CH. IJAZ AHMAD, J. -- I intend to decide following writ petitions by one consolidated judgment having similar facts and law:- W.P. No. 981-90; W.P. No. 2589-84; W.P. No. 2588-84;. W.P. No. 983-90 and W.P. No, 2586-84.
2. Briefly,, the facts of the aforesaid ,writ petitions are that the petitioners filed ejectment petitions against the private respondents on the ground of reconstruction of property in question before the learned Rent Controller, who dismissed the same on the ground that title/ownership of the petitioners qua the property in question is doubtful and petitioners were directed to approach the Civil Court for determination of question of title qua the property in question. The petitioners being aggrieved, filed appeals before the learned A.D.J., who dismissed the same through impugned judgments; hence, these writ petitions.
3. The petitioners' counsel submits that one of the occupants of the property in question namely (Abdul Razzaq) filed an application before the Administrator General Punjab on the ground that the disputed property belonged to three brothers namely , Mr. Satanely Charles' William Rose; Mr. Henry Mauric Rose and Fr derick St. Jan Rose in equal, share, who declared the property in question, was owned and possessed by Mrs. May Rose who had aforesaid three sons and two daughters. The aggrieved persons filed appeal before the Division Bench of this Court and findings of learned Single Judge were reversed by the learned Judges of the Division Bench declared the property -as Evacuee Property; thereafter aggrieved persons approached the Hon'ble Supreme Court -through C.P.S.L.A. No. 1060-L-94 and C.P.S.L.A. No. 1100-L-94 which was dismissed on 15.11.1995. The title cif the petitioners' was upheld by the Hon'ble Supreme Court in the aforesaid judgment, the ground on which both the Tribunal below have decided the cases against the petitioners are not in field by virtue of the judgment of Hon'ble Supreme Court; that petitioners had taken specific ground in their ejectment petitions that petitioners had got a plan sanctioned from the L.D.A. For reconstruction of entire building structure in question which was not denied, by the private-respondents in their written statement; that in view of para 4 of the ejectment petitions and reply of private respondents of ejectment petitions, this Court has ample powers to decide these cases in Constitutional jurisdiction after appreciation of pleadings of the parties. In support of his contention he relied upon Muhammad Mushtaa's case (1996 SCM R 1384).
4. Kh. Saeed-uz-Zafar, learned counsel' for private respondents submits that respondents < had filed civil misc. Applications in all the writ petitions on the ground that petitioners in W.P. No. 2589- 84; W.P. No. 2588-88, W.P. No.983-90 and W.P. No. 2586-84, had ejectment petitions against the private respondents before the Rent Controller on the ground of default. The petitioners in W.P. No. 981-90 had also sent notice to the private respondents for payment of rent u/S. 13(A) of the Rent Restriction Ordinance. He further submits that on account of the aforesaid subsequent events and conduct of petitioners, these writ petitions are liable to be dismissed., The Rent Controller framed only one issue qua title of the property in question and both the. Tribunal below did not give any finding regarding plea of reconstruction taken by the petitioners in their ejectment petitions. He urged that in such circumstances, the cases may be remanded , to the Rent Controller to decide the ejectment petitions after framing the issues regarding plea taken by the petitioners in their ejectment petitions qua reconstruction. He relied upon Dr. Capt.
Ajaz Hussain's case (1989 SCM R 1696); that petitioners ,shall have to file fresh ejectment petitions against the private respondents on the ground of reconstruction as the property in question ,has been partitioned between the owners and specific portions have been taken by the co-owners. In fact after partition the co-owners filed fresh ejectment petitions against the tenant; that the tenant's denial of the landlord title simpliciter does entail forfeiture under the general law but cannot by itself and independently be aground sufficient for securing ejectment order.
5. Mr. Nasim Ahmad Khan, Advocate for respondents adopted the arguments of Kh. Saeed-uz- Zaman, Advocate and in addition to his arguments, he submits that both the Tribunal below have given concurrent findings of fact against the petitioners, therefore, writ petitions are liable to be dismissed; that both the Tribunal below had directed the petitioners to approach Civil Court for decision regarding question of title of the property in question but the petitioners did not approach Civil Court.
6. M/s. A.I Aasim Sayed, Malik Sher Bahadar, Advocates also adopted the arguments of Kh. Saeed- uz-Zafar and Mr, Nasim Ahmad Khan, Advocate.
7. In rebuttal, Dr. A. Basit, Advocate submits that private respondents did not seriously deny the contents of para 4 of the ejectment petitions as petitioners filed ejectment petitions after obtaining sanction building plan from the competent authority. In case para 4 of the ejectment petitions and reply of thatare put in juxta position, then there is no need of any further evidence and this Court may decide the matter in Constitutional jurisdiction instead of remanding to case to Rent Controller for fresh decision: that petitioners had filed ejectment petitions on the ground of default and for payment of rent u/S. 13(a) of the Ordinance and also sent notice to Mirza Yaqoob, etc. In (W.P. No. 981-90), which do not hindrance in the way of petitioners as the petitioners had invoked aforesaid ejectment petitions on different grounds; that ground of reconstruction is still available to the petitioners; he urged that owners are the same and Initially the property was mentioned qua their shares but subsequently owners inter se had partitioned the property in question qua specific places, therefore, ejectment petitions are not liable to be dismissed on this ground; that petitioners to reply of civil misc. Application took stand that petitioners are ready to construct the building on the basis of old sanctioned building plan. The rights of the private respondents shall be protected under the provisions of Rent Restriction Ordinance.
8. I have given myanxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that private respondent Mirza Yaqoob, etc. Are in litigation with the petitioners upto the Apex Court and Hon'ble Supreme Court decided the cases in favour of petitioners as is evident from judgment dated 15.11.195 passed in C.P.S.L.A. No. 1060-L-94 and C.P.S.L.A. No. 1100-L-94. It is settled proposition of law that transfer of title affected during the pendency of proceedings cannot be disregarded, rather it deserved to be noticed on account of the dictum laid down in Mst. Amna Begum's case (PLD 1978 SC 220),. Since the orders impugned in these writ petitions have been made to appear to have been passed for dismissing the ejectment petitions on the ground of title. But subsequently on account of the aforesaid judgment of Hon'ble Supreme Court petitioners obtained their status as landlord during the pendency of proceedings, therefore, these orders are liable to be set aside as being nullity in the eyes of law. In arriving to this conclusion I am fortified by the following judgments:- Mansab A.I's case (PLD 1971 SC 124) Rashid Ahmed's case (PLD 1972 SC 271)
Chittaranjan Cotton Mills Ltd.'s case (PLD 1971 SC 197)
The relevant observation is as under: "Question relating purely to the jurisdiction of the Court could be raised at any stage of the proceedings."
"It was further held it could never be allowed to admit and give effect to the plea that the order was nullity."
It is settled principle of law that application for ejectment on the ground of reconstruction makes out a bona fide requirement, is primarily a question of law. In the present case the Rent Controller has only framed one issue qua 'relationship of landlord and tenant. Both the Tribunal below, therefore, did not give any findings regarding the ground taken by the petitioners in ejectment petitions qua reconstruction of the premises in question. The ground reality radically changed as the property in question had already been partitioned between co-owners, specific portions have been divided among each other. It is settled principle of law that landlord is required to take into consideration the rights conferred by sub-section 5(B) of Section 13 of the Ordinance on the tenant so that the new constructions is capable to accommodate the tenant, subject to this restriction the landlord is free in the matter of nature and type of construction for the purposes of the new building. In this behalf reliance is placed on Ghulam Haider's case (1979 SCM R 396). It is settled principle of law that simpliciter denial of the title of the landlord by the tenant cannot by itself and independently be a ground sufficient for passing ejectment order. In this behalf reliance is placed on Makhan Bano's case (PLD 1984 SC 17). This Court has ample powers to look into subsequent events as is held by the Division Bench of Karachi High Court in Nasir Jamal's case (1990 CLC 1069).
It is also settled proposition of law that this Court has no jurisdiction to substitute its own findings in place of the findings of Tribunal below as is held by Division Bench of this Court in Mussadaq's case (PLD 1973 Leh. 600). The principle of res judicata read with Section .14 of the Ordinance in the rent proceedings is not attracted on account of subsequent events in the present case: Reliance is placed on the following judgments:- Muhammad Rafique & others case (1984 CLC 2135), Syed Azhar Imam 'Rizvi case (1985 SCM R 24) M/s. Maqbool Co. Ltd. 's case (1985 CLC 2635).
It is pertinent to mention here that in the present case the ground realities are changed on the following reasons:-
(i) the petitioners were declared owners of the property in question in view of judgment dated 15.11.1995 of Hon'ble Supreme Court passed in C.P.S.L.A. No. 1060L-94 and C.P.S.L.A. No. 1 100-L-94;
(ii) co-owners had already divided the property between themselves, specific portions of the property were taken by them independently instead of shares;
(iii) petitioners had already filed ejectment. Petitions against the private respondents on the ground of default 'before the Rent Controller;
(iv) Jamila Pir Bakhsh had already sent notice to private respondents in W.P. No. 981-90.
Somewhat similar proposition of law was considered by this Court in Sh. Muhammad Hanif's case (PLJ 1990 Lab. 543): The relevant observations is as follows:- "It is, however, to be clarified that if the petitioners succeed in having the title declared by a Court of competent jurisdiction it shall be opened to them to file a petition for ejectment against the respondent No. 1 and any finding in the impugned judgment of learned A.D.J. And Rent Controller in the present proceedings shall not operate as bar". The provisions of Rent Restriction Ordinance has given certain rights to the tenant in case of reconstruction as is envisaged by Section 13(50B) of the Ordinance coupled with the act that building period had already expired.
Writ petitions are disposed of accordingly.
C.M. No,. 1/C 2001. As the writ petitions have been finally decided therefore, this application has become infructuous.