1988 PLP 829 (MLD)

The judgment shall dispose of two Civil Revisions bearing Nos; 1271 and 983 both of 1981, as these relate to the same property and common questions of law and facts have been raised therein. It shall, however, remain on the file of Civil Revision 1271 of 1981.

2. The facts in brief are that Muhammad Din who has been shown as respondent in both the revisions, is transferee of property No. F‑2592. The adjoining property bearing No. F‑2591 is fairly a big one. The Settlement Department divided it into several units,; one of such units numbered as 8 was transferred to Khuda Bakhsh and a P.T.D. also issued in his name. He died during the pendency of this litigation. The petitioners in both the revision petitions are his sons. It appears that on the respondent's application, seeking clarification of the order transferring the property in his name, the Deputy Settlement Commissioner by a supplementary order dated 28‑1‑1963 maintained that as per Settlement File, Khuda Bakhsh and others were occupants of property No. F‑2592. Thereafter the respondent moved the Additional Settlement Commissioner for cancellation of the transfer of the property to Khuda Bakhsh. This application was forwarded by him to the Deputy Settlement Commissioner. The latter rejected the same on 20‑11‑1964. The respondent then went in appal but the learned Additional Settlement Commissioner declined to intervene on the ground that P.T.D. had already been issued to the parties. His order is dared 24‑4‑1965. The respondent then invoked the revisional jurisdiction of :he Settlement Commissioner but his revision also failed.

3. This much is about litigation on the Settlement side. The respondent also commenced ejectment proceedings by filing a petition dated 23‑7‑1960 against Khuda Bakhsh deceased, which was dismissed. He then filed another petition on 23‑11‑1960, for eviction of the deceased from the property which he described as portion of F‑2592 comprising 2 rooms, one Dalan and one Veranda on the ground‑floor. However, the plan referred to in the ejectment petition and annexed therewith is of the first floor. The learned Rent Controller who heard it, maintained that the respondent failed to prove that he was transferee of the property in question and dismissed it on 2‑10‑1964. He challenged this dismissal through an appal, which was allowed and the learned Appellate Authority remanded the case to the Rent Controller by its order dated 27‑2‑1965.

4. As a result of the post‑remand hearing, the learned Rent Controller came to the conclusion that the relationship of landlord and tenant did not exist between the parties. Consequently, the ejectment petition was dismissed on 4 10‑1966. The respondent again filed an appeal. The learned Additional District Judge allowed it on 27‑6‑1969 and held that Khuda Bakhsh deceased occupied a portion of the property transferred to the respondent. He, thus, decided the preliminary issue as to the relationship of landlord and tenant, in favour of the respondent and sent back the case to the Rent Controller, requiring him to Proceed with its hearing on merits.

5. As on the question of relationship of landlord and tenant, a verdict had been given in favour of the respondent and the deceased who claimed to be the transferee of the property, did not deny the non‑payment of the rent, the learned Controller by his order dated 25‑9‑1969 ordered his eviction. The appeal this order by the deceased, also failed. The learned Additional District Judge who was seized of the appal, maintained that he could not review the order dated 27‑6‑1969 passed by another forum of parallel jurisdiction. During the pendency of this appeal Khuda Bakhsh died and his sons who are petitioners in Civil Revision No. 1271 of 1981 brought SAO. No. 301 of 1978 against the order aforesaid. The learned Single Judge took the view that the order dated 27‑6‑1969 having gone unchallenged, the appellate authority rightly declined to intervene. The SA.O. was thus dismissed m limine on 15‑1‑1979_

6. Alter their failure before the authorities under the Rent Restriction Ordinance, the petitioners instituted a suit for declaration, that the ejectment order passed by the learned Rent Controller and all subsequent orders founded thereon were illegal, void and inoperative, being based on misrepresentation and fraud. It was averred in the plaint that portion No. 8 of Property No. F‑2591 was permanently transferred to Khuda Bakhsh by Settlement Department and they occupied the same; the respondent's claim that the said property formed part of property No.F‑2592 and that the deceased was in possession thereof as tenant under him, was sheer misrepresentation. It was contended that he did not hold any title to the property, permanently settled on Khuda Bakhsh, which after his death devolved on the petitioners and that, therefore, the learned Rent Controller had no jurisdiction in the matter and all subsequent orders also suffered from the same legal defect. The respondent filed the written statement and contested the suit.

7. The learned Civil Judge under his order dated 27‑2‑1979 relied on Muhammad Shafi and another v. Muhammad Bakhsh P L D 1971 Lah. 148 and rejected the plaint on the ground that the High Court decision dated 15‑1‑1979 would operate as res judicata. In this precedent it has been laid down that a decision given on merits by the High Court in writ jurisdiction, subject to appeal, attains finality and even if the case is decided its limine the same matter cannot be impugned through a civil suit. The petitioners attacked the rejection of the plaint by means of an appeal. The learned Additional District Judge who heard it, maintained that though the orders on the Rent Restriction side, were challenged as being ab initio void and without jurisdiction but the plaint did not contain anything to prove the same. He affirmed the view taken up by the learned Civil Judge and further held that section 15(5) of the Ordinance was a bar to the maintainability of the suit. It is under these circumstances that the petitioners have filed Revision Petition No. 1271 of 1981.

8. The other revision petition arises out of a declaratory suit brought by Mst. Karam Bibi widow of Khuda Bakhsh. The available record reveals that after the death of Khuda Bakhsh, she was not impleaded as a party either to the proceedings under the Rent Restriction Ordinance or in the civil suit, filed by the petitioners. The suit was filed by her at the stage when the appeal against the‑trial Court's order dated 27‑2‑1979 was pending before the learned Additional District Judge which was dismissed later on. She asserted that as she was not party to the ejectment orders, and came to know of the same on 27‑6‑1979, she was not bound thereby. The order aforesaid was also challenged on the plea that Khuda Bakhsh was not confronted with his statement, said to have been made by him before the Settlement Authorities, on which the existence of relationship of landlord and tenant, to a great extent was anchored. It was further claimed that the transfer order in favour of Khuda Bakhsh attained finality and the authorities under 'the Rent Restriction Ordinance could not relegate him to the position of a tenant under the respondent. It was specifically submitted that since there was a dispute regarding title, the learned Rent Controller or for that matter the Appellate Authority should have directed the parties to get it decided either from the Settlement Authorities or the Civil Court. The plaint also contains an averment that the ejectment petition was in respect of ground‑floor of the building whereas Khuda Bakhsh occupied only a portion of the first floor. The inconsistency in the description of the property given in the ejectment petition and the plan annexed therewith was also highlighted in the plaint.

9. The learned Civil Judge rejected the plaint under Order V1I, Rule 11, C.P.C. on 25‑6‑1980. In his opinion Mst. Karam Bibi being the mother of the petitioners could not have been unaware of the long drawn litigation between the latter and the respondent. lie maintained that she did not come to the Court with clean hands; section 15(5) of the Ordinance barred the suit and that in any case she could become party to the appeal filed by the petitioners which was then pending before the learned Additional District Judge. In the meanwhile, Mst. Karam Bibi died and the petitioners as legal representatives of the deceased, assailed the rejection of the plaint through an appeal. It was simultaneously dismissed by the same learned Additional District Judge who passed the order dated 5‑7‑1981 dismissing the other appeal. He discarded the deceased's assertion that she had no knowledge of the previous litigation and observed that her suit was mala fide. In this appeal as well, he came to the conclusion that the decision on the question of relationship of landlord and tenant attained finality under section 15(5) and that the suit was hit by judgment in Muhammad Shafi's case. The validity of his judgment dated 5‑7‑1981 has been called in question in Revision Petition No. 983 of 1981.

10. I have heard the learned counsel for the parties and examined the available record. It was argued on behalf of the petitioners that while proceeding under Order VII, Rule 11, C.P.C., it was not open to the learned trial Court to have relied upon the defence put forth by the respondent in the written statement and to reject the plaint on the strength of the material' supplied by him. The argument was that in resorting to Order V11, Rule 11, C.P.C., the Court should have confined itself to the facts stated in the plaint, and it could be rejected only if despite those facts being true, the petitioners could not be given any relief. It was contended that the learned first Appellate Court fell in error in declining to intervene with the orders of the trial Court. He generally referred to all the grounds laid down in the two plaints and further cited Muhammad Aslam v. Khurshid Begum P L D 1972 Lah. 603 and Abdul Oadir v. Seth Byramji D. Mama P L D 1963 Kar. 300 for the proposition that when the Rent Controller's order is challenged on the question of jurisdiction, its propriety can be examined by the Civil Court.

11. On the other hand, the learned counsel for the respondent supported the impugned judgments. According to him the findings of the authorities below under the Ordinance were well‑founded and section 15(5) completely ousted the jurisdiction of the Civil Court to sit upon judgment on the orders of the Rent Controller or the authorities in the higher hierarchy. He heavily relied upon Abdul Hameed v. Abdul Rashid N L R 1980 S C J 42 and Abdul Waheed Khan v. Mst. Azhra Khanam and others N L R 1981 S C J

549. The argument that the suits were barred on the doctrine of res judicata, by virtue of the High Court order dated 15‑1‑1979, which had prevailed with the learned Courts below, was also seriously stressed.

12. On consideration of the issues raised in these two revisions, I do not feel pursuaded to uphold the impugned judgments. Both the suits gave rise to certain vital points going to the root of the Rent Controller's jurisdiction. It was Pecifically pleaded by the petitioners that the house in dispute belonged to them. The same was the stand of Khuda Bakhsh deceased in his written statement before the Rent Controller, that the property in dispute had been permanently settled on him by the Settlement Authorities. It seems that both the parties laid hand on the sane property. :'he petitioners asserted that it formed part of building No.F‑2591 and conversely the respondent contended that it constituted part and parcel of House No.F‑2592 transferred to him. It is. noteworthy that the P.T.O. was issued to the latter on 18‑12‑1965 whereas the P.T.O. in favour of Khuda Bakhsh is dated 22‑6‑1960. The P:T.D. in his name was issued on 17‑11‑1964. In case the respective transfer documents of the parties, relate to the same property which is described therein under different numbers, evidently, it having been already permanently settled on the deceased, it can well be argued that the P.T.O. issued to the respondent subsequently, does not carry any legal sanction. The P.T.D. was placed before the learned Additional District Judge who delivered the order dated 27‑6‑1969. It needs to be seen whether there was adjudication, in accordance with law, upon the conflicting claims of the parties. on the Rent Restriction side, regarding title, to pose as‑ res judicata for the petitioners' suits. In the circumstances of the case, was it not essential for the Rent Controller or for that matter the Appellate Authority, to have directed the respondent landlord, to seek declaration of his title from the Civil Court? All these issues required a serious application of mind by the learned Courts below. Summary rejection of the plaints, was thus not at all warranted. building No.F‑2591 and conversely the respondent contended that it constituted part and parcel of House No‑F‑2592 transferred to him. It is noteworthy that the P.T.O. was issued to the latter on 18‑12‑1965 whereas the P.T.O. in favour of Khuda Bakhsh is dated 22‑6‑1960. The P.T.O. in his name was issued on 17‑11‑1964. In case the respective transfer documents of the parties, relate to the same property which is described therein under different numbers, evidently, it having been already permanently settled on the deceased, it can well be argued that the P.T.O. issued to the respondent subsequently, does not carry any legal sanction. The P.T.D. was placed before the learned Additional District Judge who delivered the order dated 27‑6‑1969. It needs .to be seen whether there was adjudication, in accordance with law, upon the conflicting claims of the parties, on the Rent Restriction side, regarding title, to pose as‑ res judicata for the petitioners' suits. In the circumstances of the case, was it not essential for the Rent Controller or for that matter the Appellate Authority, to have directed the respondent landlord, to seek declaration of his title from the Civil Court? Al! these issues required a serious application of mind by the learned Courts below. Summary rejection of the plaints, was thus not at all warranted.

13. The respondent's whole case revolves around the Additional District Judge's order dated 27‑6‑1969. This was a decision on a preliminary issue. The deceased was well within his right to call in question the findings regarding‑the relationship of landlord and tenant, before the appropriate forum, when a final ejectment order was passed against him. The petitioners were seized of such a situation when their S.A.O. came up for hearing before the learned Single Judge, who chose to dismiss it in limine. As observed earlier it was on the authority of Muhammad Shafi v. Muhammad Bakhsh that‑ the petitioner's suits were held as barred by res judicata on account of the High Court ,'s order in limine. In this precedent, in the writ petition itself, the petitioners therein had conceded that the area cancelled from their names was in excess of their entitlement and that they g had no other remedy, meaning thereby that the Civil Court had no jurisdiction in the matter. This precedent speaks of a decision given in Constitutional jurisdiction. However, the order dated 15‑1‑1979 was made in SA.O. I may say, and say so with respect, that despite the generality of observations made in this precedent, it was not intended to lay down that every limine judgment in writ jurisdiction would operative as res judicata. Indeed it would depend on the facts of each case as to whether or not such a judgment bars the subsequent civil suit. Anyhow, since issues were not framed and evidence was not recorded, legally there was no material before the learned Courts below, to come to the conclusion that the suits were hit by the rule of res judicata. .

14. As regards the ouster of Civil Court's jurisdiction, under section 15(5), after review of some case law on the subject, this provision was interpreted in the‑;‑, judgment reported as P L D 1972 Lah. 603 at 650 in the following words:‑‑ " The key to the understanding of this subsection lies in the words "called in question". The prohibition against calling in question, in my humble opinion, is against calling the said order in question on merits and it does not preclude as for example suit for declaration that the order of a Rent Controller is ultra vires or without jurisdiction or that it was passed in bad faith and suffers from, mala fides." To the same effect are the observations in the Karachi judgment referred to by the petitioners' learned counsel. 1t was thus, necessary for the learned Courts below to have given 5n opportunity to the petitioners to prove their case and to establish that the impugned orders suffered from jurisdictional defect. Needless to mention that the petitioners had raised the plea of fraud and misrepresentation and unless evidence was allowed to be produced such plea could not be proved. It may be observed that this case relates to the period before the incorporation of section 12(2) in the C.P.C. The precedents cited by the learned counsel for the respondent have no bearing on the instant case.

15. It is noteworthy that in the ejectment petition, the property from which the deceased was sought to be, evicted, has been described as part of the ground‑floor of the building but the plan referred to in it and annexed therewith pertains to the first floor. The tenancy is always qua property. Seemingly, there was a confusion regarding the exact description of the demised premises. This aspect of the case required consideration.

16. The impugned judgments give an indication that the learned Courts below in rejecting the plaints were influenced by the contentions put forth in the written statement and the application under Order VII, Rule 11, C.P.C. Such a course is not permitted by law. The argument of the petitioners' learned counsel, in this behalf gains support from Pahloomal Motiram v. Abdul Ouddus Behari and others P L D 1971 Kar. 250 wherein it is observed:‑ " Moreover, in asking the Court to reject a plaint under this provision the defendant must be taken to admit for the sake of argument that the allegations of the plaintiff made in the plaint are true to manner and form. The Court should reject the plaint under this ‑provision only if it comes to the conclusion that even if all the allegations which are made in the plaint were proved to be correct the plaintiff will not be entitled to get the relief." This view has been reiterated by a Division Bench of this Court in NA. Shahriyar v. Messrs Conforce Ltd. 1981 C L C 1009. The manner in which the two suits have been disposed of by the learned Courts below cannot be approved. It was essential for them to have framed the necessary issues arising out of the pleadings, given the parties an opportunity to lead evidence, if they so desired, and then to decide the suits on merits.

17. For the foregoing reasons these revision petitions are accepted, impugned judgments set aside and both the cases are remanded to the learned trial Court with the direction to decide the same afresh on merits, in accordance with law. It shall be open to the learned trial Court to consolidate both the suits. The parties are left to bear their own costs. M.Y.H./2738/L Revision petitions accepted.