1992 PLP 1739 (CLC)

Respondent Ghulam Rasool filed Execution Application No.24 of 1988 in Court of the Ist Senior Civil Judge and Rent Controller, Karachi (South) for execution of the order of ejectment passed against Mst. Shakooran alias Zaitoon Begum w/o Mohammad Naqi. In said execution case Mst. Najma, who was one of the four children of deceased Mohammad Naqi the original tenant, moved an application under Order I, Rule 10 of C.P.C. read with Section 12 (2) of C.P.C. for being joined as party, on the ground that she was born and brought up in the premises in litigation and that she was daughter of late Muhammad Naqi tenant in the disputed house and that judgment in the rent case was obtained by misrepresentation and fraud and that issue of Writ of possession be suspended and status quo be maintained. Said application was dismissed under the impugned order dated 15‑1‑1989 on the ground that appellant Mst. Najma Begum had remained silent for about six years and that she had chosen to move for being joined as a party after the ejectment order was upheld upto the level of the Supreme Court of Pakistan. Hence this appeal. Mr. Rasheed A. Rizvi, learned counsel for the appellant argued that in Para. 4 of her affidavit Mst. Najma Begum had stated that she was born and brought up for last 25/26 years in the disputed premises and she was the lawful tenant after the death of her father Muhammad Naqi, but still she was not 'pined as a party in the ejectment proceedings. Reference was also made to Para `C' of the memo of appeal, where the appellant stated that she was one of the five legal heirs left by Muhammad Naqi. 1n reply to the objection raised by learned counsel for the respondent, Mr. Rasheed A. Rizvi, contended that even if the provisions of C.P.C. were not applicable to rent cases, the Rent Controller was free to follow the equitable principles contained in C.P.C. Learned counsel for the appellant cited the cases of: (i) M/s. Bambino Ltd v. M/s. Selmor International Ltd. and another (PLD 1983 SC 155). (ii) M.G. Gazdar v. Manzoor Hussain (1985 CLC 2438). (iii) Mamoor Khan v. Nasiruddin and others (1985 CLC 130). (iii) Mohammad llyas v. Hafiz Abdul Malik and others (1991 CLC 1975) Mr. Zahid Hussain Burhani, learned counsel for the respondent argued that the rent case was decided on 2‑9‑1984 while the application for joining Mst. Najma Begum was moved on 27‑10‑1987 and the same was lime barred. It was further argued that the execution proceedings were of limited nature, where the questions between the decree‑holder and judgment‑debtor were to be resolved and the third parties had no locus standi to be joined as parties. It was also argued that Mst. Zaitoon Begum had moved an application to deposit the rent in Court and even in that application Mst. Najma Begum was not joined either as a co‑applicant or as a respondent. It was further at ued that Mst. Najma Begum had given up her right as tenant in favour of her mother and the application for her being joined a party was mala fide, not maintainable and time‑barred. In support learned counsel for the respondent cited the cases of:‑ (i) Mir Salahuddin v. Oazi Zaheeruddin (PLD 1988 SC 221). (ii) Abdul Baqi v. Malik Milha Khan and another (1991 SCMR 379). (iii) Islamuddin v. Abdul Rahman and another (PLD 1986 Kar. 70). (iv) Mst. Nargis and another v. Abdul Razak and another (1987 CLC 1416). (v) Sh. Muhammad Azim v. Basit Yar Khan and another (1989 CLC 302). (vi) Mst. Parveen Akhtar and others v. Shafiq Ahmed and another (1990 CLC 2019). The authorities cited on behalf of the appellant do not help her. In the case of M/s. Bambino Ltd., (PLD 1983 SC 155) it was held that although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller by its force, the Rent Controller was free to follow the equitable principles contained in C.P.C. and that this applied to the cases under the Sindh Rented Premises Ordinance. In the case of M.G. Gazdar (1985 CLC 2438) a learned Single Judge of this Court disagreed with the view that the Code of Civil Procedure is not applicable to the proceedings under the Rent Ordinance and took view that although all the provisions of the C.P.C. were not applicable to proceedings under the Rent Ordinance but the principles laid down in the C.P.C. are applied to such proceedings. In the case of Mamoor Khan (1985 CLC 130) it was held that the provisions contained in section 12 (2) of C.P.C. can be availed of by the parties litigating before a Rent Controller. In the case of Muhammad Ilyas (lW1 CLC 1975) it was argued before a learned Single Judge of this Court that where the Final order of ejectment was passed by the Supreme Court of Pakistan, the provisions of Section 12 (2) of C.P.C. would not be applicable as the Supreme Court of Pakistan is not governed by the provisions of C.P.C. but by its own rules framed tinder Article 191 of the Constitution of Pakistan. It is important to note that this litigations was started on 13‑12‑1982 when the respondent filed Rent Application No.4862 of 1982 after death of Muhammad Naqi, who was father of appellant Mst. Najma Begum. In her written statement, the widow of Muhammd Naqi did not state if appellant Mst. Najma Begum was one of the tenants of the premises in litigation by virtue of her being daughter of deceased Muhammad Naqi. Thereafter, the ejectment order against the widow of Muhammad Naqi was passed on 2‑9‑1984 and such order was maintained in F.R.A. No. 985/84 on 8‑2‑1987. A Civil Petition for special leave to appeal moved in the Supreme Court against the order dated 8‑2‑1987 passed in F.R.A. No.985/84, was dismissed by the Supreme Court of Pakistan on 30‑8‑1987. All along appellant Mst. Najma Begum did not deem it necessary to move for being impleaded as a party. It was for the first time on 27‑10‑1987 that widow of Muhammad Naqi moved Court of the Ist; Senior Civil Judge, Karachi, South in Execution Case No.24/87, for joining of Mst. Najma Begum as a party. This was after the first round of litigation was over and the widow of Muhammad Naqi lost the matter at each forum. A some what similar situation arose in the cases of Islamuddin (PLD 1986 Kar. 70) and Shaikh Muhammad Azim (1989 CLC 302). In the latter case the original tenant contested ejectment proceedings for 11 years and he had taken the matter up to the Supreme Court but at no stage the intervenor claimed to be in bona fide possession of the disputed premises and under a final judgment the Supreme Court affirmed judgment of the High Court and it was held that the application of the intervenor alleging fraud and collusion was rightly dismissed by the Rent Controller. In the former case the intervenor applied for being impleaded as a party during execution proceedings and he asserted on the basis of electricity bills receipts and envelopes that he was tenant and the view taken was that the intervenor by production of said record had not been able to prove that he was tenant of the landlord. 1n the case of Abdul Baqi (1991 SCMR 379) brother of the person against whom an ejectment order was passed by a Rent Controller, moved an application under Section 12 (2) of C.P.C. challenging the ejectment order on the ground that he was the tenant of the disputed premises for 10 years. The person moving the application under Section 12 (2) of C.P.C. knew that the landlord had filed ejectment application against .his brother in 1988 but he did not submit any application for being impleaded as a party. In the circumstances, the Supreme Court of Pakistan refused to issue interim injunction against the landlord. In the case of Mst. Parveen Akhtar and others (1990 CLC 21_19) the view taken was that after a landlord had succeeded to eject his tenant the dependants of the tenant cannot come forward to claim that they were the tenants and not the person proceeded against. In the case of Mst. Nargis and another (1987 CLC 1416), the statutory tenant took the plea that he had transferred tenancy of premises with possession to another person who did not produce any allotment order conferring tenancy on him and the view taken was that the mere receipt of rent from the transferee by Evacuee Trust Department would not prove his being tenant. In light of the case‑law discussed Mst. Najma Begum does not appear to be having any right of being impleaded as party in the execution proceedings A and for challenging the order of ejectment under execution. It may also be observed that timing about moving of application for joining Mst. Najma Begum as party shows that such application was mala fide because it was moved after end of the first round of litigation. In the circumstances, the application in respect of joining of Mst. Najma Begum was rightly dismissed by the Rent Controller. As result of above finding this appeal stands dismissed with no order as to costs. H.B.T./N‑420/K Appeal dismissed.