1988 PLP 1695 (MLD)

This writ petition calls in question the order dated 14-3-1970 of the Deputy Settlement Commissioner, Gujranwala, and that of the learned Rent Controller, Hafizabad, dated 11-2-1981 and further order dated 17-10-1981 passed in appeal by the learned Additional District Judge, Gujranwala, in an ejectment matter.

2. The facts relevant for the disposal of this writ petition are that respondents Nos. 4 and 5 filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance (VI of 1959) for the eviction of the petitioner from a Chaubara which forms part of property No. B-IV-1-S-184 situated in Main Bazar, Hafizabad. W was stated in the application that the aforementioned respondents were owners of the said property consisting of two shops and one Chaubara through registered sale-deeds. The petitioner was m possession of the Chaubara and no , with standirg that he was duly served with a notice dated 7-fi 1.980 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), he made default in the payment of rent due. The eviction was also claimed on the ground of personal need. The petitioner resisted the ejectment application and took up the plea in his reply dated S-1.0-?980 that the contesting respondents had neither any cause of action nor locus standi to file the ejectment application. Special costs for filing frivolous application were also claimed. On merits, it was pleaded that the petitioners were in possession of the Chaubara as owners and that the aforesaid respondents were not the owners of the same, therefore, no question arose for any personal need. As a result of the pleadings of the parties, the learned Rent Controller framed a preliminary issue as to whether the relationship of landlord and tenant existed between the parties. Learned Rent Controller, after appreciating the oral and documentary evidence on record recorded a finding of fact that relationship of landlord and tenant existed between the parties and that the petitioner was proved to be a defaulter. Accordingly, the ejectment application was accepted by order dated 11-2-1981. On appeal the learned Additional District Judge, after reappraisal of evidence concurred with the finding of fact recorded by the learned Rent Controller and dismissed the appeal.

3. The petition was admitted to examine the contention as to whether the Courts below failed to correctly read the documentary evidence. The learned counsel has not been able to point out any misreading of evidence on record. Learned counsel for the petitioner, however, submitted that Khuda Bakhsh, who is stated to be the father/predecessor-m-interest of respondents Nos. 4 and S, purchased a shop out of three units comprising property No.B-IV-1-S-184 through open auction on 27-11-1.960, the bid of which was approved by the Additional Settlement Commissioner in 1961. After the death of Khuda Bakhsh, respondents Nos. 4 and 5 applied for the inclusion of two shops in their Provisional Transfer Order on the ground that their predecessor-in-interest purchased the entire property in open auction. In consequence, the Deputy Settlement Commissioner, Gujranwala, by order dated 14-3-1970, without notice to the petitioner and other occupants of the shops, held that the entire property consisting of two shops and a Chaubara was auctioned to Khuda Bakhsh and the permanent transfer deed on the basis of this order was also obtained by respondents Nos. 4 and 5 on 9-7-1971. Learned counsel further contends that although it is alleged in the order dated 14-3-1970 of the Deputy Settlement Commissioner that the case had been remanded by the Additional Settlement Commissioner, yet no such order existed on record. It is submitted that all three documents, the bid sheet, the P.T.O. and the Deputy Commissioner's order dated 14-3-1970, in consequence of which P.T.D. was issued, were obtained through fraud and manipulation. The precise submission is that on the basis of these documents, the eviction of the petitioner cannot be sustained. Further contends that the Deputy Settlement Commissioner could not review or alter the order originally passed by the Additional Settlement Commissioner whereby the entire property was not transferred to respondents Nos. 4 and 5.

4. Mr. A.R. Shaukat, learned counsel for the contesting respondents, denied the allegation that respondents Nos. 4 and 5 obtained the aforesaid documents through manipulation or pre-0sing fraud. It was contended that the entire property was included in the open auction and purchased by their predecessor-in-interest. The auction was duly approved by the Additional Settlement Commissioner and supplemented by the issuance of the P.T.O. for full unit and the P: C.D. was also issued after the payment of the entire transfer price and the settlement fee. It was further argued that the order dated 14-3-1970 of the Darned Deputy Settlement Commissioner is the genuine order and is not open to challenge after a lapse of twelve years. He also took up the plea that the petitioner earlier instituted a declaratory suit to the effect that he was the owner of the Chaubara. The suit was dismissed for non-prosecution on 19-6-1982. The revision against the said judgment was also dismissed on 7-7-1982 by the learned Additional District Judge. It is submitted that the petitioner deliberately suppressed this fact and is, therefore, not entitled to seek any relief.

5. I have given my anxious consideration to the submissions made by the learned counsel for the parties. The basic question require-, to be examined in this petition is as to whether respondents Nos. 4 and 5 had committed fraud in obtaining the order dated 14-3-1970 of the. Deputy Settlement Commissioner on the basis of which, the eviction of the petitioner in proceedings under the Ordinance was ordered. It is well-settled that the allegations of fraud generally raised a mixed question of law and fact which can only be established by an elaborate inquiry. Such an inquiry cannot be held in writ jurisdiction on the controverted questions of law and fact raised in this petition for the first timer Even otherwise, presumption of regularity attaches to all official acts. The P.T.D. in respect of the property, in dispute, was admittedly issued in favour of the contesting respondents which has not been cancelled by any competent Court or ~t tribunal. This being so, neither the learned Rent Controller nor the appellate authority had jurisdiction to go into the question of vires of the P.T.D. or the order dated 14-3-1970 of the Deputy Settlement Commissioner. Both the Courts below have found that the petitioner despite service of notice under Act XXVIII of 1958 failed to tender the rent due. In the face of the aforesaid findings, it is obvious that the statutory tenancy between the parties was established under the said Act and the petitioner could root agitate the transfer made in favour of the respondents before the Rent Controller, the tribunal of limited jurisdiction. Reference may be made to Abdul Karim v. Muhammad Ibrahim 1976 S C M R

79. The. grievance of the petitioner also suffers from gross laches, in that, the validity of the order passed by the Deputy Settlement Commissioner cannot be challenged after a lapse of twelve years which I am not inclined to condone. There is ample authority on the proposition of law that a writ even against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches. Reference may be made to S. Sharif Ahmad Hashmi v. Chairman Screening Committee, Lahore and another, 1978 S C M R 367 Finally, the concurrent findings of fact recorded by the learned Rent Controller and the learned Additional District Judge are not open to scrutiny by this Court in the exercise of its constitutional jurisdiction. In view of the above, the writ petition fails and is hereby dismissed with no order as to costs. M.Y.H./97/K Petition dismissed.