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Civil Petition for Special Leave to Appeal No. 562‑R of 1983, decided on 2nd November, 1983.

(On appeal from the judgment and order of the Lahore High Court, Multan Bench, Multan dated 25th June, 1983 passed in Writ Petition No. 1297/81).

---Ss. 13 & 13‑A‑Ejectment for default and personal bona fide need‑Relationship of landlord and tenant‑Decree on which claim of ownership by landlord was based, impeached on ground of fraud and misrepresentation‑Order or decree obtained by fraud, not void but only voidable Such decree or order remains operative as long as same was not set aside, rescinded or recalled by competent authority or Court in proper proceedings‑Superior Court or Court of general jurisdiction has power to disregard, as a nullity, an order obtained by fraud or collusion, or on ground of want of jurisdiction in Court or authority making same‑Such an order cannot' be collaterally impeached before Tribunal which‑ enjoys only a special or limited jurisdiction in a defined sphere‑Held, tenant could not collaterally challenge decree obtained by landlord declaring his title to property in dispute in proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959 and forums established under that Ordinance were not competent to impeach decree as void and of no legal effect‑Rent Controller and for that matter appellate authority are competent to determine preliminary issue whether relationship of landlord and tenant existed between parties‑Such finding will not prevail as against decree passed by Court of plenary jurisdiction until set aside in appeal, revision or review in proper proceedings by a separate suit in competent Court of law‑Presence of decree in band of landlord, held further, was therefore, an insur mountable hurdle in way of forums under West Pakistan Urban Rent Restriction Ordinance, 1959 to hold that landlord was not owner District Judge therefore was rot competent to enquire into antecedent facts culminating in decree of Civil Court to hold same as a nullity in law in circumstances.

Chief Settlement Commissioner v, Muhammad Fazil P I. D 1975 S C 331 ref.

Ch. Abdul Rehman, Senior Advocate Supreme Court with Ch. Akhtar Ali,

Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing 2nd November, 1983.

.‑Syed Mueenuddin, the petitioner herein, seeks leave to appeal from the judgment dated 25‑6‑1983 whereby a learned Single Judge of the Lahore High Court, Multan Bench, Multan allowed the Constitutional Petition of Saeeda Parveen respondent and declared the order passed by the learned Additional District Judge, Dera Ghazi Khan to be of no legal effect with the result that the order of eviction passed against the petitioner was restored.

2. The material facts leading to this petition are that the petitioner is in occupation of the disputed premises which was transferred in the name of Mst. Inayat Begum by the Settlement Department. However, the respondent filed a d9claratory suit against Mst. Inayat Begum which was decreed on 26‑11‑1975 by the Administrative Civil Judge, Dera Ghazi Khan with the result that the respondent was declared as the owner of the property com prising the premises in dispute. After getting the decree the respondent is said to have served notice of intimation under section 13‑A of the Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred to as the (Ordinance') and demanded the payment of rent. As the petitioner failed to comply with the demand, the respondent filed ejectment application on the ground of default in the payment of rent and bona fide need for personal use. The petitioner resisted the prayer for his ejectment and raised the plea that there exists no relationship of landlord and tenant between the parties. His case was that he was a tenant of Mst. Inayat Begum and the respondent had no locus standi to bring the action for his eviction. The learned Rent Controller rejected the aforesaid plea of the petitioner and held that the petitioner was tenant of the respondent as the latter had become the owner of the premises by virtue of the decree passed by the Civil Court and lead duly notified this fact to the petitioner. In this view of the matter, since the petitioner had admittedly not made any payment of rent to the respondent and had denied her title, the learned Rent Controller passed the order of eviction against the petitioner on 25‑7‑1979. On appeal by the petitioner the learned Additional District Judge, Dera Ghazi Khan, however, reversed the finding of the learned Rent Controller and held that there exists no relationship of landlord and tenant between the parties, in view of his finding that the decree on which the claim of ownership by the respondent was based, having been obtained by fraud was nullity in law. He accordingly allowed the appeal by his judgment dated 11‑10‑1980. In reaching this finding the learned Additional District Judge went behind the decree and took into consideration the documentary evidence which revealed that the respondent had first filed a declaratory suit on 12‑9‑1976 against Mst. Inayat Begum in the Court of Senior Civil Judge in which a written statement was filed on behalf of the defendant confessing judgment but the Court had ordered the defendant to appear in person. The hearing of this suit was fixed on 26‑11‑1975 when the suit was with drawn and dismissed as such with the permission to file a fresh suit on the same cause of action on account of normal defect. However, during the pendency of the aforesaid suit, on 15‑11‑1975 another identical suit was filed before another Civil Judge in which also a written statement confessing judgment was‑filed and this suit was decreed on admissions on the same day viz. 26‑11‑1975.

3. The respondent then challenged the judgment passed by the learned Additional District Judge in the Constitutional Petition before the High Court which was allowed as already stated. The learned Judge in the High Court held that "the Rent Controller had no authority to say whether the decree issued by a competent Court are valid or not" as the learned Additional District Judge exercising the appellate jurisdiction under the Ordinance, enjoyed the same powers as those vests it the Rent Con troller, his jurisdiction was likewise limited in its scope to the matters provided for in the Ordinance. In this view of the matter the learned Judge took the view that the learned Additional District Judge had over‑stepped the limits of his jurisdiction in question the validity of the decree passed by the civil Court is favour of the respon dent. In consequence the learned Judge further held that the petitioner was bound to accept the respondent as his landlady and in denying her title, had rendered himself liable to eviction.

4. In support of this petition it .has been urged by the learned counsel that on the materials placed before the learned Additional District Judge he was justified in his conclusion that the decree was obtained by fraud and was liable to be ignored as a nullity in law with the result that the respon dent had failed to establish the relationship of landlord and tenant between the parties. It was urged that it was within the jurisdiction of the learned Additional District Judge to determine the question whether the transfer of title on the basis of the decree had actually and lawfully taken place or not. On these grounds the learned counsel contended that the view taken by the learned Judge in the High Court was, therefore, untenably; in law. Learned counsel further submitted that the petitioner bad filed it declaratory suit challenging the decree dated 26‑11‑1975 obtained by the respondent through misrepresentation and fraud which is pending and an order for main tenance of status quo with respect to the: possession has been passed by the civil Court.

5. After carefully considering the contentions advanced by the learned counsel we are, however, unable to find any force in them. 'The decree obtained by the respondent is being impeached on the ground of fraud and misrepresentation. However, an order or decree obtained by fraud is not void but only voidable. It would, therefore, remain operative as long as it is not set aside, rescinded or recalled, by a competent authority or Court in proper proceedings. It is now well established that a superior Court or a Court of general jurisdiction has the power to disregard, as a nullity, an order obtained by fraud or collusion, or nor the ground of want of jurisdiction in the Court or authority making it, but such an order cannot be collaterally impeached before a Tribunal which enjoys only a special or limited jurisdiction in a defined sphere. These principles were laid down by this Court in Chief Settlement Commissioner v. Muhammad Fazil (1). Thus the petitioner clearly could not collaterally challenge the decree obtained by the respondent declaring his title top the property in dispute in the proceedings under the Ordinance and the forums established there under were not competent to impeach the decree as void and of no legal effect. No exception can, therefore, be taken to the view taken by the learned Judge in the High Court. There is no quarrel with the proposition that the Rent Controller and for that m4tter the appellate authority were competent to determine the preliminary issue, whether the relationship of landlord and tenant existed between the parties, as the existence of such relationship is a fact upon which the jurisdiction of the Controller is founded. But as no finality attaches to such a decision regarding foundational facts under the Ordinance, it will not prevail a against the decree passed by a Court of plenary jurisdiction until it is set aside in appeal or revision or review in proper proceedings or by a separate suit in a competent Court of law. The presence of tile decree in the hands of the respondent was, therefore, an insurmountable hurdle in the way of the forum under the Ordinance to hold that the respondent was not the owner of the premise. This being the position the learned Additional District Judge was not competent to enquire (1) PLD 1975SC331 into antecedent facts culminating in the decree of the civil Court to hold it as a nullity in law

6. No other argument was raised by the learned counsel.

7. For the foregoing reasons no exception can be taken to the judgment of the High Court and this petition is accordingly dismissed.

M.Z. M. Petition dismissed.

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