrepresentation. However, since the plea of fraud was not raised at an early stage but was taken at belated stage, it was held that:- "The present application was 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 fruit of the order dated 28-5- 1985 as long as possible and the application was dismissed."
(3) Ismail v. Gul Anayat Shah 1983 SCMR 1421; wherein leave was granted by their Lordships of the Supreme Court on the ground that the question whether the provisions of section 12(2) C.P.C. Are applicable to cases decided under Sindh Rented Premises Ordinance requires examination.
(4) Haji Abdul Rashid v. Chaudhry Fateh Muhammad 1986 SCMR 237; wherein the appeal was decided by the High Court by compromise of the parties by which the tenant was granted time for handing over possession. However, when, after the stipulated period, execution application was filed, the tenant filed an application under section 12(2) C.P.C. Challenging the compromise order of eviction on the sole ground that the counsel, who entered into compromise was not authorised by him to do so. The High Court was pleased to dismiss the application on the ground that the tenant had taken benefit under compromise and had filed application only after execution application was filed and, therefore, the application was dismissed. The tenant filed petition before the Hon'ble Supreme Court for Leave to Appeal but the same was dismissed on the ground that the learned Judge in the High Court has rightly observed that he was not satisfied by the delay which showed that after enjoying the benefits under the order, the petitioner thought it fit to challenge it only when he was obliged to vacate the premises.
12. ' Mr. Muhammad Salim Qureshi, learned counsel appearing for the respondent has relied upon the following cases:--
(1) Saify Development Corporation Karachi v. MA. Karim. PLD 1974 Kar. 426; wherein it was observed that:-- "It is well established that an executing Court cannot go behind the decree and, if it is claimed that the decree is wrong or even that it is fraudulent or for any other reason nullity executing Court cannot entertain any such objection.
(2) Malik Muhammad Shafi v. Muhammad PLD 1982 Lah. 702 it was held that:-- "In view of the words 'suit', 'Court', 'Code', 'judgment' and 'decree' used in section 12, it appears that it is a provision which applies to suits and not to application made to the Rent Controller under the Rent Restriction Ordinance."
(3) Muhammad Yousuf v. Wali Muhammad and another, 1984 CLC 1690; it was held that: "The provisions of section 12(2), C.P.C. Do not apply to the rent proceedings and if the ex parte judgment or order was obtained by practising fraud, suit was maintainable under section 9 C.P.C.
13. ' There are two more decisions which support the learned counsel for the appellant that section 12(2), and Order IX C.P.C. Could be applied in ejectment matters.
14. ' In the case of Mamoor Khan v. Nasiruddin alias Nasir Muhammad and 5 others 1985 CLC 130, it was held by this Court that: "By now it is well settled that the provisions of section 12(2) C.P.C. As well as Order IX C.P.C. Can be availed of by the parties litigating before Rent Controller."
15. ' In the case of M/s. Bambino Ltd. v. M/s. Selmor International Ltd. And another PLD 1983 SC 155, it was observed by their Lordships that: "Although the Civil Procedure Code was not applicable in terms to proceedings before Rent Controller by its own force, the Rent Controller was free to follow, the equitable principles contained in the Code of Civil Procedure. There is no reason, therefore, to take a different view so far as the provisions of the Sindh Rented Premises Ordinance are concerned, which governed the proceedings for execution of the order in this case."
16. From the above decisions relied upon by the learned counsel appearing on both sides, it is clear that although the earlier view taken by this Court as well as Lahore High Court was that section 12(2), C.P.C. Was not applicable to the rent proceedings but subsequent decisions of this High Court go a long way to show that section 12(2), C.P.C. Was applicable to the cases decided under the Sindh Rented Premises Ordinance 1979. Even in the case of Haji Abdul Rashid, their Lordships of the Supreme Court did not say that the application under section 12(2), C.P.C. Was not maintainable under the law but the leave was refused because stand taken by tenant was unconscionable inasmuch as he had filed the application after reaping the fruits of the compromise. As far as the case of Ismail was concerned, the leave was granted to consider the question whether the provisions of section 12(2), C.P.C. Was applicable to the cases decided under the Sindh Rented Premises, Ordinance, 1979.
17. ' In the case of M/s. Bambino Ltd. v. M/s. Selmor International Ltd. And another PLD 1983 SC 155, it was observed by their Lordship of the Supreme Court that "The Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure."
18. In view of the above factual as well as legal position, I allow this appeal and set aside the impugned order. The matter is remanded back to the learned Rent Controller to decide the application on merits, after allowing the parties to lead evidence if any within two months from the date of receipt of this order. The learned counsel appearing for the parties are present in Court and they are directed to appear before the learned Rent Controller on 6-5-1990.
19. ' Mr. Muhammad Saleem Qureshi learned counsel appearing for the respondent/landlady is further directed to file objections if any regarding factual aspect of the application under section 12(2), C.P.C.