2007 PLP 1572 (YLR)

IQBAL HAMEED-UR-REHMAN, J.

Through this constitutional petition, the petitioner has assailed the orders of ejectment passed by the two Courts below dated 29-4-2005 of the learned Senior Civil Judge/Rent Controller, Khanewal and judgment dated 26-6-2006 passed by the learned Additional District Judge, Khanewal.

2. Brief facts succinctly required for the determination of the instant writ petition are that the respondent Mst. Rehana Ikram filed eviction petition before the Rent Controller, Khanewal, stating therein that the petitioner is a tenant in the rented property i.e. shop with Chobara at the rate of Rs.15,000 per month.

3. The property devolved upon the respondent and her brother Tariq Rasheed petitioner and according to their shares, she and her brother Tariq Rasheed became co-owner of the rented property. Thereafter, Tariq Rasheed exchanged his shop and Chobara with her in lieu of agricultural land. The exchange deed was got registered on 19-4-2001 with the office of the Sub-Registrar, Khanewal, thereafter the respondent duly informed the tenant Muhammad Arif. However, Muhammad Arif tenant did not pay rent to Mst. Rehana Ikram respondent, therefore, Muhammad Arif the tenant defaulted in the payment of the rent. Moreover, the respondent also urged her personal need.

4. Muhammad Arif tenant admitted the fact of being tenant in the property but his stand was that he is tenant under Tariq Rasheed who has received advance rent from him for a period till March, 2005 and he is not a defaulter. Further he also denied the relationship of landlord and tenant between himself and the respondent Mst. Rehana Ikram. No notice under section 13-A of the Rent Restriction Ordinance, 1959 regarding change of ownership had been issued to him.

5. The learned trial Court framed the following two issues:-

1. Whether the relationship of landlord and tenant exists between the parties? OPA.

2. Relief. During the pendency of the petition on 29-4-2003 Tariq Rasheed petitioner filed an application for being impleaded as party to the petition. The same was resisted by the respondent and the same was dismissed by the Rent Controller vide his order dated 7-6-2004 on the ground that in the instant petition of ejectment the Rent Controller was to determine whether relationship of landlord and tenant exists between the respondent Mst. Rehana Ikram and Muhammad Arif. The petitioner filed a revision petition against order dated7-6-2004 which stood dismissed as withdrawn vide order dated 7-1-2005.

6. In the meanwhile, Muhammad Arif tenant filed an application for staying the proceedings before the Rent Controller, the application was resisted by the respondent, the same was rejected and Muhammad Arif tenant was directed to produce evidence on 5-4-2005.

7. On 5-4-2005, Muhammad Arif tenant recorded his statement in the following terms:-- "I had got the tenancy in respect of the suit property from Tariq Rasheed, brother of Mst. Rehana Ikram. Petitioner Tariq Rasheed has received the rent from me for the period till 28-3-2005. I have relinquished the tenancy and have handed over the possession of rented property to Tariq Rasheed. I am no more in possession over the suit property in any capacity."

8. The petitioner Tariq Rasheed after the statement of Muhammad Arif on 3-4-2005 again moved an application for being impleaded as a party whose earlier application for being impleaded as party had been rejected vide order dated 7-6-2004 on the ground that since Muhammad Arif the tenant has stated in the Court that he has handed over the possession of the shop rented property to him, therefore, he is necessary party. At this stage Mst. Rehana Ikram respondent made a statement before the Rent Controller that the ejectment petition is pending for the last 3 years. She has produced her evidence but respondent/ tenant Muhammad Arif did not produce any evidence rather he is in collusion with Tariq Rasheed are bent upon on to deprive her from the fruits of the property which is owned by her; in fact Muhammad Arif is uptil now in possession, it just to frustrate the instant ejectment petition and to further prolong the proceedings so she may not get justice for decades and prayed that eviction of the respondent/tenant Muhammad Arif and Tariq Rasheed be ordered. The Rent Controller keeping this background rejected the application of the petitioner for impleading as party and observed that register Haqdaran Zameen shows Mst. Rehana Ikram as owner of 4 Marlas, 5 Sirsahi of the rented property and that the same was obtained under exchange deed available on record as Exh.A2 that respondent Mst. Rehana Ikram had become owner of the rented property on the basis of exchange deed and passed eviction order dated 29-4-2005 in terms that Muhammad Arif/respondent/tenant and Tariq Rasheed whoever is in possession of rented property shall vacate the rented property/shop within 15 days.

9. After passing of the eviction order, the petitioner filed an appeal against the order dated 29-4-2005, the same was dismissed vide judgment dated 26-6-2006 upholding the eviction order dated 29-4-2005. Thereafter the respondent obtained possession of the disputed property on 31-5-2005 on the basis of warrant of possession issued by the Executing Court. Hence the instant writ petition.

10. It is inter alia contended that there was no notice through registered A.D. issued to the tenant regarding the change of ownership, under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 a notice was mandatory in absence whereof no ejectment order could be passed; that there was no possibility of respondent No.4 being defaulter because admitted advance rent uptil 28-3-2005 stood paid to the petitioner landlord, this fact had been admitted by Mst. Rehana Ikram respondent No.3 while compromising with respondent No.4 Muhammad Arif before the Rent Collector; that Rent Restriction Ordinance is a law which regulates the relationship of landlord and tenant but in the instant case the dispute was between co-sharer i.e. two land owners on the one hand and a tenant of the premises on the other hand; that the Rent Controller and the learned Additional District Judge could not order of ejectment against the tenant as well as against the petitioner; that eviction order passed against a co-sharer by the Rent Controller is ultra vires of jurisdiction hence illegal; that a status quo order was passed by a civil Court which was intact uptil 9-9-2005; that the mode and manner adopted by respondents Nos.1 and 2 expose them as assuming a role of a party, which is not warranted under the law; that the exchange deed is nullified to the extent of possession, the question regarding the transfer of possession has not attended too, possession which was never' delivered, that the petitioner was never allowed to be impleaded as party an that the impugned orders dated 29-4-2005 and 26-6-2006 be declared without lawful authority and illegal.

11. On the other hand, it is argued on behalf of the respondent that the instant writ petition is not maintainable as the petitioner had filed appeal before the lower 'appellate Court (Annex: O) and the same was dismissed vide judgment dated 26-6-2006, thereafter the petitioner filed Second Appeal S.A.O. No.24 of 2006 and the same was withdrawn on 30-11-2006 as such the order dated 29-4-2005 and the judgment dated 26-6-2006 has attained finality; that the petitioner after exhausting all the remedies available to him is through the instant writ petition is trying to again agitate factual controversies which are not allowed under section 15(8) of the Urban Rent Restriction Ordinance, 1959 which is reproduced below:- "An order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance, shall not be called in question in any Court of law by a suit or otherwise, except as provided under this Act.'' Hence the instant writ petition deserved to be rejected outrightly in accordance with law with heavy cost; that the petitioner has exhausted all the remedies available under the law and now under grab of frivolous objection has filed the instant writ petition to deprive the respondent of the benefits of inheritance, the petitioner is already enjoying the possession of agricultural land; that the writ cannot be issued in the circumstances; that the possession through Bailiff was taken from Muhammad Arif as per Bailiff's report and that no illegality or irregularity had been committed by the Courts below. In this regard reliance is placed upon Pervaiz Alam v. Pakistan Dairy Products (Pvt.) Limited Karachi and 2 others (2005 SCMR 1840), Aga Muzamil Khan through General Attorney and 8 others v. Consolidation Officer, Lahore and 62 others (PLD 2005 Lahore 422) and Muhammad Hussain v. Cholistan Development Authority, Bahawalpur and others (2005 YLR 1126).

12. Arguments heard. Record perused.

13. On 5-4-2005, Muhammad Arif tenant got recorded his statement as under: "I had got the tenancy in respect of the suit property from Tariq Rasheed, brother of Rehana Ikram (petitioner). Tariq Rasheed has received the rent from me for the period till 28-3-2005. I have relinquished the tenancy and have handed over the possession of rented property to Tariq Rasheed. I am no more in possession over the suit property in any capacity." After the said statement, Tariq Rasheed petitioner moved another application for impleading him in the ejectment petition but the same was dismissed vide impugned order dated 29-4-2005.

14. All this makes it clear that the ejectment petition was moved by respondent No.3 against Muhammad Arif tenant and a question of relationship between tenant and landlord was to be determined. Tariq Rasheed petitioner stood nowhere to be impleaded as party as he was neither landlord nor tenant of the disputed property. Therefore, the learned lower Court rightly dismissed his petition under Order I, rule 10, C.P.C. vide order dated 7-6-2004. The order passed by the Rent Controller dated 7-6-2004 was upheld by the first appellate Court vide order dated 7-1-2005 and the petitioner Tariq Rasheed did not assail the order of the first appellate Court which has attained finality. The second application moved by the petitioner dated 5-4-2005 was thereafter dismissed in accordance with law and facts by the learned Rent Controller. Thereafter the learned Rent Controller passed the eviction order dated 29-4-2005. The petitioner filed an appeal against the said order before the learned Additional District Judge, who dismissed the same vide judgment dated 26-6-2006. Then the petitioner filed S.A.O. No.24 of 2006 and the same was withdrawn on 30-11-2006. Thereafter exhausting already the remedies available under the law, the petitioner had filed the instant writ petition when the order dated 29-4-2005 and the judgment dated 26-6-2006 have attained finality and cannot be agitated or called in question in view of section 15(8) of the said ordinance, which is reproduced below:-- "An order passed by the Controller, the appellate Authority or the High Court under the provisions of this Ordinance, shall not be called in question in any Court of law by a suit or otherwise, except as provided under this Act."

15. Moreover, the contentions raised by the petitioner involved factual controversies which cannot be interfered in the constitutional jurisdiction of this Court. Reliance in this behalf is placed upon Muhammad Husain v. Cholistan Development Authority, Bahawalpur and others (2005 YLR 1126), wherein it has been held that "High Court, while exercising constitutional jurisdiction could not to embark upon a factual inquiry as to A the competing contentions of the parties. Resolution of such factual disputes would take place through ordinary legal process", Pervaiz Alam v. Pakistan Diary Products (Pvt.) Limited, Karachi and 2 others (2005 SCMR 1840), wherein it has also been held that "Factual controversy between parties

Constitutional jurisdiction of High Court

Scope

High Court would normally abstain to exercise such jurisdiction and remain slow in interfering in such factual controversy and would exercise same reluctantly only in exceptional cases" and Agha Muzamil Khan through General Attorney and 8 others v. Consolidation Officer, Lahore and 62 others (PLD 2005 Lahore 422), wherein it has also been held that "Factual controversies and disputed questions of facts which could not be decided without recording of evidence, having been raised by the petitioner, High Court under Art, 199 of the Constitution, could neither enter into such factual controversies nor disputed questions of facts". Moreover, it appears that the intention of the petitioner is to deprive and frustrate the respondent his real sister of the fruits of the inheritance of the disputed property.

16. In view of the above circumstances, interference is not required in exercise of extra-constitutional jurisdiction of this Court, hence this writ petition is dismissed. H.B.T./T-5/L??????????????????????????????????????????????????????????????????????????? Petition dismissed.