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Petitioner: REHMATULLAH VS Respondent: ALI MUHAMMAD AND Another
Court Name: Supreme Court of Pakistan Judge(s): Nasim Hasan Shah, Muhammad Afzal Zullah Title: REHMATULLAH vs ALI MUHAMMAD AND Another Case No.: Civil Petition for Leave to Appeal No. 993 of 1982 Date of Judgment:1983-05-09 Reported As: 1983 SCMR 1064 Result: Appeal allowed
Judgment ORDER MUHAMMAD AFZAL ZULLAH, J.-Judgment, dated 30-11-1982 of the Lahore High Court in exercise of its writ jurisdiction, in an alleged urban tenancy .Are, has been brought under challenge, through this petition and it has been converted into an appeal. The respondent stated to be real nephew of the appellant, sought the eviction of the appellant from a shop in his occupation on ground of default in payment of rent. As result of a remand order passed in respondent's appeal after the dismissal of his eviction application by a learned Rent Controller in the first round of litigation, the respective pleas of the parties on the main issues of title to the property, were retried by another learned Controller in the form of the following issues "(1) Whether relationship of landlord and tenant exists between the parties ? (2) Whether Muhammad Ramzan has any locus standi to file application on the basis of the power-of-attorney?" Additional issues framed by the appellate Court. "(2-A) Whether the respondent validly executed the sale-deed, dated 1-5-1967 and the rent note of even date in favour of the appellant? (2-B) Whether the aforesaid deeds in fact related to issuance of a passport for Muhammad Sarwar, the son of the respondent? (2-C) Whether the deeds in question were based on fraud and mis--representation if so, with what effect?" The learned Rent Controller recorded the evidence of the parties and same to the conclusion that the sale-deed as well as the rent note could not be proved so as to determine the ownership of the respondent in respect of the disputed property and the relationship of landlord and tenant
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between the parties was not established: He, therefore, dismissed the application. The landlord/respondent went in appeal and the learned Additional District Judge vide order, dated 19- 10-1982 allowed the appeal and directed the Peti--tioner to deliver the vacant possession of the shop within two months from the date of order. He also made an observation to the effect that the appellant if so advised might file civil suit for the cancellation of the documents, namely, sale-deed and rent note. Then the petitioner moved the High Court in its writ jurisdiction but without success- -He has now sought leave to appeal to this Court. Appellant's plea about the sale-deed and the rent note (both of 1-5-1967) relied upon by the respondent, was that they are fictitious and forged. Product of fraud, practised upon him by his nephew in the following circumstances "The respondent has been living in England. The petitioner asked the respondent to send his son to England and made him believe that, he could arrange his passage to England. In this reference the respondent brought the petitioner to Sahiwal and got signed certain papers in connection with the passport of his son and certain bond deeds for security of the liabilities of his son intending to go to England. It was only in this context that the petitioner if at all, signed any docu--ments of any nature. He never meant to sign sale deed or rent deed regarding shop in dispute in favour of the respondent. It is further contended that the petitioner could rot have sold the shop in dispute for Rs. 2,500 while its market value was not less than Rs. 30,000. Therefore, such an unconscionable act on the part of the petitioner cannot reasonably be conceived." The learned Rent Controller after due consideration of the evidence came to the following conclusion on the main issue: "It is interesting to note that none of the petitioner's (respondent herein) witnesses have stated that shop in dispute was rented out in his presence. Whole of the petitioner's claim is based upon the execution of rent deed Exh. A-2 which has not been proved. In rebuttal to this week and discrepant evidence, all of respondent's (appellant herein) witnesses unanimously corroborated the contention of the respondent. I do not find any reasons to disbelieve the cogent evidence of respondent which is also confirmed by the deposition of A. W. 1. In these circumstances petitioner has miserably failed to prove execution of both the docu--ments, Exh. A-1, Exh. A-2 and the existence of relationship of landlord and tenant between the parties. As a result issues under discussion are decided against the petitioner (respondent herein)." Earlier the learned Controller took note of the fact that respondent's own witness No. 1 Fazal Muhammad who is a marginal witness of the alleged sale-deed and the rent note (Exh. A-1 and Exh. A-2), had corroborated appellant's version to the extent that the said documentation in fact was a part of security for the arrangements which the respondent was to make for the son of appellant for his travel to and stay in England. The sentence Exh. A-2Exh. A. Was particularly noticed. It may be added that this witness had also admitted that the appellant had not received any "sale price" for the shop and that it was worth much more than Rs.2,500 he gave the estimated price as 30/40 thousand rupees. The learned Rent Controller had further observed that the respondent failed to produce other witnesses of the execution of the documents, despite opportunity, presumably because they, like Fazal Muhammad, would not have supported him. The learned District Judge in appeal did not disturb the afore discussed findings. On the other hand he also felt that there was strength in the plea of the appellant and observed that "there is some grain of truth in the allegations of fraud and forgery alleged by the respondent (appellant herein) in this case. He, however, in my view, if advised, should have filed a civil suit for the cancellation of sale-deed Exh. A-1 and rent deed Exh. A-2. He can still do so if be so likes, of course subject to the period of limitation." The appellant then moved the Lahore High Court in its writ jurisdiction with the prayer that the judgment and order passed by the appellate Court; whereby he was ordered to be evicted, be
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declared without lawful authority, A learned Single Judge without disputing the fact that the plea raised from the appellant's side (which had been accepted by the learned Rent Controller and that finding had not been disturbed by the first appellate Court), was genuine and worth acting upon; nevertheless, on the assumption regarding execution of the disputed documents, held that the relationship of the landlord and tenant had been established. However, at the same time not only affirmed the observation of the appellate Court regarding cancellation of the sale-deed and rent note through a civil Court but also advised the petitioner to file a civil suit "for determination of his claim". The writ petition having thus been dismissed, leave to appeal has now been sought by the appellant. A very serious question arises indeed whether in the cases like the present one, the Rent Controller or for that matter the appellate Court in that hierarchy, can evict the so-called tenant, leaving it for him to seek redress from civil Court on the question of title and/or fraud committed on him by the so-called landlord. The answer to the aforenoted controversy can be considered in two separate aspects thereof. One, whether when acting under the Rent Restric--petition Law a Controller or a Court in appeal can decide issue of relationship of the landlord and tenant in favour of the landlord even when there is a doubt about the strength of his case or to put it otherwise, the material brought on record by the tenant has made the landlord's claim doubtful. And two, whether in such a situation, the tenant and not the landlord should be left/advised to seek remedy in a civil Court. There are several decided cases and some of them are recent wherein questions similar to the aforenoted controversy were dealt with. But before noticing them, it is necessary to state that an amendment has been made in section 12 of the Civil Procedure Code by Ordinance X of 1980. As amended it reads as follows :- "Section 12. Bar to further suit.-(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies. (2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit." The first question posed in the last but one paragraph does not present any serious difficulty. Whether it is the forum of Rent Controller or a Court exercising its appellate or constitutional jurisdiction, there is no scope for the argument that even if a landlord fails to establish the relationship of landlord and tenant beyond reasonable doubt he would still be allowed the benefit of affirmative finding on this issue. There is neither any general principle nor the relevant law governing proceedings either before the Controller as a special tribunal or the appellate Court that when a party is required to establish a fact, positively. It shall be deemed to have discharged its burden only by. Obtain--ing a tentative opinion and not a finding beyond a reasonable doubt. It is not necessary to go into the difference regarding appreciation of evidence in criminal proceedings as compared to those of civil nature, as the jurisprudential consideration regarding burden on an accused person is foreign to the present discussion, This finds support from the relevant law, namely, Rent Restriction Ordinance; section 13 whereof requires that if the Controller, after affording -reasonable opportunity to the tenant, "is satisfied" that one or the other conditions having been fulfilled he is liable to be evicted (of course on sue satisfaction) ran pass orders visualized by the said provision. This clearlyshows that the finding of fact is to be reached after complete satisfaction and that too as a result of opportunity having been afforded to the parties/ concerned to satisfy the Controller one way or the other. When the Controlled is permitted and/or required to give only a tentative finding in respect of any matter the law has specified it; for exampled in subsection (6) of section 13.
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Sometimes in order to support the plea that the Rent Controller has only to form a tentative ,opinion regarding relationship of landlord and tenant because it is not always necessary for the landlord, under the wide and extended definition of the term "landlord" to establish "ownership" of the property concerned. Therefore, the Rent Controller need not go into the dispute questions of title. It is true that the definition of landlord, as held in man cases, in the said law is very wide and a person in various capacities, can be deemed to be a landlord even if he is not the owner of the property. But it cannot be denied that in large majority of the cases the claim of the applicant before the Controller as landlord is based on the ownership of the property, because the right to recover rent in those cases is based on the title in the property. This category of landlord is visualized in the very opening part of the definition of the landlord "any person for the time being entitled to receive rent whether on his own account or . . . . . : :" is a landlord. When the satisfaction of the Controller under section 13 is visualized in connection with the claim of a person to receive rent on his own account on the basis of his title in the property, it becomes clear that he will have- to be satisfied, that the claimant regarding status of the landlord before him, is the owner and is thus entitled to recover rent. As to whether the parties would be able to lead the necessary evidence before the Rent Controller, the statute law itself does not make any distinction between the trial of an issue like an issue of title by a civil Court on the one band and the Rent Controller on the other hand, except that the Evidence Act and the Civil Procedure Code do not apply to the latter. And in addition to this aspect of the special law one cannot ignore another very important and somewhat similar but overriding aspect of that law; that is, it provides speedy and summary remedy to the parties in respect of controversy dealt therein. If elaborate trial of seriously controversial issues of title is held before the Rent Controller, this main object of the law might be frustrated: The two afore discussed, somewhat conflicting demands of the same law (satisfaction of Controller but in a speedy quasi-judicial trial) become more complex when full effect is given to a very important third demand of that law which has, by and large, not been given due attention in relation to the afore--noted controversy except in a recent judgment of this Court delivered by one .Of us (Mr. Justice Dr. Nasim Hasan Shah) namely, Zahoorul ,Hassan v. Mst. Ruqia Begum and others (PLD1981SC112). It is the provision which bars the jurisdiction of all other forums and Courts excepting of course the appellate and constitutional jurisdiction, in respect of matters which are included in "the order" of the "Controller" as visualized by subsection (7) of section 15 of the amended Ordinance. It reads as follows :- "The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of Law, including the High Court, by suit, appeal or otherwise." Before the amendment the position was not much different. ~ Subsection (5) of section 15, before it was amended read as follows :- "No order passed by the Controller, the Appellate Authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance." Obviously it cannot be contended from either side that the law maker intended that this provision should not be given due effect in all its relevant respects. The pronouncement of this Court in Zahurul Hasan's case is not only instructive but also lays down the law regarding this major aspect of the present controversy. If the Rent Controller decides the question of relationship of landlord and tenant affirmatively in, favour of the landlord directly upon a finding regarding his claim to recover rent on account of his ownership in the property, it would not be possible under ordinary circumstances for a civil Court, on account of the statutory bar, to re-open the same question. And simply because the determination of this question of fact will also determine his own jurisdiction
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will not render it into a jurisdictional fact simpliciter. This general consideration by itself, will not displace the overriding command of the statute law in section 15(7) (or sec--petition 15(5) unamended) of the Ordinance or section 12(2) of C. P. C. Wherever applicable for example when :here is a decision by an appellate Court or by a superior Court in an urban tenancy matter. As already noted there would remain some concern and anxiety for the Courts due to one of the commands and the objects of the special law regarding speedier proceedings which excludes the application of C. P. C. And Evidence Act. Cases would still come before the Controller wherein due to these constraints it would not be possible at all for him to give a firm decision on controversial question of title. Those would include the present type also wherein although the Rent Controller positively gave a firm finding that the appellant, the so-called tenant, is himself the owner of the property; and that, the respondent tried to oust him through forgery of title documents, the finding of the appellate Court of fact is that the so-called landlord has not been able to establish his claim regarding title to the property and consequent position as landlord, beyond doubt. It is in this context that the next question arises, whether in the proceed--ings under Rent Restriction Ordinance, a party can be left to seek remedy/ declaration from the civil Curt, if so which one. One answer can be given straight 'The stage has now come to examine the case-law. The recent case of Zahurul Haman has already been noticed. 1t was held that an order of a Rent Controller subject to result of appeal, if any, is final and cannot be questioned in any Court of law by suit, appeal or otherwise and the word "otherwise" was considered wide enough to include remedy by way of revision also under section 115, C. P. C. The cases analysed in this ruling were; Kishen Chand & Co. v. Nur Muhammad (PLD 1949 Lah.30) ; The Corporation of the City of Lahore v. Mst. Fahmida Begum (PLD 1952 Lah.258) ; Khadim Mohy-ud-Din and another v. Ch. Rehmat A.I Nagra (PLD 1965 SC 459.) : Abdul Haq v. Syed Arif A.I and 6 others (PLD 1978 Lah.441) ; Motabar and others v. ,tfessrs S M. Rehman & Co. And another (PLD 1971 Quetta 47) ; Abdul Fazal Khan v. Muhammad Amjad Khan (PLD 1980 Lah. 706) ; Haq v. Saijur Rehman and others (PLD 1968 Lah. 478) ; Allah Rakha v. Col. Abdul Ghafoor (PLD 1978 Lah. 1364) and Muzaffar A.I v. Muhammad Shafl C. A.. No. 14 of 1973 (unreported). . a PLD 1981 SC 545), although the relevant question had arisen in connection with temporary injunction yet some of the points raised and observation made therein will have some bearing on the nature of controversy in this case. It was urged from one side that even judgment of the highest Court in the land can be challenged in the Court of preliminary jurisdiction on the ground of fraud. Reliance was placed on M. Moosa v. Muhammad and others (1975 SCMR 115), wherein it as observed that the remedy in case of fraud was by way of civil suit and not through a review application. It was, however, suggested by the same party that the remedy was also available under section 12 of the C. P. C. Or as held in The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD1975SC331) through approach to the same forum for relief from which judgment was obtained by fraud. But a detailed inquiry, it was further suggested was only through a civil suit. The main reliance of the other party was on section 12, C. P. C. Which barred the filing of a civil suit. It was also urged by that side that the detailed inquiry is destructive for purpose of the Rent Restriction Law as it relates and is confined to the relation of the landlord and tenant and does not concern itself at all with the varying shades and numerous facets of the incidence of ownership of property. As the question related only to the issue or refusal of temporary injunction, the general questions of jurisdiction raised by the parties were not finally determined except that some general observation was made with regard to the nature of controversy when the allegation of fraud is relatable to the proceedings before a tribunal or Court and not as in present case when it is alleged by one party against the other, not only out of Court but also before approaching the Court. The facts and circumstances of that case, any way, are illustrative of various types of controversy, regarding title which can be brought before the Rent Controller or
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before a civil Court in a matter which is pending before or disposed of by a Rent Controller. PLD 1964 SC 97). The general principle of res judicata as also the qualifying clause in section 9 of C. P. C. "excepting suits of which their cognizance is either expressly, or impliedly barred" were also considered. In the context of what has teen held in Asif Jah Siddiqui's case (when taking due note of amended section 12 of C. P. C.) the general observation made in the case of Raja Muhammad Fazil Khan regarding scope of section 9, C. P. C., might have to be held as subject to development of law which took place subsequently. And in cases under Rent Restriction Law, what has been held, in the case of Zahurul Hasan already noticed will also have to be kept in mind. In Messrs Arakey Limited Karachi and another v. Munir Ahmad Mughal and others (PLD 1982 SC 204), the effect of newly-added subsection (2), section 12, C. P. C., was noted as follows :- "Before the amendment of section 12 by the insertion of the said subsection an order passed by a Court was not liable to be challenged z 2s collaterally before the same Court on the ground of fraud, misrepre--sentation or want of jurisdiction. A separate suit was maintainable for having such order declared a nullity on these grounds. However, the effect of the amended provisions is that a separate suit is not competent to seek relief on the grounds covered by subsection (2) of section 12. Clearly, therefore, the provisions have the effect of encroaching upon and curtailing the remedy before the general Courts of jurisdiction in the relevant field. It is a well-established principle of interpretation of statutes which create new and extraordinary remedies, or remedies unknown to common law, to be strictly construed. Same rule is applied for construing statutes which have the effect of ousting the jurisdiction of ordinary Courts. Applying these principles of inter--pretation, it appears to us that the special remedy provided by section 12(2), C. P. C. Will be available only in respect of cases where the ground of attack is based on fraud, misrepresentation or want of jurisdiction." 1983 SCMR 494), against the effect of section 12(2) was noticed as follows :- "The statute law has made another important provision, namely, that in case like the present one, where a person challenges the validity of a judgment, decree or order of the High Court (The allegation of fraud was regarding the High Court proceeding) on the plea of fraud, misrepresentation or what of jurisdiction, he shall have to seek his remedy by making an application to the High Court and "not by a separate suit". In this case, the petitioner could not have filed a separate suit as it stood barred by the above-referred law. It was, therefore, necessary for her to have made an application before the High Court if she wanted to challenge the order, dated 26-10-1980 on the allegation of fraud and mis-presentation as made in the applica--petition, dated 2-12-1980. That being the position, the High Court was required to hold the enquiry and adjudicate this aspect of the matter see Muhammad Akhtar's case 1981 SCMR 878." 1980 SCMR 596) and the effect of section 44 of the Evidence Act, was also considered in this behalf. The question whether the Rent Controller can examine the plea regarding title was noticed in Bashir Ahmad v. Abdul Hamid and another (1983 SCMR 302) and (in the context of the peculiar facts and circumstances of that case wherein the question of title of the landlord through his predecessor-in-interest, as also, the plea of adverse possession by the tenant had been independently decided by the Courts of general jurisdiction, even up to the Supreme Court) it was observed that "the tenant had not entered the witness-box or produced any other witness in support of his claim or to rebut the claim of the respondent or to stand the test of cross- examination". This was taken to be adversely reflecting on the case set up by him. Accordingly leave to appeal was refused. 1982 SCMR 90), the scope of the jurisdiction of executing civil Court under the C. P. C. Vis-a-vis the order passed by the Rent Controller, was examined with a view to discover whether the civil Court, while seized of the execution of the order could reopen and adjudicate the question which fell
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within the exclusive jurisdiction of the special Tribunal. The discussion is instructive. Subsection (2) of section 12, C. P. C., came up for interpretation also before the High Court in Pakistan. Some of the cases which can be referred in this behalf are Gahna Khan v. Mitha (PLJ 1983 .Lab. 166), Alam A.I and another v. District ,fudge and others (PLD 1983 Lab. 278), Sardar Shaukat A.I and others v. Shamim Ahmad Beg and another (1982 CLC 2042), Samiullah v. Mansur A.I and others (1982 CLC 2157), Malik Muhammad Shafi v. Muhammad Saleem (PLD 1981 Lab. 318), Muhammad Siddique and others v. Malik Allah Ditta (PLD 1981 Lah. 353), Muhammad Ilyas v. Azhar Hafeez Sheikh and others (1982 CLC 625), Munir Ahmad Khan. Etc. v. Samiullah Khan, etc. (NLR 1981 A C 125), Mir Ahmad Shah v. Pakistan and 2 others (1981 CLC 1130), Fateh Muhammad v. Khushhal Muhammad (1981 CLC 1130). Sheikh Muhammad Shafique v. Hamayun Kabir and others (1981 CLC 1248) and Wajid A.I and others v. Board of Revenue, Punjab and others (PLD 1982 Lab.…
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