P L D 1988 Supreme Court 221 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal is directed against judgment dated 3‑5‑1980 of the Lahore High Court; whereby respondent's Civil Revision Petition was allowed. The facts and circumstances giving rise to the appeal as summarised in the impugned judgment are "that in respect of the portion of the ground floor of the house in dispute, an application for ejectment was filed against Mr. Ala‑ud‑Din brother of the respondent (Mir Salah‑ud‑Din present Appellant), which was allowed by the learned trial Court on 12‑11‑1975, Appeal of Mir Alla‑ud‑Din was dismissed on 5‑6‑1978, by the learned Additional District Judge and S.A.0. bearing No.372 of 1978, was thereafter dismissed on 7‑4‑1979, in which 15 days' time was allowed to Mir Ala‑ud‑Din to vacate the premises which expired on 22‑4‑1979. A suit on that last date was filed by the respondent (appellant herein) before the trial Court claiming that he could not be ejected from this property otherwise than in due course of law as he was in possession of it. No reference in that suit was made to the above mentioned litigation. These facts were, however, brought to the notice of the learned trial Court at the time of hearing of the application for injunction filed by the respondent (appellant herein) in that suit. The learned trial Court while dismissing the application for injunction also rejected the plaint of the respondent (appellant herein) under Order VII, Rule 11, C.P.C. Mir Salah‑ud‑Din filed an appeal against this order and decree which was allowed by Sheikh Muzaffar Hussain, Additional District Judge, on 5‑11‑1979. ,He gave all these facts in his Judgment but held that Order VII, Rule 11 could not be attracted except when the facts disclosed absence of cause of action or the suit being barred by some provision of law was apparent in the plaint itself which was not a fact in the present case. Despite this proposition of law he further proceeded to discuss extraneous evidence in the form of a certified copy of a statement stated to have been made by the petitioner (respondent herein) before the learned Rent Controller in support of the plea that the respondent (appellant herein) was in possession of the property. He, therefore, allowed the appeal on 3‑11‑1979, and remanded the matter to the trial Court for decision of the suit afresh after getting written statement, framing of issues and recording of evidence. It is further important to note that he did not issue any injunction in favour of the respondent (appellant herein)". After careful consideration of the facts and law involved in the matter in this case the learned Single Judge of the High Court concluded as follows: "I agree with the argument of the learned counsel of the respondent that for acting under Order VII, Rule 11, C . P. C . only the plaint can be looked at. There is no cavil with this proposition at all, but as stated above, the question is whether, in view of these undeniable facts when there is already an order of ejectment passed by a Rent Controller in favour of the petitioner against the brother of the respondent, namely, Mir Ala‑ud‑Din, this suit was at all maintainable? Order XXI provides for the manners in which the execution of the decree can be obstructed and also the manners in which the restoration of possession can be ordered by the executing Court, if some other person who holds the property in his independent right is dispossessed from there in execution of the decree against some third person. In such cases, Order XXI, Rule 103, C.P.C. bars the jurisdiction of any other Court and provides that all questions arising as to title, right or interest in or possession of immovable property between an applicant under Rule 97 and the opposite party or between an applicant under rule 100 and the opposite party shall be adjudicated upon and determined by the Court and no separate suit shall lie for the determination of any such matter. I had held in P L D 1977 Lahore 418, that, in view of the circumstances of the present case, the jurisdiction vests in the executing Court and no regular civil suit is competent. The respondent has a remedy under Order XXI. He can obstruct the execution of the decree if he considers it bona fide that he is in possession of the suit property in his own independent right. Even if he is, somehow or the other, ejected in execution of the decree, it will be open to him to file a petition for restoration of possession under Rule 100 of Order XXI. This being the proper remedy before him, his suit was not competent." Leave to appeal was granted by this Court on 23‑11‑1981 to examine whether the decision of this Court in "Ismail Brothers v. Keval Ram, P L ^ Q C 545" was of assistance to the appellant to support the proposition that even after the decision of a matter by a Rent Controller, the same can be re‑agitated in a civil suit in a different form and/or by a different person. Learned counsel for the appellant has cited the same judgment in support of the proposition that the civil suit was not barred. When told that all relevant questions having been considered in detail in a recent judgment of this Court Rehmatullah v. Ali Muhammad and another, 1983 S C M R 1064, the suit in this case would not be competent if the principles laid therein are applied, be stated that the decision of this Court in the said case of Ismail Brothers and that of , Mohiuddin Molla v. The Province of East Pakistan and 2 others, P L D 1962 S C 119 would still help the appellant as they were not considered in the case of Rehmatullah. The question in this case as also in the case of Rehmatullah, is as to whether after the conclusion of a case before a Rent Controller and his order having achieved finality in that hierarchy, a civil suit would be competent. Learned counsel agreed that in the case of Mohiuddin Molla the question regarding decision by the Rent Controller's forum was not involved. Thus, it was not necessary nor relevant for the discussion in the case of Rehmatullah accordingly it is of no help to the appellant. In this case the controversy is same as it was in the case of Rehmatullah. Regarding the case of Ismail Brothers it may be mentioned that it was not only noticed in the judgment of Rehmatullah's case but was also given due importance therein as containing many illustrative facets of the controversy involved in the matters of this type. At page 1074 it was observed as follows: "In another recent case Ismail Brothers v. Keval Ram (P L D 1981 S C 545), although the relevant question had arisen in connection with temporary injunction yet some of the points raised and observation made therein will have some bearing on the nature of controversy in this case. It was urged from one side that even judgment of the highest Court in the land can be challenged in the Court of preliminary jurisdiction on the ground of fraud. Reliance was placed on M. Moosa v. Muhammad and others (1975 S C M R 115), wherein it was observed that the remedy in case of fraud was by way of civil suit and not through a review application. It was, however, suggested by the same party that the remedy was also available under section 12 of the C . P. C . or as held in The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (P L D 1975 S C 331) through approach to the same forum for relief from which judgment was obtained by fraud. But in a detailed inquiry, it was further suggested was only through a civil suit. The main reliance of the other party was on section 12, C . P.C. which barred the filing of a civil suit. It was also urged by that side that the detailed inquiry is destructive for purpose of the Rent Restriction Law as it relates and is confined to the relation of the landlord and tenant and does not concern itself at all with the varying shades and numerous facets of the incidence of ownership of property. As the question related only to the issue or refusal of temporary injunction, the general questions of jurisdiction raised by the parties were not finally determined except that some general observation was made with regard to the nature of controversy when the allegation of fraud is relatable to the proceedings before a tribunal or Court and not as in present case when it is alleged by one party against the other, not only out of Court but also before approaching the Court. The facts and circumstances of that case, any way, are illustrative of various types of controversy, regarding title which can be brought before the Rent Controller or before a civil Court in a matter which is pending before or disposed of by a Rent Controller." Thus, it would be seen that although the judgment in Ismail Brothers' case was not only instructive but also beneficial in so far as the determination of the scope of the controversy and various ancilliary questions involved therein is concerned, the same had arisen in connection with a temporary injunction and the general question of jurisdiction raised by the parties were not finally determined. In this view of the matter the argument of the learned counsel in so far as it is based on the decision in the case of Ismail Brothers is of no avail to the appellant. Learned counsel then contended that even according to the judgment in Rehmatullah's case the suit filed by the appellant was not barred. He in this behalf relied upon and read the following part of the headnote at page 1066; "The decision by the Rent Controller and the appellate Court, the High Court and the Supreme Court shall not operate as bar to the suit to be filed by the so‑called landlord/ respondent in this case in order to establish the title. Section 15(7) of the Rent Restriction Ordinance will not operate as a bar." As the headnote relied upon by the learned counsel could not be of much assistance, the relevant context from the judgment was then read whereafter the learned counsel agreed with the judgment in Rehmatullah's case goes against the appellant in case the conduct of the appellant alone is kept in view. He, after reading a statement of the respondent from the record, tried to argue that his case on merits was doubtful therefore applying one of the rules laid down in Rehmatullah's case, the appellant should not be barred from pursuing his remedy through a civil suit. In order to appreciate the argument of the learned counsel its is necessary to briefly re‑state the rule laid down in the case of Rehmatullah. It is that: A matter involving even a dispute of title‑‑ having once obtained finality in the Rent Controller's forum (including the hierarchy of appeal/s and thus the appellate and superior Courts) cannot be re‑agitated in a suit before a civil Court of general jurisdiction, inter alia, because of principle of general res judicata; the provisions contained in Section 12( 2) C . P. C . read with section 9, C.P. C. and, the provisions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance 1959 (as Amended). Some possible exceptions to this rule have also been spelled out in the same case of Rehmatullah. They are: that the finality attachable to the orders passed under the Rent Restriction Laws by different forums will be neutralised when the order itself says that it is not final regarding a particular issue and that the same could be re‑agitated in the Court of general jurisdiction; or, when otherwise the said order in itself conveys a clear undisputed intendment that it is not final and visualises a final determination by a Court of general jurisdiction as was in the case of Rehmatullah; or, when the relevant issue is determined on the basis of doubts; or, when the party concerned itself instead of getting the final determination in that hierarchy gives up the content therein with a positive statement in this behalf, so as to agitate the question before Court of general jurisdiction which course in some cases would, be at the risk of a temporary adverse conclusion and/or action against him. The lengthy discussion on the various questions arising in the case of Rehmatullah was necessitated on account of mass of case law which has developed on this aspect in Pakistan as also in foreign jurisdiction. But by no means, it should lead to the use of a headnotes, which may or may not be correct, without reading and understanding the context thereof in the judgment itself. On account of experience gained during the hearing of this appeal it has become necessary to clarify that the foregoing statement of the rule and exceptions thereto laid down in the case of Rehmatullah, is in an absolute concised form and will be useful only when detailed legal implications and reasons connected therewith are not sought to be seen. Another statement of the same rule is found in the short order of my learned brother Nasim Hasan Shah, J. , the detailed reasons for which when needed to be discovered are contained in the main judgment delivered by me and in this sense I had wholeheartedly agreed with and concurred in that short order; which can also serve as a summary though in the form of a short order. Applying the rule laid down in the case of Rehmatullah to this case, the relevant decisions for examination would be those by the Rent Controller, first Appellate forum and the High Court when dismissing the S.A.O. filed by Mir Ala‑ud‑Din appellant's brother. These judgments have not been placed on record nor the learned counsel pointed out any circumstance appearing in them going in favour of the appellant regarding the competency of the civil suit and thus this case having been taken out of the rule of prohibition laid down in the case of Rehmatullah. In other words no effort has been made to bring it within any of the exceptions enumerated above. Regarding the conduct of the parties it has nct been possible for the learned counsel to dilute the effect of the observations made in the judgment of the High Court which go against the appellant. Although Evidence Act as such does not apply to the Rent Controller's) forum yet the principle underlying the purview of section 114, which deals with the human conduct and inferences which can normally be drawn therefrom, could legitimately be relied upon by the High Court, L when dealing with a case arising under the Rent Restriction Law (by invoking the principles only) and when dealing with a civil revision or a civil appeal, the section itself in its terms can be invoked and relied upon. It provides that: "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural conduct and public and private business, in their relation to the facts of the particular case." . It is not necessary in the present case to deal with the illustrations given under section

114. Approach of the learned Single Judge in the High Court regarding the conduct of the appellant is unexceptionable. In the circumstance keeping in view the normal human conduct, it is not possible to hold in his favour that while his real brother litigated for about five years trying his utmost through all possible legal measures to prevent the passing of an ejectment order under the Rent Restriction Law; the appellant, who claims also to be a person using the property in dispute when living in the same city, would not be aware of the litigation and the subject‑matter thereof. A copy of the High Court's judgment dismissing the S.A.O. filed by Mir Ala‑ud‑Din brother of the appellant having been found in the original record has revealed that Ala‑ud‑Din had vehemently contested the respondent‑landlord's assertion that he (Mir Ala‑ud‑Din) was a rent defaulter with a positive assertion that the rent was collected by the landlord from him i.e. Ala‑ud‑Din in lump sum as and when it suited him. It appears that the judgment was announced and dictated by a learned Single Judge of the High Court on 7‑4‑1979 in presence of the learned counsel for Mir Ala‑ud‑Din. The last para of the judgment is very revealing in connection with the position taken by the appellant vis‑a‑vis the .claim of his brother. It reads as follows: "At this stage, the learned counsel made request that the appellant/tenant (Mir Ala‑ud‑Din) may be allowed some time for handin over possession of the disputed premises to the respondent/landlord as arge quantities of merchandise are stored therein. The request is reasonable the appellant is allowed 15 days time from the date of this order to handover vacant possession of the premises in dispute to the respondent Mailing which he respondent may obtain possession through the process of the Court." What happened thereafter and how on the expiry of the grace period allowed to Ala‑ud‑Din, his real brother the present appellant, stepped forward and filed a suit in the civil Court, obviously to retain the possession for longer period, has duly been taken note it the judgment impugned before us and we have also noticed the same in an earlier part of this judgment. In a similar Karachi case where a tenant tried to frustrate the judgment of the Supreme Court regarding his eviction and delivery of "vacant possession" this Court was constrained to initiate proceedings in the nature o contempt of Court. In this case however as the earlier round of litigation had not reached the Supreme Court and no order of this Court is involved, no further examination of this aspect is necessary. In the light of the foregoing discussion we do not feel called upon to examine the effect of the statement of the landlord read by the learned counsel for the appellant. It was not pressed at the High Court stage in either of the two rounds of litigation, nor leave was granted to the appellants for examination thereof. In the light of the foregoing discussion, we find no merit in this appeal and the same is dismissed with costs. M. B. A./8.102/S Appeal dismissed.