P L D 1993 Lahore 97 (PLP)

This will dispose of C.R. No.1594 of 1992 and FA.O. No.201 of 1992, both by Dr Arslan Razzaq, petitioner (hereinafter to be called the petitioner). They have arisen out of an order of the learned Senior Civil Judge, Lahore, dated 10-10-1992 which order disposed of two applications, one under section 94 read with section 151, C.P.C. and the other under Order 39, rules I and 2, C.P.C.

2. The property in question, a shop situate at Jail Road, Lahore, is owned by the respondent, Ali Hussain. The latter made an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred to as the' Ordinance) for the eviction of the petitioner, Dr. Arslan Razzaq, his case in that application being that the petitioner had obtained the shop as a tenant on a monthly rent of Rupees ten thousand. He sought the eviction of the petitioner on ground of non-payment of rent and personal requirement etc. The petitioner filed a written reply pleading that the respondent had agreed to sell the shop in question to him by means of an agreement of sale dated 23-4-1991 and that the relationship of landlord. and tenant did not exist between the parties. Later, the petitioner also instituted a suit for the specific performance of the agreement of sale dated 23-4-1991.

3. In his written statement the respondent denied that he had executed any agreement of sale in favour of the petitioner or that that agreement had the effect of putting an end to the relationship of landlord and tenant.

4. By his application under section 94, read with section 151, C.P.C.,.the petitioner prayed that in the interest of justice, the proceedings in the eviction application should be stayed during the pendency of 'the suit for specific performance and by his application under Order 39, Rules 1 and 2, C.P.C., the prayer made was that "till the decision of main suit the respondent may very kindly be temporarily restrained from. Selling --alienating or transferring the shop to any body else except the petitioner or creating any charge on the shop in dispute and dispossessing/ejecting the petitioner from the shop in dispute in any manner whatsoever". The learned Senior Civil Judge was of the view that "both the cases be heard and disposed of simultaneously, so that right of none of the parties stands prejudiced by the act of the Court". He, therefore, decided by his order dated 10-10-1992 "to consolidate the proceedings of both the cases because the question involved in both the cases is interconnected because of the fact that the respondent in the ejectment petition has denied the existence of the relationship of landlord and tenant on the basis of the alleged agreement to sell. The alleged agreement to sell if proved or disproved then it would definitely have a direct bearing upon the acceptance or rejection of the ejectment petition". As regards the other application, the learned Senior Civil Judge agreed with the respondent's counsel that the petitioner should deposit Rupees ten lacs (that being the sale consideration mentioned in the sale agreement, dated 23-4-1991) "in the Court within one month from this date otherwise legal consequences shall follow and there shall be no order for the injunction against Ali Hussain as prayed for by Dr. Arslan Razzaq".

5. Having so disposed of the applications, the learned Senior Civil Judge proceeded to frame the consolidated issues; it appears also that the learned Senior Civil Judge ordered the proceedings to be recorded in the eviction application.

6. The question raised in C.R. No.1594 of 1992 was whether the learned Senior Civil Judge was competent to order the consolidation of the two matters, one under the Ordinance and the other under the Code of Civil Procedure and his prayer in FA.O. No.201 of 1992 is that the "order dated 10-10-1992 passed by the Senior Civil Judge, Lahore to the extent it directs the appellant to deposit Rs.10,00,000 in the Court may kindly be set aside or in the alternative the amount to be deposited by the appellant may kindly be reduced to Rs.5.50 lacs the amount still to be paid under the agreement to sell".

7. As to the question in the civil revision, learned counsel for the petitioner argued that as the proceeding have been ordered to be recorded in the eviction petition, the petitioner's suit for specific performance will virtually be tried by the Rent Controller and that it may well be that the petitioner is deprived of his remedies under the Code of Civil Procedure. Learned counsel for the respondent pointed out that the petitioner had been trying to delay the decision of the eviction application, so much so that he made 14 applications at different times; one of those applications, it was stated, was to the learned District Judge, Lahore, for a direction that the two matters be heard by the same Court. 8. it appears that the order consolidating the two matters was made under section 151, C.P.C. That section saves the inherent powers of the Court to "make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". The reason why this power to prevent the abuse of the process of the Court is recognised to exist was stated by Lord Denning M.R. in Goldsmith v. Sperrings Ltd. (1977) 2 All ER 566, 574: "in a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of justice claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so'abused, it is a tort, a wrong known to the law. The Judges can and win intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they win give damages against the wrongdoer. Sometimes abuse can be shown by the very steps being taken in the Courts. Further, the ultimate object of all procedural rules is to ensure that there should be a fair trial according to law-, the fair trial is not all one-sided; it means fairness to both the parties."

9. There can be no doubt that in the suit for specific performance, the learned Senior Civil Judge had the inherent power to consolidate the two matters and the fact that one of the matters was a civil- suit and the other an eviction petition under the Ordinance, could not in my opinion affect that power. The provisions of section 151, C.P.C., it is well settled, are attracted where there is no express provision in the Code and where the procedure as laid down in the Code is being abused to obstruct the ends of justice. As was said by that eminent Judge Mehmood, J., "Courts are not to act upon the principle that every procedure is to be taken to be prohibited by law unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle, prohibition cannot be presumed". As there is no provision in the Code of Civil Procedure for the consolidation of matters, the learned Senior Civil Judge acted within his powers to consolidate the two matters. True, that the proceedings under the Ordinance are not a suit, yet they are proceedings of a civil nature.

10. It seems to me that the procedure adopted by the learned Senior Civil Judge in consolidating the two matters would ensure fairness to both the parties. The eviction application was made earlier in point of time. The respondent denies the execution of the agreement of sale in favour of the petitioner and the agreement is, according to him, a forged document. To stay the proceedings in the eviction application and to decide the suit for specific performance first would most probably result in extraordinary delay in the decision of the eviction application. Civil suits are known to take very long to decide and if the Court finds that the agreement, upon which the petitioner's claim to specific performance is founded, is a forged document, the staying of the proceedings in the eviction application would amount to allowing the petitioner to take advantage of this own- wrong. The consolidation of the two matters and their decision by a consolidated judgment would, therefore, be fair to both the parties.

11. For these reasons, I do not find any merit in Civil Revision No.1594/92 and dismiss it.

12. As regards FA.O. No.201 of 1992, the order requiring the petitioner to deposit the sale consideration of rupees ten lacs should not, in my opinion, have been made. No injunction order had been made in favour of the petitioner. The respondent denied the execution of the agreement of sale and the payment of a part of the sale consideration. I would, therefore ' accept the appeal and set aside this part of the order of the learned Senior Civil Judge, dated 10-10-1992.

13. It ought to be mentioned here that at the admission stage, learned counsel for the appellant had offered to deposit the sum of Rs.5_50 lacs, which according to him, remains to be paid by him to the respondent. If that sum has been deposited, it will be for the appellant to allow that to remain deposited or not. AA./A-284/L