2001 PLP 683 (SCMR)

MIAN MUHAMMAD AJMAL, J.

This appeal, by leave of the Court, is directed against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 26-11-1995, whereby Writ Petition No.389 of 1994 of Muhammad Bashir, the predecessor-in-interest of Muhammad Munir and 9 others, respondents Nos. 39 to 48 was allowed, concurrent judgments of the Courts below were set aside and his objection petition was allowed. Brief facts of the case are that originally on 18-4-1966, Abdul Karim, the predecessor-in-interest of respondents Nos.3 to 6, Abdul Hakeem (deceased) and respondents Nos.7 to 11 filed ejectment petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of Rent Controller, Jhelum against respondent No. 12, Fazal Haq the predecessor-in-interest of respondents Nos.13 to 21, Abdul Rehman, respondent No.22, Abdul Aziz, the predecessor-in-interest of respondents Nos.23 to 29, respondent, No.30 and Mst. Sakina Bibi, predecessor of respondents Nos.31 to 38 regarding land measuring 12 Marlas comprising Khasra No .173 situated in Jhelum City. An amended petition was filed on 12-7-1972. The Rent Controller passed ejectment order on 28-7-1982, which was upheld up to this Court. During execution proceedings, Muhammad Bashir, the predecessor-in-interest of 'respondents Nos.39 to 48 filed objection petition under section 47, C.P.C. on the -plea that the piece of land in respect of which ejectment order was passed included 5 shops owned and possessed by him and as he was not a party in the ejectment application, so he was not liable to ejectment. The landlords and holders of ejectment order submitted reply to it stating that the objector was a sub-tenant and as such, he was also liable to eviction alongwith the tenants in execution of the ejectment order. The executing Court after recording evidence of the parties, vide its order dated 10-1-1989 dismissed the objection petition. The objector went in appeal, which was dismissed by the Appellate Court vide its order dated 7-9-1993. He then filed Civil Revision No.350 of 1993 before the Lahore High Court, Rawalpindi Bench, Rawalpindi., which was later on withdrawn on 27-4-1994. Thereafter he invoked Constitutional jurisdiction of the Lahore High Court, Rawalpindi Bench by filing Writ Petition No.389 of 1994 against the orders of the two Courts below, which was accepted by vide its judgment impugned herein. Learned counsel for' the petitioner contended that Muhammad Bashir, the objector remained associated with the ejectment proceedings for almost three years, m that, he was cited as a witness by Fazal Haq and others, predecessor of Abdul Qadir tenant and he attended the Court of Rent Controller for recording his statement on several dates and finally his statement was recorded on 30-3-1980, as such he was fully aware of the ejectment proceedings and he never raised any alleged claim of ownership and possession over the property in dispute, thus, he was estopped to raise objection in execution proceedings that he was not in the knowledge of ejectment, proceedings as he was not a party therein. In support of his plea; he relied upon Khurshid Begum v. Ghulam Kubra (1982 SCMR 90). He further contended that the finding of the learned Judge in Chambers was based on misreading and non-reading of record as the objector had full knowledge of ejectment proceedings, as he appeared as R..W.1 on 20-3-1980, in the ejectment proceedings and the learned High Court in its Constitutional jurisdiction should not have interfered with the concurrent finding on a question of fact arrived at by the two Courts below having jurisdiction in the matter. He referred to Commissioner Report and argued that the disputed area was situated in Khasra No. 173 which according to Revenue Record belonged to Abdul Karim etc. but it was in possession of Muhammad Bashir and Fazal Haq etc. He also referred to plaint of Suit No.535 filed by Muhammad Bashir on 16-12-1982 and decided on 2-10-1985 (Muhammad Bashir v. Municipal Committee) and submitted that he claimed to be owner in possession of Khasra No. 174, which also find mention .in the order of the Deputy Custodian where he constructed shops after obtaining approval of the Municipal Committee, as such, his claim was with regard to Khasra No. 174 and not Khasra No. 173 when ejectment proceedings were pending. Learned counsel vehemently urged that frivolous objection petition was filed-by the objector in order to flout and frustrate the ejectment order which was confirmed up to this apex Court and that to agonize the decree- holders by keeping them engaged in paltry litigation so as to deprive them from their lawful rights, hence, the decree-holders are entitled to special costs. Conversely, learned counsel for the respondents while supporting the impugned judgment contended that the objector was not a party to the ejectment proceedings, therefore, he was not bound by the ejectment orders passed in favour of the appellants. It was further argued that the property wherefrom ejectment was sought was not properly described and the Local Commissioner neither associated the objector in demarcation proceedings nor Commission Report was prepared in his presence, therefore, he was not bound by it. After hearing the learned counsel for the parties and going through the record of the case, it is obvious that Muhammad Bashir, the predecessor -in-interest of respondents Nos.39 to 48 appeared as a witness of the tenants in ejectment proceedings and got his statement recorded on 30-3-1980. He was aware of the ejectment proceedings and if at all, he had any right .or interest in the property wherefrom ejectment of the tenants had been sought; he could file an application for his impleadment in the ejectment petition. Since no application was made during ejectment proceedings, therefore, he could not make belated objection petition during execution proceedings objecting that. he was not a party in the ejectment proceedings. In his objection petition, he appeared as a witness and could not substantiate his claim with regard to his ownership over any portion of Khasra No. 173 and stated that he does not know the Khasra Number of disputed property whether it is 173 or

174. The documents on which reliance was placed by him pertain to Khasra No.174. In the suit (Suit No.535 instituted on 16-12-1982, decided on 2-10-1985) filed by Muhammad Bashir against Municipal Committee, for recovery of Rs.25,000 as damages, the objector's own claim was that he was owner of Khasra No. 174 village Pira Ghaib whereas ejectment order was passed in favour of Abdul Karim and others with regard to 8 Marlas comprised in Khasra No. 173 as per site plan Mark-A prepared by Local Commissioner, which ejectment order was maintained up to this Court. The Revenue Record also fortify the decree-holders' claim who have been shown as owners in Khasra No. 173 and as per. Patwari's statement, recorded by Deputy Custodian, Jhelum, the property in possession of the objector was situated in Khasra No.174. According to the Local Commissioner report Abdul Karim etc./landlords were the owners of the disputed property which was situated in Khasra No.173, wherefrom the ejectment of tenants had been sought and ejectment order was passed with respect to aforesaid property, with which the objector had no concern. The conduct of the objector shows that despite the fact that he all along knew, about the ejectment proceedings against the tenants, but did not file any application for becoming a party in those proceedings, which would show that he had no concern or interest in those proceedings. His belated/afterthought objection was mala fide and designed with ulterior motive to prolong the trifling litigation so as to deprive the decree-holders from the fruits of the ejectment order and to prolong their agonies. It appears that the objection petition was filed at the behest and behalf of the judgment -debtors as it served their purpose to prolong their occupation in the premises in dispute. It was held in Mst. Khurshid Begum's case supra, that such a claim being incompetent under Order XXI, Rule 98, C.P.C. and being mala fide should be rejected forthwith. . The questions raised in the objection petition were essentially questions of facts which were adequately resolved by the two Courts below, hence the High Court in its Constitutional jurisdiction could not interfere with the concurrent findings of facts supported by evidence on record. The High Court in its writ jurisdiction has to see whether the Court or the Tribunal while adjudicating the matter before it, has the jurisdiction to adjudicate it and that it has not transgressed the limits of its lawful authority and it cannot act as an Appellate Court in writ jurisdiction. We find that in this case, both the Courts below after proper appreciation of evidence dismissed the objection petition, hence, such judgments were not open to any exception in Constitutional jurisdiction. In view of the above, we accept this appeal, set aside the impugned order of the High Court and restore that of the trial Court and the Appellate Court with costs. In view of the conduct of the objector who kept the decree- holders involved in frivolous litigation, we impose compensatory/special costs of Rs.20,000 on the respondents to be paid by them to the decree- holders. Q.M.H./M.A.K./G-46/S Appeal allowed.