Stay of Execution in Rent Matter

PLJ 2015 Lahore 738

Present: Abdus Sattar Asghar, J.

MUHAMMAD SARFRAZ--Petitioner

versus

NADEEM TAHIR SYED, ADJ, etc.--Respondents

W.P. No. 4302 of 2015, decided on 19.2.2015.

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

----O. XXI, R. 29--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Scope of--Suspension of execution proceedings--Injunctive order--Dispute of ownership of demised premises is pending, execution ejectment order be stayed--It is well settled that only relationship of landlord and tenant is relevant to exercise jurisdiction by Rent Tribunal under Punjab Rented Premises Act, 2009--Controversy between parties with regard to plea of ejectment stood resolved through ejectment--Respondents were not holding a decree of a Civil Court where petitioner’s suit for declaration was pending rather an ejectment order passed by Rent Tribunal against petitioner is being executed in accordance with law--Provisions of Rule 29 of Order XXI of are not attracted.

                                                                                                                        [P. 741] A & B

Equity--

----Wilful and mala-fide concealment of material facts by petitioner in his plaint also disentitles him to any relief under principle of equity.

                                                                                                                        [P. 721] C

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

----O. XXXIX, Rr. 1 & 2 and O. XLI, R. 29--Injunctive order--Restraining from interfering in possession over suit properties--Execution proceedings--Validity--Status quo order passed by civil judge does not attract provisions of R. 29 of Order XXI Rule 29 of CPC--Petitioner was not entitled to claim stay of execution proceedings of ejectment order--Lawful order passed by a revisional Court of competent jurisdiction cannot be called into question in exercise of constitutional jurisdiction.                                            [P. 741] D & E

Syed Qaisar Gilani, Advocate for Petitioner.

Date of hearing: 19.2.2015.

Order

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to impugn the order dated 7.2.2015 passed by learned Additional District Judge Sargodha whereby application for suspension of execution proceedings before the learned trial Court has been declined.

2.  It is argued by learned counsel for the petitioner that the learned revisional Court erred in law and failed to exercise its jurisdiction while declining his application to stay the execution proceedings before the learned trial Court through the impugned order which is untenable and liable to set aside.

3.  Arguments heard. Record perused.

4.  Brief facts leading to this petition are that respondents’ ejectment petition against the petitioner was accepted by the learned Rent Tribunal Sargodha vide order dated 14.10.2010. Respondents lodged execution petition before the learned Rent Tribunal on 23.10.2010. Petitioner’s appeal against the ejectment order dated 14.10.2010 was dismissed by the learned Additional District Judge Sargodha vide judgment dated 20.1.2011. Being aggrieved petitioner assailed the ejectment order and the said judgment before this Court through Writ Petition No. 3031 of 2011 which was also dismissed vide order dated 6.8.2014. Being aggrieved of the order dated 6.8.2014 petitioner preferred an appeal before the Hon’ble Supreme Court of Pakistan which he later on withdrew. In the above state of affairs the ejectment order dated 14.10.2010 passed by learned Rent Tribunal Sargodha against the petitioner in favour of the respondents has attained finality. In the meanwhile on 9.12.2014 petitioner lodged a suit for declaration etc. against the respondents and others claiming his ownership in various properties including the subject matter of the ejectment petition. Along with the said suit petitioner also lodged an application under Order XXXIX Rules 1 and 2 CPC restraining the respondents and others from interfering in his possession over the suit properties. Learned Civil Judge vide order dated 9.12.2014 issued ad-interim temporary injunction i.e. “status quo in respect of alienation and possession of the suit property be maintained till next date of hearing”. On the basis of said injunctive order petitioner lodged an application before the learned revisional Court under Order XXI Rule 29 of the Code of Civil Procedure, 1908 with a prayer that since the dispute of ownership of the demised premises between the parties is pending before the Civil Court therefore execution of the ejectment order be stayed. The said application was resisted by the respondents. The learned executing Court after providing opportunity of hearing to the parties dismissed the petitioner’s application under Order XXI Rule 29 of the CPC through the order dated 4.2.2015. Petitioner being aggrieved assailed the said order through a revision petition before the learned Additional District Judge Sargodha along with an application to suspend the execution proceedings which was declined by the learned revisional Court through the impugned order dated 7.2.2015, hence this constitutional petition.

5.  At the outset it may be expedient to reproduce the provisions of Rule 29 of Order XXI of the Code of Civil Procedure, 1908 which reads below:--

“29.  Stay of execution pending suit between decree-holder and judgment debtor:--Where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.”

6.  The expression “against the holder of a decree of such Court” used in the above quoted provisions of Rule 29 of Order XXI of CPC is significant and of great importance. It is well settled that only relationship of landlord and tenant is relevant to exercise the jurisdiction by the learned Rent Tribunal under the Punjab Rented Premises Act, 2009. The controversy between the parties with regard to plea of ejectment stood resolved through the ejectment order dated 14.10.2010 maintained up-till the Hon’ble Apex Court. It is pertinent to mention that in this case respondents were not holding a decree of a Civil Court where petitioner’s suit for declaration was pending rather an ejectment order passed in favour of the respondents by the learned Rent Tribunal against the petitioner is being executed in accordance with law therefore provisions of Rule 29 of Order XXI of the Code of Civil Procedure, 1908 are not attracted to the facts of this case. The execution of ejectment order passed by the learned Rent Tribunal therefore cannot be interfered with in terms of Rule 29 of Order XXI of the Code of Civil Procedure, 1908. Besides careful reading of the contents of the plaint in the suit for declaration lodged by the petitioner against the respondents and others clearly manifests that petitioner willfully concealed the factum of lawful ejectment order dated 14.10.2010 passed by learned Rent Tribunal in favour of the respondents against him. Wilful and mala-fide concealment of material facts by the petitioner in his plaint also disentitles him to any relief under the principle of equity. The status quo order passed by the learned Civil Judge in the suit for declaration lodged by the petitioner does not attract the provisions of Rule 29 of Order XXI of CPC therefore the petitioner on that basis is not entitled to claim stay of execution proceedings of the ejectment order. I do not find any factual or legal infirmity or jurisdictional error in the impugned order dated 7.2.2015 passed by learned Additional District Judge Sargodha. Needless to say that a lawful order passed by a revisional Court of competent jurisdiction cannot be called into question in exercise of constitutional jurisdiction.

7.  For the above reasons this writ petition having no merit is dismissed in limine.

(R.A.)  Petition dismissed

Personal Bonafide Need - Islamabad Rent Law Judgment

PLJ 2012 Islamabad 161

Present: Riaz Ahmad Khan, J.

SAEED AHMED--Petitioner

versus

Mrs. REHANA ZAHID and 2 others--Respondents

W.P. No. 1008 of 2010, decided on 21.2.2012.

Islamabad Rent Restriction Ordinance, 2001--

----S. 17(4-A)--Ejectment petition--Personal bonafide need--Expiry of lease agreement--Ejectment can be passed, if landlord require premises for occupation of any member of the family--If premises was not occupied by landlord or any member of family within six months, then tenant will have right to apply to rent controller for an order, directing landlord to restore possession of premises building to tenant--Mere statement of landlord regarding personal bonafide need is sufficient for passing an order of ejectment--Rent agreement between parties had expired and same had not been extended, so tenant was liable to vacate suit premises.    [P. 163] A & B

Mr. Nazir Ahmed Bhutta, Advocate for Petitioner.

Mr. Mumtaz Ahmed Bilal, Advocate for Respondent No. 1.

Date of hearing: 13.2.2012.

Judgment

This judgment is directed to dispose of W.P. No. 1008 of 2010.

2.  Brief facts of the case are that the petitioner is tenant under the Respondent No. 1/landlord in House No. 2, First Floor, Street No. 31, Sector G-6/1-3, Islamabad. The respondent/landlord filed ejectment petition against the petitioner, on the grounds of personal bonafide need as well as expiry of lease agreement. As according to the respondent/ landlord, her mother-in-law is a `cancer patient' and needs treatment at CMH Rawalpindi. She being resident of Wah Cantt. brings her mother-in-law frequently to Islamabad and that causes a lot of inconvenience to her as well as her mother-in-law. For that purpose, the respondent/ landlord needs demise premises for the personal bonafide need. The learned Rent Controller vide order dated 11-9-2008 dismissed the ejectment petition. The respondent/landlord filed appeal against the said order, which was accepted by the Addl. District Judge, Islamabad vide judgment dated 15-1-2010 and the petitioner/tenant was directed to hand over vacant possession of the demise premises to the landlord within 60-days of the order. Feeling aggrieved of the said order, the present writ petition was filed.

3.  Learned counsel for the petitioner submitted that the respondent/landlord had earlier filed ejectment petition on the same grounds and was withdrawn and thereafter second petition was filed. It was further submitted that since at the time of earlier withdrawal, permission for filing fresh petition was not sought, therefore, second petition was not competent. It was admitted that the lease agreement had expired, but the same was orally extended.

4.  Learned counsel for the respondent submitted that the learned Rent Controller while dismissing the ejectment petition had erred in holding that probably the respondent/landlord was a cancer patient, whereas, infact not the respondent/landlord, rather her mother-in-law was cancer patient. This fact was appreciated by the learned lower appellate Court. The teamed counsel further submitted that since the premises in dispute is required in good faith for a personal need, therefore, the order of learned lower appellate Court is required to be maintained. Regarding the earlier ejectment petition, the learned counsel submitted that though the earlier petition was withdrawn, however, no order on merits was passed. It was further submitted that provisions of the Civil Procedure Code are not applicable to the rent proceedings, but eve otherwise, principle of resjudicata was not applicable in this case, as no order on merits was passed.

5.  I have heard learned counsel for the parties and have also perused the record.

6.  Admitted position in the present case is that the landlord/respondent had earlier filed an ejectment petition, which was afterwards withdrawn. However, the contention of learned counsel for the petitioner is not correct that the second ejectment petition is not competent on the ground that permission for filing fresh petition was not sought from the Rent Controller. Infact, provisions of the Civil Procedure Code, 1908 are not applicable to the procedure before the Rent Controller. However, under Section 20 of the Islamabad Rent Restriction Ordinance, 2001 there is restriction on the second application, so for the sake of convenience, Section 20 ibid is reproduced herein below:

"20. Decision which have become final not to be re-opened.--The Controller shall summarily reject any application under sub-section (2) or sub-section (4) of Section 17 which raises substantially the same issue as has been, finally decided in any former proceedings under this Ordinance unless new grounds or circumstances have arisen after the final decision in such proceedings."

In the present case, the earlier ejectment petition was not decided by the Rent Controller and there was no final decision. In these circumstances, the second ejectmentpetition could be filed.

7.  The main ground of the landlord is personal bonafide need and U/S 17 (4-A) of the Islamabad Rent Restriction Ordinance, 2001 the ejectment can be passed, if the landlord require premises for the occupation of any member of his or her family. This section is to be read with sub-section (6) of Section 17 ibid, which provides that if the premises is not occupied by the landlord himself/herself or any member of his/her family, within six months, then the tenant will have a right to apply to the Rent Controller for an order, directing the landlord to restore the possession of the premises/building to the tenant.

8.  Since, in law rights of the tenant have been safe guarded, so mere statement of the landlord regarding personal bonafide need is sufficient for passing an order ofejectment. In present case, the need as expressed by the landlord is genuine, that she needs the house for the occupation of her mother-in-law, who is patient of cancer and needs constant treatment at Rawalpindi/Islamabad.

9.  It is also admitted that rent agreement between the parties has expired and the same has not been extended, so on this score too, the tenant is liable to vacate the suit premises.

10.  In the above said circumstances, finding no force in this writ petition, the same is accordingly dismissed.

(R.A.)  Petition dismissed