1984 PLP 1869 (CLC)

‑‑ S. 16‑Eviction proceedings ‑Landlord giving a completely wrong description in title although aware that tenant was residing on first floor and not on ground floor‑Service of all notices effected on ground floor and even notice of execution application published in news paper mentioning same address‑Initial on postal acknowledgment receipt not similar with signature on affidavit and Vakalatnama filed in Court‑Landlord, held, obtained ejectment order by fraudulent means in respect of premises not subject‑matter of ejectment applica tion. This appeal has been filed against the order passed by the Controller in the following circumstances. The appellant filed an ejectment application against the respondent in respect of Flat No. 5 situated in a building on the Plot No. F‑89‑F North Nazimabad. In the title of the ejectment application, the address of the respondent was given as Flat No. 5 ground floor. This was also stated in para. 1 of the application. However, in the prayer clause the description of the property was given as Flat No. 5 but the word "ground floor" was missing from there. It seems that the notices were sent to the respondent through bailiff and by registered post on the address given in the title of the application i. e. Flat No. 5 ground floor. A publication was also made giving the same address. Ultimately, the learned Controller proceeded ex parte, and granted the ejectment application. In the Execu tion Application the appellant mentioned Flat No. 5 without specifying whether it is on the ground floor or the first floor. Admittedly the order was executed after due publication of notice in the newspaper in which the address was given as Flat No. 5 ground floor. However, it seems that the respondent was residing on the first floor of the premises and after ob taining police aid he was ejected from the first floor of the premises. The respondent then filed an application stating that the order of ejectment has been obtained by practising fraud on the Court and the learned Controller by his order, dated 15‑4‑1982 ordered the appellant to put the respondent in possession. No appeal has been filed against this order. As the respondent was not put in possession within the time specified by the learned Controller he filed an application which was granted by the impugned order dated 22‑4‑1982. This order has been challenged by the appellant in this appeal. Mr. Qureshi, the learned counsel when pointedly asked is unable to specifically state whether the respondent was residing on the first floor or on the ground floor. However, Mr. Mirza, the learned counsel for the respondent has stated that the respondent was residing on the first floor and an affidavit had also been filed by the respondent before the Controller to the same effect. It, therefore, seems that the Controller was justified in stating that the respondent was residing on the first floor. From the report of the bailiff it seems that the respondent was ejected from the first floor. The entire proceeding smells of the fraudulent act committed by the appellant in giving a completely wrong description in the title although he was aware that the respondent is residing on the first floor and not on the ground floor. Service of all notices was effected on the ground and even notice of execution application which was published in the newspaper the same address. Mr. Qureshi has referred to the postal acknowledge ment receipt of the notice sent to the respondent which according to him was received by the respondent, There is an initial on the receipt, but I have compared it with the signature of the respondent on the affidavit filed before the Controller and the Vakalatnama filed in this Court and I find no similarity between them. It is thus clear that the appellant by fraudulent means obtained ejectment of the respondent in respect of the premises on the first floor which was not subject‑matter of the ejectment application. Mr. Qureshi, contended that as the order of ejectment passed by the learned Controller has not been varied, amended or set aside, the Rent Controller was rot justified in passing the impugned order or earlier order dated 15‑4‑1982. Mr. Mirza has rightly contended that the order of ejectment is in respect of property situated on the ground floor of which the respondent is not the tenant, therefore, he is not aggrieved by that order. The ejectment order passed in respect of flat on the ground floor cannot be executed against the respondent, because he is residing on the first floor. In view of these circumstances I find no force in this appeal which is dismissed in limine. M. B. A. Appeal dismissed.