1997 PLP 1500 (CLC)

Present proceedings arise from an application filed under Order 12(2) of the Civil Procedure Code, 1908,. by the appellant/tenant on the ground that the judgment dated 21‑1‑1996 passed by me in the above First Rent Appeal was obtained by misrepresentation and fraud committed by the respondent/landlord.

2. The present tenement involved in these proceedings is a shop situated on C‑7, Jinnah Road, opposite Sessions Court, Mirpur Khas. Appellant is the tenant while respondent is his landlord. Eviction order was obtained by the respondent/landlord on the ground of personal use vide judgment dated 27‑8‑1995 passed by learned 1st Rent Controller, Mirpur Khas in Rent Case No.27 of 1989 against which an appeal was preferred by the appellant which was dismissed and he was granted one year's time to hand over the vacant and physical possession. On 19‑9‑1996 appellant filed the instant petition under Order 12(2), C.P.C. on the grounds, inter alia, that the respondent/landlord is a teacher by profession and is serving in Education Department, Government of Sindh since 4‑11‑1990 which fact was concealed by him. Therefore, it was urged that by misrepresentation and concealment of this material fact, both the orders passed by this Court as well as of the Rent Controller are liable to be recalled. Respondent has filed his counter‑affidavit and has raised several legal objections to the maintainability of this petition. I have heard Mr. Anwar Jamal, Advocate for appellant/tenant and Mr. Syed Akhtar Saeed, Advocate for respondent/landlord. Both the learned counsels have addressed this Court on the following three questions:‑‑ (i)???????? That the instant petition under Order 12(2), C.P.C. was filed after much delay and, therefore, cannot be considered as a vested right is created in favour of the landlord. (ii)??????? That the concealment of alleged fact that the landlord was serving as a school teacher and that his claim that he has no source of income, amounts to fraud or misrepresentation. (iii)?????? Which is the proper forum where application of instant nature could be filed? 3.???????? It was stated by Mr. Syed Akhtar Saeed that admittedly the appellant/tenant came to know about the alleged service of landlord on 7‑2‑1996 but the instant application was filed after a delay of more than seven months. It was argued that a vested right is created in the landlord which the appellant/tenant wants to take back through present proceedings. I am not impressed with this plea. It is settled law that no party can avail advantage or benefit of his own fraud. It is equally settled that fraud vitiates most solemn proceedings. The impugned judgment was passed on 21‑1‑1996 and even if the date for the purpose of limitation is reckoned from the date P' of judgment, the instant application was filed within a period of nine months. The law is now settled that Article 181 of the Limitation Act, 1908 is applicable for filing application of instant nature. If any reference is needed, please see:‑‑ (i)???????? Muhamamd Iqbal and another v. Muhammad Alamgir and others (1990 SCMR 1377); (ii)??????? Mst. Amtul Kabir and others v. Safia Khatoon and others (1991 SCMR 1022); (iii)?????? Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCMR917); and (iv)?????? Mst. Kubra Begum and others v. Mst. Shad Begum and others (1993 SCMR 2096). Accordingly, I hold that the instant petition under section 12(2), C.P.C. is within time. 4.???????? Mr. Anwar Jamal has invited my attention to para 6 of the rent application filed under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred as Ordinance, 1979) wherein landlord has stated that after death of his father, he has no source of income, and hence, he wants to open a shop for the purpose of running a business of photostat copies. In para 7 of his affidavit in evidence which was filed on 15‑1‑1991, he has stated that his father had expired and there was no mail member to earn; hence it has become necessary for him to open a shop of photostat to earn livelihood for himself and for his family. In cross‑examination, respondent/landlord has stated that he is M.A. Islamiat and that he is Pesh Imam in Gulshan Masjid, Mirpur Khas. Another witness produced by respondent/landlord namely Aslam Shaikh, who has also filed his affidavit in evidence on the same date as of the landlord's affidavit has deposed that he knows the landlord fully well and that the landlord has no source of income. In reply to these contentions of the counsel for the appellant, the advocate for landlord Mr. Akhtar Saeed has argued that the landlord is not required to give each and every detail in his pleadings as well as in his affidavit in evidence. There is no cavil to the proposition that where a plaintiff is seeking eviction on personal ground, he is not required to give each and every detail in his pleadings but here the question is not whether the present respondent/landlord has disclosed all the relevant details. In my view, it is a case where the landlord has concealed a material fact which has misled the appellant/tenant to frame his defence. As far as contents of para. 8 of the rent application is concerned, it does not amount to fraud or misrepresentation inasmuch as the certificate relied upon by the appellant indicate that he was in service since 4‑11‑1990 while the eviction application was‑filed prior to that date i.e. on 25‑11‑1989. Therefore, on the day when the eviction application under section 15 of the Ordinance 1979 was filed, the landlord was not in service.

5. Relevant facts for the purpose of determining concealment or misrepresentation of fact revolve around the affidavits in evidence which were filed on 15‑1‑1991 and cross‑examinations' of both the witnesses which were conducted on 24‑4‑1991. These are the dates when the landlord was gainfully employed as claimed by the appellant/tenant. Again, I would like to repeat that in view of contents of para. 7 of the affidavit in evidence of the landlord and para.3 of affidavit‑in‑evidence of Aslam Shaikh, the appellant/tenant was led to believe that the landlord is not engaged in any other business or profession. Even in cross‑examination, the landlord has mentioned his profession to be Pesh Imam. In view of all these circumstances, it was argued by Mr. Syed Akhtar Saeed that since at the time of filing of impugned eviction application the landlord/respondent was not in service, therefore, the learned Rent Controller was required to decide the case on the facts and circumstances prevailing on the date of filing of the rent case I am afraid this is a very old view and the recent trend of Supreme Court is that the Courts should consider changed and altered circumstances in order to avoid multiplicity of proceedings and to shorten the litigation and to do complete justice between the parties and for that purpose to mould relief according to altered circumstances in the larger interest of justice. This view was held by the Hon'ble Supreme Court in an appeal arising out of rent case Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220). I am of the considered view that if the contention of the appellant is correct that the landlord was gainfully employed after filing the rent case, than he should have amended his main eviction application and affidavits‑in?evidence.

6. Mr. Anwar Jamal, in order to advance his submissions that the fraud and misrepresentation was played, has referred to sections 17 and 18 of the Contract Act, 1872 and contended that by concealment of this material fact, the landlord has played fraud upon the learned Rent Controller as well as upon this Court. He has relied upon the case of Mst. Fahmida v. Muhammad Khalid and another (1992 SCMR 1908), Shabbir Hussain v. Anwar Sultan and 3 others (1986 CLC 903) and the case of Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710). Recently, in the case of Mubarik Ali v. Fazal Muhammad (PLD 1995 SC 564), it was held by the Hon'ble Supreme Court that the application under section 12(2), C.P.C. should be filed before the Court which has passed final order.

7. It was argued then by Mr. Syed Akhtar Saeed that the question of alleged concealment of landlord's employment was before Rent Controller which has attained finality in a proceedings filed by the appellant/tenant under section 193, P.P.C. After rejection of appeal, appellant/tenant had filed an application under section 193, P.P.C. praying for initiation of the action against the landlord as he has sworn a false affidavit. The said application was filed on 26‑3‑1996 where it was alleged by the tenant that few days back he came to know that the applicant is a Government servant. This application was dismissed by the learned 1st Rent Controller, Mirpur Khas on 16‑4‑1996 on the ground that the tenant has not put such questions during the cross‑examination of landlord and that the matter has attained finality in First Rent Appeal No.64 of 1995 when this Court dismissed the First Rent Appeal of the appellant/tenant. Since this order of learned Rent Controller is not before me in appeal, I would not like to pass any comments. But at the same time, I would like to observe that the learned Rent Controller did not 'advert to the question that at the time of cross‑examination in the year 1991 the tenant was not in the knowledge of this fact which he has clearly stated in his said application. Mr. Syed Akhtar Saeed has also filed a copy of judgment passed by 1st Additional Sessions Judge, Mirpur Khas in Criminal Revision No.3 of 1996 in order to show that the appeal filed by the tenant was disallowed vide judgment dated 16‑12‑1996. Again, appeal of the tenant against the order of Rent Controller dismissing application under section 193, P.P.C. was rejected on the grounds that the matter has attained finality and the same cannot be reopened through such proceedings. Since all these findings are not based on the merits of the case and arise from a criminal proceeding, it would, in no manner, affect the proceedings of this Court.

8. There is another aspect of the case that if it is accepted that the landlord/respondent is a Government servant, then the question would arise whether he is competent in law to run a shop without obtaining permission from the Provincial Government. I regret to say that none of the counsel has addressed this Court on this point. However, as a guideline for the future and in order to determine the need of the landlord, it would be advantageous if section 16 of the Sindh Government Servants' (Conduct) Rules, 1966 is reproduced:‑‑ "

16. Private trade employment or work.‑‑(1) No Government servant shall, except with the previous sanction of the Government, engage in any trade or undertake any employment or work, other than his official duties: Provided that he may, without such sanction, undertake honourary work of a religious, social or charitable nature or occasional work of a literary or artistic character, subject to the conditions that his official duties do not thereby suffer and that the occupation or undertaking does not conflict or is not inconsistent with his position or obligations as a Government servant but he shall not undertake or shall discontinue such work if so directed by Government. A Government servant who has any doubt about the propriety of undertaking any particular work should refer the matter for the orders of the Government: Provided further that a non‑Gazetted Government servant may, without such sanction, undertake a small enterprise which absorbs family labour and where. he does so shall file details of the enterprise alongwith the declaration of assets. (2) Notwithstanding anything contained in sub‑rule (1), no Government servant shall associate himself with any private trust, foundation or similar other institution which is not sponsored by the Government. (3) This rule does not apply to sports activities and membership of recreation clubs ??????????

9. As a result of the above discussion, I allow this application and recall my judgment dated 21‑1‑1996 and remand the case to the Court of 1st Rent Controller, Mirpur Khas to consider the following issues after giving opportunity to the parties to lead fresh evidence in support of their respective case. (i)???????? Whether the landlord is serving as Oriental Teacher (Arabic Teacher) in Education Department, Government of Sindh, w.e.f. 4‑11‑1990. If so, what is its effect? (ii)??????? If the landlord is a Government servant, whether he is competent to run business by himself or through his relatives or servants without first obtaining permission from the competent authroity/relevant quarters? (iii)?????? What should the order be? Learned Rent Controller is directed to conclude the proceedings within three months after receiving intimation of this order. H.B.T./S‑80/K???????????????????????????????????????????????????????????????????????????????????? ??????????????????????????????????? Application allowed.