1985 PLP 38 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.-- Petitioner Ghutam Mujfaba is aggrieved by the order, dated 11-3-1984 whereby his Revision Petition was dismissed by a learned Judge of the Lahore High Court. Respondent Mst. Naeema Khanum filed an ejectment application against A.K. Mumtaz in respect of flat No. 30/1, Mall Mansion, situate at The Mall, Lahore. This property was transferred to the respondent under the Settlement Law. A.K. Mumtaz denied the relationship of landlord and tenant between the parties but his plea was rejected by the Rent Controller holding that he was the statutory tenant of the disputed property. Thereafter, as A.K. Mumtaz did not comply with the interlocutory order for the deposit of arrears of rent passed by the Rent Controller under subsection (6) of section 13 of the Urban Rent Restriction Ordinance, his defence was struck off and an order of eviction was passed. against him. The respondent then, filed execution proceedings before the civil Court. The petitioner intervened and filed objection petition before the executing Court claiming that he was in occupation of the disputed premises in his own right and was not therefore, liable to be evicted in execution of the order passed against A.K. Mumtaz. This objection was repelled by the Court as mala fide and untenable. After the petitioner's appeal failed before the Additional District Judge, he filed a revision in the High Court which was dismissed by the impugned order. The petitioner now seeks leave to appeal by this petition. In order to appreciate the ground on which the petitioner's claim before the executing Court was dismissed it will be advantageous to state a few more facts. The application for ejectment of A.IC. Mumtaz was filed on 24-6-1864. The preliminary issue regarding the relationship of landlord and tenant was disposed of by the learned Rent Controller on 6-5-1965. The tenant then appealed against the decision before the District Judge and having lost the appeal, filed a Second Appeal, which also failed vide order, dated 9-6-1966. The Rent Controller then passed an order for deposit of arrears of rents and future rent on 14-7-1966. Again the tenant challenged this order in appeal which was dismissed on 24-11-1969 and the matter was agitated up to this Court in a petition for special leave to appeal which was dismissed on 1-10-1973. However, in the meantime on 8-1-1973 the Rent Controller passed orders of ejectment of the tenant. Then followed a new round of litigation, in which the tenant failed at every stage and finally a petition for special leave to appeal was filed in this Court, which was withdrawn in 1974. A further attempt was made to have the eviction order set aside by means of application for setting aside ex parte order which also failed and an appeal filed against the decision was dismissed on 28-6-1975 by the Additional District Judge, Lahore. Thus it will be seen that there were four rounds of litigation arising out of the proceedings for ejectment of A.K. Mumtaz and finall on 7-11-1973, while the last round of litigation was in progress, the landlady filed an execution application on 7-11-1973 and it was o 24-4-1974 that the present petitioner, for the first time put in hi claim as a party intervenor by means of objection petition in the execution proceedings. It is on the record that the landlady sought the eviction of A.K. Mumtaz inter alia, on the ground of subletting of the premise to the present petitioner and some others un-authorised. The petitioner is a practising Advocate and was representing the sole respondent A. K. Mumtaz in the ejectment proceedings. The tenant in his written statement filed through the petitioner as his counsel, did not den that petitioner was in possession of the premises, but averred that h is the joint tenant alongwith A.K. Mumtaz and others. In spite o these facts the petitioner did not move the Court for being impleaded,, as a party but remained contented with contesting the proceedings a counsel on behalf of A.K. Mumtaz until after about ten years, came up with his own claim to possession. It was on this ground that the executing Court held that the objection petition filed by the petitioner was mala fide as all along he was aware of the proceedings and did no put in his personal claim in the ejectment proceedings. The execution Court proceeded on the basis of the rule laid down by this Court in Mst. Khurshid Begum v. Ghulam Kubra 1982 S C M R

90. The High Court also upheld the view taken by the executing Court and rejected the contention of the petitioner that the law laid down in Mst. Khurshid Begum's case was not attracted in the facts of this case. The petitioner, has reiterated his contention but we agree with the High Court that the ratio of Mst. Khurshid's case is directly applicable in this case and indeed with greater force. The petitioner being the counsel for the tenant cannot deny knowledge of proceedings before the Rent Controller. It was for him to have set up his claim before the Rent Controller and obtained the adjudication of the matter at the stage of preliminary issue when the Controller was determining the question of statutory tenancy in the premises. His having refrained from taking this course,' disentitled him from asking the Court to re-open the matter at the stage of execution of the order of eviction. . It was then urged by the petitioner that he was not given opportunity to produce evidence in support of his claim set up in the objection petition. Although this contention does not arise in view of what has been held above, the submission does not seem to be correct. On the printed record of the petition the petitioner has produced the copy of his evidence in which at page 45 after the close of his deposition there is a note by the Court to the effect that the petitioner had closed his evidence. The argument that he was not given opportunity to produce evidence does not find any basis on the record. No other contention was advanced. There is, therefore, no substance in this petition which is accordingly dismissed. M . Z . M . Petition dismissed.