1989 PLP 3853 (MLD)

Date of hearing: 10th October, 1983. This revision petition is directed against the judgment dated 18‑11‑1981 of the learned Additional District Judge, Lahore, whereby he upheld the order dated 27‑5‑1981 of the trial Court, rejecting the plaint of the petitioner in view of the provisions of section 15(7) of the Punjab Urban Rent Restriction Ordinance (VI of 1959) (hereinafter called the Ordinance).

2. The facts relevant for the disposal of this revision petition, as per record, are that the predecessor‑in‑interest of respondents Nos. 2 to 5, filed an ejectment petition under section 13 of the Ordinance for eviction of the petitioner and respondent No. 1 from the property, in dispute, situate in Khasra No. 1471/3/2, Railway Road, Lahore, on the ground of default and subletting.

3. Respondent No. 1 admitted the relationship of landlord and tenant between the parties and took up the plea that he has sublet the premises, in dispute, to the petitioner herein with the permission of the landlord. The petitioner contested the ejectment petition and contended that he was a tenant under respondent No. 1 herein and had no connection with the predecessor‑in -interest of respondents Nos. 2 to

5. The learned Rent Controller, however, passed an order under section 13(6) of the Ordinance, for deposit of arrears of rent before 28‑1‑1980 and future rent before 15th of each month. The learned Rent Controller by order dated 5‑5‑1981 ordered ejectment for non‑compliance of the said order. The petitioner assailed this order before the appellate authority inter alia on the ground that it was obtained in collusion with respondent No. 1, herein. The learned Additional District Judge after hearing arguments of the learned counsel for the parties and perusing the record dismissed the appeal by order dated 20‑12‑1980. The operative part of the judgment reads thus:‑‑ "

4. The learned counsel for the appellant contended that the, appellant was in fact a tenant under Mian Muhammad Hanif respondent No.2 respondent No.5 and the petitioner had obtained the ejectment order in collusion with the said respondent. He submitted that a litigation regarding title of the disputed property was going on between the said respondent and the petitioners and because of a compromise between them they had fictitiously created a tenancy between them. The learned counsel for the respondents Nos. 1 to 4, on the other hand, maintained that there was no collusion between the petitioners and Mian Muhammad Hanif respondent. He submitted that the respondent No. 2 appeliant being a sub‑tenant under the respondent No. 1 respondent No. 5 was liable to be ejected on the failure of the said respondent to deposit arrears and future rent in compliance with the order: dated 16‑12‑1979. There is much force in the contentions raised by the learned counsel for the petitioners‑respondents Nos. 1 to

4. The factum of tenancy is admitted between the petitioners and respondent No.l. There is nothing on the record to suggest that there was ever any litigation between the present respondents regarding title of the property in dispute. The respondent No.l respondent No.5 (Mian Muhammad Hanif) defaulted in the deposit of the arrears and the future rent and the respondent No.2‑‑appellant being a sublettee under Mian Muhammad Hanif respondent is also liable to be summarily ejected. The findings of the learned Rent Controller in this regard are absolutely correct and are maintained." Thereafter, the petitioner instituted a suit for declaration that he was tenant under respondent No.l herein and the. ejectment order dated 5‑5‑1980 passed by the Rent Controller was collusive, fraudulent arid result of misrepresentation and that respondent No.l/defendant No.l could not deny the tenancy of the petitioner‑plaintiff under him regarding the property, in dispute, with consequential relief, by way of permanent injunction restraining the respondents/defendants Nos. 2 to 5 from getting ejectment order executed. Alongwith the suit an application under Order XXXIX rules 1 and 2, Code of Civil Procedure, was also filed for temporary. injunction. The suit, as well as, the application for temporary injunction was dismissed by the trial Court by order dated 27‑5‑1981 on the ground that it was barred under subsection (7) of section 15 of the Ordinance. This order was upheld by the learned Additional District Judge, Lahore, vide judgment dated 18‑11‑1981. Hence this revision petition.

4. Learned counsel for the petitioner contends that throughout the petitioner had been alleging that respondent No. 1 alone was the landlord and that the ejectment petition was filed in collusion with Abdus Samad Khan, predecessor‑in‑interest of respondents Nos. 2 to 5, but neither the Rent Controller nor the Civil Court provided any opportunity to the petitioner to prove the allegations of collusion, fraud and misrepresentation. It is submitted that the Civil Court being Court of ultimate jurisdiction had jurisdiction to examine whether the ejectment order dated 5‑5‑1980 was illegal or even mala fide having been secured by collusion, fraud and misrepresentation. Reliance was placed on Ismail Brothers v. Keval Ram (PLD 1981 Supreme Court 545), Hamid Hussain v. Government of West Pakistan (1974 S C M R 356) and Allah Yar v. Muhammad Zafar (1979 C L C 725).

5. The sole question which needs examination in this case is as to whether the plaint was hit by clause (d) of rule 11 of Order VII, Code of Civil Procedure, which provides that the plaint shall be rejected where the suit appears from the statement in the plaint. to be barred by any law. Subsection (7) of Section 15 of the Ordinance provides that the order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law, including the High Court, by suit, appeal or otherwise. This being so, the order of ejectment passed by the learned Rent Controller was not open to challenge by means of a suit on the ground that the same has been obtained by Abdus Samad Khan, predecessor‑in‑interest of respondents Nos. 2 to 5 collusively against the petitioner by showing him subtenant of Mian Muhammad Hanif, respondent No.l, who according to the petitioner is the real owner of the premises, in dispute, and had never alienated the same in favour of Abdus Samad Khan. Refer Zahurul Hassan v. Mst. Ruqqia Begum (PLD 1981 Supreme Court 112).

6. It is not a case where the petitioner was prevented from fully and fairly placing his case or defence regarding the alleged collusion before the Rent Controller or the appellate authority. In the instant case the question of collusion was specifically raised before the. learned Rent Controller, as well as, the appellate authority. The latter recorded a finding of fact after perusal of record that there was nothing on record to suggest that there was any litigation regarding title of the property, in dispute. In Rehmatullah v. Ali Muhammad (1983 S C M R 1064), it was held that where doubt is created about ownership of disputed premises, the Rent Controller or for that matter the appellate Court in that hierarchy can evict the so called tenant leaving it for him to seek redress from Civil Court on the question of title, or fraud committed on him by the so called landlord. In such a case Section 15(7) of the Ordinance will not operate as a bar. Subsection (7) bars the suit only if the said order or judgment is called in question in a Civil suit. In the instant case no such direction was given either by the Rent' Controller or the appellate authority and; therefore, the determination of relationship of landlord and tenant between the petitioner and the predecessor- in‑interest of respondents Nos. 2 to 5 had become final and would operate as res judicata. The authorities cited at the bar by the learned counsel for the petitioner are not attracted to the facts of the present case. In view of the above the revision petition fails and is hereby dismissed with costs. M.Y.H./A‑729/L Petition dismissed.