1. This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 26-4-1993 passed by learned II-Senior Civil Judge and Rent Controller, Karachi Central in Rent Case No. 165 of 1988 (Muhammad Ramzan Ghauri and another v. Safdar Ali Khan) whereby an application under section 12(2) and an application under Order 1, Rule 10, C.P.C. Filed by the appellant were dismissed hence this appeal.
2. The brief facts are that one Mian Allah Rakha father of respondents Nos.1 and 2 had inducted respondent No.3 as tenant in respect of Property No.7, Block-IV-C, Nazimabad. Karachi, admeasuriqg 600 Sq. Yds, as per agreement dated 19-9-1969 where the respondent No.3 was carrying on business in the name of A-One Cleaners in Shop Nos. 3 and 4. Thereafter, the said Allah Rakha in the year 1973 gifted the said property to respondents Nos. l and 2 who filed Ejectment Application No.3270 of 1974 against respondent No.3 and the said matter was compromised and fresh tenancy agreement was executed between respondents Nos. l and 2 on one part and respondent No. 3 on the other part on 23-8-1981 consequently Rent Case No. 3270 of 1974 was disposed of on 10-9-1981 but thereafter respondent No.3 failed to pay rent therefore Ejectment Application No. 1057 of 1988 was filed by respondents Nos. l and 2 against respondent No.3 on the ground of default .In the payment of rent but the respondent No.3 in his written-statement stated that he was depositing rent in Miscellaneous Rent Case No.4286 of 1985 therefore, the respondents Nos. 1 and 2 did not pursue the ejectment case but thereafter the respondents Nos. l and 2 filed another Ejectment Case No. 165 of 1988 in the Court of II-Senior Civil Judge and Rent Controller against respondent No.3 on the ground of default, personal need and impairing the material value and utility of the property which application of ejectment was allowed on merits as per order dated 15-4-1990, against which respondent No.3 filed F.R.A. No.243 of 1990 which appeal was dismissed for non-prosecution on 8-11-1990 thereafter restoration application was also dismissed on 1-9-1991 and then second restoration application was also dismissed on 15-9-1992 and then the respondent No.3 against the last order of this Court made application for leave to appeal before the Supreme Court of Pakistan by means of Civil Petition No.468-K of 1991 which too was dismissed on 28-12-1991, whereafter the respondents Nos.1 and 2 filed execution application before the 11-Senior Civil Judge and Rent Controller, Karachi Central for writ of possession against respondent No.3 where the present appellant Ali Asghar moved an application under section 12(2) and another under Order 1, Rule 10, C.P.C. Which applications were heard and dismissed as per impugned order against which the present appeal has been preferred.
3. I have heard the learned counsel for the parties and perused the record and proceedings and case-law cited by the parties.
4. Mr. Izhar Alam Farooqui, learned counsel for the appellant, has argued that in the ejectment proceedings (Rent Case No. 165 of 1988) he was made party and the respondents Nos. l and 2, being in collusion with the respondent No.3 got ejectment order passed in respect of the property in dispute against him though he was co-tenant with the respondent No: 3, should have been joined as party in the proceedings, therefore, the said ejectment order was obtained by the respondents by fraud and misrepresentation hence was liable to be set aside under section 12(2) of the C.'P.C. He has placed reliance upon Fazal Elahi Mills v. Miss Abida Reasat Rizvi (1993 SCM R 226), Abdur Rahim and others v. The State (1993 SCM R 668),.Rama Motibhai v. Dalwadi Tupoo (AIR 1956 Bombay 264) and Habib Ahmad v. Muhammad Siddiq Mazhari (1990 ALD 228) in support of his contention.
5. Mr. S.A. Majed, learned counsel for the respondents, had argued that the appellant is not co-tenant of respondents Nos. l and 2 but has been set up by respondent No.3 to obstruct and delay the execution of the order passed by the competent Courts and in support of his contention has relied upon the certified true copies of the proceedings between the respondents Nos. l and 2 on one part and the respondent No.3 on the other part filed by him.
6. Learned counsel for the respondents Nos. l and 2 has filed the following documents with this case: - -
(i) Certified true copy of Rent Case No.3270 of 1974 wherein the respondents Nos. l and 2 alongwith their brother had sued the respondent No. 3 ,Safdar Ali under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
(ii) Written-statement filed by respondent No.3 Safdar Ali in Rent Case No.3270 of 1974.
(iii) Certified true copy of the application for withdrawal of Rent Case No.3270 of 1974.
(iv) Certified true copy of Miscellaneous Rent Application No.4286 of 1985 filed by respondent No.3 under section 10 of Sindh Rented Premises Ordinance, 1979 requesting the Rent Controller to allow him to deposit the rent in Court and order passed by the Rent Controller.
(v) Certified true copy of application field by respondents Nos. l and 2 and their brother Muhammad Mukhtar for withdrawal of rent, deposited by respondent No.3 Safdar Ali.
(vi) Certified true copy of application moved by respondents Nos. l and 2 their brother Muhammad Mukhtar for withdrawal of rent deposited by respondent No.3 Safdar Ali.
(vii) Certified true copy of application filed by respondents Nos. l and 2 and their brother Muhammad Mukhtar deposited by respondent No. 3 Safdar Ali.
(viii) Certified true copy of application moved by respondents No. l and 2 and their brother Muhammad Mukhtar for withdrawal of rent deposited by respondent No.I Safdar Ali.
(ix) Certified true copy of Rent Case No. 1057 of 1988 filed by respondents. Nos. l and 2 against respondent No. 3 Safdar Ali under section 15 of the Rent Ordinance.
(x) Certified true copy of written-statement filed by respondent No.3 Safdar Ali in Rent Case No. 1057 of 1988.
(xi) Certified true copy of statement of rent deposited by respondent Safdar Ali in Rent Case No..
7. 1057 of 1988.
(xii) Certified true copy of counter-affidavit filed in Civil Suit No.208 of 1992 by present appellant Ali Asghar Against respondents Nos. 1 to 3.
8. (xiii)Certified true copy of order passed on an application under Order 39, Rules 1 and 2, C.P.C.
9. Learned counsel for the respondents Nos.1 and 2 has argued that the above certified true copies would show that present appellant was not co-tenant of the respondents Nos. l and 2 when the respondent No. 3 even in the written-- statement filed in Rent Case No.3270 of 1974 did not say that the present appellant was co-tenant with him in respect of the property in question. The Rent Case No.3270 of 1974 was also compromised between the respondents No. l and 2 on one part and respondent No. 3 on the other part but there was no existence of present appellant. Respondent No.3 made application under section 10 of the Rent Ordinance in Miscellaneous Rent Application No.4286 of 1985 for the deposit of rent but in that application also respondent No.3 Safdar Ali did not say that present appellant was co-tenant of the premises in dispute with him. Respondents Nos. l and 2 and their brother Muhammad Mukhtar withdrew the rent but even then appellant did not come forward to say anything in the Rent Case No. 1057 of 1988 which was filed by respondents No. l and 2 against respondent No.3 and then also there was no existence of present appellant. In the written-statement filed by respondent No.3 in Rent Case No. 1057 of 1988 on 12-2-1989 there was no existence of present appellant, even the rent was being deposited by Safdar Ali. The appellant for the first time came into picture when he filed Suit No. 208 of 1992 in the Court of I- Senior Civil Judge, Karachi Centralin which respondent Safdar Ali filed counter-affidavit supporting the appellant Ali Asghar by stating that he was not made party by respondents Nos. l and 2 in the Rent Case No. 165 of 1988.
10. In fact the said appellant appeared on the scene only after the dismissal of petition for leave to appeal filed by respondent No.3 in the Hon'ble Supreme Court of Pakistan prior to that there was no mention of appellant Ali Asghar at all, as he was not tenant of the respondents Nos. l and 2. Order dated 22-8-1993 passed on an application under Order 39; Rules 1 and 2, C.P.C. In Suit No. 208 of 1992 would also show that the appellant Ali Asghar failed to prove prima facie case for the grant of temporary injunction so much so, that the plaint filed by the appellant was rejected as being not maintainable under the law. The counsel for the appellant has also produced photostat copy of an order passed in F.R.A. No.243 of 1990 on an application (C.M.A. No. 398 of 1995) wherein the appellant has prayed to set aside the ejectment order dated 15-4-1990 passed by the II-Rent Controller, Karachi Central but the said application was also dismissed as not maintainable on the ground that the appeal filed by appellant Safdar Ali was dismissed in default on 28-10-1990 and thereafter three restoration applications one after the other were dismissed and the last was dismissed on 15-9-1991 and the said Ali Asghar has now claimed to be the co-- tenant with Safdar Ali the respondent No.3. It was further observed in the said order that it was within the jurisdiction of the II-Rent Controller to entertain and decide the applications moved by appellant Ali Asghar under section 12(2) and Order I, Rule 10, C.P.C. In Rama Motibhai v. Dalwadi Tupoo (AIR 1956 Born.
11. 264) case it was observed that one owner on behalf of all co-owners can maintain an action but if an action is to be against a tenant then all the co-owners must be joined. In Rent Case No. 165 of 1988 both co-owners/landlords had sued the tenant Safdar Ali for ejectment, therefore, the cited case is distinguishable to the facts of the instant case. In 1993 SCM R 226 and 1993 SCM R 668 it will be seen that there is no such case of present nature, perhaps there has been some misquotation by the learned counsel for the appellant. Learned counsel for the respondents has placed reliance upon Allah Dad v. Board of Revenue, Sindh and 5 others (PLD 1981 Kar. 73) case wherein the learned Judge in Chamber observed that if the contents of affidavit of the appellant are not controverted by the other side then the contents of the same shall be deemed to have gone unchallenged.
12. Government of Sindh and another v. Chaudhry Fazal Muhammad and another (PLD 1991 SC 197) wherein the Hon'ble Supreme Court has held at page 200 that "a perusal of provisions of section 12(2) of C.P.C. Would show that a person could challenge the validity of (i) judgment, (ii) decree or
(iii) order on the plea of (a) fraud, (b) misrepresentation and (iii) want of jurisdiction by application to the Court which passed the final judgment, decree or order". In the case of Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCM R 917) the Hon'ble Supreme Court has held at page 925 that "question whether third party was not party to the rent case can file application under section 12(2), C.P.C. Before Controller, came up for consideration in the Supreme Court before the same Bench, which seized of the present appeal in an unreported case of Mst. Fehmida Begum v.
13. Muhammad Khalid and another in Civil Appeal No.8-K of 1989, in which the unanimous conclusion is that a stranger to the proceedings or a third party in such circumstances has two remedies open to him. He can apply to the Rent Controller under section 12(2), C.P.C. For recall or review of order passed on fraud or file a separate suit but he can pursue only one remedy which he has initiated first or earlier in point of time, because having done so, his right to the other remedy shall stand forfeited in order to avoid conflict of opinion in two forums------We, therefore, hold that the said suit was competently filed and his application under section 12(2), C.P.C. Was liable to be dismissed by the Rent Controller on the ground stated above." In the instant case the appellant field an application under section 12(2), C.P.C. On 17-5-1992 and thereafter had filed Suit No.208 of 1992 and the plaint was rejected under Order 7, Rule 11, C.P.C. On 22-8-1993 whereas the application under section 12(2), C.P.C.-was dismissed on 26-4-1993 thereby followed both forum of remedies instead of one but in both forums appellant failed. In the case of Mst. Hasina Khatoon and 2 others v. United Bank Limited and 6 others (1991 M LD 1088) the learned Judge in Chamber at page 1093 observed that "when it is clear that an application under section 12(2), C.P.C. Is, on its very face, improper, mala fide and having been made only to protract the proceedings and to abuse the process of Court, it can be dismissed without framing any issue or recording any evidence". In the case of Bashir Ahmad v. Muhammad Farooq and 15 others (1989 M LD 433) the learned Judge in Chamber at page 440 has observed that "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 up to 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 28-5-1985."
14. In the instant case it would be observed that respondent No.3 Safdar Ali who was a tenant of respondents Nos. 1 and 2 continued to be a party in the proceedings from 1974 till the Ejectment Case No. 165 of 1988 was field, by respondents Nos. l and 2 against him and then the said respondent No. 3 filed F.R.A. No.243 of 1990 which too was dismissed and thereafter three restoration applications were also filed by the respondent No.3 and he too made a petition for leave to file appeal against the order of dismissal of the .Appeal, before the Hon'ble Supreme Court which too was dismissed on 28-12-1992, till then, the present appellant was not on the scene but appeared in the execution .Proceedings after the disposal of petition to leave to appeal by the Supreme Court of Pakistan. This all would show that this appellant Ali Asghar was set up by respondent No.3 to obstruct and cause delay in the execution of orders lawfully passed by competent Courts and got filed Suit No.208 of 1992 and in application under section 12(2), C.P.C.
15. Which on the face of it were mala fide made with the object of obstructing the execution of lawful orders and the learned Rent Controller was justified in rejecting the application under Order 12(2) as well as an application under Order 1, Rule 10, C.P.C. Considering that the appellant was not co- tenant at all in view of the evidence on record.
16. The contention raised by the counsel for the appellant have no merit and substance, consequently the appeal is dismissed with costs.