2012 PLP 1223 (CLC)

SYED KAZIM RAZA SHAMSI, J.

This second rent appeal is directed against the order dated 30-5-2003 recorded by Mr. Abid Hussain, learned Additional District Judge, Lahore whereby the order of learned Rent Controller dated 6-4-2002 dismissing the ejectment petition was maintained.

2. Briefly the facts of the case are that the appellant Mst. Yasmin Razi-ud Din on 27-6-1994 filed an ejectment petition against Mst. Tehmina, the respondent, on the ground of nuisance and the use of rented premises for the purposes other than the same was rented out. The petition was contested by the tenant denying the relationship of landlord and tenant and the learned Judge framed the issue "Whether the relationship of landlord and tenant exists between the parties? OPA" and called the appellant to adduce evidence. As per order dated 8-5-1996 numerous opportunities were granted to the appellant to prove the issue but she failed to adduce any evidence whereupon her application was dismissed for want of evidence. No appeal against the said order was filed by the landlord rather a second ejectment petition was filed which was dismissed by the learned Rent Controller on the ground that previous petition was dismissed which creates a bar of res judicata. The appeal filed against the said dismissal order also met the same fate. Thereafter, the landlord filed 3rd ejectment petition against the tenant which was dismissed by Mr. Naeem Abbas, learned Rent Controller, Lahore on 6-4-2002 on the same ground that fresh application was hit by principle of res judicata. The appeal filed against the said dismissal order also met with the same fate vide impugned order against which the instant appeal has been filed.

3. The respondent of the case was proceeded ex parte vide order dated 9-3-2009. The Ex parte arguments of the learned counsel for the appellant has been heard.

4. It is contended by learned counsel for the appellant that the decisions of the learned first appellate court as well as of the Rent Controller are erroneous because the Rent Controller had passed an order under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 which he reviewed itself vide order dated 6-4-2002. He submitted that the courts below failed to note that the denial of the tenant about the relationship was an evasive denial and could not be considered. Adverting to the application of section 14 of the Ordinance (ibid), the learned counsel submitted that the first petition was dismissed in which the grounds which were taken in the instant petition were not taken as such the dismissal of the petition is against the law. Learned counsel has relied on various judgments of the Apex Court as well as these courts including Muhammad Yousaf v. Khalifa Asghar Hussain (1980 SCMR 886), Rab Nawaz v. Haji Muhammad Iqbal and 2 others (2003 SCMR 1476), Ghulam Rasool v. Mian Khurshid Ahmad (2000 SCMR 632, Gulistan and others v. Muhammad Akram 1983 CLC 2808, Saifuddin and another v. Senior Civil Judge/Rent Controller-VIII Karachi (South) and 7 others 2007 SCMR 128, Aadil Nadeem Rizvi v. Gohar Siddique and others (2004 SCMR 738), Khalid Ghouri v. Mrs. Tazeen Chaudhary (2000 SCMR 1209), Ahmad Ali alias Ahmad v. Nasar-ud Din and another (PLD 2009 SC 453), Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi through legal heirs (PLD 2007 SC 504), M.H. Mussadaq v. Muhammad Zafar Iqbal and another (2004 SCMR 1453), Fazalur Rahman v. Mst. Sarwari Begum and others (1986 SCMR 1156), Abdul Qayyum Paracha v. Ghulam Hussain and others (1985 SCMR 580), Begum Cap. Mirza Ghulam Sarwar and another v. District Judge, Jhelum (1987 SCMR 25) and Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94).

5. The law cited at bar has been examined and it is found that the cases referred to by the learned counsel for the appellant are distinguishable with the facts of the instant appeal. In the instant appeal, in the first petition which was dismissed by the learned Rent Controller for want of evidence, the tenant denied the relationship of landlord and tenant between the parties. It was the duty of the appellant to establish the relationship first for giving jurisdiction to the Rent Controller to proceed further in the matter but despite having numerous opportunities, the appellant failed to prove the issue. Obviously, the court had to proceed to non-suit the appellant for want of evidence. The appellant also kept mum for a considerable period by not challenging the said order before any appellate forum. Although the second and third petitions were not filed on the same cause of action which was mentioned in the first petition but the important question is that in the first petition when the relationship of landlord and tenant denied then the landlord has to establish the same whereafter he may assert the other grounds available to him under the relevant law. The appellant had lost opportunities to get clear the relationship on various occasions, therefore, the subsequent application filed by the appellant could not be considered and entertainable. The contention that the Rent Controller had passed order to deposit monthly rent under section 13(6) of the Ordinance (ibid) but itself reviewed the same having no power to do so as untenable for the reason that where no specific jurisdiction is granted by special statute then general principles come into play. An authority having jurisdiction to pass an order also enjoys powers to recall the same. Even otherwise, no benefit of order passed by the learned Rent Controller under section 13(6) could be extended to appellant as the tenant had denied the relationship of landlord and tenant. It is also not correct proposition of law that section 14 of the Ordinance is not applicable to the instant case as the case was not decided by the first court on merit. This contention goes against the principle of finality of the judgment as enunciated in section 14 of the Ordinance (ibid) as well as section 11 of the Code of Civil Procedure, 1908. In this view of the legal position, the courts below have rightly dismissed the application of the appellant as she failed to establish the relationship of landlord and tenant against the respondent. No interference is called for in the concurrent findings recorded by both the courts below.

6. For what has been discussed above, this appeal fails and is dismissed accordingly. The appellant may avail the legal remedies, available to him under the law, if so advised. There is no order as to costs. K.M.Z./Y-7/L Appeal dismissed.