2014 Y L R 1787


2014 Y L R 1787

[Sindh]

Before Shahnawaz Tariq, J

FAKEER MUHAMMAD---Petitioner

Versus

ABDUL JABBAR and 2 others ---Respondents

Constitutional Petition No.S-34 of 2013 and M.A. No.266 of 2014, decided on 28th February, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Sindh Rented Premises Ordinance (XVII of 1979), S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Eviction order of tenant, setting aside of---Misrepresentation and fraud---Locus standi--- Aggrieved person--- Scope---Contention of applicant was that he was real son of tenant who was abnormal and was co-sharer in the demised premises but no notice was served upon him---Application was dismissed concurrently---Validity---No document was on record to establish that applicant (tenant) was co-sharer in the demised premises and was mentally disabled---Landlord being owner of suit property let out the same to the tenant through tenancy agreement and applicant being son of tenant was residing with him along with his mother and sisters---Relationship of landlord and tenant existed between both of them and applicant (son of tenant) in his personal capacity had no locus standi to file the present application under S.12(2), C.P.C.---Applicant had no cause of action during the life time of tenant with whom he was residing to agitate the impugned order passed by the competent court---Despite service of notice tenant did not appear before the Rent Controller and eviction application was accepted in his absence---Execution petition had been filed against the tenant in which notice had been issued but tenant had not challenged ejectment order before any forum till date---Section 12(2), C.P.C. had provided adequate remedy to an aggrieved person for setting aside judgment or order obtained through misrepresentation and fraud but such remedy was not open for the party which would neither fall within the ambit of an "aggrieved person" nor had any legal character and locus standi to step-in in the proceedings either pending or disposed of if judgment or order was not obtained by misrepresentation and fraud---Person who was neither a party to the earlier proceedings nor had any vested right in the dispute in question could not seek the remedy by invoking the jurisdiction of court under S. 12(2), C.P.C.---Applicant had neither any locus standi nor legal character to challenge the impugned eviction order as there was nothing on record to establish that by committing misrepresentation and fraud upon the court landlord had obtained the same---Constitutional petition was not maintainable which was dismissed in circumstances.

            Muhammad Shafi Kashmiri for Petitioner.

            Rana Suhail Mehmood for Respondent No.1.

            Ch. Bashir Ahmed A.A.G. for the State.

            Date of hearing: 31st January, 2014.

ORDER

            SHAHNAWAZ TARIQ, J.---Through this petition, the petitioner Fakeer Muhammad has impugned the judgment dated 20-12-2012 passed by learned Ist Additional District Judge, Mirpurkhas, whereby he dismissed the Civil Appeal No.56 of 2012 filed by the petitioner against the order dated 4-8-2012 passed on the application of the petitioner filed under section 12(2), C.P.C.

2.         Relevant facts of the petition are that respondent No.1 filed an application under section 15 of Sindh Rented Premises Ordinance, 1979 against the respondent No.2 Muhammad Ismail on the plea that the house constructed on Plot No.10 admeasuring 68 sq. yards in katchi abadi was owned by him and the respondent No.2 being father-in-law, having good relations, was let out to the respondent No.2 for a period of six months at his request at the rate of Rs.3000 per month from Ist January, 2009, to be paid on 5th of each calendar month. The respondent No.2 at the time of inception of tenancy paid Rs.5000 as advance money and terms and conditions were written in the rent agreement and possession was delivered to tenant/ respondent No.2. It is further stated that after expiry of tenancy was further orally extended for the period of 11 months from 2-7-2009 to 2-6-2010 at the same rate of rent, however, tenant was paying rent to the landlord. On the expiry of tenancy period on 2-6-2010, with the mutual oral agreement of parties, the tenancy was again extended for a period of 11 months commencing from 2-6-2010 to 2-5-2011 and at that occasion, the tenant paid rent to landlord till March, 2011, but thereafter he failed to pay the same from the month of April, 2011 till date, though respondent No.1 has been approaching to tenant/ respondent No.2 and demanding rent, but he deliberately avoided to make payment of rent to the landlord/respondent No.1. He, therefore, committed default in payment of monthly rent. Consequently, respondent No.1 asked the respondent No.2 to vacate the house in question as the same is required bonafidely by landlord for use of his son and his family, but the respondent No.2 refused to vacate the demised premises, therefore, the respondent No.1 filed ejectment application against the respondent No.2 on the ground that he requires the premises in question for personal bona fide use as his son is married and he wants to shift him in a separate house i.e. the demised premises.

3.         It further reflects from the record that the trial Court after service of notice upon respondent No.2 on 25-4-2012; the service was held good upon him on 26-4-2012. Despite of receiving notice, the respondent No.2 failed to appear before the trial Court, and due to non-filing of written statement by the respondent No.2, his defence was struck off. Accordingly, the respondent No.1 filed his affidavit in ex parte proof and affidavits of his witnesses in support of his claim. The trial Court after hearing the counsel for the respondent No.1, allowed the ejection application vide judgment dated: 20-12-2012, whereby granting 30 days time to the respondent No.2 to hand over peaceful and vacant possession of the demised premises to the respondent No.1.

4.         It is further transpired that as soon as the petitioner came to know about the judgment passed by the learned Rent Controller and pasting of notice of writ of possession on the door of the demised premises, he filed application under section 12(2), C.P.C. before the trial Court on the ground that he is real son of the respondent No.2, having four sisters and they are equal share-holders in the property of his father/ the respondent No.2, who is abnormal and mentally not fit for taking any decision. However, in this respect not a single document has been filed by the petitioner to establish that the respondent No.2 is mentally disabled, and even no document was filed along with application under section 12(2), C.P.C, that petitioner and the above mentioned ladies were co-sharers in demised premises.

5.         Admittedly, the respondent No.1 being the owner of property in question, having a registered sale-deed in his favour, had let out the demised premises to the respondent No.2 through written tenancy agreement, and petitioner being son of respondent No.2, Muhammad Ismail, who was a tenant of the respondent No.1, Abdul Jabbar, was residing with him along with his mother and sisters, meaning thereby that there exists the relationship of landlord and tenant between the respondent No.1 and the respondent No.2 respectively and said tenancy is still intact. Thus, the petitioner being the son of the respondent No.1 in his personal capacity has no locus standi to file application under section 12(2), C.P.C. Even he has no cause of action during the life time of the respondent No.2 with whom he is residing with other family members, to agitate the impugned order passed by the concerned competent Court.

6.         Learned counsel for the petitioner contended that the petitioner is real son of respondent No.2 and residing in the house in question from his childhood, but no notice was ever served upon him by the Rent Controller regarding the filing of the rent application, although respondent No.1 was in knowledge that the petitioner is residing in same house, so it was necessary to implead him as party in the ejectment application. He further contended that respondent No.1 while taking undue advantage of mental disability of respondent No. 2, fabricated and manipulated false sale agreement after obtaining thumb impression. The petitioner was neither aware of the filing of the rent application by the respondent No.1 against the respondent No.2 nor had any knowledge about the sale of demised premises by the respondent No.2 to the respondent No.1 through registered sale-deed, and all that was done by committing fraud with him, therefore, the petitioner filed the application under section 12(2), C.P.C. as well as a Civil Suit for declaration and cancellation of registered sale-deed against the respondent No.1, which is still pending adjudication. He lastly prayed that impugned orders may be set aside for just and proper decision of the case by impleading the petitioner as party to the rent application.

7.         Learned counsel for the respondent No.1 has contended that the petitioner has nothing to do with the demised premises as the respondent No.1 is owner of the tenement having registered sale-deed in his favour. The demised premises was rent out by the respondent No.1 to the respondent No.2 through a tenancy agreement, and the petitioner himself has no locus standi to challenge the ejectment order under section 12(2), C.P.C. while the respondent No.2 has not approached the trial Court till date, therefore, petition is liable to be dismissed.

8.         Learned A.A.-G. has contended that present controversy is going on between private parties, therefore, same be decided in accordance with law.

9.         I have heard learned counsel for the petitioner, learned counsel for the respondent No.1 and learned A.A.-G. Sindh, while the respondent No.2 remained absent although he was served through Ist Senior Civil Judge, Mirpurkhas, and examined thoroughly the material available on record with their assisstance.

10.       Perusal of record reflects that the respondent No.1 rented out the demised premises to the respondent No.2 vide rent agreement, and period of tenancy was mutually extended from time to time and the respondent No.2 was paying monthly rent regularly to the respondent No.1, however, the respondent No.2 committed default in payment of monthly rent from the month of April 2011, and the respondent No.1 approached the respondent No.2 for payment of rent but of no avail. Ultimately the respondent No. 1 filed the rent application before the concerned Rent Controller. Despite service of notice, the respondent No.2 did not turn up before the trial Court to resist the rent application pending against him, consequently considering the absence of respondent No.2, he was ordered to be proceeded ex parte. The respondent No.1 filed execution application for recover of vacant possession of the demised premises and notices were issued against the respondent No.2/J.D, and during the said process the petitioner appeared before the trial Court and filed application under section 12(2), C.P.C. for setting aside the impugned ejectment order, but the respondent No.2 has not challenged ejectment order till date before any forum.

11.       No doubt section 12(2), C.P.C. provides adequate legal remedy to an aggrieved person to approach the concerned Court to set aside the judgment or order obtained by misrepresentation and playing fraud upon the Court, but this remedy is not open for the party which neither falls within the ambit of an aggrieved person nor has any legal character and locus standi to step-in in the proceedings, either pending or disposed of, if any judgment or order is not obtained by misrepresentation and fraud. The person who neither was a party to the earlier proceeding nor having any vested right in the dispute in question, cannot seek the remedy by invoking the jurisdiction of the court under the umbrella of section 12(2), C.P.C.

12.       While concluding the above discussion, I am of the considered view that the petitioner has neither any locus standi nor legal character to challenge the impugned ejectment order by filing application under section 12(2), C.P.C., as there is nothing on record to establish that by misrepresentation and committing fraud upon the Court, the respondent No.1 has obtained ejectment order against the respondent No.2.

13.       Consequently, impugned order dated 29-5-2012 passed by the Rent Controller and judgment dated 20-12-2012 passed by the appellate Court whereby the application filed by the petitioner under section 12(2), C.P.C. was declined, do not call for any interference and same are upheld and maintained. Accordingly, instant petition stands dismissed being not maintainable under the law along with pending M.A.-266 of 2014.

AG/F-6/Sindh                                                                                      Petition dismissed.


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