Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: AGHA MOHAMMAD VS Respondent: Haji MAULA DAD
Court Name: Balochistan High Court Judge(s): Dorab Patel Title: AGHA MOHAMMAD vs Haji MAULA DAD Case No.: Second Appeal No, 40 of 1969 Date of Judgment:1970-08-04 Reported As: PLD 1971 Quetta 10 Result: Appeal dismissed
JUDGMENT
JUDGMENT This is an appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereafter called the said Ordinance) and the dispute in it relates to a property bearing Municipal No, 7-15/42, Mission Road, Quetta. This property was evacuee property and for many years one Meherban had been its tenant and had paid rent to the Custodian. I shall refer to this property as the said property, and on 20th December 1965 it was transferred by the Settlement Authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 Dorab Pate!, (hereafter called the said Act) to Mr. Wall Muhammad and Mr. Muhammad Syeed, who on 17th March 1966 sold it to the respondent in this appeal. Thereafter, notice under section 30 was served on the said Meherban, but apparently because he was trying to obtain the said property for himself Meherban did not pay any rent after its transfer by the Settlement Authorities, therefore on 21st October 1966 the respondent filed an application for his eviction in the Court of the Rent Controller, Quetta under section 13 of the said Ordinance on the ground of non-payment of rent and unauthorised sub- letting. The application was allowed on the ground of non-payment of rent and, after the evicting order against Meherban had become final, the respondent commenced execution proceedings to obtain possession of his property in the Court of the Administrative Civil Judge, who was also the Rent Controller. The respondent was Able to recover possession of the part of the said property which was in Meherban's occupation. But Meherban had sub-let a part of it to the appellant and to one Ghulam Muhammad who refused to hand over possession of the area in their occupation to the respondent ; and when the execution application came up for hearing before the Court, in due course on 6th June 1969, the respondent informed the Court of the position and the case was adjourned to 28th June 1969. Meanwhile, in March 1969, the appellant and the said Ghulam
---
## Page 2
Muhammad had also filed an application before the Rent Controller under section 13 of the said Ordinance for the deposit of rent on the ground that, although they were tenants of the portions in their occupation, the respondent was refusing to accept rent from them. Thereupon, on 28th June 1969, the Administrative Civil Judge recorded the statements of the appellant and Ghulam Muhammad and of the respondent. The statement of the appellant and of Ghulam Muhammad is described as a joint statement, whatever that may mean, and, after recording this joint statement, the learned Administrative Judge passed an order on the same day both on the application for deposit of rent and on the execution proceedings. According to this order, the learned Judge accepted as correct the so-called joint statement, and held that the appellant and Ghulam Mohammad must be deemed to be tenants of the portions of the said property which were in their occupation, and also that they should have been impleaded by the respondent in his section 13 application. As the respondent had neither given notice under section 30 of the said Act to the appellant and to Ghulam Muhammad nor impleaded them, he held that they could not be evicted, and he further observed that the respondent should file "independent proceedings of ejectment against these two persons". Then, in reference to the application of the appellant and Ghulam Muhammad, he directed them" to continue depositing rent with this Court till the time the rent is accepted by the landlord directly". The respondent filed an appeal before the learned District Judge, Quetta against this order and as the appeal was allowed, the appellant (but not Ghulam Muhammad) has come in appeal against the said' udgment of the learned District Judge. 2. Mr. Syed Mahmood submitted that the order of the learned Administrative Civil Judge dated the 28th June 1969 was not appealable, therefore the learned District Judge had no jurisdiction to hear the appeal filed by the respondent. He also submitted that the view taken by the learned Administrative Civil Judge in his order of 8th June 1969, was correct, and that the appellant could not be ejected both because he had not been impleaded in the respondent's ejectment application against the tenant and because he had not been served with the notice required under section 30 of the said Act. 3. Mr. Syed Mahmood conceded that he had not pleaded in his grounds of appeal that the respondent's appeal before the learned District Judge was not maintainable. However, he submitted that, as it was a question of law, he was entitled to raise it in this Court, and, as I have heard learned counsel's arguments, I may briefly consider them. Learned counsel had first submitted that any order passed in execution proceedings was not appealable at, all, but this wide proposition was not necessary to his arguments, and when I pointed out the provisions of section 2(2) of the C. P. C. to learned counsel, he advanced a more limited submission. According to learned counsel, the order passed by the learned Administrative Civil Judge was an order either under Order XXI, rule 99, C.P.C. or under Order XXI, rule 101, C. P. C., therefore it was not an appealable order in view of rule 103. In order to appreciate learned counsel's argument, it is necessary briefly to refer to the provisions )f rules 97 to 103 of Order XXI, C. P. C. 3. These rules relate to execution proceedings for the recovery of immovable property. When the holder of a decree for the possession of immovable property is resisted in execution proceedings he is entitled to file an application under rule 97, C. P. C. before the Executing Court, and if the Court finds that the resistance was without just cause, under rule 98 "it shall direct that the applicant be put into possession of the property .But if it is satisfied "that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application." Rule 100, C. P. C. entitles a person other than the judgment debtor, who has been dispossessed of immovable property, to apply for relief to the Court, and under rule 101, C. P. C,, if the Court is satisfied 'that the applicant was in possession of the property on his own account or on account of some person
---
## Page 3
other than the judgment-debtor, it shall direct that the applicant be put into possession of the property." Rule 102, C. P. C. is not relevant, and rule 103, C. P. C. prescribes that any party aggrieved by an order under rule 98, 99 or 101, C. P. C." may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, the order shall be conclusive." Thus it is very clear that the benefit of these rules, which have to be read with Order XXI, rule 36, is available only to a person who claims possession of the property in good faith "on his own account or on account of some person other than the judgment-debtor," therefore these rules cannot be invoked by a sub-tenant, except perhaps when the landlord has agreed to the creation of the sub-tenancy. That was the view of the West Pakistan High Court in Gulzar Muhammad v. Moazam All and that has always been the view of the Courts See Sheikh Yousuf v. Jyotischandra . But as admittedly the appellant had only paid rent to Meherban, who alone had been recognised by the Custodian as tenant of the said property, it follows that, according to the settled law, the appellant could not have sought relief under rule 99 or 101, C. P. C. 4. Turning now to the facts of the instant case, the order of the learned Judge does not purport to be under rule 99 or 101, C. P. C., nor was there any application by the parties under these rules nor, as I have pointed out, could the case of the appellant conceivably fall under these rules. Further, as I shall presently show, the order is utterly illegal. How then can it be saved by presuming that it fell under rule 99 or 101, so as to make it not appealable under rule 103? To do so, would be to suostitute conjecture for evidence, and to ignore the fact that the parties had deliberately refrained from filing applications under rule 97 or rule 103, C. P. C. Mr. Syed Mahmood tried to argue away the absence of applications under these rules as mere technicalities which did not affect the jurisdiction of the Court, but how can a Court exercise powers under these rules, in the absence of application under the rules ? In support of his argument, learned counsel referred me to an unreported judgment of the Quetta Circuit of the West Pakistan High Court in Civil Revision No, 8 of 1964, and to a judgment of Kaikaus, J. in Mst. Sahib-un-Nissa and others v. Mst. Mahmood Begum . The unreported case merely followed the judgment of Kaikaus, J. and in both the cases cited the applicant, who apprehended dispossession by a decree-holder, had sought relief under rule 100, C. P. C. before she had been ejected. Her claim was opposed on the ground that she could file an application under rule 100 only after she had been ejected. In repelling this argument, Kaikaus, J. observed: "There is always inherent jurisdiction in the Court executing a decree to determine, how, to what extent, and in what manner a decree is to be executed." Although these observations are very wide, they had reference to the argument that an objector under rule 100 had to await dispossession before seeking relief under these rules, therefore I do not see how cases cited support learned counsel in his argument that a Court can exercise jurisdiction under rule 99 or 101, C. P. C. without any application by the parties concerned. Additionally, assuming that the Court has an inherent jurisdiction, as stated by Kaikaus, J., that jurisdiction has always to be exercised to serve the ends of justice, therefore the point for determination is whether the ends of justice could have been served by a Court usurping jurisdiction in the manner submitted by learned counsel. According to learned counsel, merely because the respondent informed the Court on 6th June Agha Mohd. 1969 of the position in his execution proceedings, the Court was v competent to treat this statement as a request under rule 97. As Maula Dad the respondent was bound to inform the Court of the position and Dorab Patel , as the possession was also confirmed by the plaintiff's report, I do not see how a mere statement of this nature could conceivably be treated as a request for relief under rule 97. Further, it is unlikely in the extreme that the respondent would have dispensed with a formal application because this was necessary for his own protection. Thus, if he had filed an application, the appellant and Ghulam Muhammad would have been compelled to file a counter-affidavit, and the application might have been disposed of without recording evidence. On the other hand, if evidence had been recorded, the counter-affidavit of the appellant1 2 3
---
## Page 4
would have permitted the respondent to cross-examine the appellant so as to prove his own case. In these circumstances, the ends of justice could not conceivably be said to have been served by the Court usurping power under rule 97 without any application by the respondent ; and if the learned Judge did think he was exercising jurisdiction under rule 97, then, I have to observe, with regret, that his action was both illegal and detrimental to the interest of the respondent. The other plea of learned counsel that the order of the learned Judge could be treated as an order under rule 101 allowing the appellant's presumed application under rule 100 is, I have to state with regret, absurd. As I have pointed out, the appellant and Ghulam Muhammad had filed an application under the said Ordinance which was before the learned Judge and to which he has referred in his order. But that application was on grounds which are not the same as those submitted by learned counsel, and secondly that application was under the said Ordinance, so that the learned Judge had no power to dispose it of in his capacity as a Judge of the Execution Court; therefore, I cannot accept the argument that, although there was no application under rule 97 or 100, the illegal order of the learned Judge must be saved by presuming that it had been passed under those rules. 5. There is also another aspect of the case which has disturbed me, and that is the slipshod manner in which the learned Judge recorded evidence on 28th June 1969. First of all. as I have said, he recorded a joint statement of the appellant and of Ghulam Muhammad. Even Mr. Syed Mahmood could not defend this arbitrary procedure. Secondly, I find that there was no cross- examination either of the appellant and of Ghulam Muhammad or of the respondent. When I pointed out this to learned counsel, learned counsel feebly argued that some of the sentences in the depositions were so couched that they must be presumed to have been recorded in cross- examination. The argument implies that the learned Judge did not know how to record the examination of witnesses. But if he did not know how to record the examination of witnesses, how can the record thus maintained inspire confidence? I am constrained to state here with regret that I am not able to understand how the learned Judge acted in the manner in which he did, but it is sufficient to say that no Court exercising powers under Order XXI, C. P. C. could have acted in this manner, therefore this is another circumstances fatal to learned counsel's submission that, although the learned Judge did not state that he was acting under rule 99 or 101, C. P. C. he must be presumed to have done so. I am satisfied that the order was not passed under those rules. I am aware that it is not clear how the learned Judge could have passed such an order. But whatever be his intention, as the order disposed of the respondent's execution application, clearly fell under section 47 ; and as this section has to be read with section 2 (2) of the C. P. C., the order was appealable, as rightly held by the learned District Judge. 6. I now turn to learned counsel's second submission that the appellant cannot be ejected in execution proceedings in the eviction order obtained by the respondent, because the respondent had not impleaded the appellant in his eviction application under section 13 of the said Ordinance. That was the view of the learned Administrative Judge, and in coming to this conclusion, the learned Judge had relied on a judgment of the West Pakistan High Court reported in Ahmed v. Chief Judge, Karachi Small Causes Court . But that judgment had reference to legislation which permitted sub-letting, unlike the said Ordinance, which prohibits sub-letting therefore it has no relevance to the respondent' application which was under the said Ordinance. On the other hand, bearing in mind that the said Ordinance prohibits sub-letting, I do not see why a decree for ejectment against a tenant cannot be enforced against a sub-tenant who claims through the tenant but without the landlord's consent. That was the view taken long ago by the Calcutta High Court in Sheikh Yousuf v. Jyotish Chandra and this judgment was approved by a Division Bench of the West Pakistan High Court in Mehrafdin v. Muhammad Yasin . As observed by their Lordships at para. 6 of the judgment :-- "It is a cardinal principle of law that when a decree is obtained by a decree-holder for possession4 5 6
---
## Page 5
of immovable property then it can be executed against the defendant (hereinafter called the judgment-debtor) or any person bound by the decree who refuses to vacate the property. This principle has a statutory recognition in the form of Order XXI, rule 35 of the Code of Civil Procedure (Act V of 1908). It is again well-settled that a sub-lessee or an under-tenant is a person bound by a decree for possession- obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sub-lease also. If authority be needed reference can be made to Sheikh Yusuf v. Jyotish Chandra Benerjee and others. These observations state the settled law. I may further observe here that the facts of the case before their Lordships were that the landlord had impleaded both the tenant and the sub-tenant in his ejectment application under section 13 and had obtained an ejectment order. The sub-tenant had challenged this eviction order on the sole ground that he was neither a necessary nor a proper party to the section 13 application, therefore the eviction order of the Courts below was illegal. In repelling this extraordinary argument, their Lordships observed at page 26 that it was "just, fair and proper that he (the sub-tenant) should be impleaded as a party by the landlord in the ejectment application." On the basis of these observations, Mr. Syed Mahmood submitted that in the instant case also the appellant was a necessary party in the respondent's ejectnent application. But nowhere do the observations of their Lordships state that the sub-tenant is a necessary party in an ejectment application under section 13 on the ground of sub-letting, and further, as the sub-tenant had been impleaded in the case, the observations of their Lordships were obiter dicta only. However, I find that in Ramzan All v. Kassim Brothers Lari J., as he then was, had held that a sub-tenant in possession of the demised property was a necessary party and not merely a proper party; and this view had been followed by Wahiduddin J. in Ahmed Ali v. Sakhawat Hussain But this view is completely inconsistent with that of a Division Bench of the West Pakistan High Court in Gulzar Muhammad v. Moazam Ali to which Mr. Hanafi referred me, and further, this view was expressly overruled by a Division Bench of the West Pakistan High Court in Kassim Bros. v. Ramzan All which was the appeal against the said judgment of Lari, J., and I shall now consider the judgment of the appellate Court in Kassim Bros.'s case. 7. The appeal of Kassim Brothers turned not on the provisions of the said Ordinance but on the Karachi Rent Restriction Act, 1953. Under this Act, a landlord seeking ejectment on the ground of sub-letting had first to obtain a certificate from the Rent Controller and then file a suit. In the case of Kassim Brothers, the landlord-appellant had taken proceedings under the Karachi Rent Restriction Act and obtained an ex parte decree against his tenant, therefore the sub-tenant respondent had filed a suit in the Sind Chief Court contending that he could not be ejected under the decree obtained by the appellant because the appellant had not impleaded him in his suit. This suit was allowed by Lari J. and, as I have pointed out, Lari J.'s judgment had been followed by Wahiduddin, J. In setting aside the judgment of Lari, J., Kayani, C. J., who delivered the judgment of the Division Bench, observed at page 372 :- "This means that an order for the recovery of possession of any premises can be made by a Court if the landlord obtains a certificate from the Controller that the tenant has sublet the premises without his permission, and it is obvious that in the proceedings for obtaining the certificate, the only person who could be a party is the person who obtained the tenancy from the landlord. With the interest that the sub-tenant has by virtue of his possession, the landlord has no concern. His agreement was with his own tenant and his grievance, which the law recognises as a grievance, is that this tenant has not obtained his permission. Now, since it is only for the tenant to show that he has obtained the Landlord's permission, the impleading of the sub-tenant is not even a proper party, for, knowing the law as it stands, if he was entering into an agreement with the tenant7 8 9 10
---
## Page 6
without the consent of the landlord, he was doing so at his own risk. That a certificate could be obtained from the Controller without impleading the sub-tenant is not a matter for contest here. The contest relates to the landlord's failure to implead the sub-tenant in his suit for ejectment. The reasoning in favour of the landlord, however, will be the same in this case as in the case of the certificate, for the suit is based on the Certificate and the Certificate being based on the fact that the subletting is without the permission of the landlord, no question of the interest of the sub-tenant arises. In a suit for ejectment on the basis of a Certificate under section 9, subsection (2) (b) therefore, the person in actual possession is not a necessary party." The respondent appears to have relied on Wahiduddin, J.'s judgment in Ahmad Ali's case, but this judgment was overruled by Kayani, C. J. It is true that the judgment of Kayani, C. J. was based on the provisions of the Karachi Rent Restriction Act, but except that the method for ejectment was more cumbersome, the relevant provisions of that statute are in pari materia with those of the said Ordinance, so that the case is on all fours with that before me. I am in respectful agreement with the view of Kayani, C. J. It was, therefore, not necessary for the respondent to have impleaded the appellant in his ejectment application against Meherban, and he is entitled to eject the E appellant through the order of eviction obtained by him against Meherban. 7. I now turn to Mr. Syed Mahmood's argument that the appellant cannot be ejected because he had not been served with a statutory notice under section 30 of the said Act. Section 33 confers rights prescribed in the section on persons in possession of evacuee property, or who have been declared on or before 20th December 1958, by the Custodian to have tenancy rights from prior to Partition. According to this section, in so far as it is material, when evacuee property in the occupation of such persons is transferred by the Settlement Department, transferees are barred from taking ejectment proceedings against these persons until they have first given them the notice prescribe under the section. As I have pointed out, the respondent had served the statutory notice before filing his ejectment application but this notice was served on Meherban and not on his sub-tenants and Mr. Hanafi contended that the sub-tenants, including the appellant, were not entitled to this statutory notice. Mr. Syed Mahmood however challenged this view, and the question is whether the appellant was entitled to notice under section 30. 8. In order to claim the benefit of section 30, the appellant has not only to show that he was in possession of the area claimed by him before 20th December 1958, but to show that the possession was possession within the meaning of the said Act. v. As to the point of time when his alleged occupation began, the only evidence in support of his allegation is the so called "joint statement" recorded by the learned Judge on 28th June 1969 according to which he and Ghulam Muhammad had said that they were occupying portions of the shop in dispute since Partition. As the burden of proving this occupation was on the appellant, and further, as the facts of the alleged occupation were within his exclusive knowledge, I agree with the view of the learned District Judge that the uncorroborated testimony of the appellant is not sufficient to prove the duration of the alleged occupation. But even if the uncorroborated evidence of the appellant can be accepted, the further question is whether he can claim to be in possession within the meaning of section 30. Long before the enactment of the said Act and long before the commencement of the appellant's alleged occupation, Baluchistan .Regulation II of 1945 had prohibited sub-letting without the consent of the landlord. Admittedly, in the instant case, the appellant had never obtained the Custodian's consent to the sub-letting to him by Meherban. Can he then claim to have been in possession within the meaning of the said Act ? Statutes in apparent conflict have to be construed so as to avoid such conflict, therefore, in the absence of very clear indication to the contrary in the said Act, it seems to me that "possession" under' section 30 means only possession which is legal and/or is protected under the relevant rent laws. I do not find any provisions in the said Act, nor did learned counsel refer me to any, which could indicate that the word "possession" in section 30
---
## Page 7
was intended to…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.