Impleadment as party in Rent Appeal

PLJ 2013 Lahore 519

Present: Abdus Sattar Asghar, J.

IFTIKHAR AHMAD KHAN--Petitioner

versus

MUHAMMAD QAYYUM, etc.--Respondents

W.P. No. 16912 of 2013, decided on 3.7.2013.

Civil Procedure Code, 1908 (V of 1908)--

----O. I, R. 10--Constitution of Pakistan, 1973--Art. 199--Impleadment as a party in rent appeal--Constitutional jurisdiction--Denial of relationship of landlord and tenant--Petitioner was neither landlord nor tenant of disputed property--No case for impleadment in proceedings of rent appeal--Validity--Dispute of title pertaining to property which was subject matter of rent appeal, has yet to be resolved by Court of competent jurisdiction--Petitioner intended to join proceedings in rent appeal not as a co-sharer with landlords rather on basis of separate title adverse who claimed to be landlord in respect of property in dispute, therefore, forum of Distt. Judge hearing rent appeal was not available to petitioner to arrest his ownership or title in disputed property--Appellate Court had rightly dismissed application for his impleadment as party in rent appeal--In absence of any perversity, jurisdictional error, factual or legal infirmity or procedural irregularity in impugned order, petitioner had no case to invoke constitutional jurisdiction of High Court--Petition was dismissed.            [P. 521] A & B

1986 SCMR 1276 & 1989 SCMR 205, rel.

Mr. Waseem Ibne Saeed, Advocate for Petitioner.

Date of hearing: 3.7.2013.

Order

Petitioner has invoked the constitutional jurisdiction of this Court to impugn the order dated 07.6.2013 passed by learned Additional District Judge Gujrat whereby petitioner's application for his impleadment as a party in rent appeal, was dismissed.

2.  Brief facts leading to this petition are that on 29.6.2005 Muhammad Qayyum and others/Respondents No. 1 to 4 lodged an ejectment petition against Respondents No. 5 to 12. Respondents No. 5 to 12 denied the relationship of landlord and tenant between the parties. The learned Rent Controller after framing of issues and recording parties' evidence accepted the ejectment petition with a direction to Respondents No. 5 to 12 to hand over the vacant possession of the premises in dispute to the Respondents No. 1 to 4 within one month. Salma Kausar Respondent No. 12 being aggrieved assailed the eviction order through appeal before the learned Additional District Judge Gujrat.

3.  During the pendency of appeal petitioner lodged an application for his impleadment asserting that on the basis of an order dated 25.6.2011 passed by Member (Judicial-V) Board of Revenue/Chief Settlement Commissioner/Member (Residual Properties)/Notified Officer, Punjab, he has purchased the disputed property comprising an area measuring 4« marlas bearing Khasra No. 1810/1748 situated at Nawan Shah Pur; Gujrat forming part of Madrassa Jamia Ghousia Naeemia, Gujrat and that PT-I on the basis whereof Respondents No. 1 to 5 claimed their ownership has also been challenged by him through a separate civil suit pending adjudication. Application was resisted by Respondents No. 1 to 5 with the contentions that dispute of title of the disputed property is yet to be resolved by the Civil Court where respondent's suit is pending adjudication and that the petitioner was neither a landlord nor tenant of the disputed property therefore he has no case for impleadment in the proceedings of rent appeal.

3.  It is argued by learned counsel for the petitioner that petitioner being bona fide purchaser of the disputed property has got a right to be impleaded as party in the proceedings of the pending rent appeal; that the learned Additional District Judge has failed to apply his judicious mind while passing the impugned order against law and facts, without appreciating the material available on the record which is untenable and liable to set aside.

4.  Arguments heard. Record perused.

5.  Record reveals that petitioner himself has admitted that his suit for declaration etc. on the basis of alleged purchase against the respondents is pending adjudication in the Civil Court. It is therefore obvious that the dispute of title pertaining to the property which is subject matter of the rent appeal, has yet to be resolved by the Court of competent jurisdiction. Petitioner intended to join the proceedings in the rent appeal not as a co-sharer with the respondents/landlords rather on the basis of separate title adverse to the respondents who claimed to be landlord in respect of the property in dispute therefore forum of the learned Additional District Judge hearing the rent appeal was not available to the petitioner to assert his ownership or title in the disputed property. Learned Appellate Court has rightly dismissed the petitioner's application for his impleadment as party in the rent appeal. Reliance be made upon:--(i) Raza Hussain Vs. District Judge, Vehari and others (1986 SCMR 1267) (ii) Nawabuddin Vs. Qamar Oil Mills through its Proprietor represented by his Legal Heirs and others (1989 SCMR 205).

6.  The impugned order passed by learned Additional District Judge does not suffer from any misreading or non-reading of the material available on the record. In the absence of any perversity, jurisdictional error, factual or legal infirmity or procedural irregularity in the impugned order the petitioner has no case to invoke the constitutional jurisdiction of this Court.

7.  For the above reasons, this constitutional petition is dismissed in limine.

(R.A.)  Petition dismissed

Application of Mind is Mandatory in deciding 22-A Petition

PLJ 2013 Cr.C. (Peshawar) 533
[Abbottabad Bench]

Present: Waqar Ahmed Seth, J.

QAMAR NAEEM--Petitioner

versus

S.H.O. POLICE STATION CANTT., ABBOTTABAD and 3 others--Respondents

Crl. Misc. Q.P. No. 7-A of 2013, decided on 25.2.2013.

Statutory duty--

----Information relating to commission of a cognizable offence would fall under Section 154--Police officer is under statutory duty, without entering into enquiry and without hearing accused, to enter it in FIR register--For this exercise, the only pre condition is that the information should disclose commission of a cognizable offence on the face of the allegation--Failure of concerned police officer to register such information in FIR register would amount to failure to discharge statutory obligations by the police officer.   [P. 535] A

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 22-A & 561-A--Powers of ex-officio--Powers of ex-officio, the same are very limited one--While exercising such powers, he should not enter into disputed questions of facts to find out the truth--Under Section 22-A he is not expected and is not required to allow the request of complainant mechanically, blindly and without application of his legal mind--However, when the complainant discloses the cause of action and commission of cognizable offence his order to refuse registration of the case under the relevant Sections of law would be perverse and arbitrary exercise of powers under Section 22-A--Quashment petition was allowed.           [P. 535] B

Malik Masood-ur-Rehman Awan, Advocate for Petitioner.

Mr. M. Nawaz Khan Swati, AAG for Respondents.

Date of hearing: 25.2.2013.

Judgment

Qamar Naeem petitioner has filed this petition u/S. 561-A, Cr.P.C. for quashment of order dated 06.12.2012, whereby learned Justice, of Peace/Additional Sessions Judge-II, Abbottabad dismissed the application of petitioner filed under Section 22-A, Cr.P.C. for  registration of case against the persons mentioned therein.

2. Facts, as per contents of petition, are that initially petitioner submitted an application to Respondent No. 1 regarding the occurrence and thereafter approached Respondent No. 2. Respondent No. 1 allegedly initiated an enquiry instead of registration of case. Feeling aggrieved, the petitioner filed application u/S. 22-A, Cr.P.C. for issuance of direction regarding registration of case and Respondent No. 3 called for comments of Respondent No. 1. Respondent No. 3, on receipt of comments, rejected the application of petitioner. Hence, this petition.

3. Learned counsel for petitioner argued that petitioner is lawful owner of the shop in question, which was given to one Raheel Shah on rent and the accused mentioned in the application and his companions duly armed with lethal weapons cut off the lock of shop and also attacked at the life of petitioner and thereby committed a cognizable offence but the police officials and the learned Justice of Peace in haste turned down the applications of petitioner.

4. On the other hand, learned counsel for State opposed the contentions of petitioner and supported the impugned orders.

5. Arguments heard and record perused.

6. A perusal of record would show that a cognizable offence has been made out against the accused persons as the possession of the shop in question is stated to have been given to the complainant, which was later on shown to have forcefully been occupied by the accused persons and the SHO is under obligation to register the case against the accused persons.

7. Information relating to commission of a cognizable offence would fall under Section 154. Police officer is under statutory duty, without entering into enquiry and without hearing accused, to enter it in FIR register. For this exercise, the only pre condition is that the information should disclose commission of a cognizable offence on the face of the allegation. Failure of concerned police officer to register such information in FIR register would amount to failure to discharge statutory obligations by the police officer.

8. As regarding the powers of ex-officio, the same are very limited one. While exercising such powers, he should not enter into disputed questions of facts to find out the truth. Under Section 22-A he is not expected and is not required to allow the request of complainant mechanically, blindly and without application of his legal mind. However, when the complainant discloses the cause of action and commission of cognizable offence his order to refuse registration of the case under the relevant Sections of law would be perverse and arbitrary exercise of powers under Section 22-A.

9. For the reasons mentioned hereinabove, the present quashment petition is allowed, the impugned order passed by Additional Sessions Judge-III Abbottabad dated 06.12.2012 is quashed and SHO of Police Station concerned is directed to register FIR against the accused persons, under the relevant Sections of law.

(A.S.)   Petition allowed