ORDER GUL ZARIN KAYANI, J. - This petition in extra-ordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 impugn decision dated 12.12.PW4 of learned Additional District Judge, Sialkot whereby a decision of learned Civil Judge lst Class, Sialkot exercising powers of Rent Controller in execution passed on 13.7.1994 was affirmed. Thus, the objection filed by the petitioner to the execution Of ejectment order were finally turned down. '
2. Subject-matter of dispute between the parlies was a residential house bearing Survey No. 2/428 Muslims Street. Water Works Sialkot City. Pervaiz Alamgir Sheikh alongwith his brother Khalid Jahangir held possession of it. It was given bv them on monthly lease to Tariq /^mjad-Buti at a monthly rental of Rs 1500/- in the month of June, 1990. Inducted tenant paid hall of the monthly rent i.e. Rs. 750/- in cash to Pervaiz Alamgir Sheikh and deposited the other half in the bank account of Khalid Jchangir. The arrangement for cash payment and deposit in bank account of the respective.Landlords continued till the month of April, 1992. Thereafter, there was a default in payment of monthly rent ' to both the landlords. Consequently, on 18.1.1993, Pervaiz Alamgir Sheikh instituted a petition for ejectment of Tariq Amjad Bull from the house on grounds of rent- default with effect from the month of May, 1992 to the month of December, 1992 and causing of damage to the house which had impaired its value and utility. Tariq Amjad Butt contested the ejectment application. His case in defence was that he had paid the monthly rent to Sheikh Muhammad Iqbal and his sister.^who owners of a half share in the house and therefore, was not a rent defaulter On any score. Furthermore, causing of damage to the house*impairing its value and utility was also controverted by him. * Following issues arose for dele*mffutlion in the ejectment case:--
(1) . Whether, the petition is not maintainable in view of preliminary objections No. I and 2 the reply? OPR
(2) Whether, the respondent has not paid the rent from May, 1992 to December, 1992 and therefore, he is wilful defaulter? OPP
(3) Whether, the respondent has consciously damaged the property and reduced the value and therefore, he is liable to ejectment? OPP it may be wrothwhile to observe that issue No. I reflected an objection regarding non-joinder of necessary"parlies to the ejectment case. Both sides gave evidence in support of their respective versions. On its examination, learned Rent Controller concluded in favour of Pervaiz Alamgir Sheikh and decreed ejectment from the house in his favour on 13.12.1993 and directed Tariq Amjad Butt to surrender possession of the house in his favour within one month. An appeal filed from the ejectment order by Tariq Amjad Bull was dismissed by learned Additional District Judge, Sialkol on 9.3.1994. This decision was not assailed further in writ jurisdiction and was- allowed to attain finality in law. Both the Courts, learned Rent Controller as well as the learned Appellate Judge had found that Tariq Amjad Butt was inducted in the house as a tenant by Pervaiz Alamgir Sheikh and his brother and that he had agreed and bound himself to pay the monthly rent to them in the manner shown above, it was further found that rent at the agreed rates of Rs. 1500/- per mensem was paid to them till the month of April. PW2. Therefore, Tariq Amjad Blip was not authorised in law to turn towards Sheikh Muhammad Iqbal Shall for payment of monthly rent to him from the month of may.
PW2 onward and that there was no record in proof of payment v. K-L.R. C.C. #tbs urged by Rana Nasrullah Khan, Advocate house, the petitioner could not be ejected #to #tbs At the hearing, it was forcefully that a co-sharer in possession of the #to #tbs Begu #to #tbs the #to #tbs to narrate that the objector Sheikh tbted a suit for partition ,for separating his imgir Sheikh in the Civil Court at Sialkot. Trial Court. Tariq Amjad But1 tenant in party to the suit for partition. If may'also Pervaiz Alamgir Sheikh had sold out his m widow of Ch. Abdu) Majid in the slim deed on 31.1.1994.
Rana Nasrullah Khan, efitioncr stated that his brother Khalid the house to the same lady. However, no ed at the hearing. As far the scale of the r Sheikh, a photocopy of sale-deed was the basis of it, Tariq Amjad But1 had 2(2), Civil P.C. For wiling aside of the Additional District Judge on the ground the house, Pervaiz Alamgir Sheikh was etmenl case against him. Petition under d on merit on 12.12.1994 by the learned decision was yet to be separately assailed lit in appropriate proceedings.
Therefore, rlerit. Learned Counsel also suggested the #to #tbs At this stagCj it was nccessar Muhammad Iqbal Shafi had also insti share in the house against Pervaiz Ala Aforesaid suit awaited adjudication in possession of the house was not made a be of some importance to "notice that share in the house to Mst. Shafqal of Rs. 1,75,000/- vide a registered sale Advocate, learned counsel for the ^ Jahangir had also sold out his share in record of the sale bv him was produe share in the house of Pervaiz Alamgj annexed with llic writ petition.
On presented a petition Under Section I decision given in his appeal by learned that after having sold out his share incompetent to proceed with (he eje Section 12(2), Civil P.C. Was' dismisse Additional District Judge, Sialkot. This by the erstwhile tenant Tariq Amjad 1 shall refrain from comments on it n" same course. #to #tbs xecution of the eviction order, to proceed, in appeal. #to #tbs of the eviction order again,si Tariq Amjad iSe from him: Execution petition" was filed t on it),4,1994.
Sheikh Muhammad Iqbal e eviction order. His case was that he the extent of a moiety in the house and. Cs#ipn of the house from the tenant on cution of the eviction order in favour of half share in the house lot he ownership of 13.7.1994. Learned Rent Controller turned #to #tbs Decree holder sued out execution Butt for regaining" possession of the hou in the office (if Rent Controller, Sialko Shafi objected to the execution of alongwith his sisters was co-owner to therefore, upon his taking actual poss 9.4.1094. Could not be disturbed; in exi Pervaiz. Alamgir Sheikh!
HcTr.Accd his Mst. Saeeda Begum. Vide order dated down the objections and allowed the c As said above, his decision was affirmed #to #tbs ed #to #tbs It shall'also be profitable to observe that ppeared as a witness in support of defence ed. Courts dealing with the ejectment ease: that he was nof entitled to reeeive.Rent Pervaiz Alamgir Sheikh and his brother, #to #tbs of rent l>v Tariq Amjad Bull to him. Sheikh Muhammad Iqbal Shall had a taken by Tariq Amjad Bull.
The learn had (bund against him; it was observ from the tenant'inducted in .The house. #to from it on the strength of an eviction order passed hy the Rent Controller in favour of Pervaiz Alamgir Sheikh, decree holder and the only remedy against him was a civil suit for partition of the house. In support of the proposition, learned counsel referred to the cases of Syed hharud-Hassan Rizvi v. Mian Abdur Rehman and others (1992 SGMR 1352) (Supreme Court of Pakistan) and Muhammad Bakhsh and 3 others v. KJutda Bakhsh and 3 others (1993 M LD 937 (Lahorc)) wherein it was found that a person originally inducted a tenant in property purchasing a part of it from One of his landlords and then filing suit for partition of the same wherein he was granted a preliminary decree could not he evicted unless in the partition suit filed hy him it was finally found that he had no claim to the property in question. The burden of the cases relied upon was that a tenant by purchasing a share in the properly of which he was previously a tenant became a co-sharer in it and, therefore, could not be ejected from it without a suit for partition. In the case of Syed Izhar-ur- Hassan Rizvi (supra), a two member learned Bench of the Supreme Court commented on the decision in the case of Nazir Ahmad v. Mst. Sardar Bibi and others by five members learned Bench of the Supreme Court reported as 1989 SGMR 913 which had taken the contrary view on the point at issue. Commenting on the proposition, their lordships of the Supreme Court in case of Nazir Ahmad in paragraphs (* and 7 of the judgment observed as follows:
6. We have heard the learned counsel for the petitioner at considerable length and are of the view that as per the record the findings of the Courts below are unexceptionable. The learned counsel for the petitioner here before us admitted that the petitioner entered into the shop in dispute as tenant under the respondent at a monthly rent of Rs. 40 Which was subsequently enhanced to Rs.
60. He also admitted the execution of the rent deed, In view of this clear and categorical admission, (he petitioner, notwithstanding the purchase by him of a certain share from the disputed property, could neither challenge the statute of the respondent as landlady qua the suit property nor the existence of relationship of landlord and tenant between the parties. Therefore, under no circumstances the petition for ejectment of the petitioner could be said to be incompetent and the Courts below were justified in holding so. Since the evidence produced by the petitioner at the trial to rebut the ground in the ejectment petition was nsufficicnt, so it cannot to said that the Courts below have decided the case vrongly.
7. The contention of the learned counsel that the petitioner having ecome owner is the suit property could not be proceeded against under the Rent lestriclion Ordinance has no merits. Admittedly the alleged sale transaction of a erlain share in the suit property took place during the pcndnecy of the ejectment proceedings. The Rent Controller who was exercising a limited jurisdiction unde the Rent Restriction Ordinance could not adjudicate upon the ownership rights o the parties. The petitioner is, therefore, at liberty to seek his remedy in the Civi Court as observed by the learned Judge in his Chambers". Independent of the proposition laid down by Hon'ble fhc Supreme Court in case of Nazir Ahmad, the facts on the basis of which decisipn of Hon'ble Supreme Court in case of Syec Izhar-ul-Hassan Rizvi proceeded were clearly distinguishable and made all the difference in the proposition of law enunciated by it. From paragraph 2 of the judgment of the Supreme Court in the case of Sycd l/har-ul-Hasan Rizvi, it was evident that the shop was rentec| out to the tenant by Mian Abdur Rehman (respondent No. I before the Supreme Court), his brother Abdul Manan and mother Mst. Sardar Begum on a rental of Rs. 250/- per mensem. Mian Abdur Rehman alone instituted an ejeclttient petition against the tenants on grounds of default and personal need of his son. During the pendency of the remanded appeal, Abdul Manan who was ont of the joint owners and a co-landlord of the property had sold out his share to the extent of 7/16th share in the shop in dispute in favour of the tenant through a registered deed. On the basis of the purchase of the share of Abdul Manan, the tenant had placed for dismissal of the ejectment petition against him on the ground that he was a co-sharer in the shop and could not be evicted therefrom. Additionally, the tenant in that case had filed a suit for partition of the shop on account of his purchase of the share of Abdul Manan and had also secured a preliminary detree in the suit. Upon these premisses, their lordships of the Supreme Court found that since He. Was a co-sharer in the property occupied by him previously as a tenant, his ejectment from it was not justified. Seen from the judgment of the Supreme Court, it was crystal clear that one of the admitted co-landlord hjid sold out his share in the property to the tenant. The tenant was relegated tojthc status of co-landlord who had sold out his share to him in the leased property.jAll the three, in case of Syed Izhar-ul-Hassan Rizvi (supra) were his collective landlords. One of them transferred his share in the leased property to the tenant which prevented his ejectment from the property. Additionally, a preliminary decree for partition was also made in favour of the tenant. These factors were absent in the case under consideration which turned it materially distinguishable fjrom the ratio in the cited case, In the case in hand, the control and management of the house was undisputably held by Pervaiz Alamgir Sheikh and his brother. They held its actual possession, it was they who inducted Tariq Amjad But1 as their monthly tenant in the house upon payment of Rs. 1500/- as rent per mensem to them. Admittedly, the tenant acted upon and abided by his agreement and paid half of the monthly rent in cash to Pervaiz Alamgir Sheikh and deposited the other half share of the monthly rent in the back account of Khalid Jahangir till the ihonlh of April. PW2. Record clearly showed that from the very inception of the tenancy in June. FWO till the month of April. >92 ihc tenancy-arrangement agreed upon worked satisfactorily. Thereafter, tcre was a default in the commitment by the tenant by altering his direction to heikh Muhammad Iqbal Shall, etc. And allegedly paid the rent to them. Written :cord to support payment of rent to them, was not forthcoming on file. Sheikh luhammad Iqbal Shafi and Iris sister Mst. Fahmida Shaini both appeared tis 'itness in support of the defence taken, by Tariq Amjad But1 in the ejectment ase. Learned Rent Controller as well as the learned Additional District Judge learly pronounced upon their falsity and held Tariq Amjad Bull as tenant in lossession of the house on behalf of Pervaiz Alamgir Sheikh and his brother Chalid Jahangir, In course of ejectment proceedings, Sheikh Muhammad Iqbal ihafi did not come forward to become a parly in them. They also did not prefer in appeal from the ejectment order passed against the'tenant at-1 he*, instance of 'er.Vaiz Alamgir Sheikh. Learned counsel lor the petitioner referred to the case ol \1isfri Allah Din r. Fa:til Muhammad and another (PLD 1991 S.C. 52) to urge that is non-parlv.To the ejectment case, no appeal could be filed from the decision of he Rent Controller by Sheikh Muhammad Iqbal Shaft etc. Be that as it may, a Inal determination by' the learned Rent Controller as well as the learned Additional District Judge in appeal on the status of Tariq Amjad Bull viz-a-vi: Pervttiz Alamgir Sheikh and his brother could not be upset and reviewed in execution by the learned Rent Controller. Additionally. Sheikh Muhammad Iqbal Shaft, his brother and sisters claiming a moiety in the ownership of the house, in question neither held its immediate nor-mediate possession. They had yet to establish their share in the ownership of the house in the civil suit for partition instituted by them. Tariq Amjad Bull was not pul in possession of the house by them either. On the other hand, it was Pervaiz Alamgir Sheikh and his brother Khalid Jahangir who gave the house in question on monthly lease to Tariq Amjad Butt and t ransferred its .Physical possession to him. I laving taken the possession of the house on tenancy from these two persons, the tenant was precluded to attorn to Sheikh Muhammad Iqbal Shall etc. For payment of renUto them. If the house in question had not been let out to Tariq Amjad Bull by Pervaiz Alamgir Sheikh and his brother, they were clearly entitled to maintain their possession on it without disturbance till its partition at the instance of the alleged other co-owners. If so, il the house was let out by them to a ten.Int by parting with its possession to him, on what principle of law or equity the alleged co-owners could deprive them of their possession of the house held through their tenant. Affirmance of such a proposition might lead to startling results, itshall tantamount to self-imposed partition of the alleged joint property which could cause manifold legal complications and hardships to a person in settled possession of the properly claiming to be its owner. Therefore, the petitioner had no right whatsoever to lake possession of the house from the acknowledged tenant of Pervaiz Alamgir Sheikh [Vol. XVI For the Petitioner. Muhammad Ayyub, Advocate.
For the Respondent: Ch. Muhammad Abdullah, Advocate.
Date of hearing: 10th January, 1995.
' CH. KHURSHID AHMAD, J. -- This application has been filed under Section 25-A of the West Pakistan Family Courts Act, 1964 Tor transfer of suit for restitution of conjugal rights tilled "Sooba Versus Mst.
Kaneez Bibi" pending in the Court of Mr.Muhammad Nasim Akhtar, Judge Family Court, Narowal to the Court of Mr.Shahid Rafique, Judge Family Court, Lahore where suit for dissolution of marriage titled as "Mst.Kaneez Bibi v. Sooba" was pending.
2. It has been submitted on behalf of the petitioner that since the petitioner was a lady and was ordinarily residing at Lahore therefore, the Judge Family Court at Lahorc had the jurisdiction to try the said suit and relied on Mehboob Ahmad v. Addl. District Judge (P.L.D. 1976 Karachi 978). It was further stated that both the suits were at preliminary stage and that the suit of the petitioner was filed prior in time and that the respondent was an influential person and the petitioner apprehended danger at the hands of respondent at Narowal.
3. The application was contested by the learned counsel for the respondent on the ground that the petitioner was not ordinarily residing at Lahore and he drew the attention of this Court to the address as given by the petitioner. He contended that House No. 675 Nilam Block, Allama Iqbal Town, Lahore was much beyond the status of the petitioner and if at all the petitioner was a servant' in the said house the same did not fall within, "ordinarily residing" at that place.
4. On all the dates of hearing the learned counsel for the petitioner was directed to instruct his client to, at least, put up appearance in the suit pending at Narowal of which she had sufficient notice and such notice was admitted in the present petition as well but the petitioner was abdurate and even today the learned counsel was desired to ask his client to put up one appearance at least before the Family Court at Narowal during the interregnum and that the appropriate orders shall be passed thereafter. The learned counsel refused to lake any steps in this matter and placed reliance on Mst. Nasim Akhtar r, Ali Hassan Niak (P.L.D. 1981 Lahore 134), wherein it was held that it was not necessary for the party to pul up the appearance in a suit which was sought to be transferred. The facts of the present case arc entirely different and the abduracy shown by the petitioner in the present case almost amounted to contumacious conduct and as such she did not deserve any indulgence in the matter. This matter was pending since 19-7-1994 and during all this time much of the public lime has been wasted by the present petitioner and, in tjic circumstances, is not entitled to any indulgence by this Court, at this stage for transfer of the suit for restitution of conjugal rights from Family Court Narowal to Family Court at Lahore. The prayer of transferring the suit from Narowal to Lahore is disallowed.
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5. The copy of nikahnama has been placed on the lile which shows that the parties were married on 8-3-1981 in Ward No.l Zafarwal, Tehsil Narowal District Sialkol and the copy of the suit for restitution of conjugal rights filed by Sooba in Family Court, Narowal also mentions the present petitioner, Mst. Kaneez Bibi, as resident of Ward No.l, Mohallah Tootianwala, Zafarwal and, in the circumstances I agree with the letlrned counsel for the respondent that the petitioner was putting up in Zafarwal but this suit was filed in Family C'ourt. Lahorc to procure cx parte decree.
6. In view of the above and expreising the suo mom powers vested in this court under Section 25-A of the West Pakistan Family Courts Act (Act No.XXXV* of 1964) the suit for dissolution of mlarriage titled Mst. Kaneez Bibi v. Sooba pending before Mr.Shahid Rcfique, Judge Family C'ourt, Lahore is withdrawn and transferred to Narowal where the same shall be heard and decided alongwith suit for restitution of conjugal rights tilled as Sooba v. Mst. Kaneez Bibi pending in the Family C'ourt, Narowal. T