1989 PLP 937 (CLC)

2. Rent Application No.103 of 1968 was filed by Munshi Shamsuddin predecessor of respondents Nos.l to 3) for eviction of Shafi Mohd. (petitioner No.l), Lai Mohd. (predecessor of petitioners Nos.3 to 15) Bashir Ahmed (respondent No.4) and Zahoor Ahmad (petitioner No.2) from the disputed property bearing No.G/314 Shah Makai Road Hyderabad. It was alleged that Shafi Muhammad and Lai Muhammad had defaulted in payment of rent despite receiving notice dated 18‑8‑1961 under section 30 of the Displaced Persons (C & R) Act, intimating to them that the disputed property being evacuee was transferred to Shamsuddin and requiring them to pay rent at rate of Rs.100 p.m. from 18‑8‑1961. Shafi Muhammad and Lai Muhammad were also alleged to have sublet part of the disputed property to Bashir Ahmad and Zahoor Ahmad after transfer of the same in favour of Shamsuddin.

3. The rent application was contested by the said four opponents who in their joint written objections filed on 11‑10‑1960 denied being tenants of Shamsuddin. Shafi Mohd. and Lai Mohd. admitted being in possession 'of some land used for agricultural purposes. They admitted having replied the notices received by them under section 30 of D.P. Act, but denied subletting. They claimed to be paying land revenue for the plots in their possession. They claimed having filed Suit No.255 of 1966. The heirs of Lai Mohd. claimed to be paying rent to the Custodian for the area in their possession.

4. Learned Rent Controller formed issues about relationship of landlord and tenant between the parties, about maintainability of the rent application and about his jurisdiction in the matter. Under an order dated 24‑1‑1976 learned Rent Controller found existence of relationship of landlord and tenant between the parties and ordered ejectment of the four opponents. Said order was set aside in appeal on 29‑3‑1978 by the IV‑A.D.J. Hyderabad, who remanded the rent 'case, without disturbing the findings about existence of relationship of landlord and tenant between "the parties and about competency of the Rent Controller to try this matter.

5. After remand some more issues was framed covering default and subletting. After recording evidence learned Rent Controller and 1Vth Senior Civil Judge, Hyderabad under his order dated 28‑5‑1985 accepted the rent application and ordered ejectment of aforesaid four opponents from the disputed property after holding that the ground of default in payment of rent was proved but the ground of subletting was not proved.

6. Said order dated 28‑5‑1985 was assailed by present petitioners in F.R.A No.144 of 1985 and by respondent No.4 Bashir Ahmad in F . R. A . No.164 of 1985. Both the rent appeals were dismissed as time‑barred by my learned brother Mr. Justice Hyder Ali Pirzada under his judgment dated 27‑3‑1988. The petitioners moved Civil Petition No.235‑K of 1988 in the Supreme Court of Pakistan for leave to appeal against the aforesaid judgment dated 27‑3‑1988. Said petition was dismissed on merits by, the Supreme Court of Pakistan under an order dated 25‑8‑1988. Present application (C.M.A.1215/1988) under section 12(2) of C.P.C. was moved on 23‑5‑1988.

7. I have heard Mr. Abdul Hamid Khan, Advocate for the petitioners; Mr. Ali Ahmad Khanzada, Advocate for the respondent No.4 and Mr. Naimatullah Soomro counsel for respondents Nos.l to 3.

8. Learned counsel for the petitioners reiterated the grounds given in his application under section 12(2) of C.P.C. and argued that the respondents 1 to 3 had obtained by misrepresentation and fraud the judgment dated 28‑5‑1985 pertaining to the disputed plot, which was Government land but was shown by said respondents to be ar evacuee property. It was contended that the said judgment dated 28‑5‑1985 as well as the judgment dated 27‑3‑1988 in F.R.A. No.144 of 1985 were void, fraudulent and without jurisdiction. It was also argued that judicial mind was not applied when F.R.A. No.144/1985 was dismissed as time‑barred and that period prescribed by law of limitation did not run against the void orders, in view of the observations made in the case reported in 1988 C L C 1027. Learned counsel cited P L D 1981 SC 545, 1987 S C M R 2006, 1986 S C M R 1838, P L D 1988 Pesh. 162 and copy of an order dated 9‑3‑1986 passed by this Court.

9. Learned counsel for respondent No.4 took similar stand and argued that the impugned orders were obtained by fraud and misrepresentation and that respondent No.4 was never served with any process for attending the Court of the Rent Controller. He added that Shamsuddin never accepted respondent No.4 as his tenant and the ground of subletting was not accepted and hence respondent No.4, even if he was sub‑iessee was not liable to be ejected from the premises. He relied on 1983 C L C 2193.

10. Learned counsel for‑the respondents Nos.l to 3 argued that since the matter had gone upto the level of the Supreme Court of Pakistan, hence the application under section 12(2), C.P.C. should have been moved in that Court and not in this Court. Learned counsel went on to argue that order of the Rent Controller dated 28‑5‑1985 stood merged in the appellate order dated 27‑3‑1988 which stood merged in Supreme Court's order dated 25‑8‑1988. It was further argued that order of the Supreme Court of Pakistan dated 25‑8‑1988 dismissing civil petition for leave to appeal against the High Court judgment in F.R.A. No.144 of 1985 was binding on all the parties including the 'respondent No‑.4 who did not appear in the Supreme Court, reference was made to Article 199 of the Constitution. In respect of respondent No.4, it was argued that he had filed written statement in rent case in 1968 while he had taken stand in his application under section 12(2), C.P.C. in F.R.A. No.164/1985 that he came to know of the rent case in December 1981. It was added that respondent No.4 in his Appeal No.164/1985 did not contend that he had no notice of the rent case. It was added that respondent No.4 was party in Civil Appeal No.71/1976 as well as in Appeal No.89/1976 in the District Court. In support learned counsel for the respondents Nos.l to 3 cited the cases of (i) Mohd. Yaqub v. Nooran and others 1983 C L C 1948, (ii) Mst. Rukha Rafiq and another v. Malik Mohd. Ishaq and others 1986 C L C 1211; (iii) Mst. Zaibunnisa v. Sultan and others 1986 C L C 1520, (iv) Ghulam Sarwar v. Muhammad Hussain and others 1987 S C M R 1440, (v) Majida Begum v. Sh. Zulfiqar Ali and another 1987 C L C 309, (vi) S. Sharif Ahmad v. Chairman, Screening Committee 1978 S C M R 367, (vii) Karachi Development Authority v. Fatima Bai and others 1985 M L D 1496 and (viii) Mamoor Khan v. Nasiruddin and others 1985 C L C 130.

11. There appears to be force in the contention of learned counsel for respondents 1 to 3 that an application under section 12(2), C.P.C. challenging validity of a judgment on the plea of fraud, misrepresentation, want of jurisdiction shall be moved before the Court which passed the "final judgment or decree or order". In this respect the view taken in the cases mentioned at (i) and (ii) above was that the, lower Court's judgment emerges into the judgment of the appellate Court whose judgment is to be treated as final for purposes of section 12(2) of C.P.C. In (i) above, the civil suit was maintained in appeal by an Additional District Judge and in second appeal by the High Court whose order was not interfered with by the Supreme Court of Pakistan, which dismissed the petition for special leave to appeal. In the circumstances, it was observed that an application challenging validity of the judgment and the decree of the trial Court on the plea of fraud and misrepresentation could be moved only in the Supreme Court of Pakistan. The reason for this was given in (ii) above where it was observed that if the trial Court was given authority to inquire into the fraud, misrepresentation or lack of jurisdiction in respect of decisions which had stood the test of correctness in higher forums, the net result would be considerably whittled down and almost eroded. Another view taken in (ii) above, was that dismissal of an appeal on limitation shall not prevent the application of theory of merger in its fullness. In (iii) above, a learned Single Judge of this Court endorsed an earlier view of High Court expressed in an unreported case of Shabbir Hussain v‑. Anwar Sultan, which was consistent with the view of Lahore High Court expressed in (i) above and observed that an application under section 12(2), C.P.C. challenging an eviction order, that was maintained in appeal and not interfered with by the Supreme Court of Pakistan, was not competent before the Rent Controller the petitioners and learned counsel for respondent No.4 did not put counter‑arguments. Relying on the. aforesaid authorities, specially the case of Zaibunnisa reported in 1986 C L C 1520. I hold that present application under section 12(2), C.P:C. should have been made to the Supreme Court of Pakistan.

12. Learned counsel for the respondents 1 to 3 drew my attention to an amendment made in section 22 of the Sind Rented Premises Ordinance on 12‑3‑1986. In view of the amendment, section 22, inter alia says that all questions arising between the parties and relating to the execution, discharge or satisfaction of the final order shall be determined by the Controller and not by a separate suit. This provision is analogous to section 47 of C.P.C. but I do not agree with learned counsel for respondents 1 to 3 that section 2 of the said Ordinance as amended has taken the place of section 12(2) of C.P.C. in respect of rent cases.

13. Now, 1 deal with the cases cited by learned counsel for the petitioners. He cited the cases of (i) Ismail Brothers v. Kevel Ram PLD 1981 SC 545, (ii) Tanveer Jamshed and another v. Raja Ghulam Haider 1987 S C M R 2006, (iii) Government of Sind and another v. Ch. Fazal Muhamad 1986 S C M R 1838, (iv) Begum Khan v. Ghulam Muhammad and others P L D 1988 Pesh. 162, (v) Ibrahim and another v. Abid Ali and others 1988 C L C 1027 and (vi) Order dated 9‑3‑1986 passed by the Sind High Court in F.R.A. No.138/1985. In (i) above, a civil suit was filed challenging the ejectment order granted by the Rent Controller, set aide by the Additional District Judge and restored by the High Court whose order was not interfered with by the Supreme Court of Pakistan, which refused leave to appeal. Under the cited judgment issuance of interim injunction in favour of the. occupant was held justified but no rule was laid down on the point at issue. In (ii) and (iii) above, leave to appeal was granted by the Supreme Court of Pakistan without laying down any rule to be followed. In (iv) above, the view taken was that a Civil Court had jurisdiction to examine cases where provisions of the statute had not been complied with or where statutory tribunal had not acted in conformity with fundamental principles of judicial procedure ‑or of natural justice and likewise. the civil Court could also go into the propriety and legality of an order passed by a Collector in a pre emption suit where decree of pre‑emption was obtained on the basis of tenancy rights. In (v) above, a learned Single Judge of this Court took view that any order passed by a Rent Controller without jurisdiction being not binding on parties the plea of limitation in filing appeal against such order cannot be pressed into service. In (vi) above, a review petition was ordered to be heard by a Division Bench. Said order does not lay down any rule of law. It has not been made out as to how order of learned Rent Controller dated 28‑5‑1985 was void and consequently the case at (v) above does not apply. In the instant case no point arose about jurisdiction of the Civil Court and hence reference to Peshawar case at (iv) above was irrelevant.

14. Learned counsel for respondent No.4 cited the cases of (i) Abdul Bari and others v. Muhammad Ishaq 1983 C L C 2193. Learned counsel also cited the cases of (ii) M.G. Gazdar v. Manzoor Hussain 1985 C L C 2438, (iii) M. Yousuf v. Wali Muhammad and another 1984 C L C 1090, (iv) Mst. Marium and others v. Haji Ali and others PLD 1985 Kar. 705, (v) Malik Inayatullah Khan v. Government of.Pakistan and another P L D 1985 Pesh. 23, (vi) Government of Sind and another v. Ch. Fazal Muhammad and another 1986 S C M R 1838 and (vii) Mansab Ali v. Amir and others P L D 1971 SC

124. In (i) above, the Rent Controller. struck off defence of the main tenant without deciding the issue if that tenant had sublet the premises to two others, whose possession was protected on the ground that the writ of possession issued against the main tenant cannot be enforced against the others, one of whom was not in possession and the other was not adjudged to be sub‑tenant. In present case there was no striking off of defence and the decision was given on merits after recording of evidence. In (ii) above, it was observed that section 12 (2) of C . P. C . was applicable to the orders of the Rent Controller while in .(iii) above, it was held that section 12(2) of C.P.C. was not applicable to the rent proceedings and that an ex parte order of Rent Controller can be challenged under section 9 of C.P.C. on ground of fraud. In (iv) above, it has observed that the persons who were not parties to the suit were not bound by the decree passed in such suit and they were not competent to move an applica tion under section 12(2) of C.P.C. challenging the validity of the decree. In (v) above the view taken was that an application under section 12(2) of C.P.C. challenging an ex parte decree could be moved within three years from the date of accrual of the right of appeal and that an application under section 12(2) of C.P.C. was not bared if the decree or the order being challenged were appealable. In (vi) above, the Supreme Court of Pakistan simply granted leave to appeal to consider if section 12(2) of C.P.C. would not be attracted to a case where the party had failed to take up plea of fraud and misrepresentation. No any rule was laid down under the cited order. In (vii) above, it was held that when mandatory condition for exercise of jurisdiction was not fulfilled then all the proceedings which followed became illegal and without jurisdiction. This was in a matter where criminal case of an accused was referred to Jirga without his being heard. In this way, none of the authorities applies to this case and the facts of the case at (i) above, were distinguishable from facts of this case.

15. There is force in the contention of learned counsel for respondents 1 to 3 that the plea taken now about the order of the Rent Controller dated 28‑5‑1985 was not taken in F.R.A. No.144/1985. In the case of Majida Begum v. Zulfiqar 1987 C L C 309, the view taken was that if plea of fraud was not raised at an earlier stage, but was taken for the first time through medium of review applications then it could not form basis .for review. In the case of S. Sharif C Ahmad .1978 S C M R 367 it was observed that a void order is not always to be struck down regardless of the consequences of such a decision although it must be struck down provided there is no statute or principle of law making it unjust or inequitable to do so and that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it.

16. It is unfortunate that the respondents 1 to 3 got a favourable order from the Rent Controller on 28‑5‑1985 but they have not been able to reap the fruit of such order although the same was maintained up to the level of the Supreme Court of Pakistan, where it was challenged by the present petitioners.

17. In view of my above discussion, I hold that the present application (C.M.A 1215 of 1988) is not maintainable in law, is without any basis and appears to be frivolous with a motive to deprive D respondents Nos. l to 3 of reaping the fruit of the order dated 28‑5‑1985 as long ' as possible. Consequently the same stands dismissed with costs of Rs.1,000 (Rs. one thousand) to be paid by the petitioners the respondents Nos.l to

3. M. Y. H . /S‑296/ K Application dismissed.