Through this Constitutional petition, order dated 12-9-1996 of learned Rent. Controller, Lahore, refusing to set aside ex pane ejectment order dated 2-10-1985 and order dated 7-10-2000 of learned Additional District Judge. Dismissing appeal thereagainst have been challenged.
2. Ch. Muhammad Bukhsh, Advocate i,e, respondent No,1 'filed an eviction petition claiming to be landlord under section 13 of Punjab Urban Rent Restriction Ordinance, against Mushtaq Hussain i,e, now deceased and represented in this petition through his legal heirs. Holding said Mushtaq Hussain as ex parte, learned Rent Controller, Lahore on 2-10-1985 passed an ex pane order of eviction. Thereafter, execution petition was filed by respondent No,
1. Warrant of possession was first obtained in November, 1986, whereafter, as per record, 42 warrants of possession alongwith Police help were obtained by respondent No,1 between November, 1987 to November, 1993. Intriguingly, none of these warrants seem to have been executed and effected to take possession from late Musthtaq Hussian, who in the meanwhile, had on 26-9-1987 filed a suit for perpetual injunction against respondent No,1 and another who conceded the suit by stating that they will not illegally dispossess Mushtaq Hussain from the suit property. And as such, decree dated 26-10-1987 was issued in favour of said Mushtaq Hussain. On 19-3-1988, Settlement Authorities through PTD dated 22-3-1988, first transferred the property in favor of said Mushtaq as per terms of order dated 19-3- 1988 and thereafter upon surrender of rights by him in favour of his maternal grandmother, the property was, on the same day, transferred to Mst. Zahida Perveen. On 29-11-1993, late Mushtaq and Mst. Zahida Perveen collectively filed an application under section 12(2), C.P.C. Read with Order IX, Rule 13, C.P.C. And section 13 of the Rent Restriction Ordinance, for setting aside above referred ejectment order dated 2-10-1985 against them. (An independent objection petition was filed by Mst.Zahida Perveen alone in the execution petition on 29-11-1993 on the basis of her ownership in the suit property per PTD in her favour.) Instead of giving a reply to this application, respondent No,1 on 2-2-1994 tiled an application for dismissal of the said petition for recalling ex parte orders only on two grounds i,e, non-applicability of section 12(2), C.P.C. And absence of jurisdiction in the learned Rent Controller. Reply to this application was contrarily filed on behalf of the petitioners to contest the technical grounds raised by respondent No, 1 . The learned Rent Controller accepted application of respondent No,1 and dismissed application of the petitioners through order dated 12- 9-1996 on the sole ground that application under section 12(2), C.P.C. Was beyond the period of limitation.
3. Appeal filed by the petitioner thereagainst was dismissed by learned Additional District Judge, Lahore through order dated 7-10-2000, Additional District Judge in essence mainly decided the question that application under section 12(2), C.P.C. Was not maintainable before learned Rent Controller and as such, appeal against dismissal of such application was also unmaintainable.
Feeling aggrieved from the above referred orders, petitioner has now filed the present Constitutional petition.
4. Learned counsel for the petitioners contended that respondent No,1 connived with process serving agencies not to effect service of summons/notices upon the petitioners and thereafter to obtain publication of proclamation in the newspaper with mala fide objective to get an ex parte eviction order. And that respondent No,1, being an Advocate, succeeded to obtain the impugned eviction order and thereafter till November, 1993 deliberately kept the execution petition pending and processes of execution including warrants for possession as unimplemented for his own reasons. It was further argued by the learned counsel for the petitioners that address given in ejectment petition was different from that of the disputed property, wherein the petitioners were living in neighborhood of respondent No,1 on Bastami Road, Lahore. And that respondent No,1 was aware of the said address because he in the eviction petition has correctly given his own address of the same Muhallah and had also faced petitioners' suit for perpetual injunction wherein their correct address of the same Muhallah and house was given by the petitioners. He further stated that fraud, misrepresentation and concealment has been committed to obtain ex parte order and to keep it unimplemented, which fact is also proved from decree dated 26-10-1987 passed upon concession of respondent No,1 in suit of the petitioners filed against him and another to seek protection from illegal dispossession. And that while conceding the suit, respondent No,1 never brought on record ex parte eviction order or execution proceedings filed by him on that basis against the petitioners. And that petitioners' application for setting aside thereagainst was maintainable.
' Contrarily, respondent No,1 Choudhary Muhammad Bukhsh, who being an Advocate, pleaded his own case that address was correctly given and it was the second address of the same property where petitioners were living. And that the petitioners had knowledge of the pendency of eviction petition as well as that of the execution petition but deliberately did not participate in the proceedings with object to delay the same, despite publication of proclamation. And that petitioners application under section 12(2), C.P.C. Was unmaintainable because of in applicability of Civil Procedure Code to proceedings under Punjab Rent Restriction Ordinance and the same was miserably barred by time, as had been held by learned Tribunals Courts below. It was also strenuously argued by respondent No,1 that difference in addresses was a question of fact, which at no stage was pleaded or asserted by the petitioners and this Court, therefore, cannot go into a question of fact while dealing with a petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
5. I have considered the submissions of the learned counsel for the parties and have also examined the record placed by them alongwith the present petition.
6. I have no doubt in my mind that while deciding a Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, this Court cannot go into a question of fact (like that of difference of addresses), which was neither raised nor dealt with by the learned Courts below. The present case, however, proceeds on extraordinary premises; wherein inquiry into the question of fact was effectively blocked and shrouded in questions of procedural intricacies by a learned Senior Advocate of this Court (respondent No,1) adept in the matters of procedural law and technical polemics. Respondent No,1 admits that he lives on 16 Bastami Road, Indernagar, Lahore.
Ejectment petition also shows his residence as petitioner on the same address. Late Mushtaq Hussain son of Wazir (late predecessor in interest of petitioners) was sought to be evicted by respondent No, 1 through petition and his address was given in the ejectment petition as "part of Plot No,12 Muhallah Indernagar, Lahore." To my mind, this address is not only incomplete but it is also misleading. It has been admitted by respondent No 1 himself that a house exists on the disputed property from where Mushtaq Hussain was sought to be evicted on the basis of purported default, personal need damage and undesirability of tenant. It has also notbeen denied that notices summons were issued on the given address of "part of Plot No, 12 Muhallah Indernagar, Lahore" and address of late Mushtaq Hussain in the newspaper proclamation was also the same . It has also not been denied by respondent No,1 that the disputed property is known as "House No,10, Street No,62 (or 64), Bastami Road, Indernagar, Nawankot, Lahore," but his contention is that address given by him as well as by the petitioners on their application for setting aside ex parte order and on the suit for perpetual injunction, are correct, as the property bears both these addresses.
7. Be that as it may, by vaguely describing address of Late Mushtaq Hussain as "part of Plot No,12" in the ejectment petition, the intention to take advantage of vagueness and confusion become patent and that advantage was so gained by respondent No,1 by giving this incomplete address.
Late Mushtaq Hussain remained unserved through summons as well as through substituted service of proclamation through newspaper. Though execution petition is not on record, but it is obvious that execution petition must have been filed with the same address in order to strip the dead of his clothes and then putting the dead in a wrong grave.
8. After obtaining the ex parte order of eviction on 2-10-1985, respondent No,1 filed execution petition and obtained more than 44 warrants of possession with or without Police help and obviously kept the same unserved, unimplemented and unexecuted for his best reasons. Otherwise it is not possible at least for an Advocate not to obtain possession of the property despite being armed with ex parte eviction order, warrants of possession and execution mandates through Police help, breaking of locks and doors etc. It was during execution petition that late Mushtaq filed his suit for perpetual injunction on 21-9-1987 by giving his address as "House No,10, Street. No,62, Bastami Road, Nawankot, Lahore. "This suit was filed against respondent No,1 Ch. Muhammad Bukhsh, Advocate and another. Respondent No,1 for himself and as an Advocate for other defendant conceded the suit on 26-10-1987 by making a statement that Mushtaq Hussain would not be evicted illegally. The suit thus culminated into a decree in favour of late Mushtaq Hussain and against respondent No:!Etc. Here again respondent No,1 maintained a mysterious and intriguing silence as to ex parte eviction order dated 2-10-1985, pending execution proceedings as well as warrants of possession obtained by 'him in November, 1986, January, 1987, March, 1987, April, 1987, September, 1987 (not mentioning subsequent warrants until November, 1993). Respondent No,1 allowed the said suit to be decreed against him without disclosure of eviction/execution proceedings filed by him and the result thereof. This obviously meant that respondent No,1 not only conceded to the issuance of decree but also admitted all the facts pleaded by the plaintiff in his plaint. Respondent No,1 had made wide statement on 26-10-1987 undertaking not to dispossess the petitioners illegally. This statement was with prejudice (not being without prejudice) and thus obviously acted as an admission of the contents of plaint, wherein Mushtaq had sought protection against illegal interference by respondent No,1 and another on the grounds that the plaintiff was in possession since long over the evacuee property, had built a house thereupon and had applied for transfer of proprietary rights to the Settlement Authorities.
9. Furthermore, transfer deed of 1988 also shows grant of proprietary rights initially to late Mushtaq and then to his granddaughter Mst.Zahida Perveen (one of the petitioners and applicants of application for setting aside ex parte decree and objector to execution petition by a separate application). Nothing has been placed on record to show claim of that petitioners that said P.T.D.
Does not relate to the property in question or that any proceedings have been undertaken by respondent No,1 against issuance of said P.T.D. To Mushtaq or to Mst. Zahida Perveen on 31-3-1988.
The claim of the petitioners is that this P.T.D. Was issued on 31-3-1988 after an order in their favour by this Court in a Constitutional petition; which has also not been filed with the present writ petition This P.T.D. Mentions property transferred therein as Khasra Nos.904 and 905 measuring 7 Marlas, 112 sq. Ft. Situated in Mouza Paki Thathi, Samnabad, Lahore, which again will be a third address of the same property. Under these circumstances, the question of fact regarding different addresses required to be settled in an inquiry by the learned Rent Controller through framing of issues and non-holding of inquiry on questions of facts raised in petitioners' application for setting aside ex parte order dated 2-10-1985 is admittedly a question of law.
10. Under the above explained circumstances, adequate to observe that petitioners in their application for setting aside ex parte eviction order have clearly and categorically pleaded that respondent No,1 had obtained ejectment order through fraud, misrepresentation, false statement and on the basis of fictitious reports of Process Servers as petitioners were not tenants under him but were transferred the said property by Settlement Department. Furthermore, tenor of pleadings in paras. 2, 3, 4, and 5 evidently covers the controversy relating to incomplete or wrong address as well. The petitioners were within their right to either further particularize their pleadings in the application or to substantiate allegations of fraud through presenting evidence thereupon. This Court, therefore, in order to do complete justice, is not barred from taking notice of questions of fact having bearing upon questions of law involved in the present case, which are as under and per force against respondent No,l.
(i) Could the learned Courts below treat petitioners' application solely under section 12(2), C.P.C.
And hold the same unmaintainable;
(ii) Were the learned Courts below justified in ignoring that the petition was specifically made under Order 9.Rule 13, C.:P.0 read with section 13/17 of the Punjab Rent Restriction Ordinance, for setting aside ex pane ejectment order dated 2-10-1985.
(iii) Were the learned Courts below legally justified to dismiss petitioners' application by treating the same as application under section 12(2), C.P.C. On the question of limitation when, under the circumstances of the present case as discussed above, limitation was a mixed question of facts and law and could not have been decided Without holding a factual inquiry and without administration of evidence;
(iv) Could the learned Courts below decide petitioners' application for setting aside ex parte order without a reply from respondent No,1, without framing of issue and without evidence thereupon;
(v) Were the learned Courts below justified in merely taking into consideration application of respondent No,1 seeking dismissal of petitioners' application only on the grounds of inapplicability of section 12(2), C.P.C. And lack of jurisdiction in learned Rem Controller to decide application for setting aside the ex parte order; particularly when question of limitation had not been raised therein by the petitioners. I am conscious of the fact that it is duty of the Court to attend to time- barred petition suo tnotu but, as discussed above, question of limitation involved in the present case could not have been decided without evidence by the learned Courts below; and
(vi) Objection petition of Mst. Zahida Perveen still remains to be decided by the learned Executing Court, who does not appear to have dealt with the same.
11. In view of the above observations, I have no option but to declare! The impugned orders dated 12-9-1996 and 7-10-2000 respectively passed by learned Rent Controller, Lahore and learned Additional District Judge, Lahore, as without lawful authority and of no legal effect. Consequent upon this declaration, the matter is remitted back to learned Rent Controller for re-decision of petitioners' application dated 29-11-1993 for setting aside ex pane ejectment order dated 2-10-1985, which shall be deemed to be pending. Learned Rent Controller shall, after obtaining reply of respondent No,1, frame issues, record evidence of the parties and decide the same in accordance with law. The learned Executing Court shall also decide Mst. Zahida Perveen pending objection petition in accordance with law, if so deemed appropriate upon decision of application for setting aside the ex parte ejectment order. It is further directed that during pendency of the said application for setting aside ex pane ejectment order, petitioners shall not bed is possessed from the suit property. This petition is accepted in above terms. There shall, however, be no order as to costs.