1988 PLP 1566 (MLD)

This is an appeal arising out of an order dated 19‑7‑1986 passed by the learned Rent Controller, dismissing the two applications dated 26‑1‑1986 and 28‑1‑1986 filed by the appellant for stay of execution proceedings in Rent Case No.7345 of 1980 and for permission to lead evidence to prove his possession and ownership of the premises in question.

2. The brief facts giving rise to this appeal, are, that the respondent No.2 (Mistry Naseeruddin) was a tenant of respondent No.1 in respect of premises bearing No.N/NKG/G‑245, Natha Khan Goth, Drig Colony, Karachi at a monthly rent of Rs.90. The said respondent No.2 was a defaulter in payment of rent since 1‑6‑1973 and so an application, bearing Rent Case No.2286 of 1975 for his ejectment was filed by respondent No.1 in the Court 21‑Civil Judge and Rent Controller, Karachi, which was allowed on 22‑8‑1975. An execution application bearing No.22 of 1975 was filed which was compromised on 24‑4‑1976, whereby respondent No.2 continued to be the tenant of respondent No.1 and. also agreed to pay the arrears of rent in instalments. After the compromise, respondent No.2 paid rent for some period, but failed to continue paying rent thereafter. Respondent No.1 then filed two Execution Applications Nos.33 of 1977 and 62 of 1979, which, however, failed in view of the compromise, referred to above. Respondent No.1, therefore, filed fresh ejectment application, bearing No.7345 of 1980 on the ground of default by respondent No.2 in payment of rent since 1‑3‑1976. The learned trial Court issued repeated notices to the said respondent and ultimately he was served through publication in daily Morning News dated 24‑4‑1981. The case proceeded ex parte on 3‑5‑1981 and was ultimately decided in favour of respondent No.1 by the 3rd Senior Civil Judge and Controller, Karachi by his order dated 19th November. 1981.

3. Respondent No.1 filed Execution Application No.1 of 1982, in the said Rent Case No.7345 of 1980 and notice was issued to respondent No.2. It was at this stage that the appellant appeared on the scene and filed an application for joining him as party to the proceedings in the said execution application, which was allowed by the learned Rent Controller by his order dated 18th November, 1982. The other application moved by the appellant under Order XI, Rule 13, for setting aside the ex parte order was, however, dismissed by the learned Rent Controller by his order dated 7‑4‑1983. Against the said order the appellant filed first rent appeal in the High Court bearing F.R.A. No.366 of 1983, which was dismissed by a learned Single Judge of this Court by his judgment dated 7‑11‑1985. After dismissal of the said appeal in this Court, the earlier execution application filed by respondent No.1 as No.1 of 1982 proceeded which was renumbered as Execution Application No.3 of 1986. The appellant filed two applications, which have been referred to in the first paragraph of my judgment against which this appeal has been filed.

4. Mr.Attaullah Khan, learned counsel for the appellant submits that h, was not allowed to lead evidence regarding possession and ownership of tat premises in question. MrAsghar Ali, learned counsel for respondent No.2 (the original tenant) submitted that on 27‑2‑1979 his client delivered possession of the premises to the appellant and is no more interested in the case. It, therefore appears that the appellant is in possession of the premises. I called ups: MrAttaullah to produce the documentary evidence in this Court, but he failed e submit any documentary evidence during the hearing of the appeal till last moment at the close of the Court, although his client's son was also present in the Court room, as stated by him. However, in view of the statement made at the bar by MrAsghar Ali, learned counsel for respondent No.2, prima facie, it appears that the appellant is in possession of the premises in question but his possession will be reckoned through respondent No.2 who was the original tenant.

5. As regards the question of title of the property as claimed by the appellant the learned counsel for the appellant as well as respondent No.1 were in agreement that after the dismissal of the F.R.A. No.366 of 1983 in this Court, the appellant had filed Civil Suit No.2861 of 1985 which is pending in the Court of 4th Senior Civil Judge, Karachi (East). Learned counsel was also in agreement that the appellant filed an application under Order 39, Rules 1 and 2, C.P.C. for grant of interim stay during the pendency of the suit, which was argued, but the learned Civil Judge dismissed the said application by his order dated 4‑10‑1986. Admittedly no miscellaneous appeal or revision was filed by the appellant against he said order.

6. MrAttaullah Khan, however, submitted that the premises in question , belonged to his deceased brother Khan Zairian, who was murdered on 13th April, 1973. The appellant being his brother inherited the said premises. Since the deceased Khan Zaman, according to the counsel died issueless, he inherited the said premises, as legal heir.

7. On the other hand, Mr.Syed Muhammad Kazim, learned counsel for respondent No.1 submitted that the property was surveyed and stood mutated in the name of respondent No.1 since 1972. As a civil suit is pending, I do not consider it fair on my part to make any observation as to the alleged title of the appellant in respect of the premises in question. The fact, however, remains that respondent No.2 was tenant of the premises in question in 1973. A compromise was also effected in the execution proceedings between him and respondent No. l and he continued to be the tenant till 27‑2‑1979, when its possession, as stated by he counsel for respondent No.2 was made over to appellant who was inducted into possession of the premises by him. The appellant is bound by the order of ejectment passed in Rent Case No.7345 of 1980, which is now being put into execution as he came into possession of the premises through the original tenant, respondent No.2. The learned Rent Controller being an executing Court was justified in not recording the evidence of ownership as the Rent Controller is a tribunal with specific jurisdiction to decide the dispute between the landlord and tenant. If there is a question of title that was to be settled in civil Court, which in I the instant case is already pending.

8. Before parting with the decision of the above appeal I would, however, Like to record the submission of the learned counsel for the appellant that in the suit he is to examine one witness more and close his side, thereafter the matter will go for evidence of respondent No.1. It is, therefore, submitted by Mr.Attaullah Khan that a direction may be issued to the learned Civil Judge to conclude the hearing of the suit within three months. I think that three months' time is insufficient as the evidence of the appellant/plaintiff in that suit is yet not concluded. However, I direct the learned Civil Judge to dispose of the suit as early as possible.

9. The learned counsel for the appellant wanted a direction from this Court that in case he succeeds in the said civil suit, some direction may be given to the learned Civil Judge for restitution of the possession to the appellant. It hardly requires any direction as the law will take its own course. However, respondent No.1, who is present in Court and his counsel Mr.Syed Muhammad Kazim undertake not to part with possession after the possession is received by respondent No.1 in execution proceedings. He will not part with the same to anyone else during the pendency of the civil suit.

10. With these observations the appeal is dismissed, but in the circumstances of the case there will be no order as to costs. M.Y.H./M‑47/K Appeal dismissed.