JUDGMENT .
Petitioner No.1 obtained Bungalow No.130-C, People's Colony, Faisalabad on rent from Mian Nizam- ud-Din in the year, 1980. The rent note was executed and the same was renewed in the year 1985.
An application for ejectment was filed by Mian Nizam-ud-Din, in which issues were framed on 17- 10-1990 and the applicant was required to produce his evidence. Evidence was not produced on two dates of hearing and on the third date of hearing i.e. 21-1-1992 the application was dismissed on the statement of the learned counsel for the applicant that he had no instructions in the matter.
2. The respondents filed an application for ejectment of the present petitioners on the ground that they had purchased the disputed property from Mahmood Nadeem and Mahmood Saleem sons of Mian Nizam-ud-Din on 28-7-1992, the information regarding which was duly communicated to the respondents in the application but they failed to pay the rent as required. A notice in writing was also issued on 3-11-1992 which was refused service. The ejectment was sought on the ground of wilful default in payment of rent and personal need.
3. The application was resisted and on 7-7-1994 ex parte proceedings were ordered against the present petitioners and the applicants were ordered to produce their evidence. The Rent Controller, after recording the evidence of the applicants, passed ex pane order of ejectment on 13-2-1995.
4. The present petitioners made application for setting aside the order of proceeding ex parte passed on 7-7-1994 and ex parte ejectment order passed on 13-2-1994. The application was accompanied by vet another application under section 5 of Limitation Act Both the applications were supported by affidavits of the applicants as also the affidavit of Mian Mukhtar Ahmad Dhinga, Advocate. The applications were resisted but no counter-affidavit was filed by the present respondents. The application for setting aside the ejectment order was dismissed by the Rent Controller on 7-5-1995. An appeal against the said order also failed which was dismissed by Additional District Judge on 5-6-1995. Both the orders were impugned vide present writ petition.
5. While arguing the petition the learned counsel for the petitioners contended that Mian Mukhtar Ahmad Dhinga, Advocate, who was engaged by the present petitioners to defend them in the Court of Rent Controller, was in fact, in league with the applicants and had been supplying incorrect information regarding dates of hearing.
6. This plea was not taken before the Rent Controller or before the Appellate Court and the said Advocate had rather supported the case of the present petitioners. The petitioners cannot be allowed to raise this plea at this stage. The same is not worth consideration and is repelled.
7. The learned counsel for the petitioners has further contended that the absence before the Rent Controller was not wilful and the reasons as contained in the petitions were supported by the affidavits. No counter-affidavit was filed by the present respondents and as such sufficient cause was to be deemed to have been made out for non-appearance on the date of default; the petition was mala fide and there was not sufficient evidence on the file, even though the same was ex parte, which could justify the ejectment order; there was a dispute between the sons of Mian Nizam-ud-Din and Writ Petition No.11764/92 was filed by Mehmood Naeem son of Nizam-ud-Din in which two of his brothers were arrayed as respondents Nos.6 and 7 while the present respondents were arrayed as respondents Nos.8, 9 and 10 and petitioner No. 1 was also made a party as respondent No. 11. In the said writ petition this Court was pleased to pass the following order: "ORDER 9-12-1992.
4 Dr.A.Basit, Advocate.
Copies of this petition be sent to respondents Nos. l and 2 for para-wise comments and reports.
They are further directed to depute some officer well conversant with facts of the case to appear in Court on 13-1-1993.
2. Status quo meanwhilc, (Sd.)
Manzoor Hussain Sial, Judge The respondents had the knowledge of the institution of the said writ petition as also the order of status quo passed by the Court; the present petitioners had taken specific plea in reply to para. No. l of ejectment petition in their written statement and that the very institution of the ejectment application was mala fide and required to be dismissed on this ground alone. He further contended that the Rent Controller, in view of the controversy between the parties, was obliged to frame issues, put the parties to prove their respective plea and then to dispose of the application in accordance with law, but the learned Rent Controller dismissed the application on 15-2-1995 without recording any evidence, and placed reliance on Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79 and Islamic Republic of Pakistan Amjad A.I Mirza PLD 1977 SC 182 as also Muhammad Hussain v. Mian lqbal Salahuddin 1986 CLC 1441, Muhammad Shafique v. Mst. Zahida Begum and others PLD 1995 Lahore 561, Mst. Iqbal Jan v. Mst. Habab Jan and 9 others 1992 SCMR 935 and Ghulam Muhammad v. Mst. Sahiban PLD 1957 (W.P.) Lahore 624.
8. Learned counsel for the respondents denied the allegation of mala fide on the part of the respondents and on the merits of the submitted that the onus to prove sufficient cause was on the petitioners. They had to be very vigilant and that the petitioners were also required to show sufficient cause on their own part for non-appearance on the date fixed. Reliance was placed on Mt. Mahtab Kuer v. Mt. Birhmo and others AIR 1924 Allahabad 176, East Indian Railway Co. v. Messrs Sri Ram Mahadeo AIR-1924 Allahabad 177, Muhammad Hayat Bhatti v. The Official Assignee, Karachi 1983 CLC 1773 (Karachi) Sher Muhammad v. Said Muhammad Shah 1981 SCMR 212. The learned counsel also cited Mst. Tai Begum and another v. Sultan Khan and 12 others 1968 SCMR 193 and Abdul Shahid and another v. Sh. Azim Bakhsh PLD 1981 Supreme Court 200. The latter two citations relate to restoration of appeal and in my humble view not applicable to the case as at the relevant time section 5 of Limitation Act was not made applicable to Rule 19. Order 41. C.P.C.
9. I have considered the arguments of the learned counsel for both the parties and have given my anxious consideration to the arguments addressed at the Bar. The citations quoted at the Bar by the learned counsel for the respondents were not applicable as in the present case there was no material evidence before Rent Controller to decide whether the default was wilfill or there was sufficient cause for non-appearance of the petitioners or/and their learned counsel The only material on the basis of which the Rent Controller dismissed the application was the application and the reply thereto and the affidavits of the applicants and their learned counsel. The present respondents did not file any counter-affidavit to rebut the pleas taken in the affidavits and as such I am of the view that the dictum laid down by their Lordships in the Supreme Court in Abdul Karim v.
Muhammad Ibrahim 1976 SCMR 79 and Islamic Republic of Pakistan v. Amjad A.I Mirza PLD 1977 SC 182 was squarely applicable to the present case and it is held that the material on record as available on date was sufficient for acceptance of the application for' setting aside orders dated 7- 7-1994 and 15-2-1995 and placing reliance thereon the orders of the Rent Controller dated 15-2- 1995 and the Additional District Judge dated 5-6-1995 are declared to be the result of illegal exercise of jurisdiction and are accordingly setaside.
10. The point of mala fide having been raised by the petitioner is also worth consideration. It was contended at the Bar that the applicants were well aware of the orders of status quo passed by this Hon'ble Court on 9-12-1992. The file of Writ Petition No.11764/92 was summoned. The following order was passed on 9-12-1992 "Copies of this petition be sent to respondents Nos. l and 2 for parawise comments and reports.
They are further directed to depute some officers well conversant with facts of the case to appear in Court on 13-1-1993.
2. Status quo meanwhile. "
The parties to the present petition except petitioner No.2 were arrayed as respondents in the said writ petition and were, in my view, bound by the orders passed in the writ petition.
The learned counsel for the petitioners referred to C.M. No.700/95 made by the present respondents in the said petition. He contended that respondents Nos. 1, 2 and 3 could have sought the clarification of the order dated 9-12-1992 or the recalling thereof by making such an application before filing the application for ejectment and the conduce of the respondents in filing an application for ejectment while the order dated 9-12-1992 was subsisting goes a long way to prove their mala fide and disobedience of the order of this Court and thus made the whole proceedings as tainted by fraud and mala fides of respondents Nos. 1, 2 and 3.
11.' To appreciate the contention of the learned counsel for the petitioners the prayer made by respondents Nos.1, 2 and 3 in C.M.No.700/95 is reproduced hereunder:--- "In view of the above submissions it is respectfully prayed that in the interest of justice and in order to avoid the complications the status quo order dated 9-12-1992 passed by this Hon'ble Court may kindly be recalled or in the alternative it may be clarified that abovementioned status quo order passed by this Hon'ble Court may not be in the way of execution of ejectment order against respondent No. l l "
12. In Black's Law Dictionary,, 6th Edition status quo has been given the following meaning "status quo" the existing state of things at any given date. "Status quo" to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy".
PLD 1969 Karachi 349 Mr. Justice Dorab Patel as he then was borrowed the definition of status quo from Warton's Law Lexicon, 14th Edn. As the "existing state of things at any given date". On 9-12-1992 admittedly the property was not in possession of respondents Nos.1, 2 and 3 as against whom' the petitioner in Writ Petition No.11764/92 had claimed title in his own right and had challenged the transfer in their name by the Housing Department. The present petitioners were admittedly in possession of the disputed property on 9-12-1992 i.e. Their possession was an existing state of things on the date the status quo order was passed and in my view the' maintenance of the said state of things was sine qua non of the orders of this Court and any attempt to defeat the said order amounted to disobedience.
13. The learned counsel for the private respondents, in reply to the above assertions, contended that the status of the present petitioners was that of a tenant and they could not be taken as having been given a licence to continue in possession of the disputed property under the orders of status quo obtained by the petitioners in Writ Petition No.11764/92 and that respondents Nos. 1,2 and 3 had a right to seek the ejectment order on the grounds mentioned in the application. The position, of course, was however, not disturbed as the said respondents had filed C.M.No.700/95 in W.P.No.11764/92 and that clearly shows that they had no intention to defeat the orders passed on 11-9-1992.
14. The private respondents could have made an application for clarification of the order of status quo passed in Writ Petition No.11764/92 before filing an application for ejectment of the present petitioners. The respondents had, by making an application tried to defeat the orders of the Court in relation to Mehmood Nadeem writ petitioner in Writ Petition No.11764/92 as he was not impleaded in the application for ejectment. Such an intention and mala fide of respondents Nos. 1,2 and 3 was ex facie present in the circumstances of the case. The filing of an application for ejectment of the present petitioners was an abuse of process of Court and attempt to commit fraud on the Court itself--- which in any case cannot be allowed to perpetuate.
15. It is noteworthy that petitioners had annexed statement of account relating to deposit of rent by them and unless proved otherwise the same, ex---facie, shows that wilful default may not have been proved by the applicants. Notice got issued by the applicants, respondents Nos. 1,2 and 3 was not allegedly received by the present petitioners and as such grant of effectual relief, though not prayed, may be considered in the present case. The following dictum of their lordships in the Supreme Court in Saiyyid Abdul A'la Maudoodi etc. v. The Government of West Pakistan etc. PLD 1964 SC 673 is attracted:--- "I also find no difficulty in granting relief because of any defect in the form of the prayer in the petition. The prayer as framed in the petition is sufficiently wide and, in any event, the Court is not powerless to grant the relief that the justice of the cause requires to the same extent as if it had been asked for."
16. The case in hand attracts the relief as available under the above paragraph of their lordships in Saiyyid Abdul A'la Maudoodi's case. Placing reliance thereon declaration is issued that the application for ejectment filed before the Rent Controller, Faisalabad by respondents Nos. 1,2 and 3 was abuse of process of Court and was contumacious of the orders of status quo passed in Writ Petition No.11764/92 on 9-12-1992 and as such is liable to be dismissed.
17. Orders accordingly.
18. The writ petition is accordingly accepted in above terms with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.