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Petitioner: SAIFULLAH and another VS Respondent: Ch. GHULAM GHOUS
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany Title: SAIFULLAH and another vs Ch. GHULAM GHOUS Case No.: First Rent Appeal NO.79 of 1987 Date of Judgment:2000-05-06 Reported As: 2000 CLC 1841 Result: Appeal allowed
JUDGMENT
JUDGMENT ' The brief facts giving rise to this Rent Appeal are that the appellants had filed an eviction application bearing No,29 of 1981 in the Court of Rent Controller, Sukkur against Chaudhry Ghulam Ghous (now deceased) in respect of a residential house bearing City Survey No,D-525/1 on the grounds that the said house was taken on rent by Chaudhry Ghulam Ghous from one Altaf Ahmed son of Allah Ando Khan resident of Shamsabad, Barrage Road, Sukkur at a monthly rent of Rs,300 per month but had not paid any rent from 1-3-1976 'either to Altaf Ahmed or to the present appellants out of whom appellant No,2 Mst. Munawar Sultana alongwith 4 others viz. Ashfaq Ahmed, Maqsooda Begum, Ghulam Fatima and Mehboob Illahi were gifted the said property which was accordingly mutated in their names on 7-12-1973 as per the extract from the Property Register Card. A further ground for seeking eviction was that the applicants needed the said house for their personal use and occupation It has been further averred in the Rent Application that the applicant No,2 and other owners of the said house had sent a notice to Ghulam Ghous, dated 24-12-1980 under section 18 of the Sindh Rented' Premises Ordinance, 1979 for the handing over of the house to the said persons which had remained unanswered by Ghulam Ghous. Consequently, it was prayed in the said Rent Application that Ghulam Ghous be ejected from the premises and possession handed over to the applicants. It has been specifically mentioned in the Rent Application that Saifullah, the appellant No,1 who was also applicant No,1 before the Rent Controller had been authorised to receive the rent on behalf of the owners of the property. 2. Ghulam Ghous filed a written statement in which it was categorically denied that he ever took the premises on rent from the applicantsiappellants or from any other person and consequently the payment of rent does not arise. It has further been stated in the written statement that since
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the applicants are not the owners of the disputed property therefore, they cannot demand his eviction on the ground that they require it for their own personal bona fide use. However, the receipt of the notice, dated 24-12-1980 on behalf of applicant No,2 and others is admitted. An application was moved under section 16 of the Sindh Rented Premises Ordinance by the applicants praying that Ghulam Ghous be directed to deposit monthly rent in Court with effect from 1-3-1976 at the rate of Rs,300 which application was allowed vide order, dated 18-3-1982. 'Thereafter due to default in the deposit of arrears of rent, the respondent moved another application under section 16(2) of the Ordinance, 1979 and as a result of same the learned Rent Controller struck off the defence of Ghulam Ghous vide order, dated 2-8-1982 and ordered that the appellants be put into the possession of the premises within 60 days. 3. The said order was appealed by Ghulam Ghous in this Court vide First Rent Appeal No,126 of 1982 which was disposed of on 20-10-1985 by directing the learned Rent Controller to first decide the relationship of landlord and tenant which was disputed by Ghulam Ghous and accordingly the matter was remanded back to the trial Court. 4. In pursuance of such remand order, the learned Rent Controller recorded the evidence of the parties and came to the conclusion that there was no relationship between them of landlord and tenant and recorded his finding vide the impugned order, dated 9-6-1986 and hence this appeal. 5. In support of the appeal, Mr. Abdul Fateh Malik, learned counsel for the appellant has argued that the impugned order suffers from a number of infirmities not the least of which is the fact that no finding has been given on as to how Ghulam Ghous came into the possession of the disputed premises. He has further submitted that as per the evidence on record of the learned Rent Controller, the Attorney of the applicants Ellahi Bux has in his affidavit reiterated the contents of the application and under cross-examination no suggestion was put to him that the property in question is not owned by the applicant No,2 or others as per the cettified copy of the Property Register Card. Similarly, there is nothing in the cross-examination to substantiate Ghulam Ghous's plea in the written statement that the property in question was never taken on rent by him, Learned counsel says that it has only been admitted by Illahi Bux that out of the total area of the property viz. 1002 square yards only 235 square yards have been gifted to Mst. Munawar Sultana. Similarly, Allah Warayo, the other witness who was examined by the applicants has stated in his affidavit that Ghulam Ghous was the tenant of Altaf Ahmed and thereafter of the appellants and that he has not paid any rent at the rate of Rs,300 per month since 1-3-1976. Learned counsel submits that under cross-examination contents of Allah Warayo's affidavit have not been controverted. In these circumstances, it is the contention of learned counsel that the relationship of landlord and tenant was established and. Therefore, the impugned order should be set aside. In this regard learned counsel has further submitted that as per settled law the co-sharer of a property can fife the ejectment proceedings without impleading others and as such the objection to the eviction proceedings based on this score alone cannot be sustained. In this regard he has referred to Abdul Ghani v. Abrar Hussain 1099 SCMR 348. Consequently, the learned counsel has referred to the definition of landlord and tenant as appearing in section 2(F) (G) of the Ordinance, 1979 and has submitted that a landlord has been defined as the owner of the premises and a tenant as a person who is bound to pay rent. Learned counsel says that as these are statutory definitions, no exception can be taken to the same and in support of his contention, has relied upon Abrarul Hague v. Miss Asma Mumtaz 1992 M LD 322. ' Mst. Bibi Husan Bano v. Fazal Hussain PLD 2000 Kar. 119. Mst. Naseem v. Nabi Bux 2000 M LD 175 and Sharfuddin v. Riazuddin 1999 M LD 2137, 6. Mr. Shaikh Abdul Ghani learned counsel, appearing for the respondent Ghulam Ghous through his L.Rs,, has raised the preliminary objection that this appeal was dismissed on 10-10-1990 and restored on 12-6-1998 after the passage of more than seven years without notice to the
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respondent, which exercise according to the learned counsel, has enormously prejudiced the respondent and caused him damage as his valuable rights have been taken away, which is against the-basic principle of law, for which he has been condemned unheard. Learned counsel says in this regard that upon receipt of the notice after the appeal had been restored, he had filed his objections to such restoration but to date the same have not been heard. In .This view of the matter I had allowed the learned counsel to urge objections to such restoration by way of review of the restoration order as the application was considered by Mr. Justice Ali Muhammad Baluch, who had passed the restoration order and as he has retried the matter' cannot therefore, be put up before him for the purpose of review. . 7. In this connection the learned counsel has submitted that the grounds urged in support of the restoration' application, are not maintainable at all. Firstly, the learned counsel has pointed out that the restoration application was supported by the affidavit of Ashfaque. Ahmed, who was not a party to the appeal at all but only a co-sharer and consequently no sanctity can be attached to the contents of such affidavit. Secondly he has maintained that the excuse given in the restoration application regarding the disappearance of Saifullah soon after filing the appeal is only a bald statement and not supported by any other material, hence not reliable. Next the learned counsel has maintained that as regards the other excuse viz Ashfaque Ahmed's minority at the time he was gifted the property in question alongwith co-sharers viz in 1973, the learned counsel has referred to his NIC, which shows his date of birth viz 1966. Consequently, learned counsel says that when the appeal was dismissed in 1990 Ashfaque Ahmed was a major and, therefore, the issue of his minority is not relevant at all. Finally learned counsel says that as regards the limitation for urging a review application, there is none against a void order. Even otherwise, he says that soon after being served with notice that the petition be restored, he had filed his objections on 5-10-1998, which have never been considered. 8. For all these reasons learned counsel has prayed that restoration order be set aside and the matter disposed of as such, in support of his contentions learned counsel has relied upon Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 and Pir Shah Madran Shah and 3 others v. Chief Land Commissioner, Sindh and 2 others PLD 1974 Kar. 375, 9. As regards the case itself learned counsel has raised a number of technical objections. Firstly he says that in the eviction application before the learned Rent Controller, the appellant No,2 has affixed her thumb-impression, whereas in the power of attorney given to Ellahi Bux to conduct the case, she has signed her name, and accordingly this raises some doubt as Ito the identity of the appellant No,2 viz that she is a ghost-person and set up fraudulently to obtain the ejectment of the respondent from the rented premises. In this respect learned counsel has referred to the affidavit filed by Munawar Sultana viz appellant No,2 on 20-4-2000 to the effect that at the . Time of filing of the eviction application she was not literate and consequently she has affixed her thumb- impression but when she gave power of attorney in 1982 she had learnt how to write her name. In this regard learned counsel says that this is a matter of fact and truth of the same cannot be established without putting Munawar Sultana to cross-examination, which has not been carried out before this Court. In this connection learned counsel further submits that before the trial Court no one identified Munawar Sultana Whereas it is compulsory to do so in the case of persons who have affixed their thumb-impression to the documents. In this regard learned counsel has relied upon Sh. Muhammad Matin v. Mrs. Khorshed Dosu Marker and 8 others 1983 CLC 1630. 10. 10. Learned ,counsel has further submitted as regards the issue of signatures of Munawar Sultana that in the affidavit filed in this Court she had signed in English and in the trial Court in the power of attorney, she had signed in Sindhi, which causes further doubt on the identity of the lady.
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11. Secondly on the technical aspect of the matter learned counsel has submitted that in the power of attorney given to Ellahi , Bux before the learned trial Court, there is no power regarding filing of cases giving evidence consequently the evidence of Munawar Sultana before the Court is , nullity in the eyes of law and in this regard he has relied upon Zawar Hussain v. Abid Hussain Qureshi 1994 M LD 2251. 12. As regards the merits of the case learned counsel had not much to say except that the disputed rented premises did not belong- to Altaf Ahmed and neither they belong to Munawar Sultana and other co-sharers and consequently the relationship of landlord and tenant could not be established on the basis of which the impugned order cannot be faulted. 13. In reply Mr. Abdul Fattah Malik learned'counsel has submitted that under Order 47, Rule 1, C.P.C. a review application 'is necessary and the same cannot be allowed on mere oral motion; As regards limitation for 'review. He has submitted that Article 162 of the Limitation Act provides for 20 days period from the date of the order and at the most this could be extended by 20 days from the date of knowledge of such order. In this connection he has referred to the record of the case and pointed out that the notice of the restoration application was received on 18-6-1998 by .Mr. Shaikh Abdul Ghani and hence the objections filed in October, 1998 even if they be considered as a review application are patently time-barred. He has also pointed out that the notice of the restoration was received by Ghulam Ghous on 18-6-1998 as per the record and bailiff's report. Consequently learned counsel says that each and every clay of delay is to be explained by respondent and as no application under section 5 of the Limitation Act, has been filed in this regard, the objection's/review is patently time-barred. In support of this contention the learned counsel has relied upon the Pakistan Defence Officers Housing Authority and 2 others v. Khadijabai and another 1991 SCM R 1399. As ,regards the scope of a review application he has submitted that this is a very limited one and the matter can only be re-opened when an error is apparent on the face of record, which is not the case as the restoration order is very comprehensive and detailed reasoning has been given, even with regard to the limitation aspect of the restoration application. As regards the issue of thumb-impression of Munawar Sultana and her signatures learned counsel submits that there is no law which prohibits a person from using either. In any event nothing was asked in cross- examination from Munawar Sultana's witnesses and consequently the matter cannot be re- opened at this stage. In this connection he has relied upon Qasim and others v. The State PLD 1967 Kar. 233. ' I have heard both the learned counsel and gone through the record. My conclusions are as follows: 14. As regards the restoration of this appeal vide order, dated 12-6-1998, it would be seen that the same is comprehensive in nature and all the aspects of the matter have been addressed by my learned brother Ali Muhammad Baloch, J. (as he then was) while passing such order including the issue of limitation. As regards the merits of the case, it has been observed in the restoration order that the matter was lastly fixed on 29-11-1988 when it was adjourned to a date in office at the request of Mr. Shaikh Abdul Ghani and then it was fixed on 10-10-1990 and dismissed for non- prosecution due to the absence of both the learned counsel. At that time the system of issuing cause list was not prevalent as the Sukkur Bench was in its infancy and hence probably both the learned counsel had no notice of the case on 10-10-1990. Similarly it has also been observed in the restoration order that the appellant No,1 had disappeared immediately after filing of the appeal and the appellant No,2 being an unmarried 'Pardah Nasheen' girl had no contact with her counsel Mr. Mahboob Illahi. Finally it has been observed in the restoration order that as far as limitation is concerned, the learned counsel Mr. Mahboob Illahi in his affidavit in support of the restoration application has stated that he came to know only a few days back about the dismissal of the
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appeal for non-prosecution. Consequently, it has been held that as the valuable rights of the parties need to be adjudicated on merits and looking to the particular circumstances of the present case, sufficient reasons existed for restoring the appeal to its original position and recalling of the order dismissing the same. Accordingly the appeal was restored. In my view no exception can be taken as to the reasons why the appeal was restored. Learned counsel's contention that no sanctity could be attached to the affidavit of Ashfaque Ahmed who was not a party to the appeal but only a co-sharer in the property has not been supported by any case-law. In my view it is not necessary that any application moved before a Court of law should be supported by an affidavit of a person who is a party to the proceedings. Any 'person who is aware of the factual aspects of the case can file a supporting affidavit. Secondly as to learned counsel's objection regarding the disappearance of Saifullah being only a bald statement is not reliable and also not sustainable, such statement was contained the affidavit and there is no reason to disbelieve the same. Finally as regards the other excuse viz. Ashfaque Ahmed's minority' at the time when he was gifted the property in 1973, it would be seen that according to his copy of National Identity Card which is on record, he, was born in 1966, thus, a correct statement has been made in the affidavit as far as Ashfaque Ahmed's minority is concerned in 1973. It may be that when the appeal was dismissed in 1990, Ashfaque Ahmed was not a minor but then nothing turns on this aspect of the matter as in the application, it has been stated that he was a minor at the time the present proceedings were filed. Finally as regards the issue of limitation vis-a-vis the review of the restoration application, it would be seen that the notice of the restoration application was received by Ghulam Ghous on 18- 6-1998 and on behalf of Mr. Shaikh Abdul Ghani on the same date although Mr. Shaikh has denied that the signatures appearing on the notice are those of his junior. In this view of the matter, in my opinion, the objections to the restoration order filed by Mr. Shaikh Abdul Ghani on 5-10-1998 (which have been treated as a preview application in the interest of justice) are otherwise even hopelessly time-barred. Mr. Shaikh has asserted that there is no limitation against a void order but since I have held that the restoration order was not a void order, therefore, each and every day of delay has to be explained which has not been done in the present case. 15. Coming now to the technical objections raised by Mr. Shaikh Abdul Ghani, in the first instance regarding the identity of appellant No,2, which has been vehemently attacked by the learned counsel this, in my view, cannot be sustained. In this connection learned' counsel has submitted that in the eviction application before the learned Rent Controller appellant No,2, Munawar Sultana, has affixed her thumb-impression whereas in the power of attorney given to Illahi Bux, she has signed her name in Sindhi, similarly in the affidavit filed by Munawar Sultana on 20-4-2000 in this matter regarding the above discrepancy, she has signed her name in English, however, learned counsel was unable to point out as to any violation of the law in this connection. In my view, at the most, it could be said that where a person knows how to sign then affixation of a thumb- impression would give rise to some doubts. Moreover, it would also be seen that no objection was taken to this discrepancy before the trial Court during the course of evidence. Consequently, such objection, in my view, cannot be taken at this stage. Similarly, learned counsel was unable to cite any decision, which would make it compulsory for a person, who affixes his thumb-impression to be identified. In this regard, the decision cited by learned counsel viz. Sh. Muhammad Matin v. Mrs. Khorshed Dosu Marker and 8 others (supra) is not relevant at all as it pertains to Order 1, Rule 10, C.P.C. Regarding joinder' of a party to a proceedings. In her affidavit filed in the matter on 20-4- 2000 Munawar. Sultana has stated that at the time when the eviction proceedings were filed before the learned Rent Controller she, was illiterate and thereafter, she became literate enough to sign her name in Sindhi when she gave the power of attorney to Illahi Bux. I have no reason to disbelieve the contents of such affidavit since the eviction application was filed in the year 1981 and the power of attorney was given in 1982. Similarly the affidavit has been signed by her in English in
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'the year 2000. Consequently, in my view it is quite reasonable to assume that at different stages of the proceedings Munawar Sultana had become literate enough to sign her name in Sindhi as Well as in English. ' Lastly on the technical aspect of the case Mr. Shaikh Abdul Ghani has submitted that the power of attorney given by Mst. Munawar Sultana to Ellahi Bux did not confer upon the latter any power to give evidence in the matter and consequently the evidence before the trial Court led on behalf of Munawar Sultana is a nullity in the eye of law. In this regard I have perused the said power of attorney. The same authorises Ellahi Bux in para.1 thereof to commence any action or other legal proceeding in any Court of justice for the recovery of any debt or sum of money, right title, interest, property. Matter or being whatsoever now due or payable or to become due or payable or in any- wise belonging to us or conceived to be so by any means on our account whatsoever in the same action or proceedings and all other actions or proceedings now pending, to prosecute or to discontinue or adjust or compromise as our said attorney shall see cause or be advised. Similarly clause-II authorises the said attorney to appear before any Court for the purpose of defending all actions, suits, proceedings etc; which are pending or may be brought against the executant one of wItom is Mst. Munawar Sulatana. Finally clause-III of the said power of attorney empowers Ellahi Bux to prefer any appeal etc; in a Court of law against any judgment given adversely to the interest of the executants. In my' view the said power of attorney is a comprehensive one and would also include the power to adduce the evidence on behalf of Mst. Munawar Sultana, in a Court since it authorises Ellahi Bux to commence actions in such Courts. Although the word evidence is not expressly used in the power of attorney, however, by way of implication such power can be construed in favour of Ellahi Bux. In this regard the decision reached by a single Judge of this Court in Zawar Hussain v. Abid Hussain Qureshi (supra) is distinguishable because there it was found that neither did the power of attorney confer any express power on the attorney to file an affidavit in evidence and gives evidence on behalf of one of the parties nor could such power be inferred. As earlier stated such a power can very well be inferred from the power of attorney given by Mst. Munawar Sultana to Ellahi Bux. ' Finally on the technical aspect, the learned counsel has contended that since none of the other co-sharers have been joined as parties to the rent application or the present appeal, this is a fatal defect and on such score alone the appeal should be dismissed. A short answer to this objection is that as per settled law a co-sharer is perfectly entitled to file ejectment proceedings without impleading the others. Reference in this connection can be made to Abdul Ghani v. Abrar Hussain (supra). ' As far as the merits of the case is concerned learned counsel has submitted that the relationship of landlord and tenant could not be established before the trial Court and hence no exception can be taken to the impugned order. In this connection he has contended that in the first instance no rent agreement was ever produced between either Altaf Ahmed and Ghulam Ghous or the subsequent transferees including Mst. Munawar Sultana and Ghulam Ghous and consequently in the absence of the same the relationship of landlord and tenant cannot be assumed. Similarly learned counsel has submitted that nothing has been tendered in the evidence by Mst. Munawar Sultana to show that she is the owner of the rented premises. In this regard it would be seen that in the trial Court, in the written statement filed by Ghulam Ghous before the Rent Controller he has flately denied that he ever took the premises on rent from either Mst. Munawar Sultana or any other person and consequently there is no question of payment of rent. Similarly he has also denied that Mst. Munawar Sultana is the owner of the rented premises. So also in his affidavit-in-evidence he has maintained that he was not bound to pay any rent to Altaf Ahmed but upon receipt of the notice from Mst. Munawar Sultana under section 18 of the Sindh Rented Premises Ordinance and others, he demanded proof of their ownership and when they could not produce the same he
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refused to pay the rent. However, in cross-examination he admits that he is the tenant of the premises, which is in his possession, but also says that he has never paid the rent of the same to anyone. ' Both Allah Warrayo and Ellahi Bux who deposed on behalf of Mst. Munawar Sultana in the trial Court, have maintained that Ghulam Ghous was the tenant of Altaf Ahmed on the monthly rent of Rs,300 per month in respect of the rented premises and that thereafter the ownership of the premises was transferred to Mst. Munawar Sultana and the other co-sharers, in proof of which' certified true copy of the extract from the…
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