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Petitioner: Junaid Iqbal VS Respondent: Hanfia Alamgir Jama Masjid Trust & Others
Court Name: Sindh High Court Judge(s): Muhammad Abdur Rahman Title: Junaid Iqbal vs Hanfia Alamgir Jama Masjid Trust & Others Case No.: C. P. No.S-420 of 2023, C. P. No.S-421 of 2023 Date of Judgment:2023-05-29 Reported As: 2023 SHC 379 Result: Petition Dismissed
Judgment ORDER Mohammad Abdur Rahman, J. The Petitioner, through these Constitution Petitions, each filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has impugned orders each dated 13 April 2023 passed by the District & Sessions Judge Karachi (East) in First Rent Appeal No. 41 of 2022 (FRA No. 41 of 2022) and First Rent Appeal No. 42 of 2022 (FRA No. 42 of 2022) emanating from two orders the first dated 19 November 2019 passed by the VIIIth Rent Controller Karachi East in Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 and the second dated 29 January 2022 passed by the VIII Rent Controller Karachi East in Execution Application No. 10 of 2019 and Execution Application No. 11 of 2019 filed in Rent Case No. 352 of 2018 and Rent Case No. 351 of 2018 respectively. 2. The Petitioner is a tenant of the Respondent No.1 (which is a Public Charitable Trust) and in such a capacity are in possession of two tenements namely: (i) Shop No.152, Adjacent to Alamgir Jama-e-Masjid Area 2-A, Sector 37-K, Near Babar Market, Landhi No.3, Karachi 7516; and (ii) Shop No.158, Adjacent to Alamgir Jama-e-Masjid Area 2-A, Sector 37-K, Near Babar Market, Landhi No.3, Karachi 75160 (the "Said Tenements") against a monthly rent of Rs. 3,500 and Rs. 300 per month respectively. 3. In or around July 2018 the Respondent No.1 filed an application under Clause (ii) of Sub-Section (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979 seeking the eviction of the Petitioner from the Said Tenements on the grounds that the Petitioner had failed to pay rent to the Respondent No.1 and was liable to be evicted on account of such default. The Applications were numbered as Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 and which were each
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presented before the VIIIth Rent Controller Karachi (East). Notices were thereafter issued to the Petitioner, who despite being served, with a notice of the institution of Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 chose not to appear and was on 2 October 2018 debarred from participating in both of Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 and whereafter both of these Rent Cases proceeded ex parte. Thereafter, the Respondent No.1 adduced evidence "ex-parte proof" and on 30 March 2019 Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 were each decreed in favour of the Respondent No. 1 with directions to the Petitioner to vacate the Said Tenements within a period of sixty (60) days. 4. Pursuant to the Decree dated 30 March 2019 passed in Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018, the Respondent No.1 instituted execution proceedings bearing Execution Application No. 10 of 2019 and Execution Application No. 11 of 2019 before the VIIIth Rent Controller Karachi (East). The institution of these proceedings led the Petitioner to maintain an application under Sub- Section (2) of Section 12 of the Code of Civil Procedure, 1908 on the following grounds: ii 1. That the applicant / D.H. has annexed the tenancy agreement between Javed Iqbal and applicant trust as Exh.A/2. Whereas the applicant / D.H. has filed the Rent Case against the J.D. / opponent namely Junaid Iqbal, which is not sustainable under the SRPO 1979 and this facts was concealed by the applicant trust. 2. That the instant rent application of the applicant is hit under the principle of U/O I Rule 3 CPC. 3. That the Javed Iqbal was died on 21.01.2014, hence he should made be party of this case and his legal heirs may also be arrayed as opponent in this case but the applicant despite knowledge did not make any effort to bring the legal heirs / representative of Javed Iqbal in this instant case. 4. That as per Extract which is exhibited as A/8, give power to two persons namely Muhammad Laiq Ahmed and Muhammad Saeed Khan Sabri but interestingly only Muhammad Saeed Khan Sabri has filed this instant rent case, which is the violation of Extract Form as per law that if a law requires a thing to be done in particular manner it should be done in that manner and should not be done otherwise. 5. That no Trust Deed is being exhibited by the applicant before this Hon'ble Court in order to verify the extract that who are the members of trust who executed their signature on the extract form." 5. It is important to note that the decrees dated 30 March 2019 passed in Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 were not assailed by the Petitioner on the ground that service had not been properly effected on him and rather it was assailed on the grounds that: (i) the trustees of the Respondent No.1 had not properly authorized their attorney to institute Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 or for that matter Execution Application No. 10 of 2019 and Execution Application No. 11 of 2019 before the VIIIth Rent Controller Karachi (East); (ii) as the original tenancy agreement had been entered into by the Respondent No. 1 with the Petitioner's father, after his passing the other legal heirs of his father ought to have been impleaded as parties and which omission was not curable; and (iii) the trust deed of the Respondent No. 1 had not been produced so as to confirm how title in the Said Tenements came to vest in the Trustees of the Respondent No. 1. 6. The applications under Sub-Section (2) of Section 12 of the Code of Civil Procedure, 1908 that had been presented by the Petitioner in Execution Application No. 10 of 2019 and Execution Application No. 11 of 2019 were dismissed by the VIIIth Rent Controller Karachi (East) on 19 November 2019 stating: (i) that there was no need for the Respondent No. 1 to produce the trust deed as the Petitioner having not denied the relationship of landlord and tenant cannot inquire into the title of the Respondent No. 1 to the Subject Tenement, (ii) that as it was admitted by the Petitioner that he was in possession as a legal heir of his (late) father; the relationship of landlord and tenant stood established as between the Petitioner and the
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Respondent No. 1 and as a consequence there was no need to implead any other person in these proceedings, (iii) that as the Petitioner had not raised any allegation that service had not been affected in accordance with law, meant that the Petitioner admitted having knowledge of the institution of Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 which he deliberately chose not to participate in. 7. That an appeal as against the order dated 19 November 2019 was not preferred by the Petitioner and instead, he presented two other applications in Execution Application No. 10 of 2019 and Execution Application No. 11 of 2019; one under Sub-Section (2) of Section 20 of the Sindh Rented Premises Ordinance, 1979 and another application under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 with prayers as under: Application U/S 20(b) S.R.P.O.1979 It is most respectfully prayed on behalf of the opponent / J.D. that this Hon'ble Court may be please to direct the applicant to produce the Trusts Deed before this Hon'ble Court for inspection and supply the copy to the opponent, as the applicant claiming himself as General Secretary of the trust and produce Extract of Resolution at Exh.A/1. It is, therefore, in the interest of justice and equity to inspect the trust deed in order to ascertain that the applicant is duly authorized person to file the instant rent case / rent execution or otherwise. Prayed accordingly." Application U/S 47 CPC R/W Section 151 CPC 1. Whether the D.H. / applicant can be filed rent case against the J.D / opponent solely? As per annexure A/1 filed with the memo of rent application, the tenancy agreement was executed between the late father Javed Iqbal and applicant / D.H., hence the rent case is barred under the principle of U/O I Rule 3 CPC. 2. Whether the provision of U/O V CPC were complied with the instant rent case or not? 3. Whether the rent case was filed with the right person or not? As when law requires a thing to be done in a particular manner, it should be done in that manner and should not be done otherwise, because the Exhibit A/8 give authority to two persons, whereas the instant case was filed by one person, which is sheer violation of Section 48 as well as 55 of Trust Act, 1882. 4. That any other ground(s) will be argued at the time of hearing of this application." 7. That these two applications were heard and decided on 29 January 2022 by the VIIIth Rent Controller Karachi (East) who dismissed each of them on the basis that the grounds raised in each of these applications had already been raised in the earlier application filed under Sub-Section (2) of Section 12 of the Code of Civil Procedure, 1908 and which were grounds that had been considered and rejected by the Order dated 19 November 2019 passed by the VIIIth Rent Controller Karachi (East) and against which no appeal was preferred. 8. That on 5 March 2022 the Petitioner preferred twos appeal under Section 21 of the Sindh Rented premises Ordinance 1979 bearing FRA No. 41 of 2022 and FRA No. 42 of 2022 before the District & Sessions Judge Karachi (East) as against both: (i) the order dated 19 November 2019 passed by the VIIIth Rent Controller Karachi (East) which had dismissed the application under Sub-Section (2) of Section 12 of the Code of Civil Procedure, 1908; and (ii) the order dated 29 January 2022 passed by the VIIIth Rent Controller Karachi (East) dismissing the application under Sub-Section (2) of Section 20 of the Sindh Rented Premises Ordinance, 1979 and an application under Section 47 read with Section 151 of the Code of Civil Procedure, 1908. 9. FRA No. 41 of 2022 and FRA No. 42 of 2022 were heard by the learned District & Sessions Judge Karachi (East) and who on 13 April 2013 dismissed the appeal on the following grounds:
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(i) the appeal against the order dated 19 November 2019 passed by the VIIIth Rent Controller Karachi (East) having been presented on 5 March 2022, the application under Sub-Section (2) of Section 12 of the Code of Civil Procedure, 1908, was barred by 2 years 2 months and 17 days. (ii) the appeal against the order dated 29 January 2022 passed by the VIIIth Rent Controller Karachi (East) on the application under Sub-Section (2) of Section 20 of the Sindh Rented Premises Ordinance, 1979 and on the application under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 being presented in Execution Application No. 10 of 2019 and Execution Application No. 11 of 2019 were not maintainable as: (a) the grounds raised in each of these applications had already been raised in the earlier applications filed under Sub-Section (2) of Section 12 of the Code of Civil Procedure, 1908 and which were grounds that had been considered and rejected by the Order dated 19 November 2019 passed by the VIIIth Rent Controller Karachi (East) and against which no appeal was preferred, and (b) an appeal against the order passed in an Execution Application was barred under Section 22 of the Sindh Rented Premises Ordinance, 1979. 10. That against the order passed by the District and Sessions Judge Karachi (East) in FRA No. 41 of 2022 and FRA No. 42 if 2022 the Petitioner has preferred these two Petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and has contended that: (i) as per the Resolution of Board of Trustees dated 21 May 2017, two individuals namely Muhammad Saeed Khan Sabri and Muhammad Laeeq Ahmed were authorised to file the rent application but the Application has been presented only by Muhammad Saeed Khan Sabri and consequentially each of the rent cases were instituted by persons who were not competent to institute the same and should be dismissed; (ii) under Section 48 of the Trust Act, 1882 a single trustee is prohibited from acting alone and must act jointly along with another trustee; and (iii) aside from Mr. Junaid Iqbal, there are other legal heirs of Mr. Javed Iqbal (the Original Tennant) who have not been made as Defendants and as such the judgment and decree should be set aside for misjoinder. That no citations were relied on by the Petitioner at the time of advancing arguments. 11. That I have heard the counsel for the Petitioner and perused the record. 12. It is admitted by the Petitioner that Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 were instituted by the trustees of the Hanfia Alamir Jama Masjid Trust which is a charitable trust established for the regulation of a Masjid known as the "Hanfia Alamgir Jama Masjid". 13. It was contended by the Petitioner that at a meeting of the trustees of the Respondent No. 1 held on 21 May 2017 the trustees of the Respondent No. 1 had nominated two individuals to institute proceedings as against the Petitioner i.e. (i) Muhammad Laeeq Ahmed (ii) Muhammad Saeed Khan Sbari On a plain reading of the trust document it is apparent that the resolution is silent as to whether the power conferred by the trustees on the two individuals abovenamed has been conferred on each of the independently i.e. so that each of them could sign independently of the other or as to whether the power conferred by the trustees was done jointly and severally i.e. where each of them had the power to sign either independently or jointly with the other or as to whether the power conferred by the trustees was conferred on these two individuals jointly i.e. that it was necessary for the two individuals to exercise the power conferred on them by the Resolution together. On this basis, it is the first contention of the Petitioner that the Resolution passed at a meeting of the trustees of the Respondent No. 1 that had been held on 21 May 2017 by the trustees of the Respondent No. 1 should be interpreted strictly and should be read as having given such powers "jointly". Consequentially, as the Rent Cases and the Execution Applications had both been
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instituted under the signature of only one of the persons mentioned in the Resolution i.e. Mr. Muhammad Saeed Khan Sabri each of those should have been dismissed. Alternatively, it was also pressed by the Advocate for the Petitioner that the provisions of Section 48 of the Trusts Act, 1882 prohibit a trustee of a trust from acting alone and as such any actions of Mr. Muhammad Saeed Khan Sabri that he has taken singly should be set aside as having been made in violation of Section 48 of the Trusts Act, 1882 14. It was further contended by the Petitioner that the Said Tenement had been rented by the Respondent No. 1 to the father of the Petitioner i.e. Mr. Javed Iqbal who had since expired and that the Respondent No.1 having instituted Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 only as against one of the legal heirs i.e. the Petitioner, who was in possession of the Said Tenement, to the exclusion of the other legal heirs of the (late) Javed Iqbal the decree passed in Rent Case No. 351 of 2018 and Rent Case No. 352 of 2018 should be set aside for misjoinder. 15. I have examined the maintainability of these applications. The application of the provisions of the Code of Civil Procedure, 1908 to proceedings under the provisions of the Sindh Rented Premises Ordinance, 1979 have been limited by Section 20 which reads as under: " 20. (1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance, have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the matters, namely: (a) Summoning and enforcing the attendance of any person and examining him on Oath; (b) Compelling production or discovery of documents; (c) Inspecting the site; and (d) Issuing commission for examination of witnesses or documents." This section has been interpreted by the Supreme Court of Pakistan in Haji Usman Bhai vs. Syed Ali Imam Zaidi[1] wherein while considering the application of rule 22 of Order XLI of the Code of Civil Procedure, 1908 to appeals under the Sindh Rented Premises Ordinance, 1979 it was held that:[2] " ...A plain reading of the above-quoted section 20 of the Ordinance shows that all the provisions of the Civil Procedure Code have not been made applicable to the proceedings under the Ordinance, but the Controller and the Appellate Authority i.e. High Court have been given powers of a Civil Court under the C.P.C. for the purposes specified in the above-quoted clauses (a), (b), (c) and (d). In this view of the matter, the provisions of rule 22 of Order XLI, C.P.C. which is applicable to an appeal against a decree cannot be invoked in aid by the learned counsel for the respondents. The position was somewhat different when a second appeal was provided to the High Court under the Late West Pakistan Rent Restriction Ordinance and provisions of C.P.C. were made applicable to such appeals." While the provisions of the Code of Civil Procedure, 1908 do not apply in toto to proceedings under the Sindh Rented Premises Ordinance, 1979, it has also been held by the Supreme Court of Pakistan that the "equitable" provisions of the Code of Civil Procedure, 1908 may be pressed into service by the Rent Controller when required in the "interests of justice".[3] In this context it was held in Ismail vs. Subedar Gul Inayat Shah[4] that the provisions of sub-section (2) of Section 12 of the Code of Civil Procedure, 1908 can be applied to proceedings under the Sindh Rented Premises Ordinance, 1979 and wherein it was clarified:[5] {{FOOT NOTE}} "... We may refer to Muhammad Hussain Tahir v. Ashfaq Hussain (1989 SCMR 258), cited by Mr. Khalid Ishaque in which this Court proceeded on the assumption that section 12(2) of the C.P.C. was applicable to proceedings under the Sindh Rented Premises Ordinance. In Messrs Bambino Ltd. v. Messrs Selmor International Ltd. (PLD 1983 SC 155), it was held that the C.P.C. is not in terms applicable to the proceedings before the Rent Controller by its own force, but the Rent Controller
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was free to follow equitable principles contained in C.P.C., and this- dictum was applied to the provisions of Sindh Rented Premises Ordinance. There cannot be any doubt that section 12(2), C.P.C. is in recognition of the well-settled principle that every Court or Tribunal has inherent jurisdiction to rescind or recall a void order passed by itself. In The Chief Settlement Commissioner v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, it was held that the preponderance of judicial authority supports the proposition that every authority, Tribunal or Court has power to even suo motu recall or review an order obtained from it by fraud, on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his own fraud. On this principle in that case the Court held that there can be no distinction between the powers available in this behalf to a Court of general jurisdiction and a Court or Tribunal of a special or limited jurisdiction, for in either case the effect of fraud is the same and the duty to undo that effect must lie on the authority on which fraud is practised. Therefore, on the rule that the equitable principles of C.P.C. can be invoked by the Rent Controller and that fraud vitiates the proceedings of a Court or a Tribunal, there can be no escape from the conclusion that the Rent Controller under the Sindh Rented Premises Ordinance has the power to set, aside any order which has been secured by practising fraud or misrepresentation upon him." (Emphasis is added) 16. As can be understood the application that was moved by the Petitioner under sub-section (2) of Section 12 of the Code of Civil Procedure, 1908 being maintainable in proceedings under the Sindh Rented Premises Ordinance, 1979, it was incumbent on the Petitioner when that application was dismissed on 19 November 2019 to prefer an appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979 within the 30 day period prescribed in that section. It has been admitted that such an appeal was not preferred within the time prescribed and instead an appeal was only preferred against the order dated 19 November 2019 in FRA No. 41 of 2022 and FRA No. 42 of 2022 which was presented on 5 March 2022 and which was as correctly stated by the District & Sessions Judge Karachi (East) as having been filed 2 years 3 months and 17 days after the passing of the order and which was therefore filed 2 years 2 months and 17 days after the period prescribed in Section 21 of the Sindh Rented Premises Ordinance, 1979 and was not maintainable. 17. It would seem that realising that the appeal against the order Dated 19 November 2019 was barred, the Petitioner, had preferred to file the two applications under sub-section (b) of Section 20 of the Sindh Rented Premises Ordinance, 1979 and under Section 47 of the Code of Civil Procedure, 1908 on what would seem to me are the same grounds as were raised in the application under sub-section (2) of Section 12 of the Code of Civil Procedure, 1908. This fact becomes clearer when one is to compare the applications one with the other: Application under Sub-section (2) of Section 12 of the Code of Civil Procedure, 1908Application under sub-section (b) of Section 20 of the Sindh Rented Premises Ordinance, 1979Application under Section 47 of the Code of Civil Procedure, 1908
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That the applicant / D.H. has annexed the tenancy agreement between Javed Iqbal and applicant trust as Exh.A/2. Whereas the applicant / D.H. has filed the Rent Case against the J.D. / opponent namely Junaid Iqbal, which is not sustainable under the SRPO 1979 and this facts was concealed by the applicant barred under the principle trust. 1. Whether the D.H./ applicant can be filed rent case against the J.D / opponent solely? As per annexure A/1 filed with the memo of rent application, the tenancy agreement was executed between the late father Javed Iqbal and applicant / D.H., hence the rent case is of U/O I Rule 3 CPC.
2. That the instant rent application of the applicant is hit under the principle of U/O I Rule 3 CPC. 3. That the Javed Iqbal was died on 21.01.2014, hence he should made be party of this case and his legal heirs may also be arrayed as opponent in this case but the applicant despite knowledge did not make any effort to bring the legal heirs/ representative of Javed Iqbal in this instant case. 2. Whether the provision of U/O V CPC were complied with the instant rent case or not? 4. That as per Extract which is exhibited as A/8, give power to two persons namely Muhammad Laiq Ahmed and Muhammad Saeed Khan Sabri but interestingly only Muhammad Saeed Khan Sabri has filed this instant rent case, which is the violation of xtract Form as per law that if a law requires a thing to be done in particular manner it should be done in that manner and should not be done otherwise. 5. That no Trust Deed is being exhibited by the applicant before this Hon'ble Court in order to verify the extract that who are the members of trust Who executed their signature on the extract form."It is most respectfully prayed on behalf of the opponent / J.D. that this Hon'ble Court may be please to direct the applicant to produce the Trusts Deed before this Hon'ble Court for inspection and supply the copy to the opponent, as the applicant claiming himself as General Secretary of the trust and produce Extract of Resolution at Exh.A/1. It is, therefore, in the interest of justice and equity to inspect the trust deed in order to ascertain that the applicant is duly authorized person to file3. Whether the rent case was filed with the right person or not? As when law requires a thing to be done in a particular manner, it should be done in that manner and should not be done otherwise, because the Exhibit A/8 give authority to two persons, whereas the instant case was filed by one person, which is sheer violation of Section 48 as well as 55 of Trust Act, 1882.
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the instant rent case / rent execution or otherwise
As is apparent, the pleas in respect of the production of the trust deeds under sub-section (b) of Section 20 of the Sindh Rented Premises Ordinance, 1979 and the authority of the person appointed by the resolution of the trustees of the Respondent No. 1 to institute these proceedings overlaps with the same plea that was taken by the Petitioner in the application under sub-section (2) of Section 12 of the Code of Civil Procedure, 1908. Similarly, the plea taken in the application under Section 47 of the Code of Civil Procedure, 1908 regarding the authority of the trustees under…
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