1999 PLP 1173 (CLC)

JUDGMENT . The appellant is aggrieved by the orders, dated 22‑7‑1998 passed by the learned IV Senior Civil Judge/Rent Controller, Karachi South whereby applications under section 12(2) were dismissed in Rent Case No.41 of 1996 (Execution Application No.5 of 1998) and Rent Case No.42 of 1996 (Execution Application No.6 of 1998). Except differences between the flit Nos. though situated on the same plot rate of rent all facts are common in both these matters, therefore, I propose to dispose of these two appeals by this common order. The brief background of the matter is as follows:‑‑

2. The respondent No. l./applicant landlord filed ejectment application against respondent No.2 on the ground of default in payment of rent. The respondent No.2 was served and filed his written statement wherein he denied the alleged default and also took up legal objection that there was no relationship of landlord and tenant between the parties. The learned Rent Controller settled the following points for determination:‑‑ (1) Whether there exists relationship of landlord and tenant between the parties. (2) Whether opponent has wilfully defaulted in payment of rent from July, 1995 uptil now. (3) What should the order be? Points Nos. l and 2 were answered in affirmative and the respondent No. 2 was directed on 5‑12‑1997 to hand over vacant possession of Flats Nos.2 and 1‑A, first floor of building situate on Plot No.5/8, Ali Akber Street Methadar Karachi (hereinafter referred to as the demised premises) within 60 days. The respondent No. l filed execution applications but the respondent No.2 preferred First Rent Appeals Nos.305 of 1998 and 306 of 1998, which were dismissed on 16‑6‑1998. This was followed by submission of review applications seeking time to vacate the premises but those were also dismissed on 30‑6‑1998. Thereafter, in Execution proceedings the appellant filed applications as intervener under section 12(2), C.P.C. but the same were dismissed by the impugned orders.

3. Preadmission notices were issued to the respondents. I have heard learned counsel for the parties at length and perused the record.

4. Learned counsel for the appellant mainly contended that keeping in view the provisions contained in section 2(J) of the Sindh Rented Premises Ordinance, 1979 the learned Rent Controller has misappreciated the law and came to the following conclusion which according to him is erroneous. "In the present case same is the situation. The father of the Intervener is admittedly tenant of the D.H., therefore, the Intervener is also deemed to be tenant of the premises because in case of the death of father of the Intervener he and his other brothers, sisters, mother would become tenant and the tenancy would devolve upon them. Thus, the case‑law is very much applicable to the facts of the case in hand." He further submitted that already the title of the property in dispute is subject matter of litigation between the appellant and respondent No. 1 in Suits Nos. 307 of 1997 and 283 of 1997 which are still pending in this Court. Learned counsel for the respondent No. l submitted that beside being misconceived and afterthought the question of title is wholly irrelevant in rent proceedings. Furthermore, the appellant and the respondent No.2 are son and father and they live in the same house. Therefore, the appellant had full knowledge of the pendency and conclusion of the rent proceedings, thus, if at all he was interested A in the outcome of those proceedings he could have approached the learned Rent Controller by making an application for joining him as one of the opponents but nothing at all was done and now after having lost the First Rent Appeals Nos. 305 of 1998 and 306 of 1998 in order to frustrate the execution proceedings the intervenor was set up to file applications for setting aside the ejectment order on the ground of fraud and misrepresentation.

5. The crucial question which require consideration is whether the respondent No. l obtained the ejectment orders by misrepresentation and fraud as alleged by the appellant who was not a party in the rent proceedings which were contested by his father. Misrepresentation has been defined by Black's Law Dictionary VIth Vol. 1990 Edn. at page 1001, "Any manifestation by E, words or other conduct by one person to another that, under the circumstances amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead".

6. So far definition of fraud is concerned, generally "Courts refrain from defining fraud, " it was once said, "lest they be confronted by their own definition and it be found too broad or too narrow to cove: cases that may ~~ subsequently arise". (Eugene A. Jones, Manual of Equity Pleading and Practice, 43‑44 (1916) cited at page 374 in a Dictionary of Modern Legal Usage Second Edn. by Bryan A. Garner wherein it is further observed as follows:‑‑ "Fraud, in other words, is a Chameleon. Hued Word. It may mean: (1) a tort consisting in a knowing misrepresentation made with the 'intention that the person receiving that misrepresentation should act on it; (2) the misrepresentation resulting in that tort; (3) a tort consisting in a representation made recklessly without any belief in its truth, but made with the intention that the person receiving that misrepresentation should act on it, (4) a misrepresentation made recklessly without any belief in its truth; (5) unconscionable dealing short of actionable deceit at common law; (6) in the context of conspiracy to defraud, a surreptitious taking of property without deception; or (7) in the law of contract, an unconscious use of the power arising out of the relative positions of the parties and resulting in an unconscionable bargain. Because, fraud occupies shifting ground, it is best braced with a modifier. (b) Fraud in fact; fraud in the factum. These terms refer to two very different principles. Fraud in fact is what is also known as actual or positive fraud, that is, a concealment or false representation by means of a statement or conduct that causes injury to another. Scienter (q.v) is usu. required. Fraud in the factum occurs when a legal instrument (a factum' at common law) as actually executed differs from the one intended for execution by the person who executes it or when the instrument may have had no legal existence (as e.g., because the substance of the document was misrepresented to a blind signatory). (c) Fraud in law; legal fraud. These phrases are deceptively similar. Fraud in law is fraud that is presumed under the circumstances, as for example, when a debtor transfers assets and thereby impairs the efforts of creditors to collect sums due. Legal fraud is another term for constructive fraud or unintentional deception that causes injury to another. (To complicate matters, it is occasionally also called fraud in contemplation of law). Because legal fraud is potentially ambiguous, constructive fraud is the better phrase. Constructive fraud; Legal fraud; The former is the more common phrase denoting forms of unintentional deception or misrepresentation that are held to be fraudulent. It is also clearer; legal fraud might suggest to the unwary that the fraud is i.e. presumed or sanctioned by law, rather than that it is considered in law to be fraud." page

209. Keeping in view the above definitions, it can be said that the difference between fraud and misrepresentation is one of intent but both the terms are more or less synonymous. In the instant case as was rightly submitted by the learned counsel for the respondent, the appellant had full knowledge of the ejectment proceedings and the question of title between the appellant and respondent No. l on the basis of the alleged agreement to sell between them is yet to be settled by the Court but the appellant cannot be allowed to protract the proceedings by E seeking aid of provisions contained in section 12(2), C.P.C. on baseless allegations of fraud or misrepresentation. There is nothing on record to show, that the elements of misrepresentation or fraud are attracted to the facts and circumstances of this case. No wilful act appears to have been committed by the respondent No. l to deprive the appellant by any unjustifiable means of what he is entitled. The applications under section 12(2), C.P.C. were filed to abuse the process of Court. Therefore, the learned Rent Controller has rightly dismissed F them and the impugned order require no interference. Accordingly. these two appeals having no merits are dismissed in limine with costs. Q.M.H./M.A.K./M‑397/K Appeals dismissed.