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Before Sajjad Ali Shah, J
HASEEN AHMED KHAN‑Applicant/Appellant
versus
IRSHAD KHAN THROUGH His LEGAL HEIRS AND ANOTHER Opponents/Respondents
First Rent Appeal No. 312 of 1983, heard on Ilth August, 1985.
(a) Sind Rented Premises Ordinance (XVII of 1979) ----
---- Ss. 15, 21 & 22‑West Pakistan General Clauses; Act (VI of 1956), S, 20‑Execution of ejectment order‑Objection to‑"Intervenor" connotation of‑Person posing himself to be intervenor and claiming legal rights in executed rented property, held, could be treated intervenor only, if he had joined execution proceedings against original tenant earlier after getting permission of Court by satisfying Court with convincing and cogent evidence that he had legal or sub stantial right in disputed property and that matter could not be adjudicated upon without including him in hearing‑Person, fully aware of execution proceedings, not bothering to join in such pro ceedings earlier, but seeking to join after possession of property was delivered to landlord in execution proceeding, could not be treated as intervenor, particularly where he failed to prove that he was in fact, tenant of landlord in disputed property.
(b) Sind Rented Premises Ordinance (XVII of 1979)‑---
--- Ss. 15, 21 & 22‑West Pakistan General Clauses Act (VI of 1956), S.20‑Execution of ejectment order‑Restoration of possession --Application for‑Person, neither proved to be tenant nor joining ejectment proceedings but joining of proceedings at execution stage‑ Such person's application for restoration of possession to him, held, should have been dismissed by executing Court.
(c) Practice and procedure‑---
-----‑‑ Presiding Officer to base his finding on such arguments advanced by counsel which were confined to evidence and other material available on record‑Arguments travelling outside record, might be impressive, but would only be conjectures and surmises and could be hypothetical.
(d) Sind Rented Premises Ordinance (XV11 of 1979)‑----
‑‑ S. 21‑West Pakistan General Clauses Act (VI of 1956), S. 20 Review‑Power of Rent Controller to review order‑Exercise of Power to review order already passed by Rent Controller not provid ed for under Ordinance XVII of 1979, held, could be exercised by Rent Controller by invocation of S. 20 of Act VI of 1956.‑[Review].
N. Q. Industries v. Mrg. Bapai haikhusro P L D 1968 Kar. 589 and
Ikram‑ud‑Din v. Syed Mahboob Ali P L D 1978 Kar. 145 ref.
(e) Sind Rented Premises Ordinance (XVII of 1979)‑----
-----Ss. 21 & 22‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 17‑Civil Procedure Code (V of 1908), O. XXI, Rr. 100 & 101‑Execution of ejectment order‑Power exerciseable under Ordinance VI of 1959 and under Ordinance XVII of 1979 Comparison of‑Power to execute order of Rent Controller which under old and repealed law was conferred on civil Court, had now been conferred on Rent Controller or appellate Authority under S. 22 of Ordinance‑Rent Controller in exercise of such power, held, would have to evolve his own procedure and could make use of relevant provisions of O. XXI, Rr. 100 & 101 of Civil Procedure Code under which Rent Controller could make inquiry and in case bona fide claimant was found to be wrongfully dispossessed possession thereof, could be restored to him by Rent Controller.
Messrs Bambino Ltd. V. Messrs Selmor International Ltd. and another PLD1983SC155ref.
G. H. Malik for Appellant.
Shaikh Muhammad Mushtaq (absent) for Respondent No. 1.
K. M. Nadeem for Respondent No. 2.
Dates of hearing : 8th and 11th August, 1985.
This First Rent Appeal is directed against the impugned order dated 27‑3‑1983 passed by with Senior Civil Judge, Karachi in execution proceedings of a rent case allowing application of Intervenor for restoration of possession of premises in dispute, when he was not a party to the proceedings.
Briefly stated that relevant facts giving rise to this appeal are that appellant Haseen Ahmed Khan (hereinafter to be referred as the landlord) filed an application for eviction under section 15 of the Sind Rented Premises Ordinance, 1979 against respondent No. 1 Irshad Khan (herein after to be referred as the tenant), who contested the proceedings and filed written statement. Subsequently, on 26‑5‑1982 tentative Rent Order was passed with direction for deposit of arrears as well as future monthly rent. There was non‑compliance of the tentative Rent Order by the tenant hence application was filed for striking off defence and after hearing both the parties the learned Rent Controller struck off the defence and passed order of eviction on 21‑9‑1982. Execution proceedings were taken against the tenant during which writ of possession was issued, Police aid was granted and final possession of the shop in dispute was taken over and delivered to landlord on 29‑1‑1983. On 31‑1‑1983 Abdul Kadir filed an application under section 20 of West Pakistan General Clauses Act, 1956 claiming therein to have been wrongfully and illegally dispossessed from the shop in dispute due to collusion of landlord and tenant and further praying therein that the possession be restored to him.
The question that primarily arises for consideration is whether Abdul Kadir has any locus standi or competence to enter execution proceedings when he is not a party to the rent proceedings which are between landlord and tenant. All this would depend on what right is being claimed by Abdul Kadir in the disputed premises. It is apparent from the record that writ of possession was executed on 29‑1‑1983 and possession of the disputed shop was taken over and handed over to landlord. Abdul Kadir has filed application on 31‑1‑1983 under section 20 of West Pakistan General Clauses Act, 1956 and claimed therein tenancy direct from the landlord. In his application mentioned above, plea is taken by him that he is tenant in respect of disputed shop since August, 1977 at monthly rent of Rs. 600 which was subsequently enhanced in or about October, 1978 to Rs. 700 p. m. It is also asserted by Abdul Kadir that at the time of commencement of tenancy he had deposited Rs. 10,000 with the landlord by way of security which are refundable at the time of termination of tenancy. It is further stated in the application that consequent upon taking over possession of the disputed shop, Abdul Kadir started business in the said shop as sole proprietor of "Foam Corner". He further stated that in connection with his business he had opened a Bank Account and used address of the disputed shop in correspondence with other person. He took out Insurance Policy in which also he gave the same address of the disputed shop. Thus, documents produced by Abdul Kadir do show that he has been using address of the disputed shop for the purpose of correspondence but he has produced no evidence whatever in support of his claim of tenancy from the landlord. He has not produced any tenancy agreement. He has not produced any rent receipts. He has not produced mutual agreement by which rent was increased from Rs. 600 to Rs. 700. He has not produced any oral evidence to show that he is actual tenant of the disputed shop. Landlord has denied that Abdul Kadir was his tenant. In these circumstances, it can be said that Abdul Kadir has failed miserably to produce any documents in support of his claim that he is tenant of the landlord. Application under section 20 of the West Pakistan General Clauses Act, 1956 filed by Abdul Kadir in the execution proceedings is rather longishly drafted document running into eight typed pages. In paragraph 5 of the application, it is stated that Abdul Kadir used to pay rent regularly and landlord used to issue receipts, which Abdul Kadir preserved, but were destroyed or removed or pilfered during execution of writ of possession in the absence of Abdul Kadir. In the same paragraph, in the same breath, it is further stated that an atmosphere of cordiality and understanding prevailed between Abdul Kadir (herein after to be referred as Intervenor for the sake of convenience) and the landlord and no dispute on the question of payment of rent ever arose as the Intervenor continued to pay the rent to him every month. In paragraph 6 of the application of Intervenor, it is stated that on 29‑1‑1983 the Intervenor was thrown out of the shop alongwith all his merchandise, goods in trade, books of account and other assets belonging to him or to his said trade name. Now Abdul Kadir has taken up two pleas in his application which are contrary to each other on the question of production of agreement and tenancy receipts. At one place, he has said that these receipts were destroyed or removed or pilfered during execution of writ of possession in the absence of Intervenor. At another place, in the same application, it is stated that on 29‑1‑1983, Intervenor was thrown out of the shop alongwith all his merchandise, goods in trade, books of account and other assets belonging to him or to his said trade name. Now since both these stands are in contradiction with each other, then one of them is patently false. It is for Abdul Kadir to say which one is false but he does not say so: Now if the assertion made first is correct that rent receipts were destroyed or removed or pilfered during execu tion of writ of possession, then it is expected that all other necessary documents would also jointly meet the same fate but strangely afterwards when application was filed in the execution Court by Abdul Kadir, he produced at least six documents including acknowledgment receipt, copy of challan for payment of money, notice of Insurance Company, acknowledgement receipt of postal letter and so on. Unfortunately all these documents produced by Abdul Kadir only show that he has been using the address of disputed shop and nothing snore. Now if second assertion made in the application is correct that on 29‑1‑1983, Intervenor was thrown out of shop alongwith all his merchandise, goods in trade, books of account and their assets belonging to him or to his said trade name, then, it is expected that Abdul Kadir could produce documents and rent receipts in support of his claim that he is tenant of the landlord in respect of disputed shop. Rest of the contents of application filed by Abdul Kadir in the execution Court relate to the collusion between the landlord and tenant. It may be mentioned here that Abdul Kadir filed application under section 20 of the West Pakistan General Clauses Act, 1956 after execution of the writ A of possession as Intervenor. At the foot of this application, it appears that the same is signed by the Advocate for the Intervenor. Abdul Kadir had taken it for granted that he is Intervenor. He could be treated so only when the permission is given by the Court and initially he has to seek permission of the Court to be joined as a party. When he produces evidence and material of such convincing nature to satisfy the Court that he has a legal or substantial right in the disputed shop and the matter could not be adjudicated without including him in the hearing then such permission is granted. It is obvious from the record that no application was filed by Abdul Kadir to be joined in the proceedings as Intervenor. This objection may be overlooked on the ground that it is just technical in nature and is more procedural but the fact remains that Intervenor is allowed by the Court to 'be joined as a party only after he satisfies the Court that he has a legal or substantial right involved in support of which he could produce material documents.
From the discussion made above, it is quite manifest that Abdul Kadi has not produced any evidence worth the name to satisfy the Court that he is in fact tenant of the landlord in the disputed shop.
Now the next correlated question is whether Abdul Kadir was in physical possession of the shop in some other capacity. In this. context, Abdul Kadir himself does not say anything in particular and on the contrary, the case set up in his application which was filed by him in the executing Court, clearly shows that he claims a right of tenancy direct from the landlord and nothing short of it. Documents produced by Abdul Kadir in execution proceedings show his address as "Foam Corner" 4/824, Liaquatabad, Karachi. 4/824 is the number of shop in dispute. The docu ments do show the address as mentioned above but they do not show that Abdul Kadir is real and legal tenant of the landlord in that disputed shop. Anyway the executing Court, it appears had issued notices to the parties, in persuance of which landlord Haseen Khan and tenant Itshad Khan filed objections against the application of so‑called Intervenor. Landlord in his objections specifically stated that Intervenor was never his tenant and there existed no relationship of landlord and tenant between them. He further asserted that Intervenor might be a sub-lettee of the tenant. He categorically stated that his tenant was Irshad Khan. Tenant Irshad Khan also filed objections, in which he admitted to be tenant of landlord Haseen Khan and further stated that he was doing Foam business and further intervenor was neither sublettee nor subtenant of the tenant. Tenant further claimed that he himself was doing Foam business and used to sell the goods in the shop on commission basis. Tenant prayed to the Rent Controller that possession of the disputed shop taken from him should be restored to him. Abdul Kadir filed affidavit‑in‑rejoinder and denied relationship of landlord and tenant between Haseen Khan and Irshad Khan. He further labelled Irshad Khan as an impersonator set up by the landlord as fictitious tenant to procure eviction by way of collusion.
Even on the question of possession, I would like to point out that it appears from the record of the execution Court that on 11‑1‑1983 Bailiff reported that he went to the disputed shop for execution of the writ of possession but opponent/judgment‑debtor was not present. He affixed 24 hours notice of execution on the outdoor of the shop. Again on 13‑1‑1983 at 3‑00 p. m. Bailiff went to the disputed shop but it was pointed out to him that opponent/judgment‑debtor was not present and other persons, who were servants including Kadir and Waheed were present in the shop and they resisted execution of writ of possession. Resistance was so much and to such an extent that Bailiff became apprehensive that there would be breach of peace and he would not be able to execute writ of possession without Police aid. He returned to the Court and made such report, on the basis of which an application was filed for Police aid. Statement of Bailiff was recorded on oath and order was passed for Police aid. Subsequently on 29‑1‑1983 writ of possession was, executed with aid of police and the possession of the disputed shop was taken over and handed over to the landlord. Now if the claim of Abdul Kadir is correct that he was in possession, then he was expected to be present in the shop. On 11‑1‑1983, he was not present in the shop. On 13‑1‑1983, when Bailiff went again, it is reported by the Bailiff that there was resistance and many servants were present in the shop including Abdul Kadir and they resisted. From the record of the Court name of Abdul Kadir present in the disputed shop appears for the first time in the report of Bailiff on his visit to the disputed shop on 13‑1‑1983. Now the question arises why Abdul Kadir who was present in the shop on 13‑1‑1983 and knew that attempt was made to execute the writ of possession did not take any step to run to the Court and show the documents, rent receipts and other things that he was the original tenant and not Irshad Khan. He could have prayed for stay of execution. He could have applied for being joined as a party. Why Abdul Kadir had to wait till the writ of possession was executed and possession was taken over and handed over to the landlord. According to the record of the Court Abdul Kadir had knowledge of the proceedings and knew that on 13‑1‑1983 the shop was going to be vacated under the orders of the Court. He could have easily retrieved necessary documents, rent receipts and other such material which could have been useful to him in support of claim of tenancy. He could have at once rushed to the Court with an application with prayer to be joined as a party and could have supported his claim of tenancy by documents and rent receipts. Abdul Kadir came to the Court on 31‑1‑1983 after the possession of the disputed shop was taken over. Contradictory claims of Abdul Kadir that at‑ the time of execution of writ of possession his books, rent receipts, agreement and other documents were destroyed or removed or pilfered and second plea that he was thrown out of the shop alongwith all his merchandise, goods in trade, books of account and other assets belonging to him stand falsified by the factual position stated in Mashirnama prepared at the time of execution of writ of possession. Mashirnama of the Bailiff is on the record of the Court which is duly signed by him and the Mashirs. It is stated therein that opponent/judgment‑debtor was not present and his persons were present whom Bailiff showed writ of possession and asked them to vacate the shop in question. At that stage they started removing the things outside. Opponent's person Syed Nazar Haider also signed original writ of posses sion. At 2/5 p. m. all the articles were removed and were outside the shop and vacant possession of the disputed shop was taken over. Even in the normal course, if possession is taken with police aid in the absence of the party, who claims to be in possession and things and belongings are removed then proper inventory is prepared to account for all those things and articles and belongings taken over which are supposed to be returned to the owner. The owner has every right to make a claim if his belongings and things have been thrown away, destroyed or pilfered at the time of taking possession. Moreover, the whole story is falsified by Mashirnama of recovery of possession. Abdul Kadir has not made any claim so far as to what articles belonging to him were thrown away from the .shop in dispute.
Upshot of the discussion made above is that Abdul Kadir who has joined proceedings at the stage of execution and was not a party to the rent case, has not produced any material or documents to satisfy the executing Court that he was the tenant of the landlord. His application for restoration of possession as intervenor should have been dismissed by the executing Court. There is no justification or warrant in law for the finding of executing Court that Intervenor has a better case than judgment debtor. What appears from the impugned order passed by the executing Court is that the learned Presiding Officer was very much impressed by the arguments which were advanced by the counsel, which had no nexus or connection with pleadings of the parties and documents and evidence which was available on the record. Arguments should be those which must be confined to the evidence and other material available within the record. Arguments which travel outside the record are mere conjuctures and surmises and can be hypothetical. In the instant case it was mandatory for Intervenor to produce satisfactory evidence to convince the Court that he had a legal or substantial right in the disputed shop to entitle him to a hearing but he has failed to produce any such evidence or proof. When a straight question was put to Mr. K. M. Nadeem, counsel for respondent Abdul Kadir as to what was claim of Abdul Kadir with regard to disputed shop, Mr. Nadeem replied that Abdul Kadir was in possession of disputed shop and nature of possession was as that of actual tenant. On being asked why Abdul Kadir does not claim to be tenant, Mr. Nadeem replied that no such documents were produced in support of that claim. Mr. Nadeem stated further that in such circumstances broader enquiry should have been held by the Rent Controller in the execution proceedings and Abdul Kadir should have been allowed to produce other evidence and docu ments in proof of his claim. Request of Mr. K. M. Nadeem is not justifiable because the learned Rent Controller gave adequate opportunity to Abdul Kadir as well as other parties and a proper enquiry was held. Abdul Kadir filed his application before the executing Court on 31‑1‑1983. Landlord filed his objections on 12‑2‑1983. Tenant Irshad Khan filed his objections on 12‑2‑1983. Abdul Kadir filed his affidavit‑in‑rejoinder on 1‑3‑1983. Final order was passed by the executing Court on 27‑3‑1983. So from 31‑1‑1983 to 27‑3‑1983 three months had passed but no attempt was made by Abdul Kadir to produce any rent receipts or any other documents to show that he was actual tenant of the landlord, Even no request was made for produc tion of neighbouring witnesses to say that Abdul Kadir was actual tenant of the landlord and not Irshad Khan in the disputed shop.
So far the legal aspect of the matter is concerned, no doubt Sind Rented Premises Ordinance, 1979 does not provide for a review of the order already passed by the Rent Controller but such power of review is t available by invocation of section 20 of West Pakistan General Clauses Act, 1956. It is held in N. Q. Industries v. Mrs. Bapai Kaikhusro (P L D 1968 Kar. 589) by Noorul Arfin, J (as he then was).that Rent Controller and First Appellate Authority acting under provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 are competent to recall, review, rescind, vary, cancel, alter or amend their orders for the reason that Authority which is competent to issue order also has power to vary 6r cancel that order as is contemplated under section 20 of the West Pakistan General Clauses Act. View expressed above was subsequently followed in the case of Ikram‑ud‑Din v. Syed Mahboob Ali (P L D 1978 Kar. 145). Now so far the question of execution is concerned under t the old law i.e. Urban Rent Restriction Ordinance 1959 orders passed under sections 10, 13 and 15 were to be executed by the civil Court having jurisdiction in that area. For that purpose report could be made to the provisions of Order XXI, rules 100 and 101 of the C. P. C. In the present rent law i.e. Sind Rented Premises Ordinance, 1979 execution of order is contemplated under section 22 where it is provided that an order made by the Controller or the appellate authority shall be executed in such) manner as may be determined by the Controller, or as the case may be,, the appellate authority. Under the new law since Rent Controller has', to evolve his own procedure he can make use of relevant provisions of C. P. C. i. e. Order XXI, rules 100 and 101 of C. P. C. Rent Controller under these provisions can make an enquiry and if bona fide claimant is found to have been wrongfully dispossessed, his possession can be restored. In support of this proposition, reliance is placed on the case of Messrs Bambino Ltd. v. Messrs Selmor International Ltd. and another (P L D 1983 S C 155). In the instant case, therefore, Rent Controller could validly go into the question of dispossession and make enquiry and in fact he did the same in which sufficient opportunity was allowed to the concerned parties but on the basis of documents produced in the record, I say that Intervenor Abdul Kadir has failed miserably to produce any material evidence documentary or otherwise to satisfy the Court that he was original tenant of the landlord or for that matter even in possession of the disputed premises. Documents produced by him only show that he was using the address of the disputed shop for his business activities.
In the circumstances and for the facts and reasons stated above, I set aside the order of restoration of possession passed by Rent Controller in favour of Abdul Kadir and allow the appeal with no order as to costs.
H. B. T. Appeal allowed.
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