1997 PLP 1126 (CLC)

3. The respondent filed rent case on 19‑12‑1994. Notice was ordered which could not be served resulting in service through publication and the case was fixed on 24th July, 1994 which was declared as holiday. On 25th July, 1994 the learned Rent Controller passed ex parte order and after getting ex parse proof passed impugned order dated 31st August, 1994 and thereafter the execution proceedings were initiated. 4, It will be noticed that the respondent knew fully well that there is a case pending regarding the title of the disputed property and she is contesting as defendant in that case but such fact was concealed in the rent application. ,

5. This appeal was filed on 25th July, 1995. On 10th July, 1995 this Court issued pre‑admission notice and also passed the order that "no adverse orders be passed against the appellant till further orders". This appeal was dismissed for want of prosecution on 24th September, 1995 by this Court. Restoration application was filed of which the notice was ordered. The respondent went on avoiding to receive the notice necessitating publication of notice. This matter was adjourned on one pretext or the other and was finally restored on 2‑5‑1996.

6. Since this appeal was dismissed for want of prosecution on 24‑9‑1995, the respondent obtained writ of possession order which was executed on 28th September, 1995 at 7‑00 p.m. From the record it appears that writ of possession was ordered‑ without notice to the appellant. Such tendency on the part of the Rent Controller who issued writ of possession without notice is deplorable and such conduct is unbecoming of a judicial officer entrusted with the responsibility of dealing with the parties in accordance with law. It may be noticed that this appeal was dismissed on 24th September, 1995 and within four days the writ of possession was issued and the order of ejecment was executed.

7. This appeal was admitted to the regular hearing and on the record I find that on 8th July, 1996 an order was passed that till the next date the respondent was restrained from parting with the possession of the premises if she has not parted with the same till that date. On 10th September, 1996 Mr. Muhammad Zahid Khan, learned counsel appearing for the respondent informed this Court that the premises have been rented out to some other tenant. On 22nd September, 1996 he informed the Court that the property has been sold out by the respondent to some other party and the possession has been delivered to the purchaser.

8. The learned counsel for the respondent filed statement dated 8‑10‑1996 alongwith the followingdocuments on record: "Agreement dated 6th May, 1996 between the respondent and Mst. P.Florance. Order dated 7th May, 1996 and acknowledgment of possession of the same date. Receipt for consideration and above all lease‑deed executed by K.M.C. dated 13‑2‑1996. (However, registered conveyance deed between the respondent and the purchaser was not placed on record.)

9. In the above background of the facts which I noted in this judgment the learned counsel for the appellant firstly contended that the order dated 25th July, 1994 which is a basic order passing ex pane order against the appellant is patently void as it was passed on a day when the case was not fixed. According to him 24th July, 1994 was declared to be holiday which would warrant issuance of fresh notice for a new date of hearing and the order could not have been passed on 25th July, 1996 i.e. the next date without notice to the appellant which was pending in the Court of Rent Controller. He has relied the judgment reported as Muhammad Swaleh and another v. M/s. United Grain Agencies (PLD 1964 SC 97) and Muhammad Ibrahim v. Zeenat Bibi and others (1991 CLC 1767). His second contention is that since the first order of ex parte was void ab initio consequently the entire edifice of orders including order dated 31‑8‑1995 granting ejectment is also illegal and issuance of writ of possession and delivering possession to the respondent persuant to such order is again illegal. He has relied upon the judgment of Hon'ble Supreme Court reported as Yousuf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 10'4).

10. Subsequently the third contention of the learned counsel for the appellant is that since the writ of possession was issued illegally and after the impugned orders are set aside by this Court the appellant will be entitled to the restoration of possession and he has relied upon the cases reported as Fazal y Hussain v. Mahmood Hussain (1993 MLD 1726), Sheikh Abdul Hameed v. Hifazat Hussain Jafari (PLD 1994 Karachi 379).

11. Against the above contention urged by the learned counsel for the appellant, the learned counsel for the respondent contended that the respondent has sold out the property and created third party interests in relation to the disputed property, the possession has been delivered to third party and any order passed in this rent appeal would effect third party as such this appeal has become infructuous and liable to be dismissed as such. His further contention was that the impugned orders particularly the order of 25th July, 1995 was passed after the service on appellant through publication which was valid and does not call for any exceptions, consequently, therefore, the orders passed which are impugned herein including execution proceedings are, therefore, lawful and no exception could be taken. 12. 1 have gone through the record with the assistance of the learned counsel and have given anxious consideration to the pleas urged by the parties.

13. Admittedly, it is not disputed before me that 24th July, 1994 was declared holiday. The Rent Controller passed the order on 25th July, 1994 i.e. the day on which this case was not fixed. The judgment of Hon'ble Supreme Court in Muhammad Saleh's case (PLD 1964 SC 97) is fully attracted. In that case also the order was passed on the subsequent date of the holiday and that too on the date when the case was not fixed and Hon'ble Supreme Court ruled that proceedings without notice are nullity in the eyes of the law and, therefore, liable to be set aside and ignored by 'every Court before whom such order is presented. Such observations are available at page 101 of the said citation. My learned and noble brother Mr. Justice Wajihuddin has also given the judgment reported as Muhammad Ibrahim v. Zeenat Bibi and others (1991 CLC 1967). This is time honoured principle which is firmly embeded in our legal system. Such principle is further reinforced more particularly after the introduction of Objectives Resolution as substantive part of our Constitution. Proceedings without notice are void ab initio and since no notice was issued for 25th July, 1994 i.e. the date when the order was passed and subsequently all orders A were passed on this order are, therefore, declare to be without any lawful authority illegal, inoperative and does not create any right in favour of the respondent.

14. This brings me to the second contention of the learned counsel for the appellant who stated that the order was executed by the Rent Controller 1n hot haste and that he stated that this appeal was dismissed for want of prosecution on 24th September, 1995 while the writ of possession was issued and was executed on 28th September, 1995 and that too without any notice to the appellant. Even such order passed by the Rent Controller is also illegal and once the order of execution which has been executed dispossessing the appellant is declared illegal the appellant is entitled to the restoration of possession. Such contention of the learned counsel for the appellant is correct. The Appellate Court once comes to the conclusion that the order passed by the Rent Controller was illegal and that illegal order was executed it will be the duty of the Court to pass an order for restoration of possession which was illegally decided in favour of the party which was given possession through the writ of possession. The party which was deprived of possession on being successful in assailing the impugned order, which was the basis of execution when declared illegal, therefore, consequential order of restoration of possession can be passed and the bailiff should be directed to restore the possession to the appellant and it is so ordered.

15. Mr. Muhammad Zahid Khan, learned counsel for the respondent contended that the order of execution dated 28th September, 1995 is not impugned as such possession could not be restored. I am afraid such contention may'not prevail, firstly because the appeal was filed against impugned order as well as execution proceedings, and during the pendency of this appeal the order was executed, secondly because the order which was executed was ab initio void and thirdly a party guilty of going to the Court with unclear hands could not be allowed to reap the fruits of such illegal orders, passed by the Rent Controller contrary to the established legal principles. For all these reasons such contention of the learned counsel is overruled. .

16. This brings me to the contention of the learned counsel appearing for the respondent that since third party interest have been created, therefore, this appeal has become infructuous and that no order of restoration of possession; could be passed. It is admitted position that the suit pertaining to the title is already sub judice in the Civil Court. Civil Court is the principal Court to determine whether the appellant is owner or the respondent is owner. The respondent was aware of filing of the suit and was contesting defendant. She had filed an application under Order VII, Rule 11, C.P.C., on 21st December, 1993. She also filed written statement on 8th February 1994, then she filed rent case on 1.9‑2‑1994 and concealed the fact that the suit relating to the title of the property is pending. Such concealment on the face of record is deliberate and intentional. I have already held that the order passed on 25th July, 1994 in the rent case was void ab initio and does not create any right in favour of the respondent. Even otherwise since the respondent is guilty of concealing material facts from the Court could not be alloved to enjoy the fruits of her dishonesty and her approach to the Court with unclean hands.

17. Even otherwise in terms of section 52 of the Transfer of Property Act, 1882 the disputed property could not be transferred by virtue of embargo contained in that Act, The third party purchased the property without notice. It is, therefore, for the third party to seek remedy against the respondent.

18. This Court passed the order on 8th July, 1996 restraining the respondent from parting with the possession. It is not known as to when the registered conveyance deed took place between the respondent and the third party, but it seems strange that the agreement for sale was signed on 6th May, 1996 and without any conveyance deed the possession was delivered on 7th May, 1996. This property has been leased to the respondent by K.M.C. on 21‑2‑1996 while the suit for the title is still sub judice before a competent Court. Since there was registered deed in favour of the respondent and sailing the property to the third party, and immediately after the agreement to sell on a date earlier than the order which was passed by this Court on 8th July, 1996 does not inspire confidence. More particularly because Mr. Zahid Khan informed the Court earlier that new tenant was inducted. However, it will be for the Civil Court and not for this Court in the suit proceedings to adjudicate or determine such issue. These findings have been given because the learned counsel for the respondent contended that the appeal has become infructuous which in fact has not become infructuous and the Courts will not allow a crafty litigant to defeat the ends of justice in the manner it has been done and which is apparent from the facts of the case which I have given in detail in the judgment. Since the transfer of property on the face of record during pendency of litigation is hit by the principles enshrined in section 52 of the Transfer of Property Act, 1882, therefore, creation of third party interest in violation of law would not deter the Court from passing appropriate orders in favour of appellant and as stated earlier it is for the third party to seek relief against the respondent in accordance with law. The upshot of the above discussion is that this appeal is allowed with costs H.B.T./R‑27/K???????????????????????????????????????????????? ????????????????????????????????????????????????????????????????????Appeal allowed.