2007 PLP 925 (YLR)

SH. HAKIM ALI, J.

Muhammad Ismail Raza and another, had filed a suit for recovery of possession of a house measuring 3-1/2 Marlas situated in Street No.3 Block-Y. Behari Colony, Bahawalpur and for recovery of Rs.75,400 as compensation for the use of the aforesaid house from April, 2001 to September, 2003 at the rate of Rs.2,600 per months' and in future at the same rate till the delivery of possession of the same against Mst. Rashida Bano, the present writ petitioner. After entering appearance in the aforesaid suit, Mst. Rashida Bano filed an application under Order VII, rule 11 of the C.P.C. for rejection of plaint wherein she narrated that she had earlier filed a suit for permanent injunction against the plaintiff by claiming the ownership of the house in dispute, which application was contested and the learned Civil Judge dismissed that application on 13-10-2005. Revision preferred against that order by Mst. Rashida Bano was also dismissed on 6-5-2006 by learned Additional District Judge, Bahawalpur. Hence, this writ petition.

2. Learned counsel for the writ petitioner submits that the impugned order dated 6-5-2006 passed by learned Additional District Judge is illegal and unlawful. In para. No.4 of the plaint, there was an assertion that plaintiff No.1 was owner of the house, while defendant had received possession as tenant of the disputed house through Bashir Ahmad Saeedi, plaintiff No.2, therefore, the suit for possession and recovery of compensation was barred by law before the learned Civil Court. Learned counsel has referred to PLD 1985 Supreme Court 1 (Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani), PLD 1972 Peshawar 66 (Haji Muhammad Ali Khan and 4 others v. Nur Muhammad Khan and 15 others) to support his contention that there is when an assertion of landlord and tenant, the Civil Court would be having no jurisdiction. It would be the Rent Controller before whom the ejectment petition would be competent.

3. I have considered the arguments of the learned counsel and have perused the record.

4. From the bare reading of-the plaint, it becomes apparent that it' was an assertion of the plaintiffs that defendant/ writ petitioner had occupied the house as tenant but afterward she had denied that relationship by filing of suit for permanent injunction and had refused to pay the rent also. In these circumstances, when relationship of landlord and tenant between the parties was not admitted, then in such an event, the owner/landlord of the property could not approach the Rent Controller, merely to waste the precious time to hear from that authority, to seek remedy from the Civil Court. Plaintiff at this juncture of contest of relationship of landlord and tenant from the tenant, would be gaining two remedies. Either to stand up to prove that relationship before Rent Controller or to avail remedy before a Civil Court for recovery of possession on the basis of ownership. He would not be failing in law when he would approach the learned Civil Court not only to get his ownership determined yet to get recover the possession of the suit property. In a suit for possession, the declaration is the prerequisite condition, unless the plaintiff is able to prove that ownership of the property, prayer for possession cannot be granted to him. Therefore, the refusal of defendant/writ petitioner that respondents/plaintiffs were not owners of the property and the petitioner was herself owner of the property, the jurisdiction of Rent Controller would-not be attracted in such an event. As regard the judgments referred to by the learned counsel, there is no cavil to the proposition that in case of admitted relationship of landlord and tenant, Rent Controller would possess the jurisdiction. But in the instant case, relationship of tenancy has been denied and hostile and counter title has been set up. Therefore, those judgments would not be applicable. The filing of the suit in such a circumstance would not be barred by Order VII, rule 11 of the C.P.C. Defendant by filing suit for' permanent injunction having once denied relationship and repeating the same plea even in the application filed under Order VII, rule 11, C.P.C., cannot be permitted to blow hot and cold, say right and left, deny and admit by the same breath. He cannot be allowed to do so, so as to protract the litigation, and to increase the agony of plaintiffs. The impugned order passed by the learned Court below cannot be declared illegal and unlawful. Therefore, the writ petition is dismissed in limine. H.B.T./R-5/L Petition dismissed.