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Petitioner: TANVEER JAMSHED and anothers VS Respondent: Raja GHULAM HAIDER
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Ajmal Mian, Zaffar Hussain Mirza Title: TANVEER JAMSHED and anothers vs Raja GHULAM HAIDER Case No.: Civil Appeal No,268-K of 1986 Date of Judgment:1991-05-19 Reported As: 1992 SCMR 917 Result: Order accordingly
JUDGMENT
JUDGMENT ' SAJJAD ALI SHAH, J.---This appeal with leave is directed against the judgment, dated 3-10-1985 of learned Judge of Sindh High Court in F.RA. No,43 of 1984, whereby appeal filed against order of dismissal of application under section 12(2), C.P.C. Read with Order XXI, Rule 100, C.P.C. Has been dismissed. Briefly stated the relevant facts are as under:- ' In appeal before us, respondent namely, Raja Ghulam Haider is landlord while appellant No,2, Major (Rtd.) Jamshed Alam Khan is tenant in respect of a shop on the ground floor and a flat on the first floor of Akbar Manzil, Bahadurabad Commercial Area, Karachi. For the sake of convenience, both patties named above shall be referred hereafter as landlord and tenant. In the year 1974, landlord filed two cases, R.C. No,3298/74 for eviction of tenant from the shop and R.C. No,3297/74 for his eviction from the flat, in the Court of XII-Senior Civil Judge and Rent Controller, Karachi. Both parties entered into compromise in respect of flat in R.C. No,3297 of 1974 and it was settled that the tenant would vacate the flat on or before 30-11-1978 and hand over vacant possession thereof to the landlord. Somehow, compromise was not acted upon and landlord filed Execution Application No,3 of 1980. In execution proceedings tenant could not be served and order was obtained from the Court for substituted service under Order V, Rule 20, C.P.C. For pasting of notice on the door of tenant's flat and ultimately possession was taken over on 15-10-1980 under the order of the Court by the bailiff by breaking open lock of the flat of the tenant. ' Tanveer Jamshed son of tenant on 15-1-1981 filed an application under Order I Rule 10, C.P.C. In the Court , of Rent Controller, to enter proceedings on the ground that he is lawful tenant of the flat and had already filed suit No,4141 of 1980 (subsequently. Re-numbered as 206/85), for possession,
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declaration and injunction in the Court of XIV-Civil Judge, Karachi. For the sake of convenience, Tanveer Jamshed will be referred hereafter as Intervenor. ' On 14-3-1981, Intervenor filed an application under section 12(2), C.P.C. Read with Order XXI, Rule 100, C.P.C. In the Court of Rent Controller taking stand that after flat was vacated by his father, landlord agreed to rent it out to him at monthy rent of Rs,600 and he paid Rs,7,200 as advance for one year and Rs,50,000 as goodwill. He also paid advance rent for another year fsom 1-1-1980 to 31- 12-1980. Applications of Intervenor were contested by the landlord, who denied allegations and in that process counter-affidavit and affidavit-in-rejoinder were filed. ' In support of his claim, Intervenor produced copies of receipts dated 1-1-1979 and 1-1-1980 of advance rent and the Rent Controller made comparison of signatures of landlord with admitted signatures on other documents in the record of the case and ultimately dismissed application of the Intervenor under section 12(2), C.P.C. Vide order, dated 30-3-1983, on the ground that it was not maintainable as well as on merits. ' Both intervenor and tenant jointly filed F.R A. No,43 of 1984 in the High Court of Sindh, which was dismissed vide judgment, dated 3-10-1985. It was held by the High Court, inter alia, that application filed before the Rent Controller under section 12(2), C.P.C. Was incompetent. ' In this Court, vide order, dated 2-6-1986, leave was granted, inter alia, to consider the following points:-- (a) Was the application under section 12(2), C.P.C. Competent by the petitioner No,1, in the trial Court inasmuch as he was not a party to the rent proceedings? (b) Was the said application under section 12(2), C.P.C. Within time and that what Article of Limitation Act was applicable to the case in view of allegations of fraud having been made in the said application? (c) What was the effect of the pendency of Suit No,4141/1980 (New, No,206/85) in the Court of VII (East) Civil Judge, Karachi? (d) Whether the provisions of Rented Premises Ordinance, 1979 (section 22) debarred third parties from filing objections in the execution proceedings and whether could such third person obstruct the execution proceedings claiming possession through the judgment-debtor? ' So far as first point is concerned, it is to be considered whether application under section 12(2), C.P.C. Was competent or not, filed by Intervenor in the trial Court in rent proceedings when he was not a party. There is no doubt about the fact that Intervenor was not a party to the Rent Case No,3297/74, in respect of flat, which was filed by the landlord against the tenant, who is father of the Intervenor. According to the record, there was compromise between landlord and tenant, which did not materialise, as such execution application was filed and tenant was served by pasting of notice on his door and in his absence on 15-8-1980, possession was taken over by the Bailiff under the orders of the Court by breaking open the lock and handed over to the landlord. In the execution proceedings of the rent case mentioned above, Intervenor filed application under Order I, Rule 10, C.P.C. On 25-. 1-1981 read with provisions of Sindh Rented Premises Ordinance, 1979, claiming therein that he was tenant of landlord on monthly rent of Rs,600 since January 1979 and on 15-10- 1980 he was unlawfully and fraudulently dispossessed by the landlord who had committed fraud on the Court. It is further mentioned in the said application that Intervenor has already filed Suit No,4141/1980 in the Court of XIV-Civil Judge, Karachi, for possession, declaration and injunction, in which interim stay was granted, restraining landlord from alienating or parting with possession of the flat in dispute. On this application, Rent Controller issued order of notice to the other side. Subsequently, on 14-3-1981, in the rent proceedings mentioned above. Intervenor filed an application under section 12(2), C.P.C. Read with amending Ordinance X of 1980 and Order XXI, Rule 100, C.P.C., detailing facts therein with assertion that possession of flat in dispute was handed over by his father jo the landlord in terms of the compromise and in January 1979, the same was rented
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out to him by the landlord at the rate of Rs,600 per month with advance payments of rent for two years and goodwill of Rs,50,000 in view of oral agreement. In support of the claim, photo copies of two receipts showing payment of advance rent were produced. It was alleged that on 15-10-1980, landlord in collusion with Bailiff of the Court, in the absence of the Intervenor broke open the lock of the flat and took over possession illegally. Fraud was also alleged by the Intervenor on the ground that there was no justification for obtaining ex parte orders against his father in the rent case for the reason that, it was within the knowledge of the landlord that father of Intervenor was tenant of the shop in the same building beneath the flat in dispute and further residential address of tenant was also known to the landlord as both landlord and tenants were friends and reletives. ' Vide order, dated 30-3-1983, learned Rent Controller has dismissed application under section 12(2), C.P.C. On the ground that it was not maintainable under the provisions of Sindh Rented Premises Ordinance, 1979, and on merits on short grounds that Intervenor had filed application after five months and secondly, signatures in the photo copies of the receipts produced were compared by the Court with admitted signatures in the record and opinion was formed that receipts were not issued by the landlord 'as alleged. Thirdly, that intervenor did not file objections during execution proceedings. ' Perusal of order passed by the Rent Controller mentioned above, clearly shows that this application was disposed of in summary manner although containing allegation of fraud, on account of two factors. Firstly, none had appeared on behalf of decree-holder/landlord at the time of hearing. Secondly, that the Rent Controller was of the view that application under section 12(2), C.P.C. Was not competent when filed in a case governed by provisions of Sindh Rented Premises Ordinance, 1979. It was for these two reasons that allegation of fraud was rejected on the short ground that application was filed after five months and finding was given that the rent receipts were not issued by the landlord after comparison of signatures was made by the Court and objections were not filed. ' In order to go into the question whether application under section 12(2), C.P.C. Was competent or not in rent proceedings, some dates would be very relevant for consideration. This order that application under section 12(2), C.P.C. Was not competent, was passed on 30-3-1983 when Sindh Rented Premises Ordinance, 1979 held the field which was promulgated on 21-11-1979. This order was passed in execution proceedings of Rent Case No,3297 of 1974, which was filed in the year 1974 when West Pakistan Urban Rent Restriction Ordinance, 1959 was in force (hereinafter to be referred as repealed Rent Ordinance). Application under section 12(2), C.P.C. Was filed on 14-3-1981, on which order was passed by the Court on 17-3-1981, for issue of notice and hearing for 5-4-1981. In the application claim is made by the Intervenor that he was inducted into possession of flat in dispute by landlord in January 1979 and was dispossessed by him illegally on 15-10-1980. There is no dispute about the date of dispossession because it is a recorded fact and possession was taken over and handed over to the landlord by Bailiff of the Court. In such circumstances, it can be said that cause of action accrued to the Intervenor on 15-10-1980 on account of dispossession, as claimed and alleged by him. That being so, the governing rent law would be Sindh Rented Premises Ordinance which was promulgated on 21-11-1979. ' Now there is no dispute about the fact that Intervenor was not a party in Rent Case No,3297 of 1974, which was pending in the Court between the landlord and the tenant, who is father of intervenor. According to landlord, possession was obtained by him during execution proceedings under the orders of the Court. According to the Intervenor he was dispossessed and not his father for the reason that he was put into possession by the landlord after the flat was vacated by his father. In other words Intervenor, though not a party to the rent case mentioned above, still claims right of possession of flat in dispute directly from landlord on the ground that Intervenor was accepted as tenant.
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' It may be mentioned here that originally section 12, C.P.C. Did not have subsection (2) which was added for the first time by section 2 of Code of Civil Procedure (Amendment) Ordinance of 1980 on 26-3-1980 providing that final judgment, decree or order could be challenged on the ground of fraud, misrepresentation or want of jurisdiction in the same Court by making an application and not by a separate suit. There was controversy whether this remedy could be invoked in the rent proceedings or not. Controversy is brought to rest by Legislature which has made amendments in the relevant provisions of law and elucidation on the point provided in the case-law on the subject. Section 12 as it appears now, has two subsections. Subsection (1) envisages that where plaintiff is precluded by rules he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies. In subsection (2) legislature on purpose has not used word "plaintiff', but a "person" which shows that scope in subsection (2) is not limited to suit proceedings but would include other proceedings as well. Other provisions which would be relevant to be mentioned here are Rules 100 and 101 of Order XXI, C.P.C. Rule 100 provides that where any person other than judgment-debtor is dispossessed from immovable property by a holder of a decree for the possession of such property, or where such property has been sold in execution of a decree, by purchaser thereof, he may make an application to the Court complaining of such dispossession. The Court shall fix, a date for investigating the matter and shall summon the party against whom application is made to appear and answer the same. Rule 101 provides that where Court is satisfied that applicant was in possession of the property on his own account or on account of some person other than judgment-debtor, it shall direct that the applicant be put in possession of the property. ' West Pakistan Urban Rent Restriction Ordinance, 1959 was promulgated with the object of restricting the increase of rent of certain premises within the limits of urban areas and the eviction of tenants in the Province of West Pakistan. Since it was special law and created special remedy before special Tribunal and the intention in the background was to provide expeditious disposal of disputes avoiding intricacies of civil law, so the controversy arose whether Civil Procedure Code would apply in rent proceedings or not. Subsection (5) of section 15 of the repealed Rent Law envisaged that no order passed by the Controller, the appellate Authority or the High Court under the provisions of the said Ordinance, shall be called in question in any Court of law by suit or otherwise except as provided under the said Ordinance. Section 17 of the said Ordinance further provided that every order made under section 10 or section 13 and every order passed under appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Reading of the provisions mentioned above, clearly shows that the intention was that the Rent Controller appointed under the repealed Rent Ordinance could hear rent case without application of Civil Procedure Code, but order of eviction passed by him was to be executed by a Civil Court having jurisdiction in the area as if it was a decree passed by that Court. After disintegration of West Pakistan same rent law was adopted by Government of Sindh as Sindh Urban Rent Restriction Ordinance and continued to operate until 1979; when Sindh Rented Premises Ordinance 1979 was promulgated. Preamble of the new rent law which is operative now is to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within urban areas. It provides for appointment of Civil Judges and First Class Magistrates as Controllers and procedure is further simplified by allowing filing of affidavits of witnesses, who are to be made available for the purpose of cross-examination by the other side. Under section 20, Controller is allowed to exercise powers of Civil Court in respect of matters relating to summoning and enforcing attendance of any person and examining him on oath, compelling production or discovery of documents, inspecting the site and issuing commission for examination of witnesses or documents. At the time of promulgation of the present rent law, section 22 before amendment envisaged that an order made by Controller or the appellate Authority shall be executed in such manner as may be determined by the Controller or
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as the case may be, the appellate Authority. Such legislative change for shifting execution of orders of Rent Controller from Civil Courts as contemplated under the repealed rent law to Controller or Appellate Authority as provided under the new rent law, was on account of view developed in the case-law that Rent Controller in order to do even-handed justice should evolve his own procedure and follow the guidelines provided in Civil Procedure Code as far as possible. ' In the case of Messrs Bambino Ltd. v. Messrs Selmor International Ltd. And another PLD 1983 SC 155, after making reference to specified powers mentioned in section 22 of Sindh Rented Premises Ordinance, 1979, it was, observed that the rest of the powers enjoyed by Civil Court were not available to the Rent Controller but he was free to follow the equitable principles contained in Code of Civil Procedure. It was further held that Controller was competent to adopt any procedure deemed by him suitable for the purpose of execution of order. Order XXI, Rules 100 and 101 of the Civil Procedure Code amply authorised an executing Court for investigating and adjudicating upon the matter of dispossession from immovable property by the holder of a decree for possession of such property of a person other than the judgment-debtor. If the Court was satisfied upon such enquiry and determination that applicant was in possession of property on his own account or on account of some person other than the judgment-debtor, the executing Court has the jurisdiction to direct that the applicant be put into the possession of the property. ' Section 22 of Sindh Rented Premises Ordinance, 1979 was amended by Sindh Rented Premises (Amendment) Act No,I of 1986 and in its present form reads as under:-- "Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit. "Explanation. - In the execution proceedings relating to the order of ejectment, no payment, compromise or agreement, shall be valid' unless such payment, compromise or agreement is made before or with the permission of the authority passing the order." ' In the instant case, application under section 12(2), C.P.C. Filed by the intervenor was dismissed by the Rent Controller on 30-3-1983, which was before amendment was made in section 22 of the Sindh Rented Premises Ordinance 1979, in the year 1986 by Act No,I of 1986, hence it would be proper and relevant to confine discussion on the question of interpretation of section 22 as it was before amendment. Before amendment section 22 provided that order made by the Controller or Appellate Authority shall be executed in such manner as may be determined by Controller or Appellate Authority, as the case may be. Therefore this case will be adequately and effectively covered by rule laid down by the Supreme Court in the case of M/s. Bambino Ltd. Mentioned above, providing that it was open to the Controller to follow equitable principles contained in Civil Procedure Code and could decide question of dispossession of a person claiming possession from a person other than judgment-debtor. Therefore in this case when application was filed by the intervenor under section 12(2), C.P.C. On the ground that he was inducted into possession by the landlord and was fraudulently dispossessed by him, the application was maintainable and was filed in the right forum and should not have been dismissed on the ground that it was incompetent as the intervenor was not a party to the rent proceedings, which were between landlord and tenant (father of intervenor). Question whether third party not party to the rent case can file application under section 12(2), C.P.C. Before Controller, came up for consideration in the Supreme Court before the same Bench, which is seized of the present appeal in unreported case of Mst. Fehmida Begum v. Muhammad Khalid and another in Civil Appeal No,8-K of 1989, in which the unanimous conclusion is that a stranger. To the proceedings or a third party in such circumstances has two remedies open to him. He can apply to the Rent Controller under section 12(2), C.P.C. For recall or review of order based on fraud or file a separate suit, but he can pursue only one remedy which he has initiated first or
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earlier in point of time, because having done so, his right to the other remedy shall stand forfeited in order to avoid conflict of opinion in two forums. In the instant case admitted position is that appellant No,1 namely, Tanveer Jamshed son of appellant No,2 tenant filed application under Order I, Rule 10, C.P.C. On 15-1-1981 in the Court of Rent Controller, seeking permission to join the proceedings on the ground that he was lawful tenant of the flat and had already filed Suit No,4141/80, which was subsequently renumbered as 206/85, for possession, declaration and injunction in the Court of Civil Judge, Karachi, in which he had obtained interim stay restraining landlord from alienating or parting with possession of the flat in dispute. We, therefore, hold that the said suit was competently filed and his application under section 12(2), C.P.C. Was liable to be dismissed by the Rent Controller on the ground stated above. ' Second point for consideration as mentioned in the leave granting order, is whether application under section 12(2), C.P.C. Was filed within time and whether Article 181 of Limitation Act is applicable to the case in view of allegations of fraud made in the said application. Record shows that application under section 12(2), C.P.C. Was filed by Intervenor Tanveer Jamshed in Execution No,3 of 1980 of Rent Case No,3297/74 in the Court of XII-Senior Civil Judge at Karachi on 14-3-1981, on which order was passed by the Court on 17-3-1981 for issuance of notice, cost and hearing for 5- 4-1981. Intervenor admittedly was not a party in the rent case but claims to have been dispossessed on 15-10-1980, when possession was taken over by bailiff of the Court by breaking open the lock of the flat under the orders of the Court. In this application under section 12(2), C.P.C. In paragraph 8, it is admitted by the petitioner that on 15-10-1980, on coming to know that possession of the flat was being taken over, he rushed to the site and met landlord and Bailiff of the Court and had informed the Bailiff that he was the tenant and not his father Maj. Jamshed Alam but his pleadings went unheard, in spite of the fact that he showed documents and rent receipts in support of the claim that he was tenant of the premises in dispute. Before this application under section 12(2), C.P.C. Intervenor before the Rent Controller had filed application under Order I, Rule 10 C.P.C. On 24-1-1981, seeking to be joined as a party on the ground that he was tenant and had filed Suit No,4141/80, for possession, declaration and injunction and also obtained thereunder order of status quo. Documents filed by the Intervenor in the rent case and execution proceedings further show that plaint was filed on 1-11-1980 and ad interim order of status quo was passed on 2-11-1980 with notice to the other side for hearing of stay application. It is, therefore, beyond dispute that Intervenor had knowledge of dispossession on 15-10-1980 and it is further submitted that while Rent Controller did not pass any orders on application of Intervenor under Order I, Rule 10, C.P.C., orders were passed on application under section 12(2), C.P.C. On 30-3-1983, dismissing the same. In spite of the fact that Intervenor had knowledge on 15-10-1980 that he was dispossessed, still he filed application under section 12(2), C.P.C. Before the Rent Controller on 14-3-1981, which was after about five months. Section 12(2) C.P.C. Does not provide specifically any period of limitation, hence this application will be covered by Article 181 of the Limitation Act, which gives three years time from the date when right to sue accrues. In support of the proposition stated above, reference can be made to the case of Muhammad Iqbal and others v. Muhammad Alamgir and others 1990 SCM R 1377. Net result is that in the instant case, application filed by the Intervenor under section 12(2), C.P.C. On the ground of fraud was within time. Third point for consideration in the leave granting order is as to what will be the effect of pendency of Suit No,4141/80 (New No,206/85), in the Court of WI-Civil Judge, Karachi East. Answer to this question' is already given at page No,16 of this judgment in the fmding after examination of first point mentioned in the leave granting order. It is, therefore, reiterated that the said suit is filed in the Court having jurisdiction and Intervenor has to pursue that remedy in preference to application under section 12(2), C.P.C. Before the Rent Controller, which has been dismissed.
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' Fourth point mentioned in the leave granting order is whether provisions of Sindh Rented Premises Ordinance, 1979 (section 22) debarred, third party from filing objections in the execution proceedings and whether could third person obstruct the execution proceedings on the ground that he was not claiming possession through the judgment-debtor. This point is worded in the leave granting order in such manner and the language used is also such that it…
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