' In this revision petition judgment and decree dated 20-12-1965 pas by learned Additional District Judge, Jhang has. Been challenged whereby the final decree for possession through partition passed by the learned Civil Judge, Jhang dated 10-4-1991 was maintained while dismissing the appeal.
2. Brief facts of the case are that a suit for partition of the house detailed in para. No,1 of the plaint situated in Mauza Civil Station Jhang Sadar was field by Sultan on 4-5-1985 against Allah Ditta and Noor Muhammad defendants. During the pendency of the suit, the plaintiff having come to know through written statement filed by first two defendants arrayed Ghulam Muhammad , as defendant No,3 vide amended plaint dated 11-4-1985. Later on Ghulam Muhammad died and consequently his legal representatives were impleaded as defendants Nos.3 to 9 by way of another amended plaint dated 25-2-1989. The plaintiff claiming himself as co-sharer to the extent of 1/6 + 5/12th share filed the suit for partition. He was recorded as owner in the Revenue papers to the extent of 1/6th share. He had purchased three Marlas from co-sharers Allah Bukhsh, Muhammad Bakhsh, Ahmad Bukhas (sons of Makhna) Qaim-ud-Din, Umar-ud-Din, Kareem-ud-Din and Ahmed Din (sons of Sadar Din).
3. During the trial of the suit Allah Ditta defendant did not appear and was proceeded ex parte vide order dated 19-5-1985. The remaining defendants filed their written statement raising various objections and on the pleadings of the parties following issues were framed:
(1) Whether the plaintiff has no cause of action and locus standi to bring the suit? OPD
(2) Whether the valuation of the suit for the purposes of court-fee and jurisdiction is wrongly determined? OPD.
(3) Whether the suit of the plaintiff is false, frivolous and vexatious and the defendants are entitled to special costs under section 35-A, C.P.C.? OPD.
(4) Whether the plaintiff is entitled to a decree for possession through partition? OPP.
(4-A) Whether the suit is not maintainable in view of preliminary objection 5 of the amended written statement? OPD.
(5) Relief.
4. Learned trial Court after considering the evidence of the parties on the record decreed the suit to the effect that the plaintiff Sultan is entitled to partition of the house to the extent of 25/42th shares while the remaining 17/42th is the ownership of the defendants. Consequently a preliminary decree was passed and Syed Salem Raza Bokhari, Advocate was appointed as local commission to effect the partition at the spot after giving notice to the parties in the light of the provisions of rules 13 and 14 of the Order XXVI, C.P.C. Thereafter, final decree was passed by the learned Civil Judge on 10-4- 1991, against which an appeal was filed by Noor Muhammad etc., on 27-5-1991 without filing copy of the decree therewith. It was stated that the decree sheet has not been prepared and its copy will be filed as soon as it is prepared by the trial Court. Copy of the decree was not filed till 20-12-1995 and the learned Additional District Judge finding that the copy of the decree has not been filed by the appellants, he dismissed the appeal being not maintainable vide the impugned judgment and decree dated 20-12-1995. It was observed by the learned Appellate Couit that: . "It is now an admitted position that the final decree was based upon a report of the Local Commissioner which was not objected to by the parties and the decree was in fact prepared on 16th June, 1991 which Is on the file of the trial Court but the appellants have not obtained its copy uptil now and no application for obtaining the copy was filed.
5. The appeal is not maintainable for not filing the copy of the decree. The appeal shall be deemed to have been properly instituted on filing the copy of the decree and by now the same has become barred by time."
5. . Learned counsel for the petitioners has contended that appeals without decree could also be filed and as such the learned Appellate Court wrongly dismissed the appeal being not maintainable. In support of his plea, he has 'relied upon Haji Jehanzeb v. Khalid Khan (PLD 1983 Peshawar 215). This judgment .Is not of any help to the petitioners. It was observed therein that the appeal filed without copy of decree was admitted to regular hearing because of lack of checking by the Officer of Appellate Court and found correct and office failed to point out the omission in time when still time to file appeal had not run out. In these circumstances it was held that in absence of the decree-sheet the appeal was incompetent. Presentation of defective appeal should be carefully scrutinised at initial stage to remedy defects. After the appeal has passed through stage of admission through oversight of the office, then the fair and rational course to adopt was to adjourn the hearing of the appeal with the direction that the appellant should produce the certified copy of the decree as soon as it is obtained. If it was not so done, the litigant deserved to be protected. As the office of the District Judge was equally negligent in not pointing out that the appeal was defective being not accompanied by a decree-sheet, resulting in its admission the District Judge was directed to pass an order condoning delay in filing copy of the decree-sheet and decide appeal on merits.
6. In the present case it was stated by the petitioners that the copy of the decree has not been prepared and it shall be filed as and when it is made available to them. The impugned judgment shows that the petitioners have not even applied for the decree. The appeal was filed on 27-5-1991 and was dismissed on 20-12-1995 being not maintainable for lack of filing of copy of the decree.
Above judgment is, therefore, of no avail to them.
7. Similarly the petitioners have relied upon Baseer Ahmad Siddiqui v., Shama Aforze (1988 SCM R 892). In this case copy of decree-sheet was supplied after period of limitation as the same was not supplied by the Trial Court. The ' respondent obtained requisite copy and filed 'alongwith an application for condonation of delay. The appeal was disposed of without adverting to petitioner's objection and question of limitation. High Court taking view that requirement of Order XLI, Rule 1, C.P.C. To the effect that copy of decree shall be accompanied with memorandum of appeal was a directory provision and the respondent not being at fault in not obtaining a copy of decree from trial Court and copy of decree having been received by appellate Court alongwith record of suit was sufficient to satisfy this requirement. Supreme Court declined to interfere holding that in substance High Court had condoned delay in submitting decree-sheet by respondent after filing of appeal.
' This judgment again is not relevant as in the instant case the petitioners have given an undertaking that copy of the decree-sheet shall be supplied as and when the same is prepared and in spite of fact that decree was prepared till the final date of hearing the petitioners did not supply. Even they did not apply for the same.
8. Abdul Majeed and 6 others v. Mst. Haleema and 18 others (1987 CLC 2331) fully supports the view taken by the learned Appellate Court. In this judgment it has been held: "The production of a copy of the judgment can be dispensed with by the Appellate Court but a copy of the decree appealed from must be filed alongwith the appeal. Undoubtedly when the trial Court did not prepare the decree-sheet, the District Judge should have granted time to the appellant to get the decree prepared and filed with the appeal during the period of limitation. The appeal was filed on 21-1-1985 and the copy of the decree-sheet was not appended with the file till 28-5-85 when the appeal was decided. The petitioners did not bother to apply to the trial Court for preparation of the decree nor did they care to ask the District Judge to direct the trial Court to prepare a copy of the decree. They did not move any petition for the condonation of delay as envisaged under section 5 of the Limitation Act, 1908. They did not know when the decree-sheet was prepared and they were indolent for a period of more than four months in filing the copy of the decree-sheet.
' In these circumstances the Appellate Court was, held, justified to dismiss the appeal.
Above-referred judgment is fully applicable to the facts and circumstances of the instant case.
Neither the petitioners applied to the trial Court for supply of the certified copy of the decree nor they moved the Appellate Court for direction to the trial Court for preparation of the decree. The appeal remained pending before the Appellate Court from 27-5-91 to 20-12-1995 and despite expiry of more than four years, the petitioners failed to file the copy of the decree-sheet, although they undertook to file the same as soon as it was prepared. Provisions of Order XLI, rule 1, C.P.C.
Regarding filing of decree-sheet alongwith memorandum of appeal are mandatory in nature which have not been complied with by the petitioners. The impugned judgment and decree cannot be held to be illegal in any manner whatsoever. The Appellate Court was left with no alternative but to dismiss the appeal being incompetent.
' For the above reasons, there is no force in the revision petition which is dismissed. No order as to costs.
Revision dismissed.
1996 CLC 1616 [Lahore] Lefore Raja Muhammad Khurshid, J Mirza NAZEER AHMAD BAIG---Petitioner versus ADDITIONAL DISTRICT JUDGE, KASUR and 2 others---Respondents Writ Petition No,21 of 1996, heard on 15th May, 1996.
(a) Constitution of Pakistan (1973)--- ----Art. 199---Constitutional jurisdiction, exercise of---Petitioner's conduct--Relevancy--- Constitutional jurisdiction is based on equity and good conscience---If a party comes with unclean hands, it should not be granted any legal indulgence. [p. 1618] A
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----Ss. 13(6) & 15(5)---Tentative rent order----Non-compliance of tentative rent order---Striking off defence---Tenant who failed to comply with order of Rent Controller with regard to deposit of arrears of rent up to specified date and to tender future monthly rent of premises, had contended that he was ill and remained admitted in a private clinic when tentative rent order was passed--- Once it was found that order of Rent Controller requiring deposit of arrears of future rent was not complied with striking off defence of tenant wasjustified--- Mere fact that tenant was ill and remained admitted in a private clinic, would not absolve him of his liability to pay rent fixed by Rent Controller to be paid within specified period as anybody could have deposited rent on his behalf if he was ill. [p. 1619] B Pir Inayat Shah v. Agha Muhammad 1982 SCM R 1195; Syed Muhammad Zaman v. Abdul Khaliq 1991 SCM R 1982 and Muhammad Yousaf v. Muhammad Bashir and others 1990 SCM R 557 ref. Shaukat Ali Mehr for Petitioner.
Hafiz Muhammad Hanif for Respondents.
Date of hearing: 15th May, 1996.
' The petitioner being a tenant under the respondent was directed to deposit monthly rent at the tentative rate of Rs,1,000 regarding the house in question vide order dated 12-9-1995 passed by the Rent Controller. It was directed in the order that the petitioner shall deposit the arrears of rent at the aforesaid rate from April, 1994 to September 1995 before the next date 9f hearing i,e,, 2-10-1995 .And shall continue to deposit future rent before 15th of each succeeding month. The petitioner did not comply with the order, whereupon a petition under section 13(6) of the Rent Restriction Ordinance, 1959 was moved on 3-10-1995 by the landlady respondent, to strike off the defence of tenat/petitioner. A notice in this petition was issued for 11-10-1995. The petitioner/tenant took up the plea that actually monthly rent was Rs,300 and according to the latest assessment by the Excise and Taxation Authorities, it was Rs,500. It was denied that the rent was ever settled at the rate of Rs,1,000 per month as alleged in the ejectment petition. It was further contended that order dated 12-9-1995 was initially void as it was passed on the misconception that the petitioner had admitted the rate of rent as Rs,1,000 in the written statement. Besides, a plea was raised that the petitioner was taken ill and was admitted to a private hospital from where he was discharged on 6-10-1995 and as such had no knowledge of order dated 12-9-1995, whereby the tentative monthly rent was fixed. It was, therefore, alleged that since order dated 12-9-1995, was void ab initio, therefore, the default flowing from it was not tenable under the law. However, the plea of petitioner was not accepted and his ejectment was directed by the learned Rent Controller vide order dated 15-10- 1995. An appeal against that order was filed, which was dismissed by Rana Zahid Mehmood, learned Additional District Judge, Kasur vide order dated 20-12-1995. It was held in appeal that the petitioner had committed wilful default as he had failed to comply with the order of learned Rent Controller and that he also failed to comply with the order passed under section 15(5) of the Rent Restriction Ordinance during the pendency of appeal.
3. In this writ petition the orders of learned Rent Controller and the Appellate Court aforementioned are challenged on the ground that the impugned orders were not sustainable in the eye of law as initially order dated 12-9-1995 was void ab initio having been based on misreading of written statement, whereby it was never admitted that the rate of rent was Rs,1,000 per month. Secondly, it was submitted that the petitioner had contended in written statement that an advance of Rs,20,000 was given to the landlady for repair of the house, but the same was not carried out nor the amount was refunded. Therefore, there was no default at all.
4. The learned counsel for the respondent/landlady contended that the writ petition was not maintainable as the petitioner had challenged order dated 12-9-1995 in W.P. No,13075/95, but the same was dismissed in limine. However, this fact was not mentioned in this petition, which amounted to suppression of material facts and as such the petitioner was not entitled to discretionary relief because he had approached the Court with soiled hands. The previous writ petition having been dismissed on 1-10-1995, the petitioner/tenant failed to deposit the rent as directed by the Rent Controller and as such the default had become patent on its face. It was contended on merits that the respondent/landlady had demanded Rs,1,000 as monthly rent vide paragraph 2 of her ejectment petition but in the written statement the petitioner/tenant put up a total denial, though evasively. It was, however, contended in reply to the application moved under section 13(6) of the Rent Restriction Ordinance that the monthly rate of rent was Rs,300 at the time of start of tenancy, which according to Excise and Taxation Authorities came to Rs,350 on 1-7-1989 and thereafter it had become Rs,500 and that it was never Rs,1,000. However, it was neither stated in the written statement nor in reply to the aforesaid application as to what was the actual rent, which was being paid by the tenant to the landlady. In such a situation, the learned Rent Controller had correctly fixed the tentative rent as Rs,1,000 per month vide order . Dated 12-9-1995 and its violation rightly culminated in striking off the defence of petitioner/tenant. It was, therefore, alleged that the concurrent findings on the question of fact cannot be interfered with in the writ jurisdiction, which can only be upset if such findings are without jurisdiction, arbitrary or capricious. Since the petitioner/tenant had been evasive to spell out correct rate of rent, therefore, the tentative rent fixed by the learned Rent Controller was allegedly correct and legally maintainable.
5. The learned counsel for the petitioner, however, submitted that the tentative rent fixed by the Rent Controller had not legal basis because monthly rent at the rate of Rs,1,000 was never admitted in the written statement. It was further contended that the rent at the alleged rate was totally denied in corresponding paragraph 2 of the written statement and as such the learned Rent Controller should have fixed the tentative rent at the rate of Rs,300, which was actual rent settled at the time of execution of rent deed. It was, therefore, alleged that since order dated 12-9-1995 was based on misreading of written statement, therefore, all the subsequent orders based on it would crumble down.
6. I have considered the arguments and have also gone through the record. First of all I would like to say that the petitioner approached this Court by suppressing the fact that a writ petition regarding fixation of tentative rent was filed and the same was dismissed in limine by this Court.
The equity and decency of the legal norms required that such a material fact should 'have been given in the present writ petition so as to avoid any misleading judgment. However, it was brought to the notice of this Court by the opposite-party that the petitioner had already unsuccessfully challenged the tentative fixation of rent through a writ petition aforementioned and as such having not approached this Court with clean hands, the present writ petition was not maintainable. It is settled law that the writ jurisdiction is based on equity and good conscience. If a party A comes with unclean hands it should not be granted any legal indulgence.
' The instant case cannot be treated as an exception to the above rule. On this premises alone the writ petition would be considered not maintainable.
7. Even on merits, the petitioner/tenant remained waivering and never came up with clear contention regarding the rate of rent. Even till today, it has not been claimed as to what is correct rate of rent, which he has been paying to the respondent/landlady. He has been only setting up vacillating pleas that the rent was actually fixed as Rs,300 per month at the time of execution of rent deed on 9-7-1979.- However, the rate of rent was shown as Rs,350 or Rs,500 as subsequent years in the record of Excise and Taxation Department and as such it was claimed that the rent was never fixed at Rs,1,000 nor the same Was admitted to be correct. However, as stated above the petitioner never clearly stated as to what was the correct rate of rent; which he was paying to. The landlady/respondent. This shows that the petitioner was approbating and reprobating at the same time regarding rate of rent and in such a situation, the learned Rent Controller had rightly fixed the tentative rent of Rs,1,000 per month, which was claimed by. The landlady, and under the circumstances does not appear to be arbitrary or fanciful. Its violation clearly attracted the provisions contained in section 13(6) of. The Rent Restriction Ordinance and the defence of the petitioner was rightly struck off. Mere fact that the petitioner had alleged in reply to the application for striking off defence that he was taken ill and remained admitted in a private clinic would not absolve him of his liability to pay the rent fixed by the Rent Controller within the period specified by him. Anybody on his behalf could deposit that rent as held in Pir Inayat Shah. v. Agha Muhammad (1982 SCM R 1195). Likewise striking off defence of the tenant was justified one it was found that the order of Rent Controller requiring deposit of arrears and future rent was not complied with.
Reference to Syed Muhammad Zaman. v. Abdul. Khaliq (1991 SCM R 1982) would support the proposition. Similarly failure of the tenant/petitioner to deposit future rent as directed by the Appellate Court also invokes the same principle. Delay in depositing the rent of two days in the Appellate Court alio remained unjustified and as such principle laid in Muhammad Yousaf. v.
Muhammad Bashir and others reported in (1990 SCM R 557) will be .Attracted to the case in hand.
8. In view of my above discussion I do not find any plausible Justification nor there is any patent or latent illegality in the impugned orders calling for interference by this Court in writ jurisdiction. The petition is accordingly dismissed. The cost to follow the event.