1984 PLP 1458 (CLC)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑S. 13‑Civil Procedure Code (V of 1908), O. XXI, ff. 99, 100 & 101‑Ejectment on ground that "tenant had sublet premises " Execution of order of eviction‑Objection petition alleging that peti tioner was in occupation of disputed premises in his own right and could, therefore, not be evicted from disputed property in execution of order passed against other person ‑ Mala fide‑Executing Court, held, could non‑suit petitioner, without investigating his claim that he was in occupation of disputed property in his own right, if court was otherwise satisfied that petitioner's claim was mala fide Scope of O. XXI, rr. 99, 100 & 101, C. P. C. briefly outlined. Mst. Khurshid Begum etc. v. Mst. Ghulam Kubra etc. 1982 S C M R 90 fol. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ The facts giving rise to this civil revision are that the respondent, Mst. Naeema Khanum, filed an application, under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, for eviction of one Nawabzada A. K. Mumtaz from flat No. 30/1, Mall Mansion, The Mall, Lahore. The said property was transferred to the respondent under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Nawabzada A. K. Mumtaz resisted the application inter alia on the ground that the relationship of land lady and the tenant did not exist between the parties. His plea was, how ever, repelled by a Rent Controller holding that there was statutory tenancy between the parties. Thereafter, the learned Rent Controller directed him under subsection (6) of section 13 of the said Ordinance, to deposit the arrears of rent and future rent. Nawabzada A, K. Mumtaz did not do. so, with the result that his defence was struck off and he was directed to vacate the premises in question. The respondent took out proceedings before a civil Court for execution of the order of eviction. Thereupon, the petitioner Ch. Ghulam Mujtaba, filed an objection petition alleging that he was in occupation of the disputed premises in his own right and could, therefore, not be evicted there from in execution of the order passed against Nawab zada A. K. Mumtaz. The objection. petition was dismissed inter alia on the ground that it was mala fide. The petitioner filed an appeal before an Additional District Judge but without success. Hence this civil revision.

2. It was contended by learned counsel for the petitioners that the learn ed executing Court had dismissed the objection petition without holding an inquiry into the question whether the petitioner was in occupation of the premises on his own account and, therefore, the order of the said Court was not sustainable. 1n reply, it was submitted by learned counsel for the respondent that it was apparent from the record that the objection petition was mala fide and, therefore, it could be thrown away for that reason alone. In this connection reliance was placed by him on Mst. Khurshid Begum etc. v. Mst. Ghulam Kubra etc. (1982 S C M R 90).

3. In the cited case, an ejectment order was passed against ‑ one Syed Saqlain Abid, who was the sole respondent in the ‑ ejectment proceedings. He contested the proceedings for years and in different forums right upto the Supreme Court, but failed. When application was made for execution of the order of ejectment passed against him, he alongwith the other members of his family made an objection petition contending that their pre. decease‑in‑interest, namely, Ashraf Ali Shah, was the original tenant of the property and on his death all of them had jointly inherited the tenancy and, therefore, ejectment order against Syed Saqlain Abid only could not lead to their eviction from the premises. It was held by the Supreme Court that the claim made in the objection petition was mala fide and deserved to be rejected forthwith. Accordingly, it was directed by the Honourable Supreme Court that the objection petition shall stand dismissed. The reasons given by that august Court for dismissal of the objection peti tion find mention in paragraphs 13 and 14 of its judgment. They reads as follows:‑

13. Syed Saqlain Abid was the sole respondent in the ejectment pro ceeding before the Rent Controller. He had contested the proceedings for years and in different forums, right up to this Court. On no principles could he be permitted to join the other objectors or to make a common cause with them so as to raise questions which he could have raised before the Rent Controller and having not raised he was precluded for all time, particularly before the executing Court, from reagitating them. If the executing Court is allowed to dispose of his objection in terms of the issues framed but if the entire jurisdic tion of the Rent Controller would be subverted and a proceeding in the nature of review or rehearing would be undertaken not by the Tribunal having exclusive jurisdiction in the matter but by a civil Court while seized of the execution of the order. So far as Syed Saqlain Abid's claim was concerned, it could not at all be entertained.

14. Syed Saqlain Abid is an adult male member of the same family which has come forward at the stage of execution of the ejectment order, as objectors. All of them, lived in the same house, under one roof. The litigation had been going on for years. Syed Saqlain Abid had no conflicting interest with others, so much so that they had all joined in the objection petition and made a common cause with him. They have raised grounds which fell within the exclusive jurisdiction of the Rent Controller, viz., the existence or absence of the relationship of landlord and tenant. This objection petition was in substance an objection petition filed by the judgment‑debtor and on his behalf by others. Such a claim was incompetent under Order XXI, rule 98, C. P. C. and being mala fide should have been rejected forthwith."

4. In the case of Mst. Khurshid Begum etc. issues were drawn up by the learned executing Court to examine the question of fact raised by the objectors, but it appears that they were non‑suited on the ground of mala fide alone, before recording any evidence ora the said issues or giving any finding thereon. 1n the instant case too, the learned executing Court had framed issues, including issue involving petitioner's averment that he was in occupation of the disputed premises in his own right, but the objection petition was dismissed after receiving the evidence or the petitioner and without recording the evidence of the respondent. The principle which can easily be deduced from the case of Mst. Khurshid Begum etc. is that if an objection petition is mala fide it can be dismissed on that short ground without holding an inquiry into the question whether the object occupying the premises on his own account and not on account of the judgment‑debtor. Rule 99 of Order XXI of the Code of Civil Proce dure, where under objections were filed by the petitioner, also affords protection to a person claiming in good faith to be in possession of the property involved in the decree under execution. The petitioner had invoked the provisions of rule 100/101 of Order XXI as well. According to rule 100/101, where any person other than the judgment‑debtor is disposses sed from any immovable property in execution of a decree for the possession of such property, he can make an application to the Court complaining of such dispossession. Rule 101 of Order XXI provides that where the Court is satisfied that the applicant was in possession of the property on his own account, it shall direct that he be put into possession of the property. According to marginal heading of rule 101, the said rule is for the benefit of a bona fide claimant. I, therefore, hold that the petitioner could be no suited by the learned executing Court, without investigating his claim that h was in occupation of the disputed property in his own right, if it was other wise satisfied that his claim was mala fide.

5. Now T proceed to examine if there is enough material on the record justifying the finding of mala fide on the part of the petitioner. The eject ment application was filed on 24th June, 1964. One of the grounds on which ejectment of Nawabzada A. K. Mumtaz was sought was that he had sublet the disputed premises to five persons including the petitioner. The petitioner is an Advocate. The sole respondent in the eject ment application, namely, Nawabzada A. K. Mumtaz submitted his reply through the petitioner as his counsel. As indicated above, it was denied by Nawabzada A. K. Mumtaz that there was relationship of landlady and tenant between the parties. In regard to the plea of subletting, the reply of Nawabzada A: K. Mumtaz was that he had never sublet the flat in dispute and that the petitioner and Raja Sher Muhammad Khan, Advocate, were jointly in possession of the flat since before 1958 alongwith him. Thus, according to Nawabzada A. K., Mumtaz, the tenancy, if any, was a joint tenancy between the respondent and the said two gentlemen, When issue was framed by, the learned Rent Controller with a view to determining if the relationship of landlady and tenant existed between the parties, no evidence was produced to the effect that the tenancy in question was joint tenancy in favour of Nawabzada A. K. Mumtaz, the petitioner and Raja Sher Muhammad Khan. Nawabzada A. K. Mumtaz was the only witness who appeared in defence and did not utter a word in support of the averment of joint tenancy. He was assisted by the petitioner, as his counsel, at that time. It was held by the learned Rent Controller that Nawabzada A. K. Mumtaz was occupying the disputed pre mises as a tenant of the respondent. His order was challenged by A. K. Mumtaz right upto the Supreme Court, but in vain. Learned counsel for the petitioner as well as the petitioner, who was personally present before me at the time of arguments, could not point out anything from the grounds of appeal filed before the appellate forums or from the petition submitted before the Supreme Court showing that Nawabzada A. K. Mumtaz had assailed the finding of the learned Rent Controller regarding the existence of single tenant tenancy contending that it was, in fact, a joint tenancy. It is interesting to note that, now when the petitioner came up before this Court in revision he took up a position which is opposed to that of joint tenancy. According to the plea of joint tenancy, Nawabzada A. K. Mumtaz, the petitioner and Raja Sher Muhammad Khan were in joint possession of each and every inch of the premises in question. In the revision petition before me, however, the petitioner has stated in paragraph 7 (c) that he is in possession of half of the disputed flat in his own right. I will also like to point out that when I started hearing arguments on his civil revision today, it was first stated by the petitioner that there were five rooms in the flat and that he was in possession of one of those rooms. A little later, he said that he had three rooms while two rooms were with Nawabzada A. K. Mumtaz. Shortly thereafter, he came up with another plea, namely, that he and Nawabzada A. K. Mumtaz were in joint possession of all the five rooms. All this, obviously, lends strong support to the respon dent's contention that the petitioner's objections to the order of ejectment were mala fide.

6. As indicated above, the petitioner got associated with the ejectment proceedings at the very outset: In the ejectment petition, it was alleged that Nawabzada A. K. Mumtaz was a tenant of the premises in dispute and the petitioner was his sub‑tenant. In reply to the ejectment application, which was filed by Nawabzada A. K. Mumtaz, through the petitioner as his counsel it was denied that the petitioner was in possession of the said premises. What he had urged was that if there was any tenancy, the petitioner's possession qua that tenancy was not that of a sub‑tenant but that of a joint tenant the other tenants being Nawabzada A. K. Mumtaz and Raja Sher Muhammad Khan. Be that as it may, the pleadings in the ejectment proceedings gave a clear indication to the effect that the petitioner was faced with a threat of dispossession from the premises in question but he did not make any effort to safeguard his possession by making an application for being impleaded as a party to the ejectment proceedings or seeking any other remedy open to him under law. He came up with the objection petition after about ten years of the filing of the ejectment application. The ejectment application was submitted on 24th June, 1964, but the objection petition was made on 24th April, 1974. He was not only in the know of the ejectment proceedings culminating in the ejectment order but was also closely associated with those procee dings as counsel of the tenant, namely, Nawabzada A. K. Mumtaz. It was pointed out by learned counsel for the respondent that this case w net upto the Supreme Court on three different occasions and that on some occasion the petitioner (in the capacity of counsel of Nawabzada A. K. Mumtaz or his legal representatives) opposed the respondent not only before the appellate forums but also before the Supreme Court. This was no denied by the learned counsel for the petitioner. No plausible explanation is forthcoming for the petitioner's failure to jump into the above litigation as a party or start fresh litigation to safeguard his so‑called right for more than a decade. This, to my mind, detracts from the bona fides of the claim made by him in his objection petition.

7. It is also noteworthy that if the learned executing Court had pro ceeded to examine the petitioner's claim, it would have undertaken the same exercise which was done by the learned Rent Controller while deciding the issue whether the relationship of landlady and tenant existed between the respondent and Nawabzada A. K. Mumtaz. It was due to one such con sideration that the Supreme Court had dismissed the objection petition in the case of Mst. Khurshid Begum etc. The belated action of the family mem bers of Syed Saqlain Abid in the cited case can be equated with that of the petitioner. In the case under report as well as in the case in hand the objectors lived together on one and the same premises. I believe that failure of the petitioner to join the ejectment proceedings or seek any other appropriate remedy available to him under law is more objectionable than that of the members of the family of Syed Saqlain Abid because the peti tioner was, undoubtedly, in the know of the ejectment proceedings and was well conversant with the law for being a legal practioner of lop standing.

8. In view of the above discussion, no legitimate exception can b taken to the concurrent fielding of the two Courts below that the objection raised by the petitioner to the execution of the ejectment order were mal fide. As held above, his objection petition could be dismissed on the ground of mala fide alone without going into the merits of his plea that he was in possession of the disputed premises in his own right. In this view of th matter, the impugned order does not call for any interference by this Court. The civil revision fails. It is, accordingly, dismissed with costs. M. Z. M. Revision petition dismissed.