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Second Appeal No.159 of 1975, decided on 22nd January, 1984.

‑‑Ss. 8 6 42‑‑Civil Procedure Code (V of 1908), 5.100‑‑Second appeal‑‑Suit for declaration and recovery of possession of quarter on basis of its allotment in favour of plaintiff‑‑Defendant's case based on sale agreement execution of which not proved‑‑Plaintiff producing sufficient evidence about confirmation of allotment in his favour‑‑Defendant's evidence suffer ing from inconsistencies‑‑Decree granted by trial Court reversed in appeal ‑‑View adopted by appellate Court, being against evidence on record, second appeal allowed in circumstances.

‑‑‑S.15‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.15(5)‑‑Order of ejectment obtained fraudulently and by suppression of facts‑‑Protection of S.15(5) West Pakistan Urban Rent Restriction Ordinance, 1959, held, not available to such ordeRs.

Muhammad Sadiq for Appellant.

Nemo for Respondents.

Date of hearing: 22nd January, 1984.

This IInd Appeal under section 100, C.P.C. is directed against judgment and decree, dated 24th February, 1975 passed by the learned VI Additional District Judge, Karachi, whereby he set aside judgment and decree, dated 31st July, 1974 passed by the learned XI Civil Judge, IInd Class, Karachi, in Civil Suit No. 845/69. The facts in the background, briefly stated, are as under:‑‑

2. The appellant Waheeduddin filed the Suit No. 845/69 for declaration that he was owner of a quarter No. 786, Block No.5, Lalukhet, Karachi, and that an order of his ejectment there from passed by a Controller in a Rent Case No.3366/67 had been obtained by fraud practised upon Court and was void and of no legal effect. He also prayed for recovery of possession of the said quarter. His case was that he had permitted respondent No.2, Umer Khan son of Anwar Khan, who was related to him, to share the quarter with him and the latter inducted the respondent No.1 herein, namely Abid Hussain, in the quarter and they both, in collusion with each other, filed the Rent Case No.3366/67 for his ejectment from the quarter and obtained order of ejectment by misrepresenting the facts that the respondent was the landlord. The respondent No.1 resisted the suit taking the plea that the appellant had transferred the quarter to him for valuable consideration and denied the allegations of collusion, misrepresentation and fraud etc. He also raised legal plea that the suit could not be maintained. The suit was decided on the following issues:‑‑

(1) Whether the plaintiff or the defendant No.1 is owner of the disputed quarter

(2) Whether order passed in ejectment proceedings is a nullity, has no legal effect and it has been obtained fraudulently and by suppression of facts.

(3) Whether the defendant No.2 is liable to pay the rent to the plaintiff

(4) Whether the suit is under valued

(5) Whether the plaintiff is entitled for any relief

(6) What should the decree be

3. At the trial of the suit, the appellant gave evidence himself and produced certain documents. Similarly, the respondent No.1 examined himself and produced certain documents. The learned trial Judge held, by the judgment, dated 31st July, 1974, that the appellant was the owner of the quarter and that the order of ejectment had been obtained by practising fraud and was of no legal effect and decreed the suit with costs. The learned VIth Additional District Judge, Karachi, reversed, in appeal, the findings of the learned trial Judge.

4. Mr. Muhammad Sadiq Advocate has argued the appeal on behalf of the appellant whereas the respondents have remained absent. The dispute between the parties is in respect of a Quarter No.786, Block No.5, Lalukhet, Karachi. The appellant has claimed it on the basis an allotment order put in evidence by the respondent as Exh. D/2. This fact is not disputed. The contestant respondent's case in the suit was that the appellant had sold the quarter to him for consideration by way of an agreement, dated 22nd October, 1966, a copy of which he filed in evidence as Exh. D/1. This fact was categorically denied by the appellant. The appellant filed in evidence receipts of payment of Karachi Development Authorities Exhs. P/1 to P/10 for the months of February, 1959 to May, 1960, respectively, anti‑clockwise. He also filed in evidence receipts of payment of K.M.C. taxes Exhs. P/12 to P/20 for the years 1962‑63 to 1970‑71. He also filed PT‑1 of assessment of the quarter in his name by the Excise and Taxation Officer in the year 1968. As against this evidence, the respondent No.1 produced receipts of payments made by him on behalf of the appellant to the K.O.A. for the months of December, 1960 to December, 1961, January, 1961 to April, 1962 and January and March, 1963, August and November, 1960 and May to December, 1962 Exhs. 7 to 11. He also filed certain receipts of payment of K.M.C. charges Exhs. 12 to 15, out of which 3 receipts Exhs. 12, 13 and 14 were issued on one and the same day viz. 30th June, 1964 and only one receipt Exh. 15 was issued on 15th April, 1962. No witness was examined to prove the execution of the transfer deed Exh. D/1. Evaluating evidence of both the parties, the learned trial Judge held that the appellant was the owner of the quarter. This finding was reversed by the learned Additional District Judge on the ground that the appellant was merely an allottee of the quarter and he had not made full payment for the transfer of the quarter to him and that the documents produced by the respondent furnished evidence that he had made payments to the K.D.A. and the quarter must have been transferred to him by some arrangement if not by the sale agreement produced in evidence. He also relied upon a mis‑statement having appeared in the written statement filed by the appellant in the ejectment case that the respondent herein was owner of the plot. He also attached great importance to a decision of Chairman of Union Committee in a conciliation proceeding that the quarter had been transferred to the respondent. The broad facts for consideration are that the quarter stands allotted to the appellant and the respondent's claim over it is based upon a sale agreement, the execution of which has not been proved. The receipts of payments of charges to the K.D.A. and K.M.C. produced by the appellant furnish sufficient evidence in confirma tion of his claim that the allotment to him subsisted and he had not divested himself of its allotment. A mis‑statement having appeared in another proceeding or the decision by a Chairman of Union Committee did not prove the case of the respondent that the quarter had been transferred to him. It appears from the judgment of the appellate Court in the Rent case that the case of appellant there was that he was the owner of the quarter and he had let it out to the respondent Umar Khan and the latter had inducted the appellant Waheeduddin there as the sub‑lettee. Such contrary versions advanced by the respondent bear out that he does not have genuine claim over the quarter. The view adopted by the learned Additional District Judge is against the evidence on the record. Of course, the appellant could not be held as the owner of the quarter but he is an allottee thereof.

5. As regards the decision in the Rent case, there was no decision on merits. The case was decided on the ground of default made in payment of tentative rent by the respondent No.2 in compliance of the order of the Controller. The order by the Controller seems to have been passed without determining the relationship of the landlord and the tenant between the parties. As indicated above, the respondent's case before the Controller was that he was the owner of the quarter and he had let it out to the respondent Umar Khan who had sublet it to the appellant, whereas his stand in the suit was that he had purchased the quarter from the appellant. It is obvious that the ejectment case was based on misrepresentation of facts and the order of ejectment was obtained fraudulently and by suppres sion of facts. Such order could not be protected under subsection (5) section 15 of the Sind Urban Rent Restriction Ordinance, 1959.

6. For the reasons recorded above, the appeal is allowed and the judgment and decree, dated 24th February, 1975 passed by the learned VIth Additional District Judge, Karachi, is set aside and the judgment and decree, dated 31st July, 1974 passed by the learned XIth Civil Judge, Second Class, Karachi, is restored. The appellant is awarded costs through out.

M.B.A. Appeal accepted.

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