P L D 2009 Quetta 21 (PLP)

AKTHAR ZAMAN MALGHANI, J.

This appeal is directed against order dated 9-10-2007 passed by Civil Judge-I/Rent Controller Quetta whereby eviction application filed by appellant was dismissed.

2. Briefly stated, facts of case are that appellant instituted an eviction application against respondents on the ground of default and subletting which application was contested by respondents by way of filing re-joinder. In the light of pleadings of parties following issues were framed:-- (i) Whether the instant eviction application is not maintainable in view of the legal objection A, C, D, E & F raised by respondents Nos.1, 2, 3 and 4 in rejoinder? (ii) Whether there exists relationship of tenant and landlord between applicant and respondents Nos. 1 to 5? (iii) Whether respondent No.1 sublet the premises to respondent No.2&? (iv) Whether respondent No.1 committed wilful default in payment of rent? (v) Whether the applicant is entitled for the relief claimed for? (vi) Relief? The learned Rent Controller heard arguments on legal issues and dismissed eviction application vide impugned order.

3. I have heard the learned counsel for appellant as well as learned counsel for respondents. Learned counsel for appellant vehemently contended that earlier an eviction application was filed against respondents wherein similar objection was raised and simultaneously a civil suit was also filed challenging status of appellant to sue being not a registered society which suit was dismissed by Civil Judge on 31st December, 2003 however, on appeal filed by Dr. Atta-Ur-Rehman, Additional District Judge-V, Quetta reversed judgment and decree of Civil Judge and decreed the suit. Appellant assailed said judgment and decree in Civil Revision No.343/2003 which was allowed and it was held that eviction application filed on behalf of appellant was maintainable which judgment is still intact and in the light of provisions of Article 201 of Constitution was binding upon Rent Controller but he illegally ignored judgment of this Court and placed reliance on a judgment of Lahore High Court reported in 2005 CLC

731. On the other hand learned counsel for respondent vehemently contended that eviction application on behalf of appellant was not maintainable as it was not a registered society and eviction application was rightly dismissed.

4. I have carefully considered the contentions put forth by learned counsel and have also gone through impugned order. It may be observed that learned Rent Controller dismissed eviction application filed by appellant by observing that appellant who was an un-registered firm/society conk not have filed eviction application. It is painfully noted that Rent Controller while deciding above legal proposition has not kept into mind judgment of this Court passed in Civil Revision No.343/2003 though judicial record of Rent Controller indicates that copy of said judgment as well as judgment of Honourable Supreme Court passed in Civil Petition No.2661/2005 was on file. It may be noted that prior to instant application appellant has already filed an eviction application against respondent No.1 wherein similar objection was taken by respondent and simultaneously he filed a suit claiming following relief:-- (a) Brown Gymkhana is neither a society registered under any law meant for the registration of societies or Firms or Companies; (b) Brown Gymkhana is not a legal/juristic person and it can neither sue nor be sued in its name; (c) Brown Gymkhana is not capable of owning/holding any immoveable property in its name; (d) Brown Gymkhana has no lawful right or title in respect of the property, superstructure comprised in the premises of Al-Rehman Hospital Patel Road, Quetta. (e) The lease agreement dated 16th July 1986 is devoid of any legal force and is not binding on the plaintiff. (f) The lease, agreement dated 16th July, 1986, is illegal having been got signed by the plaintiff and others, through fraud, misrepresentation and concealment of facts and also due to the reason that the defendant No.2 had not put his signatures on the same; (g) The plaintiff is entitled to receive back a sum of Rs.2,74,667 from defendants Nos.1 & 2, which has been unlawfully received by them as rent for the premises of Al-Rehman Hospital, Quetta. It is further prayed that a decree in the sum of Rs.2,74,667 may kindly be passed in favour of the plaintiff and against the defendants Nos.1 and 2 with costs. It is further prayed that a permanent injunction may be passed restraining the defendants Nos.1 & 2 from interfering with the possession and business of the plaintiff at the premises comprised in Al-Rehman Hospital Patel Road Quetta from proclaiming the Brown Gymkhana as owner/landlord of the suit property for all times to come. Any other relief to which the plaintiff may be found entitled may kindly be granted."

5. The said suit was dismissed by Civil Judge vide judgment and decree dated 31-12-2003, however, on appeal filed by Dr. Atta Ur Rehman, Additional District Judge-V, Quetta vide judgment and decree dated 24-9-2003 allowed appeal by declaring that Brown Gymkhana is not a legal and juristic person nor Brown Gymkhana is a registered firm, society and company under the Societies Registration Act, 1860 or any Companies Act or any law. However, on revision filed by appellant said judgment and decree was set aside vide judgment dated 2-9-2005 holding therein that eviction application on behalf of un-registered association was maintainable by any of its members without joining other owners. Relevant observations are reproduced herein below:-- "As far as contention of the learned counsel for the respondent that an unregistered body neither can sue nor can be sued, as such; eviction application filed on behalf of Brown Gymkhana and agreement executed on its behalf was illegal, has no substance, because all the members would be deemed to be owners of the properties owned by such un-registered association and any one of them is competent to execute lease agreement and maintain eviction application without joining other owners of the property in dispute. In the judgment reported in 1982 CLC 859 it was observed as under:-- "I see no force in this contention of the learned Advocate, as the remaining respondents, who were applicants in the original application, according to the learned Advocate for the respondents were the legal heirs of the deceased applicants and the provisions of C.P.C. as such are not strictly applicable to the proceedings under the Rent Ordinance in question. In my opinion, application for eviction of the tenant can be made by one of the several owners (or landlords). In this view, I am fully supported by case of Ghulam Sadiq v. Zainab Bibi." The Honourable apex Court in the judgment reported in 1980 SCMR 29 held as under:-- "Regarding the second point which undoubtedly is a technical one, it needs to be observed that in additional to the considerations which weighed with the learned lower appellate Courts, it cannot be ignored .that the definition of landlord contained in section 20 of the Ordinance is very wide. An owner who is entitled to receive rent would undoubtedly be a landlord under the said Ordinance but a person mentioned in the definition who is competent to receive rent on behalf or for the benefit of the aforementioned landlord would also be landlord."

6. It appears from record that one Suleman Farooq who was respondent in said revision petition filed civil petition being No.2661/2005 before Honourable apex Court which was dismissed vide order dated 7-2-2007. It was observed by Honourable apex Court in the said judgment that impugned judgment is just and fair to which no exception can be taken. The record further reveals that earlier eviction application was also dismissed by Rent Controller on the ground that application was not filed by a competent person on behalf of Brown Gymkhana, however, with consent of parties in the light of judgment passed in revision petition No.343/2003 the said order was set aside and matter was remanded to Rent Controller for proceedings in the case in accordance with law.

7. Under Article 201 of Constitution of Islamic Republic of Pakistan subject to Article 189 any decision of High Court shall, to the extent that it decides a question of law or is based upon or enunciate a principle of law, be binding on all Courts subordinate to it and where there are conflict of views between two High Court Courts, the subordinate Courts have to follow the view taken by High Court of that province. In this regard in judgment reported in 2004 CLD 279 it was observed as under:-- "Therefore, we are of the view that learned Judge has not followed the principles of judicial discipline which requires that the law declared by this Court should be unreservedly followed by the Courts subordinate to it, enshrined in Article 201 of the Constitution, he instead followed the view taken by Lahore High Court, which was not a correct approach in case of conflict of views between two High Courts."

8. It is not disputed that judgment delivered by this Court in Civil Revision No.343/2003 still holds field having not been set aside or suspended by Honourable apex Court, therefore, it was binding upon Rent Controller being subordinate to this Court. In view of what has been discussed above, I am inclined to set aside the order dated 18-10-2007 passed by Civil Judge-I/Rent Controller Quetta and remand the case to it with direction to proceed in the matter in accordance with law. The appeal is allowed with cost. H.B.T./7/Q Case remanded.