2022 PLP 970 (CLC)

NADEEM AKHTAR, J.

This Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by Mohsin Ghayur Haider against order dated 07.09.2018 passed by learned Executing Court viz. IInd Senior Civil Judge and Rent Controller Karachi Central in Execution Application No.20/2017 filed by respondent No.3 against one Muhammad Iqbal Haider (who has not been joined as a party in the present petition), whereby writ of possession was ordered to be issued with direction to the judgment debtor to hand over vacant and peaceful possession of demised premises viz. Bungalow No.C-333, Block 6, F.B. Area, Karachi, consisting of ground and first floors ('the demised premises'), to the decree holder. The impugned order was passed in the above execution proceedings on a statement filed by the present petitioner who was not a party in the said execution proceedings and whose application under Order I, Rule 10, C.P.C. had already been dismissed by the learned executing Court by an earlier order dated 31.10.2017.

2. Since this case has a checkered history and it has gone up to the Hon'ble Supreme Court on four occasions, it would be advantageous to give a brief background of the relevant facts. Respondent No.3 Mst. Aijaz Fatima filed Rent Case No.139/2008 against her tenant Muhammad Iqbal Haider for his eviction from the demised premises, wherein a tentative rent order was passed on 17.07.2008 under Section 16(1) of the Sindh Rented Premises Ordinance, 1979. Since the said tentative rent order was not complied with by the above named tenant, his defence was struck off vide order dated 03.12.2009 and he was directed to hand over vacant and peaceful possession of the demised premises to the landlady / applicant (present respondent No.3) within a period of 45 days. The above order was challenged by the tenant before the appellate Court, this Court and then finally before the Hon'ble Supreme Court, but the same was upheld at all levels including the Hon'ble Supreme Court. Thereafter. a review petition was filed by the tenant before the Hon'ble Supreme Court which was withdrawn by him.

3. Respondent No.3 / landlady / decree holder filed Execution Application No.20/2017 for execution of the order of eviction passed by the rent controller. It is a matter of record that four separate applications were filed in the said execution application by different persons, including the present petitioner who is the brother of the tenant / judgment debtor, in order to resist and frustrate the order of eviction. However, vide separate orders dated 31.10.2017, the learned executing Court dismissed all such applications, ordered issuance of writ of possession and allowed the execution application. First Rent Appeals Nos.256 to 260 and 307 of 2017 were filed against the above orders which were dismissed by the learned appellate Court, whereafter the Constitutional Petition and Civil Petition for Leave to Appeal were also dismissed by this Court and the Hon'ble Supreme Court, respectively. It is pertinent to mention here that two separate applications under Section 12(2), C.P.C. were filed before the Hon'ble Supreme Court, one by the tenant / judgment debtor and the other by the present petitioner, but both the said applications were dismissed.

4. It is an admitted position that the tenant / judgment debtor Muhammad Iqbal Haider has not been joined in the instant petition which arises out of proceedings wherein he was a party ; the present petitioner, who is the real brother of the above named tenant / judgment debtor, was not a party in the rent and execution proceedings ; and, all applications filed by the present petitioner to delay the execution proceedings and to frustrate the eviction order, were dismissed, and he miserably failed in all such attempts. In the present petition, the petitioner has categorically admitted the following a. (Paragraph 1) - That he filed an application under Order I, Rule 10, C.P.C. in the execution proceedings which was dismissed by the learned executing Court, and F.R.A. No.307/2017 filed by him against the said order was also dismissed by the learned appellate Court. b. (Paragraph 2) - That during the pendency of his F.R.A. No.307/2017 he filed C.M.A. No.14616/2017 , in his mother's Suits Nos. 913/2003 and 511/2005 pending at the original side of this Court for restraining the executing Court from dispossessing him, wherein a clarification was made by this Court vide order dated 07.02.2018. It is stated that his said application is still pending in the above Suits. c. (Paragraph 4) - That he had filed CMA No.164/2018 under Section 12(2), C.P.C. before the Hon'ble Supreme Court which was dismissed vide order dated 04.04.2018 with the observation that if he claims any ownership rights to the demised premises through some agreement to sell and some litigation is pending in this regard before the court of competent jurisdiction, those case(s) shall be decided on their own merits. Copies of the above application and order dated 04 04.2018 have also been filed along with this petition. d. (Paragraph 6) - That vide judgment delivered on 06.09.2018 in HRC No.29000-S/2018 in C.P. No.253/2018, it was observed by the Hon'ble Supreme Court that writ of possession of the demised premises which has been maintained up to the Hon'ble Supreme Court should be implemented by the executing Court without any delay.

5. In view of the above admitted position, it is clear that the petitioner's alleged claim, right or interest in respect of the demised premises has admittedly not been recognized or accepted by the Hon'ble Supreme Court as his application under Section 12(2), C.P.C. wee dismissed. On the contrary, it was observed by the Hon'ble Supreme Court that if he claims any ownership rights to the demised premises through some agreement to sell and some litigation is pending in this regard before the court of competent jurisdiction, those case(s) shall be decided on their own merits. Therefore, the petitioner, being an outsider and alien to the execution proceedings, had no locus standi either to file the statement on which the impugned order has been passed or to file the present petition. The application filed by him in his mother's Suits is still pending according to his own statement. In these circumstances, the instant petition is nothing else but a clear and blatant abuse of process of this Court and yet another mala fide attempt by the petitioner to frustrate the eviction order by further prolonging the execution proceedings. Thus the petition, being mala fide, ill-advised and not maintainable either in law or on facts, is liable to be dismissed with costs. Foregoing are the reasons of the short order announced on 13.09.2018 whereby this petition was dismissed along with listed applications with cost of Rs.25,000.00 (Rupees twenty five thousand only). Petitioner is directed to deposit the above amount of cost with the Nazir of this Court within fifteen (15), days, which amount shall be deposited forthwith by the Nazir in the account of the Hon'ble Supreme Court for construction of dams. SA/M-152/Sindh Petition dismissed.