This appeal arises from a judgment of the IIIrd Rent Controller, Karachi Central, dated 17-3-1998, dismissing the appellant's application under section 12(2), C.P.C., as a consequence whereof the ejectment order dated 12-9-1992 in Rent Case No. 192 of 1992 was maintained.
2. The facts of the case are some what peculiar and complicated. Admittedly the respondent No. l was originally the owner of house bearing No.79, Block 4, Federal ' B' Area, Karachi. Accordingly to the appellant the respondent No. l entered into an agreement for sale of the demised property with one Muhammad Jawaid, a nephew of the appellant in February 1971, and in terms of the requirements of the agreements he also executed are irrevocable General Power of Attorney in favour of one Noor Muhammad, a brother of the appellant and uncle of the buyer Muhammad Jawaid. On 22-11-1972 the aforesaid Noor Muhammad as attorney of the respondent No. l executed a registered sale-deed -in favour of Muhammad Jawaid. Thereafter, Muhammad Jawaid made an oral gift of the property in favour of the appellant and a declaration of such gift was registered on 15-11-1980 and the appellant's name was mutated in the records of the Karachi Development Authority.
3. Nevertheless, it appears that the respondent No. l did not acknowledge the aforesaid transfer and filed an ejectment application bearing No.836 of 1991 against Muhammad Jawaid and the appellant. It was alleged that the sale agreement dated 24-2-1971 could not be materialised and the appellant and Muhammad Jawaid were treated as tenant of the property liable to pay rent at the rate of Rs.500 per month. It was further alleged that the amount of Rs.25,000 received at the time of signing the agreement, was treated as advance rent for 50 months but thereafter the tenants failed to pay any further rent and were liable to be ejected on the ground of default. This application for ejectment was filed by the respondent No. 1 through his attorney Ghulam Mohiuddin Qureshi before the learned IIIrd Rent Controller; Karachi Central.
4. The appellant upon having come to know of the ex parte judgment made an application under section 12(2), C.P.C. Praying that the same had been obtained by fraud and collusion against the imaginary person with the object of illegally ejecting the appellant. It was alleged that the appellant was a lawful owner of the property and in any event an ejectment application moved by the respondent No. l against the appellant and Muhammad Jawaid from the same property was already fixed before the very same Court. Mrs Rukhsana Tabasum Shaikh in her capacity as attorney of the respondent No. l filed a counter-affidavit disputing the appellant's contention. She acknowledged that the respondent No. l had entered into an agreement for sale of property- with Muhammad Jawaid, nephew of the appellant on 24-2-1971 but the said agreement was cancelled through a notice from the Advocate for the respondent No. l dated 14-12-1971 on account of failure of Muhammad Jawaid to fulfil his obligations thereunder. It may be mentioned here that the aforesaid letter which was filed alongwith the application for ejectment in R.C. No. 836 of 1971 and was subsequently brought on record on this-case also seems to be addressed by Mr. Hussain Imam, Advocate to Muhammad Jawaid wherein it is alleged that after signing the agreement possession had been delivered to Muhammad Jawaid but the latter failed to finalise the transaction by paying the balance consideration and executing a registered sale-deed in favour of the respondent No. 1. Accordingly it was claimed that Muhammad Jawaid was liable to pay "occupation charges" at the rate of Rs.500 per month from 24-2-1971 to the date possession was handed over to the respondent No.1 alongwith damages in the sum of Rs.5,000. He was also required to surrender possession and the respondent No.1 was willing to refund the amount received after adjusting rent, losses and damages. In the aforesaid counter-affidavit, however, Mrs. Rukhsana Tabbasum Shaikh gave no reply as to existence of Rent Case No.836 of 1991 filed by another attorney of the respondent No. l seeking the ejectment of the appellant from the premises.
5. Be that as it may learned Rent Controller vide his order dated 31-7-1993 dismissed the appellant's application under section 12(2), C.P.C. Holding that he had no jurisdiction to go into the complicated question of ownership of the property and that the application was time-barred having been passed after the expiry of the "appeal period". Not a word, however, was mentioned about the other contention of the appellant regarding pendency of an ejectment application against him in respect of the same premises.
6. Thereafter, the appellant preferred an application for review of the order dated 31-7-1993, this application was misconceived inasmuch as review jurisdiction has not been conferred upon Rent Controller. The learned Rent Controller, however, instead of dismissing it on legal grounds proceeded to pass a detailed 'order attempting to show that the appellant Ghulam Mohyouddin (the attorney) of the respondent No. l in Rent Case No.836 of 1991 were in collusion with the respondent No.2 and officials of the K.D.A. And other department were attempting to usurp the property of the respondent No. l while he was abroad from 1979 to 1992. He further observed that no fraud had been played with the Court and in fact a fraud was being played on the basis of forged and managed documents to deprive the respondent No.1 of the fruits of the ejectment order.
Accordingly he dismissed the application vide his order dated 18-1-1994 and simultaneously issued a writ of possession with the aid with the direction to unlock the locks if any.
7. The appellant moved this Court by way of F.R.A. No.49 of 1994 questioning the order dated 31-7- 1993. Upon noticing defect and legal infirmities in the same, Rana Bhagwan Das, 1. (as his Lordship then was) by order dated 11-1-1995 remanded the case to the Rent Controller to decide the matter afresh after allowing the parties to lead evidence. It may nevertheless, be mentioned that in the aforesaid appeal before this Court the respondent No.2 who was also arrayed as a party filed an affidavit stating that he had never entered into any kind of agreement with the respondent No. l in respect of the disputed property and that he did not know either the respondent No. l or Mrs. Rukhsana Tabbasum Shaikh. A copy of this affidavit was also brought on the record of the proceedings before the Rent Controller.
8. After the remand of the case detailed evidence was led before the Rent Controller and several documents were filed by the parties. This time the respondent No.2 personally joined the proceedings and filed an affidavit---in-evidence. He was cross-examined not only by the Advocate .For the appellant, but also that of Mrs. Rukhsana Tabbasum Shaikh who despite filing the ejectment application as attorney of the respondent No.2 had now assumed an interest conflicting with that of the respondent No.2. He deposed that the respondent No.2 was never his tenant and in fact he did not know him. That Mrs. Rukhsana Tabbasum Shaikh had filed the application for ejectment without his authority against a person who had no concern with the premises. He admitted that he had entered into an agreement of sale of the premises with Muhammad Jawaid and had also executed the power of attorney in favour of his uncle Noor Muhammad, but both the instruments were cancelled. He further stated that since possession had not been delivered to him and, therefore, R.C. No.836 of 1991 was filed under his directions. Moreover, he stated that only Ghulam Mohyouddin Qureshi was his lawful attorney and he had revoked the authority of Noor Muhammad and one Syed Mehmood Shah, Advocate granted to them. In 1971 and 1992 respectively. Nevertheless he asserted that the appellant Muhammad Jawaid and Mrs. Rukhsana Tabbasum Sheikh had manipulated forged documents to deprive him of his rights in property taking advantage of his absence from Pakistan for more than a decade. In this context he specifically stated that he had not entered into any agreement of sale or received any consideration from Mrs. Rukhsana Tabbasum Shaikh.
9. In the above circumstances Mrs. Rukhsana Tabbasum Shaikh also led evidence to show her interest in the property. She alleged that the respondent No. l had agreed to sell the property to her vide agreement dated 23-2-1992 for a total consideration of Rs.5,00,000. Rs.25,000 were paid initially and a receipt acknowledging the same was obtained from him. The remainder was to be paid within 75 days i.e., at the time of execution of conveyance. She further stated that the agreement could not be given effect as title documents having been obtained from the A.D.B.P.
Where the property was mortgaged and, therefore, a fresh agreement was executed on 20-9-1992 through Mr. Mehmood A.I Shah, Advocate who was then the General attorney of the respondent No. l having power to sell the property. A further. Amount of Rs.2,76,255 were paid to the aforesaid Mehmood A.I Shah through two cheques and the remainder of Rs.1,98,745 by another cheque for payment of A.D.B.P. (where the property was mortgaged) was paid on 6-10-1992 thereupon the aforesaid Mehmood A.I Shah made a declaration of oral gift on 10-1-1993 in her favour which was registered on 26-1-1993.
10. The appellant and Muhammad Jawaid also filed their affidavits-in---evidence and were cross- examined. They reiterated the contentions mentioned in para. 2 above. The appellant in support of his plea that he had been in possession of the premises filed N.I.Cs. Of his family members issued on different dates between 1974 and 1989 disclosing the demised premises as their permanent address.
11. It appears that detailed arguments in writing were also filed on behalf of the parties and thereupon the learned Rent Controller (who incidentally happened to be the spouse of her predecessor passing orders dated 31-7-1993 and 18-1-1994) passed an order dated 17-3-1998 observing that relevant evidence had not come on record and that she could not decide the claims of the parties relating to their respective claims as to title to property. She further observed that the appellant had totally failed to prove that the judgment had been obtained by fraud and misrepresentation, and therefore, dismissed the application.
12. Mr. Sajjad A.I Shah learned counsel for the appellant questioned the findings of the Rent Controller on a number of grounds. However, I decline to hear him in support of the appellant's contention as to ownership of the property in question. In the context the observations of the Rent Controller two the effect that such matters can only be decided by a competent civil Court are unexceptionable. Moreover, the record shows that Suit No. 151 of 1993 has already been filed by Mrs. Rukhsana Tabbasum Shaikh where all the other claimants have been arrived as defendants and the controversial claims can be appropriately decided in that suit.
13. Nevertheless, the chatter does not end here. It is surprising that both the Rent Controllers passing the impugned order and the one having passed the order dated 31-7-1993 completely glossed over the equally formidable grounds raised in the appellant's application that an earlier Rent Controller being No. 836 of 1991 filed on behalf of the respondent No. l showing the appellant as a tenant was already pending before the very same Court. Mr. Sajjad A.I Shah informed me that after dispossession of the appellant on 18-1-1994 that case was not pursued and was dismissed for non,-prosecution. Mr. G.M. Saleem did not dispute this contention. It is no doubt true that the Rent Controller is not required to go into allegations of fraud and forgery pertaining to execution of documents establishing person's title to property. Nevertheless, she was obliged to see whether there was any fraud in obtaining the ejectment order.
14. Admittedly the ejectment, application was filed on behalf of the respondent No.1 and Mrs. Rukhsana Tabbasum Shaikh claimed to be his attorney. In para. 8 of her affidavit-in-evidence she has stated that when she filed the Rent Case (on 11-3-1992) her status was that of special attorney of the respondent No. 1, but subsequently she became purchaser vide agreement dated 20-9-1992 and the oral gift made thereafter. The special power of attorney purported to be given one day before the filing of the case only seems to enable her prosecute and recover claims in respect of the respondents property and not to seek ejectment of tenants. In any event the landlord i.e., respondent No.1 himself categorically stated on oath that he did not know respondent No.2 and the latter was never his tenant. The respondent No.2 in his affidavit before this Court also stated on oath that he never knew the respondent No.1 and had never made any agreement with him.
Respondent No. l has also stated that the appellant did not re-deliver the possession despite notices and consequently an ejectment case was filed in 1991. Obviously the so-called tenancy agreement, dated 9th June, 1973 was nothing but a forged document. It is incomprehensible how in the face of the clear testimony of the respondent No.2 such blatant forgery and fraud could have escaped the attention of the Rent Controller. It seems that she never applied her independent judicial mind to the material on record and was persuaded to be carried away by the biases indicated in the order dated18-1-1994 by her husband while dealing with the same case.
15. After I had heard the matter and reserved it for judgment an application was received from Mr. G.M. Saleem, Advocate seeking permission to bring to the notice of the Court a few law points that arose in the matter. In the interest of justice and before announcing judgment I allowed Mr. Muhammad Sharif, Advocate who filed power on behalf of Mst. Rukhsana Tabbasum Shaikh to address the Court on those questions. In the first instance Mr. Sharif attempted to show that the aforesaid lady had acquired independent interest in the property which had been muted in her name, I pointed out that the question of title could only be settled by civil C Court and it was unnecessary to raise those controversies. Learned counsel then urged as follows:--
(i) That the provisions of section 12(2), C-.P.C. Were not applicable.
(ii) That in any event though an order procured by fraud was avoidable under the general law, section 19(2) expressly stipulated that such an order passed under section 19(2) could not be rescinded.
(iii) That even if it be assumed that the Rent Controller had inherent powers to recall an order procured by fraud no appeal against an order passed in the exercise of inherent jurisdiction was maintainable.
(iv) That in any case mere falseness of a claim made before the Court would not amount to fraud for the purpose of invoking section 12(2), C.P.C.
16. It may be appropriate to examine the above proposition seriatim. In support of the first proposition, the following observations of the Hon'ble Supreme Court in the celebrated case of Rehmatullah v. A.I Muhammad (1983 SCM R 1063).
"--------and no yet another category of cases the provision of subsection (2) of section 12 have been pressed in service notwithstanding the fact that they applied to the Court and not to the Tribunals like Rent Controller. It appears that in the last mentioned category the provisions would be made applicable only when the case under the Rent Restriction, Law had passed through the Appellate Court and/or the superior Court. There does not seem to be any difficulty in including the Appellate Court under the Rent Restriction Ordinance within the connotation of the expression the Court which passed final judgment ...."
17. Indeed the above observations do lay down the law to the effect that Appellate orders passed by Courts against decisions of Rent Controller are amenable to the invocation of section 12(2), C.P.C. It is nevertheless, important to keep in view that this may not necessarily mean that the reverse of this proposition must also be true and Rent Controllers are precluded from setting aside orders obtained by fraud. Mr. Sajjad A.I Shah argued that in several cases the superior Courts including the Honourable Supreme Court in Ismail v. Sobedar Gul Inayat Shah (PLD 1991 SC 997) have taken the view that the salutary principles of section 12(2), C.P.C. Can also be invoked by Rent Controllers. Mr. Sharif also candidly conceded that the Courts have recognised invocation of the principles of 12(2), C.P.C. By the Rent Controllers in the interest of justice and equity. In any event the matter stood concluded when this Court while allowing F.R.A. 62 of 1994 set aside the Rent Controller's order dated 31-7-1993 and directed him to decide the appellant's application under section 12 (2), C.P.C. After recording the evidence. The question stood concluded and .Could not be re-agitated in the second round of litigation.
18. With respect to the second contention it may be worthwhile to reproduce section 19(2) which reads as under: "SECTION-19 (1)-----------------------------------
(2) Where on the day: fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse, the Controller may proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order."
19. It is evident from a bare reading of the above provisions that the bar on rescinding an order passed is only applicable when the respondent, despite having been duly served fails to file his reply without reasonable excuse. Admittedly the appellant was not arrayed as a respondent before the Rent Controller and no question of service of notice on him arose. This contention of the learned counsel, therefore, must be repelled as bearing totally devoid of force.
20. In respect of the third proposition, Mr. Sharif relied upon the judgment of the Dacca High Court in Ahmedullah Haq v. Dr. Abdul Qadooos Khan (PLD 1960 Dacca 452) wherein it was observed that an order under section 151, C.P.C. Was not appealable and a more resent and direct propedent from the Lahore High Court in Ahmed and another v. Additional District Judge (PL-D 1990 Lahore 425), wherein it was held that an order passed under section 12(2), C.P.C. Was neither appealable under section 104 nor under Order 43, Rule 1, C.P.C. Indeed there can be no cavil with the proposition laid down in the above cases and the observations that right of appeal is creature of statute.
Nevertheless they do not support the learned counsel inasumuch as an appeal from the order of a Rent Controller lies under section 21 of the Sindh Rented Premises Ordinance and not any provision of the C.P.C. The Ordinance stipulates a right of appeal against any order of a Rent Controller which is not an interim order and, therefore, with all respects, I am riot impressed by this contention either.
21. With respect to the fourth contention Mr. Sharif is indeed correct to the extent of the proposition of law raised by him is concerned which is duly supported by the authority of the Honourable Supreme Court in Laldin v. Muhammad Ibrahim (1993 SCM R 710). Indeed appellants could not have applied for setting aside an order under section 12(2), C.P.C. Merely on the ground that the respondent had set up a false claim as to title to property, landlord-tenant relationship or the grounds of ejectment after they had been ejected upon in due course. Nevertheless, in the instant case there is a patent fraud in the proceedings inasmuch as in one case the appellant is shown to be a tenant of the respondent and in another on behalf of the same respondent somebody else (whom the respondent does not recognise) is described as a tenant (who himself has disclaimed any interest in the property) causing the ejectment of the appellant. In the circumstances, I am clearly of the view that this appeal has to be allowed.
22. On the question of relief Mr. Sajjad A.I Shah learned counsel for the appellant argued that it was one of those cases in which relief of restoration of possession ought to be awarded to the appellant. I have anxiously considered this contention. Normally a Court would not be inclined to disturb the existing state of affairs when the person in possession has a prima facie claim to retain it. In this case, however, it is quite clear that irrespective of the claim of Mrs. Rukhsana Tabbasum Shaikh as to title, the admitted fact remains that she did not acquire possession from the original owner by way of part performance of the contract. Her own case was that both at the time of filing of the ejectment application on behalf of the respondent No. l as well as at the time of acquisition of title the premises was in occupation of a tenant. She consciously mis-described the tenant as both the respondent No. l and respondent No.2 asserted that there was no landlord---tenant relationship between them. Mr. G.M. Saleem was not able to repudiate this fact. As regards original owner i.e. Respondent No. l the admitted position is that he was never in possession of the premises and could acquire the same only through due process of law. I entertained certain doubts about the application of section 144, C.P.C. To proceedings under the Sindh Rented Premises Ordinance but Mr. Sajjad has drawn my attention to two judgments of this Court. In Fazal Hussain v.
Muhammad Hussain (1993 CLC 1076) Wajihuddin Ahmed, J. (as his Lordship then was) while setting aside an ex. Parte order of eviction and remanding the case to the Rent Controller for trial on merits applied the "just and salutary principle contained in section 144, C.P.C." and directed that possession be restored to the appellant-tenant to be retained by him till the final order was passed by the Rent Controller. In an earlier case of Muhammad Kashif Kamal Siddiqui v. Mirza Farooque Baig (1990 M LD 1009) an order directing restoration of possession to a dispossessed was passed by Division Bench of this Court. For the foregoing reasons, I would direct that possession be delivered to the appellant within two months from today, failing which a writ of possession will issue without notice. It will, however, be open to the respondent No.1 or any person claiming to be landlord of the property to seek ejectment of the appellant according to law. The above is also without prejudice to the respective claims of the parties as to title which will be decided on the original side.