1986 PLP 115 (CLC)

(b) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 5‑‑Qanun‑e‑Shahadat Order (10 of 1984), S. 61‑‑Photostat copy of agreement‑‑Comparison of signatures‑‑Petitioner alleging that he was newly‑installed tenant under written agreement executed by Attorney of landlord‑‑Such Attorney claiming his signatures as forged‑‑Signature of attorney on photostat copy of agreement of his status as tenant‑‑Petitioner by occupying premises at behest of ejected tenant was abusing process of Court to protract unauthorized possession so that order of ejectment obtained by landlord might be nullified or delayed. This revision application is directed against the order dated 18‑4‑1985, of Mr. Lai Chand Peswani, IVth Additional District Judge, Karachi, whereby he dismissed the appeal of the appellant and upheld the Order dated 16‑12‑1984, of Mr. Muhammad lqbal the then XXIXth Civil Judge Karachi, whereby he had rejected the plaint of the appellant under Order VII, rule 11, C.P.C.

2. The applicant Fakhruddin claims to be the tenant of respondent No.l Hap Muhammad Yamin in Shop No. G‑3 Survey No. LR 614, Nishtar Road, Karachi since July, 1984 on Rs.200 per month. He further claims that he enjoyed his peaceful possession of the said shop since then. He has produced the photostat copy of the Rent Note which was executed in his favour by respondent No. 2 Muhammad Iqbal as attorney of respondent No.

1. The applicant alleges to have paid Rs.10,000 as deposit. Prior to this the respondent No.l had filed an ejectment application against one Hap Aijaz Ahmed for the said shop being Rent Case No. 894 of 1968 which was decreed and Execution Application bearing No. 13 of 1984, was pending in the Court of XIVth Rent Controller, Karachi. The Execution Application remained pending although the respondent No.l had taken the possession from Hap Aijaz Ahmed out of the Court. Taking advantage of these proceedings the respondent No.l tried to eject the applicant through it. The applicant made an application under Order I, rule 10, C.P.C. in that execution application but could not succeed in being joined as party. Hence he filed a Civil Suit on 19‑11‑1984 for declaration of his status as tenant and permanent injunction. The learned Civil Judge suo motu and rejected the plaint under Order VII, rule 11, C.P.C. as shown above. The appeal was also dismissed by the learned District Judge against which this revision application has been preferred. 3. 1 have heard the Advocate for the applicant at length. Respondent No.2 has filed counter‑affidavit and has denied the allegations of the applicant in response to pre‑admission notice. He has alleged that the applicant is not the tenant of respondent No.1, his father, in respect of the shop in dispute. In fact one Aijaz Ahmed was the tenant of this shop and Hap Muhammad Yameen respondent No.l had filed an ejectment case against Aijaz Ahmed. This case was contested upto the Supreme Court. On 29‑3‑1983, an ejectment order was passed against Aijaz Ahmed by the Rent Controller. Aijaz Ahmed preferred a Rent Appeal No. 444 of 1983 which was dismissed by the High Court on 9‑8‑1983. He was allowed time to vacate the premises by 31‑11‑1983, but he did not hand over the possession to the respondent No.l. Hence the respondent No.l filed an Execution Application. He has alleged that the applicant who is a relative of the said Aijaz Ahmed was set up by him to raise this false claim of tenancy with a view to defeat the order of possession of the shop in suit which the respondent No.l had obtained after a long litigation.

4. It is an admitted position that respondent No.l had after a long and protracted litigation succeeded in obtaining ejectment order against A Aijaz Ahmed who is a tenant. Ai1jaz Ahmed was granted time by the High Court by 31‑12‑1983, for vacating the shop. He failed to vacate the shop. Hence respondent No.l had to file Execution Application No. 13 of 1984. No sane person will believe that where there was such a long and protracted litigation and when respondent No.l had also filed as execution application, he would be such a fool as to take possession from the initial tenant secretly and would then immediately give it on rent to another tenant who is said to be relative of the first tenant and that later tenant would also turn hostile to the landlord at once and the landlord would be compelled to use the execution proceedings against the later tenant. I have also seen the signature of Muhammad Iqbal on the photostat copy of the agreement and compared with his admitted signature on the affidavit. To a naked eye it is clear that the signature on the so‑called agreement is forged. Apart from that since the tenancy is disputed the so‑called agreement cannot be used to prove the tenancy as it is not attested either by the Rent Controller] or by a First Class Magistrate as required by section 5 of the Rented Premises Ordinance.

5. Apart from that the present applicant had filed an application for being joined as a party basing his claim on tenancy agreement executed by respondent No. 2 Muhammad Iqbal as attorney of respondent No.l. The said application was dismissed by XIVth Senior Civil Judge in the execution proceedings referred to above. The learned Senior Civil Judge found that the rent agreement dated 15‑7‑1984, was forged and was prepared by the present applicant with mala fide intention in order to defeat the ends of justice. This order was passed on 2‑3‑1984. No Appeal was filed by the present applicant against the said order. The Advocate for the appellant has referred me to 1984 C L C 1 1690 where it was held by my learned brother Naimuddin, J., that an application under section 12 (2) of C.P.C. challenging an ex parte ejectment order passed by the Rent Controller against the tenant on the ground that it was obtained by practising fraud not maintainable and the suit against such an order could have been maintained under Order IX, rule 9, C.P.C., because provision of section 12(2), C.P.C., are not applicable to the rent proceedings. This ruling does not apply to the facts of the present case because the Rent Controller, it has been observed in this ruling has suo motu power to re‑call the order which was obtained by fraud. He has also cited three other rulings viz. Alam Ali v. District Judge PLD 1983 Lah. 278; Inayatullah v. Muhammad Abdullah 1984 C L C 473 and Abdur Raoof v. Muhammad Khaleeq N L R 1983 Civil

695. These rulings are also not applicable to the present case because the facts of the same are quite distinguishable from the facts of the present case. Even otherwise none of these rulings relates to a rent case.

6. The alleged tenancy agreement has been shown by respondent No.2 Muhammad Iqbal to have been executed on the basis of power‑of‑I attorney executed on 9‑2‑1982. The said power‑of‑attorney does not authorise Muhammad lqbal to rent out the premises in question to the appellant. Muhammad Iqbal has filed his counter‑affidavit denying the alleged tenancy agreement. The case of the applicant is that the vacant D possession of the shop in question was handed over to the applicant by respondent No. 1 whereas the admitted position in Execution Application No. 13 of 1984, is that the possession of the shop in question was never delivered by Aijaz Ahmed to the respondent No.

1. Further. Muhammad Iqbal was out of country since 4‑4‑1983. Both the learned Courts were perfectly justified in holding the agreement of tenancy dated 5‑5‑1977 as forged and as a fraud introduced by the appellant for keeping the shop in possession. The applicant had no legal character in respect of the shop within the meaning of section 42 of the Specific Relief Act. He was abusing the process of the Court to protract the unauthorised possession of Aijaz Ahmed so that the order of ejectment obtained by respondent No. 1 be nullified or at least be delayed. Such a suit is not to be encouraged by the Courts and the plaint was rightly rejected. I, therefore, do not find any merit whatsoever in this Revision application which is dismissed in limine. A . A . Revision dismissed.