2026 PLP 795 (SCMR)

MUHAMMAD SHAFI SIDDIQUI, J.

CMAs Nos.1159-L and 1160-L of 2021: The petitions are barred by 15 days and through these applications condonation of delay is sought. For reasons mentioned in these applications, the same are allowed and delay in filing the petitions is condoned. Civil Petitions Nos. 379-L and 380-L of 2021: Precise facts of the case are that the petitioner filed ejectment petitions in respect of a factory premises, as described in the petitions itself, against respondent No.1. The respondent No.1 filed applications for leave to appear and defend dated 19.12.2012 and 22.12.2012, by raising preliminary objections with regard to maintainability of ejectment petitions filed by the petitioner. After a year the respondent filed two applications, both dated 20.12.2013 seeking dismissal of the ejectment petitions on the ground that the possession over the property in dispute was protected in terms of order dated 07.08.2012, passed by this Court (Supreme Court of Pakistan) in C.M.A. No.3324 of 2012 in Civil Appeal No. 646 of 2012 titled as Muslim Commercial Bank Limited v. Fashion Pride (Pvt.) Ltd. and others.

2. The record shows that in pursuance of the two subsequent applications filed by respondent No.1 the ejectment petitions were dismissed vide order dated 19.03.2014, which order was upheld by the Additional District Judge who dismissed the appeals of the petitioner vide order dated 25.06.2014 and in consequence thereof, the petitioner filed writ petitions before the High Court which were dismissed vide impugned orders dated 08.12.2020, hence these petitions for leave to appeal.

3. We have heard the learned counsel for the parties and perused the material available on record. There is nothing on record to show that the applications for leave to appear and defend the ejectment petitions, were ever considered and/or granted. By order dated 19.03.2014, the Rent Controller dismissed the ejectment petitions while there was no such order apparently passed on the applications for leave to appear and defend. There was no right of audience extended by an order especially when leave applications were not heard and decided. Unless the right of audience was granted, any subsequent application, including but not limited to an application for dismissal of the ejectment petition would not lie. All courts below in fact have misdirected themselves while relying on the order passed by this Court on 07.08.2012 in C.M.A. No. 3324 of 2012 in Civil Appeal No. 646 of 2012, as the said appeal is only in respect of the auction proceedings. The primary jurisdiction of the Rent Controller is to see whether any relationship of landlord and tenant exists between the parties arrayed in the ejectment petition. The learned Rent Controller as well as Appellate Court relied upon the extraneous material in the shape of auction proceedings arising out of the suit for recovery filed by Muslim Commercial Bank Limited. There is no cavil to the proposition that any alleged sale and purchase of a mortgage property would not prejudice the case of a mortgagee bank, as a lien would continue to operate over the property and not over an individual, for the recovery of loan as extended by the Muslim Commercial Bank Limited against which a property is mortgaged. The subject property was mortgaged and it will continue to until and unless such mortgage is discharged. However, these issues have nothing to do as far as rent proceedings are concerned, the auction proceedings as triggered before the executing court till date have not yet been culminated in bestowing a title over the auction purchaser. An incomplete auction proceeding cannot be construed as bestowing title. In terms of section 56 of the Specific Relief Act, 1877 the legal proceedings initiated before the Rent Controller cannot be stayed by virtue of a status quo order which runs parallel to the litigation involved in the said case, which is nothing but the recovery of decretal amount via mortgage property. Neither the respondent, who claimed to have participated in the auction and posed a highest bid, nor any other person has asserted title of the property out of auction proceedings.

4. The only defense raised by the respondent, who claimed to be a director of a company participated in the auction that since they were the highest bidder therefore, they are not under any obligation to pay rent until and unless their bid is refused conclusively by the Lahore High Court where the appeals as F.A.Os. Nos. 490 and 519 of 2015 pending along with C. R. No. 247704 of 2018. Though it may not be fair to comment as to whether the respondent is under an obligation or not to pay rent on account of pendency of the appeals as the relationship is yet to be decided by the Rent Controller, however, we have noted that the courts below in fact have misdirected themselves when they got influenced by an order of the status quo which order under no circumstances could influence the rent proceedings which are independent in nature as governed by Special Law and to be taken to its logical end, as required under the law, until and unless a title is bestowed upon the respondent by a court of competent jurisdiction.

5. We therefore convert these petitions into appeals, the impugned orders are set aside and appeals are allowed. The case is remanded. The ejectment petitions are deemed to be pending before the Rent Controller, who is under an obligation to decide the applications for leave to appear and defend first and thereafter the issue of relationship between the petitioner and respondent be decided, irrespective of the pendency of the aforementioned appeals, where auction proceedings are pending.

6. In the same way, the parties have also agreed that they would pursue the matters pending before Lahore High Court in the shape of F.A.Os. Nos. 490 and 519 of 2015 pending along with C. R. No. 247704 of 2018 and would not cause any delay in their expeditious disposal in accordance with law. MH/B-6/SC Case remanded.