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Petitioner: Mst. MUMTAZ BEGUM and 4 others VS Respondent: MAQSOOD AHMAD and 15 others
Court Name: Lahore High Court Judge(s): Mian Hamid Farooq Title: Mst. MUMTAZ BEGUM and 4 others vs MAQSOOD AHMAD and 15 others Case No.: S.A.O. No.41 of 2002 Date of Judgment:2005-06-13 Reported As: 2005 YLR 2328 Result: Petition dismissed
JUDGMENT
JUDGMENT ' Precisely stated facts of the case are that the respondents filed the ejectment petition, before the learned Rent Controller, against Saif-ur-Rehman and 4 others, seeking their eviction from the questioned property, on the grounds of default in the payment of rent since 1-11-1992, materially impairing the value and utility of the building and personal, use of the owners. The said ejectment petition was contested by Saif-ur-Rehman, through Filing its written reply, thereby controverting the contents of the ejectment petition, inter alia, pleading that after the receipt of legal notice, he, in order to avoid any litigation, started making payment of the demanded rent at the rate of Rs.2353 per mensem. The learned Rent Controller, in exercise of powers under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, directed Saif-ur-Rehman to deposit the arrears of rent w.e.f. 30-11-1997 to 1-10-1998 at the rate of Rs.1,981 per month and from 1-10-1998 onwards at the rate of Rs.2,476 per month before the 15th of next month and also to deposit future monthly rent before the 15th day of each month, vide order dated 30-7-2001. Thereafter, Saif-ur-Rehman filed the application seeking review of order dated 30-7-2001, which was contested by the respondents on the legal plane that the learned Rent Controller is not empowered to review its own order. Before the said application could be decided, the respondents filed the application, under section 13(6) of Punjab Urban Rent Restriction Ordinance, 1959, contending therein that as the rent deposit order has not been complied with, therefore, the defence of Saif-ur-Rehman be struck off. This application was resisted by Saif-ur-Rehman, who pleaded that in order to avoid any dispute, due rent has been deposited. The learned Rent Controller, after hearing the parties, dismissed the review application, on the ground that he has no jurisdiction to review its order, and accepted respondent's application, under section 13(6) of the Ordinance, struck off the defence of Saifur-
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Rehman and passed the ejectment order, through two separate orders both dated 17-11-2001. Saif- ur-Rehman challenged the said orders before the Appellate Authority, however, his appeal was dismissed by the learned Additional District Judge, vide impugned judgment dated 14-2-2002, hence the present second appeal. 2. Learned counsel for the appellants has contended that the respondents, in their application filed under section 13(6) of the Ordinance 1959, did not raise the plea that the rent was deposited in the name of a wrong person and their case was that arrears as well as future monthly rent have not been deposited in accordance with law, thus, according to the learned counsel new plea cannot be agitated before this Court in second appeal. He has further submitted that although ejectment petition was not competent, yet Saif-ur-Rehman, in order to avoid any dispute and future complications, deposited the arrears of rent, though in his own name. He has added that the learned Rent Controller has directed the eviction of Saif-ur-Rehman without determining the question as to whether the act of Saif-urRehman, in depositing the rent in his name, was contumacious, deliberate and intentional. He has relied upon Muhammad Arif v. Muhammad Raza PLD 1993 Lahore 121. He, while referring to page 9 of the appeal, has submitted that in fact Saif- urRehman has deposited excess amount of Rs.1,555. Conversely, the learned counsel for the respondents, while refuting the said contentions, has submitted that Saif-ur- Rehman did not deposit the rent in the name of the respondents, as directed by the learned Rent Controller, but deposited the same in his own name, therefore, he has committed default and both the Courts have rightly struck off the defence of Saif-urRehman, which order/judgment are not open to exception. He has referred to the judgments reported as Khawaja Ghulam Mustafa v. Mian Waigar Ahmad PLD 1980 SC 9 and Buzarg Jamil and another v. Haji Abdul Bari and others PLD 2003 SC 477. He has added that there is no question of waiver on the part of the respondents and it is the duty of the Court to see as to whether the mandatory provision of law has been complied with or not. 3. Admittedly, the learned Rent Controller, in exercise of his powers under section 13(6) of the Ordinance, directed Saif-ur-Rehman to deposit the arrears of rent and future monthly rent before 15th of next month. In reply to respondent's application, under section 13(6) of the Ordinance, 1959, Saif-ur-Rehman though pleaded that this application is not maintainable in view of the pendency of review petition, however, it was stated that in order to avoid any dispute he has deposited the rent as per the directions of the learned Rent Controller and the receipts have been placed on record. Relevant portion of the reply reads as under:- {{URDU TEXT}} ' It flows from the above that the only defence of Saif-ur-Rehman, to respondent's afore-noted application, was that irrespective of pleas raised in the written reply to the ejectment petition, he has complied with the rent deposit order, passed by the learned Rent Controller, and has, in fact, deposited the due rent. The learned Rent Controller, after the examination of the challan forms/rent receipts, produced by Saif-ur-Rehman, came to the conclusion that the rent has not been deposited in the name of Haji Saleh Muhammad, the predecessor-in-interest of the respondents, but the same was deposited in the name of Saif-ur-Rehman himself. I have also examined the receipts/challan forms, photocopies whereof have been placed on record of the appeal, and find that the findings of the learned Rent Controller are in accordance with the record of the case and are not open to exception, as the challan forms show that the rent for the period from January, 1998 to July, 1999 was deposited by Saif-urRehman in the name of Saif-ur-Rehman. These Bank challan forms do not indicate either the name of Saleh Muhammad or any of the respondents. In view whereof, the only conclusion, which can be drawn, is that Saif-ur-Rehman did not deposit the rent in favour of Saleh Muhammad and, in fact, deposited the same in his own name. Obviously, the said deposit of rent is not in accordance with the directions of the learned Rent Controller, as Saif-ur-Rehman was not directed by the learned Rent Controller to deposit the arrears of rent and
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future monthly rent in his own name and it cannot be termed and considered as compliance with the rent deposit order, passed under section 13(6) of the Ordinance. It is settled law by now that if the rent due has not been deposited in favour of landlord and the same has been deposited either in the name of depositor himself or in the name of a wrong person, that does not amount to tender/deposit of the rent in favour of landlord and cannot be taken as sufficient compliance of the rent deposit order and such defaulting tenant is liable to be evicted. Reference can be made to the judgments reported as Khawaja Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9; Bahadur Khan and others v. Ch. Muhammad Hussain and others 1991 SCMR 429; Qari Abdul Rehman and 6 others v. Jamaluddin and another 2000 SCMR 226 and Buzarg Jamil and another v. Haji Abdul Bari and others PLD 2003 SC 477. Being guided by the aforesaid law declared, I am constrained to hold that Saif-ur-Rehman, by depositing the rent in his own name, did not comply with the directions of the learned Rent Controller, passed under section 13(6) of the Ordinance and his act was deliberate and contumacious, thus, he committed default entailing the penalty of eviction. 4. As regards the judgment, relied upon by the learned counsel for the appellants, suffice it to say that in view of the law declared, as noted above, the said judgments are of no avail to the appellants. 5. In the above perspective, I have examined both the order/judgment and find that both the Courts did not commit any legal errors in passing both the order/ judgment and the same do not suffer from any legal infirmity. I have no reasons to upset the concurrent findings of fact, thus, both the order/judgment are maintained. 6. Upshot of the above discussion is that the present appeal is hereby dismissed, leaving the parties to bear their own costs. Appeal dismissed. 2005 YLR 2331 [Karachi] Before Anwar Zaheer Jamali and Maqbool Baqar, JJ MUHAMMAD HUSSAIN---Petitioner versus GOVERNMENT OF SINDH and others---Respondents Constitutional Petition No.D-509 of 2004, decided on 25th August, 2004. Sindh Building Control Ordinance (V of 1979)-L'- ----Ss. 7 & 6(1)---Constitution of Pakistan (1973), Art. 199---Prayer in Constitutional petition with regard to demolition of dangerous construction, but absence of prayer with regard to demolition of unauthorized construction---Validity---Duty of authority was to carry out its legal obligations and demolish dangerous building or illegal/unauthorized construction---High Court in both situations was competent to issue necessary directions to concerned functionaries to act in accordance with law to avoid any abuse of process of law--- High Court accepted Constitutional petition in circumstances. [pp. 2333, 23341 A, B & C Noor Muhammad and another v. Building Control Authority and 2 others 1992 CLC 729 ref. Malik Khushhal and Ismail Memon for Petitioner. Qazi Khalid Ali, Addl. A.-G. Sindh, Anwar Ali Shah, Farooq Hashim and Raja Sikandar Khan Yasir for Respondents. Date of hearing: 25th August, 2004. JUDGMENT ' ANWAR ZAHEER JAMALI, J.---The petitioner Muhammad Hussain claiming himself to be the owner of ground floor of building over site G-1 and G-2 admeasuring 53, 24 and 42 sq. Yds. Over Plot bearing sheet No.O.T/4. Survey No.33, Old Survey No.A-4/48 Old Town Quarters, Karachi, excluding
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16.67 sq. Yards portion, which is owned by respondent No.8 along with the first floor, has preferred this petition with the following prayer:-- "It is most respectfully prayed that this honourable Court may be pleased to direct the respondents Nos.1 to 7 to perform their duties in accordance with the law and demolish, remove of the old existing dangerous declared building/structure situated at Plot No.33-0-T/4. Old Town Quarters, Karachi and direct the respondents Nos.8 and 9 to cooperate in the lawful functions of the respondents Nos.1 to 7." 2. Earlier when this petition was taken up for hearing before another Bench of this Court on 1-6- 2004 after hearing learned counsel for the petitioner and respondents 2, 3 and 4 it ' was finally disposed of with the following observations:-- "Subsequently a meeting was called by the Chief Controller of Buildings on 6-4-2004 and attended by the petitioner, respondents Nos.8 and 5. Thereafter the building was re-inspected and it was found that the dangerous portion no longer existed and now "the matter is shifted as unauthorized construction rather than the dangerous building which will be dealt accordingly. We are constrained to hold that the attitude adopted by respondent No.2 is patently mala fide and cannot be sustained on any hypothesis. In the first instance once it had decided that the building required demolition and not merely partial repairs, it is impossible to see how the conclusion to the effect that "the dangerous part" had been demolished was reached. Secondly assuming that respondent No.8 as a tenant in the building had acquired some legal right or interest, one fails to see how the respondent No.2 could arrogate itself the power to protect his interest. Thirdly the petitioner's allegation as to the respondent No.5 being personally interested in the matter, is clearly corroborated by the counter-affidavit filed on behalf of respondents Nos.2 and 3 Fourthly assuming that the building was no longer dangerous but it became unauthorized one fail to see how the responsibility of the respondent No.2 to demolish unauthorized building can be avoided. The petitioner's father has apparently made some allegation of being disgraced humiliated. Normally one would have ignored such allegations without corroboration, we are constrained to observe that in view of the over all conduct of the respondent No.2 it could not be brushed aside. ' Reiterating that the action is not merely illegal but also mala fide oh its very face, we direct the respondent No.2 to demolish the aforesaid building within three months. The petitioner however, is willing to pay costs of the demolition. A copy of this order would be communicated to the City Nazim and Chief Controller of Building directly. The petition stands disposed of accordingly. 3. However, vide order dated 17-8-2004, above order was recalled for the sole reason that at time no opportunity of hearihg was provided to respondent No.8, who is admittedly one of the co-owner of the disputed building. 4. On 20-8-2004 and today we have heard learned counsel for the parties at, length and also perused the report of the Technical Committee of K.B.C.A. Dated 28-4-2004, which was called by this Court vide its order dated 20-8-2004. Relevant portion of such report reads as under: "Previously some portion collapsed then major dangerous portions demolished. ' Remarks: Recently Vodla Syed Volunteer removed dilapidated remaining portion in compliance of the decision by C.C.O.B. In a meeting among the parties to solve the long disputes. ' Recommendation of the Technical Committee. ' Dangerous portions of original stone masonry building have been removed already. Present R.C.C. Portions (remnants) may be checked and if unauthorized necessary action may be taken." 5. After hearing learned counsel for the parties we have noticed that in both situations i.e. Either the building is dangerotis or its construction is illegal and unauthorized it is the duty of respondent No.2 to carry out its legal obligation and demolish such dangerous or unauthorized construction. 6. Faced with the above situation, contention of Mr. Farooq Hashim, learned counsel for respondent No.8 that since the prayer made in the petition is only with regard to demolition of dangerous
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construction therefore, no relief can be granted to the petitioner in case of unauthorized construction has no force. In both the situations as also observed in the earlier order dated 1-6- 2004, this Court is competent to issue necessary directions to the concerned functionaries to act in accordance with law to avoid any abuse of the process of law and making it a force. To justify his view learned counsel for respondent No.8 has placed reliance upon the case of Noor Muhammad and another v. Building Control Authority and 2 others 1992 CLC 729, but we have not been able to find any relevancy of this case in the different facts and circumstances of case in hand. Moreso, for the reason that the counsel for the respondent No.8 has failed to place any authentic document on record, such as approved building permission for reconstruction from the then competent authority to show that the existing purported R.C.C. Construction over the disputed property was raised by respondent No.8 before the promulgation of Sindh Building Control Ordinance, 1979. The position of unauthorized construction further finds support from the fact that the notice for declaring the disputed building dangerous was published in the year 1999 and similar notices were also served on the concerned parties during the same year but in response, no such plea was taken by respondent No.8 at that time. The copies of notices dated 17-5-2004 and 28-6- 2004 placed on record by the K.B.C.A. Further lend support to the case of the petitioner that the existing construction whether dangerous or unauthorized is liable to be demolished by them. 7. In addition to the above, we are also persuaded to mention here that the observations given by this Court in its order dated 1-6-2004 about the conduct of respondents Nos.2 and 3 are apt and befitting to their conduct. 8. Mr. Raja Sikandar Khan Yasir, learned counsel for respondent No.9, who is stated to be the owner of second floor of the disputed building, has rightly submitted that being dangerous second floor of the disputed property has already been demolished and petitioner being owner of ground floor is also keen for demolition of the remaining structure declared dangerous but it is only respondent No.8, the owner of first floor along with 16.67 Sq. Yds. Of ground floor, who after issuance of notice by K.B.C.A., declaring disputed building as dangerous, has carried out some illegal construction, and now under the cover of such construction trying to avoid demolition. He, therefore, urged for grant of relief claimed in this petition. 9. For the foregoing reasons we allow this petition and direct respondent No.2 to demolish the aforesaid disputed building within two months. Learned counsel for the petitioner has volunteered on behalf of petitioner to pay demolition charges, which may be recovered from him. It may, however, be observed that even in case the petitioner fails to bear such charges of demolition, the demolition work shall not be delayed on such pretext. Petition accepted. 2005 YLR 2334 [Lahore] Before Muhammad Muzammal Khan, J MUHAMMAD ALI alias MUHAMMAD DIN and others---Appellants versus PROVINCE OF PUNJAB through The District Collector, Bhakkar and others---Respondents C. R. No.1822 of 2002, heard on 24th June, 2004. (a) Specific Relief Act (I of 1877)--- ----S. 12---Limitation Act (IX of 1908), S. 3 & Art. 113---Suit for specific performance of agreement-- -Limitation---Starting point of limitation---Plaintiffs filed suit for specific performance of contract on 18-4-1995---Agreement to sell dated 19-3-1963 had not provided any period of limitation for transfer of title---Period of limitation was to be calculated from date of refusal of the defendants to discharge their obligation under the agreement-Plaintiff's witness had admitted in cross-
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examination that defendants had refused execution of agreement to sell dated 19-3-1963 in 1988 and they filed suit for permanent injunction---Such fact manifested denial of the agreement to sell and same was positively asserted by the plaintiffs in year, 1988 which was at least, the starting point of limitation---Had the suit of the plaintiffs been filed before, 1991, it would have been within the limitation but the same was filed on 18-4-1995 thus, it was rightly held by both the Courts below to be barred by limitation. [p. 2337] A, B & C (b) Specific Relief Act (I of 1877)--- ----S. 12---Civil Procedure Code (V of 1908), S. 115---Suit for specific petformance ---Both the Courts below had correctly decreed the suit---Since no part of judgment was either misread or non-read revisional jurisdiction of High Court was not permissible, under law---No illegality or irregularity in terms of section 115, C. P. C. Was committed by any of the Courts below---Revision petition was dismissed, in circumstances. [p. 2337] D Zafar Iqbal Chohan for Petitioners. Ch. Muhammad Ayyub for Respondent No.1 . Nisar Ahmad Dhillon for Respondents Nos.2 to 5. Date of hearing: 24th June, 2004. JUDGMENT ' Instant revision petition assails judgments and decrees dated 12-7-2001 and 2-8-2002 passed by the learned Civil Judge and learned Additional District Judge, Bhakkar whereby suit and appeal of the petitioners were dismissed, respectively. 2. Precisely, relevant facts are that the petitioners filed a suit for specific performance of an agreement to sell dated 19-3-1963for possession of 1/6th share of lot No.7 measuring 200 Kanals under Tube Well Sinking Scheme, village Rakh Mandera, Tehsil Mankera District Bhakkar, averring that Khushi Muhammad son of Shadi predecessor of respondents Nos.2 to 5 was allotted the land in question out of which he agreed to sell land, aforesaid, for an amount of Rs.10,000 and executed a receipt and an agreement to sell dated 19-3-1963 delivering possession of the land to the petitioners. It was pleaded by the petitioners that all the instalments payable by the allottee were to be paid by them and it was settled that after getting the proprietary rights, the land will be transferred to them through some instrument. The petitioners also asserted in the plaint that they after taking over the possession made it cultivable by putting hard labour and incurring huge expenses besides paying the entire governmental dues including the instalments which were payable by the allottee bill in spite of payment of all the instalments, after death of Khushi Muhammad, his heirs changed their mind and refused to transfer land in favour of the petitioners, necessitating filing of suit. The respondents being defendants in the suit filed two separate written statements wherein the claim of the petitioners was denied, besides raising certain preliminary objections. Written statement by respondents Nos.2 to 5 was that of denial wherein they denied execution of the agreement to sell and receipt of earnest money. They also urged that suit of the petitioners was barred by limitation. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful vide his judgment and decree dated 12-7-2001, dismissed . The suit of the petitioners. 3. The petitioners aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed vide judgment and decree dated 2-8-2002. Thereafter, the petitioners filed instant revision petition which was admitted to regular hearing and after completion of record, the same has now been laid for final determination. Respondent No.1 is represented through Ch. Muhammad Ayyub, Advocate whereas the other respondents are represented through Mr. Nisar Ahmad Dhillon,_ Advocate. 4. Learned counsel for the petitioners submitted that issues Nos.2, 3 and 5 were decided by the trial Court in favour of the petitioners whereas the rest of the issues were decided against the
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petitioners. The respondents did not file any appeal or cross-objections and only the petitioners appeal against the judgment of the trial Court. According to him, the Appellate Court reversed findings of the trial Court on Issues Nos.1, 4 and 7 and while confirming findings of the trial Court on Issue No.6, dismissed the appeal of the petitioners. He further elaborated his arguments by saying that Issue No.6 related to the dispute, as to whether suit was barred by limitation and its onus to prove was placed on the shoulders of the respondents/defendants. He further contended that evidence of the respondents was closed under the provisions of Order XVII, rule 3, C.P.C. Vide order of the trial Court dated 28-6-2001 which was not challenged by the respondents, meaning thereby that there was no evidence on the file from the respondent's side, in absence of which suit of the petitioners could not have been dismissed. It was also argued on behalf of the petitioners that the petitioners in their plaint had pleaded that one month earlier to its institution, the respondents refused performance of the agreement to sell by attempting to interfere into possession of the petitioners over the land in question and thus, in view of provisions of Article 113 of the Limitation Act, 1908, suit of the petitioners was within limitation and has incorrectly been dismissed. It was also submitted that there is no evidence on the file to show that the respondents ever refused performance of their' part of the contract, rendering the suit of the petitioners barred by limitation. 5. Learned counsel. Appearing on behalf of respondent No.1 refuted the arguments of the petitioners, supported the concurrent judgments and decrees of the two Courts below and urging that performance of the agreement to sell, as claimed by the petitioners was refused in the year, 1988 when the petitioners themselves filed a suit for permanent injunction with the prayer that the respondents be restrained from interfering in their possession which in itself amounted to refusal and even if from this time, the period of limitation is calculated, the suit filed on 18-4-1995 was barred by limitation because it had to be filed within three years. He further submitted that in view of provisions of section 3 of the Limitation Act, 1908 it was a bounden duty of the Court to first examine the point of limitation even in absence of any objection from the defendants. According to his submissions, even in absence of any evidence, suit of the petitioners on the face of…
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