P L D 2021 Peshawar 98 (PLP)

MUHAMMAD NAEEM ANWAR, J.

Through the instant civil revision petition, the petitioner has challenged the judgment and order dated 26.09.2020 of the learned Additional District Judge-XII, Peshawar, whereby, his appeal was dismissed.

2. In earlier round of litigation, respondent No.2 has filed an application for the ejectment against petitioner and his brothers (Shoaib Khan, Ishaq, Usman Khan and Ishtiaq) from shop No.2, situated in Hussainia Market, Chowk Nasir Khan, Peshawar, rented out by his mother, Mst. Zakiya Bibi, to the father of petitioner namely Rahim Said on the ground of personal need and default in payment of rent. The application was filed on 23.01.2012, which was allowed on 06.09.2017, by the Rent Controller. The appeal filed by the tenants was allowed and ejectment application was dismissed. Order of appellate court was challenged by respondent No.2, through a Writ Petition No.1902-P/ 2018, which was allowed and tenants were directed to vacate the rented premises within one month from 16.09.2019. Present petitioner along with two others filed C.P.L.A. No.3830 of 2019, before the Hon'ble Supreme Court of Pakistan, where, with partial modification to the extent of default, the C.P.L.A. was converted into appeal and allowed, however, the findings to the extent of personal need were kept intact and tenants were directed to vacate the premises and to hand over the possession to the respondent No.2, vide order dated 21.11.2019. The execution petition No.55/RC was pending before the learned executing court, in which the petitioner namely Muhammad Ismail has filed an objection petition, which was dismissed by the executing court on 05.12.2019. The order of dismissal of objection petition was challenged in Rent Appeal No.01/RCA of 2020, before the learned District Judge, which was dismissed on 26.09.2020. In the meanwhile, the petitioner has filed a civil suit for specific performance of contract dated 04.10.2018, on the plea that respondent No.1 namely Syed Zulfiqar Hussain Shah has sold his share in the disputed shop to him and now his possession is that of the vendee, thus, he (the petitioner) is entitled for the decree of specific performance and respondent No.1 namely Syed Zulfiqar Hussain Shah is legally bound to transfer his share through attestation of mutation. In his suit, petitioner has also sought recovery of possession through partition against respondent No.1 and others. Suit was instituted on 15.04.2019 and respondent No.1 appeared before the learned civil court and recorded his statement in favour of petitioner on 30.04.2019. Respondent No.2 contested the suit and filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint. Learned trial court vide its judgment and order dated 04.12.2019 has accepted the application and dismissed the suit. The order of dismissal of suit was assailed through Civil Appeal No.408-P.2019 before this Court, the appeal was sent to the learned District Judge for decision, by this Court on the basis of amendment in C.P.C., Civil Appeal No.28/13 of 2020 was decided by the learned Additional District Judged-XII, Peshawar on 26.09.2020, hence this petition.

3. During pendency of this petition, respondent No.2 through Civil Miscellaneous (C.M. No.937-P/2020), prayed that the documents annexed with this C.M. be placed on file being necessary for just decision of this petition. Record reveals that all these documents are not only the record of earlier litigation between petitioner and respondent No.2, but also necessary documents having direct nexus with this petition, thus this C.M. is allowed, the documents annexed with application shall be read as part and parcel of this petition.

4. Arguments heard and record perused.

5. Scrutinizing of record visualized that in present scenario the petitioner's suit is based upon a deed dated 04.10.2018 by which it was alleged that respondent No.1 has sold his share from the disputed shop, to the extent of one marla, to the petitioner in lieu of Rs. 30,000,00/- (thirty lac) out of which, he (respondent No.1) has already received Rs. 10,000,00/- and twenty lacs are still remaining. Petitioner alleged that he has paid the remaining amount to vendor on 15.03.2019 in presence of witness but the ownership was not transferred to him, thus he claimed decree for specific performance of deed dated 04.10.2018 and possession through partition, through this suit. The application filed by respondent No.2 under Order VII, Rule 11, C.P.C. that he is the owner through tamleek nama dated 20.06.2011 and petitioner was the tenant, against whom a decree for ejection has been passed and the order of ejectment was maintained by the apex Court on 21.11.2019, therefore, the petitioner and respondent No.1 with their collusion fraudulently prepared the factitious deed and in such a way, the petitioner has got no cause of action to file the suit, which is incompetent, barred by law, suffers for misjoinder of parties and non-affixation of requisite court fee, thus liable to rejection.

6. Undoubtedly, incompetent, frivolous and time barred suits are liable to be buried from its inception and even in such circumstances it is the duty of court, without there being an application to invoke the provisions of Order VII, Rule 11, of C.P.C. so, that the other may not be dragged in such litigation and to save the precious time of the court too. In this respect reliance may be placed on case titled "Raja Ali Shah v. Messrs Essem Hotel Limited and others" (2007 SCMR 741), wherein it has been held that: - "It is pertinent to mention here that in view of the Order VII, rule 11, C.P.C. it is the duty of the Court to reject the plaint if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts' attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that the Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under rule 11 of Order VII, C.P.C".

7. But it is an equal significant aspect of the case that in earlier round of litigation, neither there was title dispute nor the Rent Controller could decide it, when the Rent Controller reached to the conclusion that respondent No.2 requires the rented premises for his personal need, ejectment was ordered, which remained intact from the Hon'ble Supreme Court wherein it was held: - "That the learned Rent Controller found in favour of the respondent No.1 with regard to his personal need but had proceeded to make certain unnecessary and extraneous remarks which did not have a bearing on merits of the case and these remarks were seized upon by the learned Additional District Judge to set aside the order of the learned Rent Controller. However, the learned Judge of the High Court rightly realized that nothing turned on the said remarks when the personal need of the respondent had been established. We therefore uphold the finding of the learned Judge of the High Court with regard to the personal need".

8. In this matter petitioner seeks specific performance and recovery of possession through partition. He alleges his ownership on the basis of deed dated 04.10.2018, to the extent of one marla share from respondent No.1, and seeks its possession through partition, now in such circumstances, notwithstanding the cognovit of respondent No.1, it would be determined by the court as to whether respondent No.2 is the sole owner on the basis of tamleek nama and whether, respondent No.1 has got any right in the shop, if so, whether he has transferred the same to petitioner, these are the questions, which were neither answered in earlier round of litigation nor by any other court of competent jurisdiction. In case, it is proved through evidence that both petitioner and respondent No.1 with their collusion tried to deprive respondent No.2 from the fruit of decree, then provisions of sections 35 and 35-A, would be applied against them, and for this frivolous litigation respondent No.2 would be compensated, but in no case, while considering the plea of respondent No.2, that petitioner has got no cause of action, his suit could be dismissed. There is no cavil with the proposition that accrual of cause of action is something different from disclosure of cause of action, as non-accrual would result into dismissal of suit, but after recording of evidence and non-disclosure of cause of action would result into rejection of plaint. Similarly, the fate of both the deeds i.e. tamleek nama and iqrar nama would also be decided after complete inquiry. In the same way the incompetency of suit would also be answered, of course, after complete probe through pro and contra evidence. Reference can be made to case titled "Shaheen Nasir Khan v. Mst. Asmat Ara and 6 others" (PLD 2002 Karachi 408), wherein it was observed: - "Plaintiffs having no cause of action is something different from the plaint disclosing no cause of action. Whether the plaintiff has a cause of action or not can only be determined on the basis of evidence. It could be rejected under Order VII, Rule 11, C.P.C. only in case it did not disclose a cause of action".

9. Furthermore, rejection of plaint also provides an alternate under Order VII Rule 13 but dismissal of suit would operate as res judicata in the same matter, between the same parties, if cause of action remains one and the same. The court below by invoking Order VII, Rule 11 dismissed the suit, which was not permissible under the law.

10. Turning to the other most significant aspect of the case by considering as to whether the filing of this suit, which is at preliminary stage and petitioner / plaintiff has yet to prove his case and cause as alleged by him, would entitle him for stay of execution proceeding as pending against him, in which after complete trial decree for ejectment has been passed against him, suffice it to say that petitioner would surrender the possession to respondent No.2 / decree holder either himself or through execution pending against him, by the order of the court. It is the obligation of petitioner and duty of the court (executing court) to hand over the vacant possession of the disputed premises (decreed property in rent petition) and after passing of decree, it has become an absolute right of decree holder / respondent No.2, so the decree shall be executed and possession must be transferred to respondent No.2, without fail and without any delay. Mere institution of suit is not sufficient to withhold the execution proceeding. In case titled "Tahir Hussain and others v. Ilyas Ahmad and others (2014 SCMR 1210), it was held that: - "Such objection petition was dismissed and the said orders were maintained up to the High Court. The issue before the Executing Court was to eject respondents Nos.30 and 31 or any other person claiming through them and or otherwise in possession on the strength of any transaction. No one has challenged the order of ejectment passed by the Rent Controller and the Executing Court, in law, was bound to give effect to it and cannot entertain objection Petitions subsequently on the issues already decided by the Rent Controller nor could it entertain any claim of respondents to enlarge the scope of Rent proceedings.

11. We have noticed that the respondents time and again attempted to defeat the ejectment order by making various objection petitions before the Executing Court and dragged the proceedings. An Executing Court has limited jurisdiction. It cannot entertain any objection Petition on the issues already decided by it nor could it consider objection Petition on the basis of issues pending in collateral proceedings before any other forum. Likewise, ejectment order cannot be interfered with by any Civil Court in collateral proceedings". In case titled "Syed Imran Ahmed v. Bilal and another" (PLD 2009 Supreme Court 546) it was held that: - "It is a principle too well established by now that a sale agreement did not itself create any interest or even a charge on the property in dispute; that un-like the law in England, the law in Pakistan did not recognize any distinction between the legal and equitable estates; that a sale agreement did not confer any title on the person in whose favour such an agreement was executed and in fact it only granted him the right to sue for such a title and further that such an agreement did not affect the rights of any third party involved in the matter. It may be added that till such time that a person suing for ownership of a property obtains a decree for specific performance in his favour, such a person cannot be heard to deny the title of the landlord or to deprive the landlord of any benefits accruing to him or arising out of the property which is the subject-matter of the litigation. Postponing the ejectment proceedings to await the final outcome of a suit for specific performance would be causing serious prejudice to a landlord and such a practice, if approved by this Court, would only give a license to unscrupulous tenants to defeat the interests of the landlords who may be filing suits for specific performance only to delay the inevitable and to throw spanners in the wheels of law and justice".

11. It would be appropriate to mention that the controversy regarding the denial of ownership of landlord on the basis of sale by tenant has been laid to rest by the apex Court in case titled "Barkat Masih v. Manzoor Ahmad (deceased) through legal heirs" (2006 SCMR 1068) by observing that: - "Even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in-question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences".

12. Thus, for the reasons discussed above, this civil revision petition is allowed, the suit filed by the petitioner would be deemed pending before civil court in which the proceedings would be resumed, however, the pendency of this suit would not affect the execution proceeding pending against the petitioner, rather the petitioner shall hand over the vacant possession of the disputed shop forthwith to the decree holder/ landlord/respondent No.2 and the civil suit filed by the petitioner would be decided after recording of pro and contra evidence as per law. SA/50/P Revision allowe