2022 PLP 54 (MLD)

SAFDAR SALEEM SHAHID, J.

Through the instant petition the petitioner has called into question the legality of the order dated 07.01.2017 passed by the learned Special Judge Rent, Sialkot and the order dated 06.03.2017 passed by the learned Additional District Judge, Sialkot.

2. Brief facts are that an ejectment petition filed by the petitioner for eviction of respondent No.1 from a house, measuring 5-marlas, situated at Mohallah Pura Heeran, Rangpura, Sialkot, was accepted on 18.11.2015 and during the execution proceedings respondents No.2 and 3 filed an objection petition claiming that ejectment order has been obtained by concealing real facts. Along with the objection petition they also moved an application for appointment of local commission with the contention that the petitioner was well aware of the fact that the property in dispute had domestically been partitioned. The petitioner contested both the applications by filing replies thereto. The learned Special Judge Rent, however, taking into consideration the material brought on record and contentions of the parties, while dismissing the application for appointment of local commission, accepted the objection petition with the observation that warrant of possession be issued only against respondent No.1 without disturbing the possession of the objectors/respondents Nos.2 and 3, through order dated 07.01.2017. The petitioner challenged the said order by filing an appeal on 11.02.2017, which was dismissed by the learned Additional District Judge, Sialkot through order dated 06.03.2017, without touching the merits on the ground of being barred by time for three days. The petitioner has now assailed both said orders through the instant petition.

3. Respondent No.1 has not put in appearance, whereas respondents Nos.2 and 3 are represented through counsel, who argued that the ejectment petition was filed against respondent No.1 only. It is a special law, therefore, the eviction order is not applicable to the extent of respondents Nos.2 and 3, who were already residing in the house in question.

4. Arguments heard. Record perused.

5. Perusal of the record shows that the petitioner and all the three respondents are brother inter-se and the house in question was admittedly owned by their mother, which as per claim of the petitioner was purchased by him through registered sale deed No.1528 dated 30.04.2014, whereas respondents Nos.2 and 3, claiming the disputed house to have been partitioned amongst them by their mother, submitted that the alleged sale deed is a forged document and has been obtained taking benefit of old age of their mother. The petitioner did not mention in the ejectment petition that respondents Nos.1 to 3 were residing in the same house, but in different rooms, as claimed by respondents Nos.2 and 3/objectors. The petitioner filed ejectment petition only against respondent No.1. During the proceedings of objection petition, however, the petitioner failed to negate the fact that respondents Nos.2 and 3/objectors were also residing in a portion of the same house.

6. The purpose of special law is to provide protections to the right of the owner as well as tenant. Wisdom behind the requirement to mention in detail the description of property in rent petition is to ascertain the right of the tenant and landlord over the mentioned premises. Any portion which is part of the property, not subject to rent deed, no order of Rent Tribunal will be operative against it. Any person under possession of such portion will not be subject to the eviction order. Nobody can be condemned unheard. Law has given its ways to exercise against such person. But the status of that person regarding his possession has to be defined / specified by the claimant/owner.

7. It is notable that the learned Special Judge Rent has no concern with the ownership of the premises when the relationship of landlord and tenant is admitted between the parties but the question remains that why the petitioner did not implead respondents Nos.2 and 3/objectors in the ejectment petition. Even if it is considered that after filing of the ejectment petition the objectors got possession of the house, there was a way to file a suit for possession against them or another application before the learned Special Judge Rent. The learned Special Judge Rent has passed a legal order on the objection petition of respondents Nos.2 and 3/objectors because neither the petitioner filed ejectment petition nor during the pendency of the whole proceedings this fact was brought before the Court that some of the portion of the premises was in possession of respondents Nos.2 and 3/objectors. Even at the time of filing the execution petition this fact was concealed by the petitioner, as such the order of eviction was not applicable to the extent of respondents Nos.2 and 3/objectors. Reliance in this regard is placed upon the case of Allah Bakhsh v. Allah Yar and others (2015 CLR 1522), wherein it has been held as under:- "On the other hand, admittedly respondents Nos.1 to 4 were neither party in the ejectment decree nor they were impleaded in the execution petition and it was incumbent upon the petitioner to have impleaded the respondents Nos.1 to 4 as party in whose absence the ejectment order having caused prejudice to respondents Nos.1 to 4 would not be executable as nobody can be condemned unheard."

8. In another case reported as Muhammad Sharif and another v. Malik Abdul Razzaq and others (2011 MLD 736), it was held as under:- "When it was well in knowledge of respondent No.1 that the petitioners are in possession of the suit property since decades but respondent No.1 did not implead the petitioners Muhammad Sharif and Shujah Butt as party, the order of Rent Controller could not be executed against them. Because an order, or a decree is binding only against a party to the suit and not on strangers."

9. Even otherwise, appeal filed by the petitioner before the learned Additional District Judge was barred by time for three days and learned counsel for the petitioner failed to explain the delay as required by law, as such the same was rightly dismissed. The learned counsel for the petitioner has failed to satisfy the Court even on the point of limitation.

10. The learned counsel has not been able to point out any material illegality or irregularity in the orders passed by the Courts below.

11. Under the circumstances, the petition fails and is accordingly dismissed with no order as to costs. MQ/M-122/L Petition dismissed.