1984 PLP 1324 (SCMR)

Khurshid Begum v. Ghulam Kubra 1982 S C M R 90 ref. Ch. Khalil‑ur‑Rehman, Senior Advocate Supreme Court instructed by Sh. Salah‑ud‑Din, Advocate‑on‑Record for Petitioners. Zaki‑ud‑Din Paul, Senior Advocate Supreme Court instructed by M.A. Qureshi, Advocate‑on‑Record for Respondent. Date of hearing: 30th January, 1984. M.S.H. QURAISHI, J.‑‑ The petitioners and their mother Mst. Nasim Akhtar (heirs of Ali Muhammad) are occupants of a portion of House No.8, Krishana Gali No.4, Railway Road, Lahore. An application for their ejectment had been earlier instituted on 4‑10‑1961 by Hamid ullah, the original transferee of the property, which they had resisted by denial of the existence of the relationship of landlord and tenant and want of service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The issue of relationship had been found against them, and although the matter had been litigated upto the High Court but the application had ultimately been dismissed by the Controller on 29‑6‑1971 for lack of proof of the service of notice under section

30. Hamidullah died, whereafter his heirs sold the property to Khurshid Ahmad, present respondent, who instituted an ejectment application in 1977 only against Mst. Nasim Akhtar. At the arguments stage in this proceedings, the present petitioners made an application on 23‑7‑1979 for their impleadment but the same was rejected on 2‑10‑1979 with the observation that the order of ejectment, if any passed, would not affect their right. The proceeding ended in an order of ejectment passed on 29‑10‑1979 against Mst. Nasim Akhtar. She agitated the order in appeal and then in the constitutional jurisdiction of the High Court but failed. The present petitioners then challenged the ejectment order by a suit which was dismissed on 27‑4‑1981 as being premature. When the execution proceedings were taken in hand, they filed another suit on 10‑6‑1981 for a declaration that they were owner of the property and for a permanent injunction. This suit, too, was dismissed with the observation that they could take their remedy before the executing Court. They accordingly moved an application on 3‑12‑1981 under Order XXI, rules 97, 99 and 100, C.P.C. but the same was rejected on 24‑3‑1982, against which their appeal and thereafter a revision in the High Court were rejected on 5‑4‑1982 and 4‑12‑1982, respectively. They have now sought leave to appeal.

2. It is urged on behalf of the petitioners that they had been party alongwith Mst. Nasim Akhtar in the earlier proceeding instituted by Hamidullah and that, therefore, their omission in the present ejectment proceeding was mala fide, that when they applied for impleadment, their application ought to have been allowed and that in any case the ejectment order passed against Mst. Nasim Akhtar was not binding on them, moreso because of the express observation made in that regard by the Rent Controller while dismissing their impleadment application. In reply, it has been submitted on behalf of the respondent that the petitioners who were in all probability aware of the ejectment proceedings, had moved their application for impleadment belatedly in order only to prolong the proceedings and that as such their application had been rightly rejected. It is further submitted that as the proceedings had been instituted against their mother, whose interest was rot at variance with that of the petitioners and with whom the petitioners had been living in the property, the order of ejectment was effective against the petitioners too. For this, he relied on Khurshid Begum v. Ghulam Kubra 1982 S C M R 90 .

3. The points raised on behalf of the petitioners had been duly considered but rejected by the Courts below. Their view was that the petitioners being the children of Mst. Nasim Akhtar, the judgment‑debtor in the ejectment proceeding, and living with her in the same property, their application for impleadment, belated as it was, was meant to delay the proceeding. The High Court further held that the finding being one of fact could not even legally, be challenged in revision. In the cited case of Mst. Khurshid Begum, where the case of ejectment had proceeded against Syed Saqlain Abid, an adult male member of the family, but an objection to the ejectment order had been taken by the other members of the family at the stage of execution, this Court had A held that as the objectors had been living with the judgment‑debtor in the same house under one roof and had no conflicting interest with him, the objection petition was "in substance an objection petition filed by the judgment‑debtor and on his behalf by others". By analogy, the ruling applied to the present case. All the grounds available to the petitioners for resisting the ejectment proceeding had been available to Mst. Nasim Akttar too. We, therefore, do not feel inclined to interfere. The petition is dismissed. M.Z.M. Petition dismissed.