PLJ 2015 Lahore 999
Present: Ibad-ur-Rehman Lodhi, J.
Dr.
MUHAMMAD AFZAL HUSSAIN--Petitioner
versus
ADDITIONAL
DISTRICT JUDGE, LAHORE & 5 others--Respondents
W.P. No.
6861 of 2015, heard on 2.6.2015.
Civil
Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Punjab Undesirable Cooperative Societies (Dissolution)
Ordinance, 1992--Preamble--Application calling decree were pending adjudication
before trial Court no further comments as to validity of decree--Validity--On
strength of a decree, effect of which has already been suspended by same Court,
which earlier granted same, while hearing application under Section 12(2), CPC,
has at least no force to be executed or to be asked to be taken into
consideration as a decree in full force. [P.
1003] A
----S. 5(5)--Jurisdiction of rent tribunal--Ejectment
Petition from respective portion in possession of petitioners--Relationship of
landlord and tenant--Validity--A person claims himself to be owner or landlord
of premises seeking eviction in ejectment petition,
must be equipped with a tenancy deed registered with Rent Registrar, and in
view of provisions of Section 5(5) of Act, it is exclusive proof to establish
relationship of landlord and tenant in between parties to such ejectment petition--Admittedly, ejectment
petitioners are not equipped with any such rent deed and such fact has candidly
been conceded by counsel appearing for respondents--Ejectment
petitions, filed by respondents before Rent Tribunal were not competent and,
thus, were not entertainable. [P. 1004] B & C
Mr.
Tariq Masood, Advocate for Petitioner (in W.P.
No. 6861 of 2015).
M/s.
Shahzada Muhammad Zeeshan Mirza and Muhammad Sajjad Chaudhry, Advocates for Petitioners (in W.P. Nos. 6024,
6027, 6040, 6041, 6042, 6249, 6252, 6281, 6338, 6341, 6342 and 6344 of 2015).
Mr.
Waqar Hassan Mir, Advocate for Respondents No. 3
to 6.
Date of hearing: 2.6.2015.
Judgment
Through this common judgment, I intend
to dispose of this writ petition as also Writ Petitions No. 6024, 6027, 6040,
6041, 6042, 6049, 6252, 6281, 6338, 6341, 6342 and 6344 of 2015, as all the ejectment petitions from which these petitions arose, were
filed with regard to the same property, and common questions of law and facts
are involved therein, and the order and judgment dated 23.05.2014 and
17.12.2014, passed by the learned Special Judge (Rent) and the learned
Additional District Judge, respectively, have been called-in-question.
2. The ejectment petitioners preferred their ejectment
petitions against the present petitioners seeking their ejectment
from respective portions in possession of the petitioners in Property No. 1000/C,
Jinnah Market, Chowk Surjan
Singh, Pani Wala Talab, Rang Mahal, Lahore, which
building consists of a number of shops and flats over a total area of 2 ½ kanals.
3. The background, which
is relevant for the disposal of present Constitutional petitions is that, it is
an admitted position that the property was originally owned by Roop Lal Mehta, who continued to
be in the ownership of the same till his death i.e. the year 1986. The LRs of
deceased Roop Lal Mehta
alienated the said property in favour of National
Industrial Cooperative Finance Corporation Limited (hereinafter to be referred
as “NICFCL”). On promulgation of Punjab Undesirable Cooperative Societies
(Dissolution) Ordinance, 1992, on 16.05.1992, the Corporation, noted
herein-above, stood dissolved and the matters relating, to such Undesirable
Cooperative Societies were further to be dealt with by the Punjab Cooperative
Board for Liquidation.
4. On 12.12.1992, one
Ch. Manzoor Elahi, filed a
civil suit titled (Ch. Manzoor Elahi vs. Punjab
Cooperative Board of Liquidation), seeking a decree against the Liquidation
Board, claiming him as a lawful owner of the suit property on the plea that,
the LRs of late Roop Lal Mehta
through their general attorney, alienated the entire property to the plaintiff
for a consideration of Rs. 7,00,000/- (rupees seven lac
only), who (plaintiff) got executed the registered sale-deed directly in favour of NICFCL, only as a be-nami
transaction.
5.
According to the plaint, the arrangement was settled as a security
against a loan of Rs. 7,00,000/- (rupees seven lac
only), extended in favour of Ch. Manzoor
Elahi, and after making the payment of loan amount
with an interest at the rate of 20% to the Finance Corporation, the plaintiff
of the suit required the Corporation to hand over the titled documents to the plaintiff,
but when the Corporation refused to hand over the original sale-deed and other
requisite documents to the plaintiff, it forced Ch. Manzoor
Elahi to file a civil suit against the Punjab
Cooperative Board for Liquidation.
6. On the basis of a conceding
statement, shown to have been made on behalf of the Board of Liquidation, the
suit stood decreed on 8th day of its filing i.e. 20.12.1992, and on the
strength of such decree, the plaintiff/decree-holder started claiming himself
to be the exclusive owner of the property, in question, and treating the
occupants of the property as 'his tenants'.
7. After the death of
Ch. Manzoor Elahi, the
above-mentioned decree-holder, his LRs. were stated to have transferred whole
property through general attorney Bilal Ahmad Mir, in
favour of the eviction petitioners/real sons of the
said attorney.
8. The ejectment petitioners thereafter without giving particular
description of the property filed the ejectment
petitions.
9. On the other side,
the decree, as was granted on 20.12.1992, was challenged by the writ petitioner
in Writ Petition No. 6861 of 2015. Dr. Mohammad Afzal
Hussain and the Liquidation Board also called in
question the decree dated 20.12.1992, by means of separate applications under
Section 12(2), CPC, who in the civil suit, were shown to have conceded the
plaint, and the learned trial Court on entertaining such applications under
Section 12(2), CPC, passed an order to maintain status-quo on 16.06.2011.
10. By means of another
separate civil suit, the deed of general power-of-attorney shown to have been
executed by Ch. Manzoor Elahi
(deceased)-plaintiff of the civil suit, which stood decreed on 20.12.1992 in favour of the plaintiff and sale-deeds got executed by the
stated attorney in favour of the ejectment
petitioners were challenged by Dr. Mohammad Afzal Hussain, noted herein-above, which is still pending.
11. The learned Rent Tribunal,
on 23.05.2014, proceeded to refuse to grant leave to contest, to the present
petitioners and held them as defaulters in payment of rent and ordered their
eviction.
12. In appeals, findings
of the learned Rent Tribunal were maintained
vide judgment dated 17.12.2014.
13. After hearing the
learned counsel for the parties and going through the record, what emerges is that
presently, the ejectment petitioners enjoy no perfect
title in their favour qua the property, in question.
14. Nobody is denying
the fact that, at the time of promulgation of Punjab Undesirable Co-operative
Societies (Dissolution) Act, 1992 the property vested in NICFCL. Section 16 of
the Ordinance, which subsequently converted into Act of 1993, reads as under:--
“16. Abatement of all suits, proceedings, etc.--(1) All suits or
proceedings pending before any Court or authority against an Undesirable Co-operative
Society in respect of its assets and liabilities shall stand abated on the
appointment of the Liquidator:
Provided
that fresh proceedings against such a society may be initiated before the
Co-operatives Judge within 60 days of such abatement.
(2) All decrees,
judgments and orders passed by any Court, except the Supreme Court, against an
Undesirable Co-operative Society or against properties and assets thereof on or
after the first day of July, 1990 shall be unexceptionable and of no legal
effect, unless such judgment, decree or order is confirmed by the Co-operatives
Judge after hearing the concerned parties.
(3) Any person who
relies on such decrees judgments or orders, may within
60 days of the appointment of the Liquidator, apply to the Co-operatives Judge
for its confirmation.”
In the light of above promulgation, the
civil suit instituted on 12.12.1992 before the Civil Court was, thus, a nullity
in the eye of law, as all the issues relating to the property, assets and
liabilities of Undesirable Cooperative Society, which even were pending before
any Court or authority stood abated on the appointment of the Liquidator and
further that all fresh proceedings against such Society were only to be
instituted before the Co-operative Judge within 60 days of such abatement.
Further that all the decrees etc. passed by any Court, except the Hon'ble Supreme Court of Pakistan against the properties
and assets of any Undesirable Cooperative Society or after the first day of
July, 1990, were to become unexecutable and of no
legal effect, unless such judgment and decree etc. is confirmed by the
Cooperatives Judge, after hearing the concerned parties and any person, who
relies on such decrees, judgments etc., was competent to approach the
Cooperative Judge for its confirmation within 60 days of the appointment of the
Liquidator.
15. For the reason, that, still applications under
Section 12(2), CPC calling in question the decree dated 20.12.1992, are pending
adjudication before the learned trial Court, no further comments as to the
validity of the decree dated 20.12.1992 are being made, lest it may prejudice
the case of anybody before the learned trial Court hearing such applications
under Section 12(2), CPC. However, for the time being, suffice it to say that,
on the strength of a decree, effect of which has already been suspended by the
same Court, which earlier granted the same, while hearing application under
Section 12(2), CPC, has at least no force to be executed or to be asked to be
taken into consideration as a decree in full force. The view expressed by the Hon'ble Supreme Court of Pakistan in case of Rehmatullah vs. Ali Muhammad and another (1983 SCMR
1064), relevant portion thereof is reproduced as under:
“Landlord failing to
establish relationship of “landlord and tenant” beyond reasonable doubt cannot
be allowed benefit of affirmative finding on issue. Rent Controller need not go
into disputed “question of title”. Leading of evidence by parties before Rent
Controller on issue of “title” not desired. Proper course for Rent Controller,
in circumstances would be to decide issue against landlord and advise landlord to get his “title” established from a Court
of general jurisdiction before seeking ejectment. Such findings to be specifically recorded by Rent Controller in his
order. Decision by Rent Controller and Appellate Court,
High Court or Supreme Court not to operate as bar to suit to be filed by
landlord in order to establish his title. Landlord can re-agitate matter
before Rent Controller again and decision of Rent Controller taken earlier
would not constitute res judicata or preclude him
from re-agitating matter before him once again”.
is fully
applicable in full force on the facts and circumstances of the present cases,
and unless the ejectment petitioners establish their
title qua the suit property beyond
any doubt, they would not be competent to ask for eviction of the persons
occupying the premises in their own independent right.
16. The Courts below
have conveniently closed their eyes from such aspect of the matter and have
refused to grant leave to the present petitioners on erroneous considerations.
Even to invoke the jurisdiction of a Rent Tribunal under the Punjab Rented
Premises Act, 2009, a person claims himself to be the owner or landlord of the premises
seeking eviction of the respondent in the ejectment
petition, must be equipped with a tenancy deed registered with the Rent
Registrar, and in view of the provisions of Section 5(5) of the Act, it is the
exclusive proof to establish the relationship of landlord and tenant in between
the parties to such ejectment petition.
17. Admittedly, the ejectment petitioners are not equipped with any such rent
deed and this fact has candidly been conceded by the learned counsel appearing
for Respondents No. 3 to 6. The ejectment petitions,
filed by the respondents before the Rent Tribunal were not competent and, thus,
were not entertainable. The Rent Tribunal was having
no jurisdiction to entertain such incompetent petitions. The proceedings
conducted before the Rent Tribunal and also the appellate Court were having no
legal sanction.
18. For what has been
discussed above, present petitions are allowed by declaring that the ejectment petitions filed before the Rent Tribunal by the
respondents were not competent in the eye of law and
as a consequence thereof, order and judgment dated 23.05.2014 and 17.12.2014,
passed by the Courts below are set-aside.
(R.A.) Petitions allowed
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