2022 PLP 75 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through this Cr. Revision Application applicant has assailed the Order dated 06.04.2011 passed by learned District and Sessions Judge, Karachi South, whereby he dismissed Cr. Misc. Application/Petition No.1096 of 2008, moved by the complainant/applicant under sections 3, 4 and 5 of Illegal Dispossession Act, 2005, holding the same to be not maintainable and refused to take cognizance against the accused i.e. respondents herein.

2. The matter in hand has a chequerred history and numerous litigations were instituted by the parties against each other; however, precisely, the relevant facts for the purpose of deciding this Criminal Revision Application are; that this Cr. Revision Application has been filed by the attorney of the applicant, Messrs Noorani Travels namely, Hakim Ali. According to him, the order of ejectment passed in Rent Case No.1631 of 1992 and thereafter in Execution Application No.37/1998 was passed in favour of the respondents/ accused in respect of Shops Nos.1-4 situated on Plot Nos.SR-6/3 and SR-6/4; however, under the garb of the said orders, while getting executed the decree for ejectment, the respondents dispossessed the petitioner from Shop No.13, which was not the subject matter of the said proceedings as, according to him, he was not bound by the order of ejectment as the shop in occupation of the applicant did not fall within the limits of two tenements in respect of which the ejectment order was passed. In the circumstances, he had moved an application under Sections 3, 4 and 5 of the Illegal Dispossession Act against the respondents/accused but vide order dated 06.04.2011, impugned herein, learned District and Sessions Judge, Karachi South dismissed his application moved under Sections 3, 4 and 5 of the Illegal Dispossession Act, 2005 and he refused to take cognizance solely on the ground that since the provisions of Order XXXVIII, C.P.C. are not applicable to the criminal proceedings, the property which was sought to be attached could not have been attached and by the same order the application moved by the respondents/ accused under Section 265-K, Criminal Procedure Code, 1898 was also disposed of as having become infructuous. It is further asserted that it has come on record clearly that the respondents had no order in their favour with regard to ejectment of Hakim Ali, attorney of Messrs Noorani Travels from Shop No.13 inasmuch as; there is no such order passed by any of the Courts below either in Rent Case and/or in First Rent Appeal or any other execution application and under the garb of the order of ejectment from the shops other than Shop No.13, Messrs Noorani Travels were dispossessed from the shop in their occupation. It was also mentioned that since it came on record that the applicants were dispossessed from Shop No.13 illegally by the respondents, the Criminal Application that was moved under Sections 3, 4 and 5 of the Illegal Dispossession Act could not have been dismissed and it was incumbent upon the learned District Judge to have taken cognizance under Section 7 and should have granted the relief to him.

3. On the other hand, the stand taken by the respondents / accused is that plea of the applicant that the shop occupied by him was separate and independent from the others regarding which order of ejectment had been passed, was also taken up by the applicant before Honourable Supreme Court in Civil Petition No. 445-K of 2006 filed by him which was rejected by the Apex Court vide judgment dated 25.02.2008. Thereafter, the applicant had also initiated contempt proceedings against the respondents, which also ended in favour of the respondents/accused. It was further the case of the respondents that in the application submitted earlier by the applicant during trial of the ejectment proceedings for impleading him as a party, the applicant had admitted that he was in occupation of a shop included in SR-6/3 and SR-6/4 and that he had never pleaded to be in occupation of Shop No.13.

4. I have heard attorney of the applicant, Hakim Ali, who appeared in person and also submitted written arguments/synopsis, Mr. Mirza Sarfaraz, learned counsel appearing for the respondents/accused, as well as learned A.P.G. appearing for the State and perused the material available on the record.

5. The applicant submitted that the orders of ejectment passed in the Rent Case as well as that passed in the Execution Application in favour of the respondents/accused were in respect of the Shops other than the one in possession of the Applicant; however, under the garb of the said orders, the respondents illegally dispossessed the petitioner from Shop No.13, which was not the subject matter of the said proceedings. It was further submitted that learned District Judge, while passing the impugned order, has not taken into consideration the above fact and has passed the impugned order in a hasty and mechanical manner without applying judicious mind to the factual as well as legal aspects of the case, therefore the same is liable to be set aside.

6. Conversely, learned counsel for the respondents/accused contended that the impugned order has been passed in accordance with the law after discussing each and every point involved in the matter and sound and cogent reasons have been assigned by learned District Judge for his findings. According to him, in view of the orders passed by Honourable Supreme Court, particularly the order dated 25.11.2013 passed in Criminal Original Petition No.67 of 2009 there is no stuff in the revision application which being meritless is liable to be dismissed.

7. Learned Additional P.G. Sindh adopted the arguments advanced by learned counsel for the respondents and submitted that instant Cr. Revision Application may be dismissed in the light of orders passed by Honourable Supreme Court earlier in these proceedings.

8. Although, as stated above, the instant case has a chequerred history and numerous litigations were filed by the parties against each other; however, for the purpose of deciding instant Cr. Revision Application the moot points to be decided are; as to whether ejectment order passed in Rent Case No.1631 of 1992, so also writ of eviction issued by the Executing Court in Execution Application No.37/1998, covered the premises in occupation of the applicant i.e. Shop No.13; and as to whether the dispossession of the applicant from the shop in question by the respondents/ accused through bailiff of the Court consequent upon the order passed by the Executing Court, falls within the ambit of the provisions of the Illegal Dispossession Act, 2005 or not?

9. From the perusal of the record it reveals that the litigation between the parties had reached upto the stage of Honourable Supreme Court by means of Civil Petitions Nos. 445-K to 447-K of 2006 which were disposed of by Honourable Supreme Court vide order dated 25.02.2008. Thereafter, the applicant's attorney Hakim Ali had filed Criminal Original Petition No.67 of 2009 for initiating contempt proceedings against nine respondents including Respondents/accused herein. The said petition was also dismissed by Honourable Supreme Court vide an elaborated order dated 25.11.2013 wherein the issue involved in the instant revision application was also considered i.e. as to whether Shop No. 13 allegedly possessed by the applicant formed part of the property against which writ of eviction was issued by the executing court. It would be advantageous to reproduce hereunder the relevant portions from the aforesaid order dated 25.11.2013 passed by Honourable Supreme Court: "

6. Two questions need to be addressed. Firstly, whether the respondents have violated any order of this Court and secondly, whether the ejectment proceedings that had culminated in favour of the respondents and the order of eviction duly executed covered the premises in occupation of the petitioner. The allegation of the landlords/ respondents was that the premises were tenanted to one, Taj Mohammad, who had sublet the same to others including the petitioner. On the other hand the case of the petitioner is that the said Taj Mohammad was not tenant of the respondents but was only authorized to collect rent from the tenants on their behalf. It may be stated that the petitioner had made application for being impleaded as party which was dismissed. Be that as it may, the record shows that the ejectment proceedings were related to the entire constructed area on plot S.R.-6/3 and 4, Shahrah-e-Liaquat/Frere Road, Karachi. The petitioner also does not dispute it but pleads that his Shop No.13 does not fall within the said area. The record belies this plea. The first document in this context is the petitioner's own application under Order I Rule 10, C.P.C. submitted by him as intervenor in the Rent Case No.1631 of 1992. In paragraph No.2 whereof he stated that: "the building on Plot No.SR-6/3 and 4 is a huge multi-tenement building comprising around forty different tenements occupied by separate business firms and individuals." He goes to state in paragraph No.5 that:-- "the intervenors are in occupation of a portion of the tenement on Plot No. No.SR-6/3 and 4 in their own right and have been paying rent to the Rent Collector i.e. the Opponent and are entitled to retain the occupation as authorized tenants under Law." It was the petitioner's own case that he had occupied a portion of the tenement of Plot No.SR-6/3 and

4. The plea that the premises in occupation of the petitioner is separate and independent of that covered by the ejectment proceedings was raised by the petitioner before this Court in Civil Petitions Nos.445-K to 447-K of 2006, which was addressed and rejected in the judgment of 25th February, 2008 on the basis of which the petitioner has filed the present application for contempt. In Paragraph No.3 of the judgment the petitioner's contention that he was necessary party to the rent case as well as in the execution application as he was in possession of the rented premises in his capacity as a lawful tenant since 1979 was mentioned. Further argument was advanced that the ejectment order could not have operated against the petitioner as it was passed regarding tenements Nos.1 and 4 while the petitioner was in possession of a distinct and separate property. This argument was rejected and it was held: " .while the petitioner is in possession of a distinct and separate property, it may be mentioned here that the stand taken by the petitioner before the courts below as well as this Court is highly inconsistent, inasmuch as on one hand it is being pleaded that since the petitioners are occupying a different premises and the eviction application filed by respondents Nos.1 to 3 against respondent No.4 is in respect of tenements Nos. 1 and 4, therefore decree passed in favour of respondents Nos.1 to 3 cannot affect his rights and on the other it is solicited that since respondent No.4 was authorized to sublet the premises in question by its original owner, therefore, the petitioner being "authorized sub-tenant" can not be evicted in execution of the decree/order obtained against respondent No.4." All the three petitions of the petitioner were dismissed. The petitioner had heavily relied upon the sketchy prepared by the official assignee in the earlier litigation. It is true that the said application does not mention shop No.13 but it appears that the sketch was prepared only for the sake of clarity so as to pinpoint the exact location of the shop in occupation of the petitioner and other tenants. The report by Engineer Mohammad Iqbal also shows that upon visit of the site the premises were not numbered. There is no official record to show that the premises in occupation of the petitioner was assigned any number. It thus emerges from the above discussion that not only the petitioner's premises was included in SR-6/3 and 4 but the plea taken by him to the contrary has already been rejected by this Court."

10. In view of above decision of Honourable Supreme Court, it can safely be held that Shop No.13 occupied by the applicant was included in the property in respect whereof ejectment order was passed by learned Rent Controller and thereafter by the Executing Court, thus the first point goes in favour of the respondents/accused.

11. Adverting to the second point as to whether the dispossession of the applicant from the shop in question by the respondents/accused through bailiff of the Court consequent upon the order passed by the Executing Court falls within the ambit of the provisions of the Illegal Dispossession Act, 2005, it would be advantageous, in the first instance, to reproduce hereunder the provisions of Section 3 of the Illegal Dispossession Act, 2005: "

3. Prevention of illegal possession of property, etc.

(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property. (2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to, any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code.

12. From the language of above provision of law, it is clear that subsection (1) of Section 3 of the Act prevents the entry of any person into or upon any property without having any lawful authority with the intention to dispossess the owner or occupier of such property and/or to grab, control or occupy such property, while subsection (2) describes the penal consequences to be faced by any such person who contravenes the provisions of subsection (1). In the instant case the applicant was dispossessed by the respondents through the Bailiff of the Court and that too consequent upon issuance of writ of eviction issued by the competent Court of Law in the execution proceedings launched by the respondents/ accused against the applicant consequent upon the ejectment order passed by the concerned Rent Controller. In this view of the matter, it cannot, at all, be said that the entry of the respondents accused along with bailiff of the Executing Court was without any lawful authority, thus the dispossession of the applicant from the premises in question also cannot be said to be illegal. In this view of the matter, such dispossession consequent upon the lawful order passed by the competent Court of Law cannot be said to be illegal, thus the same does not fall within the mischief of the provisions of Illegal Dispossession Act, 2005. In the case of Allah Rakhio and another v. The State and 4 others reported in 2017 YLR Note 409 this Court held as under: "In order to constitute an offence under section 3(1) of the Act, 2005 the complainant should allege and show before the Court that the complainant is the actual owner (or occupier i.e., in lawful possession) of the immoveable property in question; (ii) that the accused has entered into (or upon) the said property; (iii) that the entry of the accused into (or upon) the said property is without any lawful authority, (iv) that the accused has done so with the intention to dispossess (to grab or to control or to occupy) the complainant." (Emphasis is supplied for sake of convenience)

13. In view of above legal position, the entry of the respondents/accused along with Bailiff of the Court consequent upon issuance of writ of eviction by the Executing Court cannot, at all, be termed as 'without any lawful authority', therefore the second point also goes against the applicant and in favour of the respondents.

14. For the foregoing reasons, I am of the view that the impugned order passed by learned District Judge is in accordance with the law and the principles settled by the Superior Courts and I do not find any justification to interfere into the same. Consequently, present Cr. Revision Application being meritless is hereby dismissed and the impugned order dated 06.04.2011 passed by learned District and Sessions Judge, Karachi South, in Cr. Misc. Application/Petition No. 1096 of 2008, moved by the complainant/applicant under sections 3, 4 and 5 of Illegal Dispossession Act, 2005, is hereby maintained. SA/N-2/Sindh Application dismissed.