HAMEED JILANI TIWANA vs ABDUL AZIZ GHAFOOR KHAN and 2 others

' Concise facts of the case, relevant for the disposal of this appeal, are that respondent No.1 being owner of Property bearing No.3-A, Block-A, Gulberg-H, Lahore, rented it on 21-10-2002, to the respondent No.2 under the agreement of lease dated 5-5-2001. The respondent No.1 sought the ejectment of the appellant through filing the ejectment petition, on the grounds of expiry of lease period, default in payment/tender of rent since 1-6-2002, unauthorized construction, subletting and personal bona fide need. The appellant filed reply to , ejectment petition on 3-2-2002, controverting therein the assertions of ejectment petition. The relationship of landlord and tenant was, however, admitted.

2. The learned Rent Controller passed the order under section 13(6) of the Ordinance on 20-3-2003, directing the respondent No.2 to deposit an amount of Rs.16,25,000 as rent of premises from October, 2002 to February, 2003, within one month. The direction to deposit the future monthly rent at the rate of Rs.3,25,000 for each succeeding month before the 15th day of each calendar month, was also issued. The respondent No.2 filed an application under section 151, C.P.C. On 21-4-2003 before the learned Rent Controller stating therein that appellant has entered into a compromise agreement dated 16-4-2003 with respondent No.1 and resultantly the ejectment proceedings have become infructuous. The respondent No.1 filed an application under section 151, C.P.C. For invoking the penal provisions of section 13(6) of the Ordinance. The respondent No.2 filed an application under section 34 of the Arbitration Act (X of 1940), while the appellant had filed an application under Order I, Rule 10, C.P.C., for his impleadment as a party on the basis of agreement dated 16-4- 2003. The learned Rent Controller by order dated 30-9-2003 dismissed the application filed by respondent No.2 and directed respondent No.2 to produce receipts of rent. The appellant filed an appeal, which was accepted on 28-10-2003. The case was remanded to the learned Rent Controller for decision afresh after getting written reply to the application from respondent No.

1. The written reply was filed and the learned Rent Controllei- by order dated 14-4-2004, passed the ejectment order and dismissed the applications. The appeal, against the order dated 14-4-2004, met the same fate. The present appeal has been preferred against the order dated 27-10-2004 passed by the learned Additional District Judge.

3. Learned counsel for the appellant states that the compromise agreement was filed before the learned Rent Controller wherein the tenancy had devolved upon the appellant and resultantly the possession of the premises was handed over to the appellant. It was further contended that the application under Order I, rule 10, C.P.C., moved by the appellant, was not liable to be dismissed, unless a proper inquiry was conducted. Learned counsel submitted that the respondent No.1 denied the execution of compromise agreement and his statement to this effect was recorded but neither the appellant nor respondent No.2 (original tenant) was allowed to cross-examine him. The learned Rent Controller was bound to conduct regular inquiry through evidence on the question of existence of compromise agreement but the dictum laid down in "Muhammad Ilyas & Sons Ltd. v.

Abu Ahmad Khan" (1981 CLC 1257) was not followed. It was lastly contended on behalf of the appellant, that the learned Rent Controller failed to take notice of the fact that appellant was in possession, was claiming on the basis of interest in property, is a necessary party who should have been allowed opportunity to join proceedings. He, in support of this contention, has placed reliance on the case of "Mst. Zubaida Bai v. Mst. Kaniz Bano" (1989 CLC 1929).

4. The learned counsel for the respondent No.1, on the other hand, raised the objection as to the maintainability of the appeal. He has referred to section 15(1) of the Ordinance, to state that appeal only lies against the order which finally disposes of the matter before the Rent Controller and also in respect of an order which is passed against a party to proceedings. An applicant who is not a party to the ejectment proceedings and is an intervenor at a subsequent stage cannot maintain an appeal against the order of the Rent Controller. He further argued that word 'the party' referred to in this section (section 15), is either the landlord or the tenant. He relied upon the cases of "Mistri Allah Din v. Fazal Muhammad and another" (PLD 1991 SC 52) "Allah Ditta and others v. Muhammad Hussain and others" (PLD 1965 (W.P.) Lahore 29), "Captain Rahat Majeed v. Mst. Kubra Bai" (1982 CLC 1171) and "Muhammad Suleman v. Aziz-ud-Din and another" (PLD 1971 Karachi 1) in support of his contention. It was lastly contended that the original compromise/ agreement was neither produced before the learned Rent Controller nor it was a conscientious agreement, such agreement is liable to be ignored. The agreement was not filed jointly by the parties and was denied by one of its executants, therefore, such agreement cannot be made the basis for impleading the appellant as party.

5. Heard learned counsel for the parties and perused the record.

6. The learned Rent Controller passed the ejectment order by striking off the defence of the respondent No.2. Since the respondent No.2 failed to comply with the order under section 13(6); therefore, the learned Rent Controller adopted the right course to strike off the defence. The learned Rent Controller could have considered the defence of the tenant only if there was compliance of order under section 13(6) of the Ordinance. The argument of the appellant that learned Rent Controller was legally bound to decide the application for impleadment, after framing of issues and proper inquiry, to prove the existence of the compromise agreement, has no force.

The proceedings before the learned Rent Controller, under the Ordinance, are in the form of inquiry and proviions of Civil Procedure Code and Qanoon-e-Shahadat 1984, do not apply strictly. In this respect, I find support from the case of "Abdul Majeed v. Muhammad Aslam" (1981 CLC 20), relevant para. Is reproduced:-- "It means as held by the Supreme Court the proceedings before the Rent Controller are in the form of an enquiry and C.P.C. And Evidence Act do not apply thereto in stricto senso. Further as held by the Supreme Court the Rent Controller does not act as Court while Evidence Act (section 1) applies to all judicial proceedings in or before any Court. As such the dictum of law as laid down in PLD 1967 Lahore 718 will not be applicable to the proceedings under the Rent Restriction Ordinance, 1959. The appellant has applied under Order 41, rule 27, C.P.C. For bringing on record certified copy of the evidence to overcome the objection raised by the learned lower Appellate Court in the light of the judgment reported in PLD 1967 Lahore 718. In view of the above finding that Evidence Act and C.P.C.

In terms are not applicable to the proceedings under the Rent Restriction Ordinance, there is no need to decide the application."

7. The appeal in hand even otherwise is not competent as the same has not been filed by a party to proceeding. The applicant, seeking his impleadment as party in ejectment proceedings, is not a party within the contemplation of section 15 of the Ordinance. The august Supreme Court of Pakistan in the case of "Allah Din v. Fazal Muhammad" (PLD 1991 SC 52) has resolved, the question in the following manner.

"Apart from this inconsistent stand taken by respondent No.1 the question still remains whether he could file a second appeal in the High Court against an order passed on 15-10-1973. Section 15 of the Urban Rent Restriction Ordinance permits a party alone to file an appeal. A 'party' has been defined in Black's Law Dictionary as hereunder:- `party', is a technical word have a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought,- whether in law or in equity, the party plaintiff or defendant, whether composed of one of more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or consequently, are persons interested but not parties."

8. The order passed on the application under Order I, rule 10, C.P.C., is not appealable. If any case- law is needed, the reference can be made to "Allah Ditta v. Muhammad Hussain" (PLD 1965 Lahore 29), "Qutbuddin Ahmad Khan v. Zohra Musarat Amin" (1981 CLC 212) and "Rahat Majeed v. Kubra Bai"

(1982 CLC 1171).

9. The filing of application, after the order passed by the learned Rent Coittroller under section 13(6) of the Ordinance, is aimed at to delay the ejectment proceedings. The appellant, in league with respondent No.2, has caused unreasonable delay in disposal of the ejectment petition. No rent has so far been paid, despite the fact that an order/direction to deposit rent under section 13(6) was passed on 20-3-2003. The superior Courts have discouraged the entertainment of frivolous applications, which cause delay in disposal of the ejectment proceedings.

10. After carefully considering the over all facts and circumstances of the case, I have reached the conclusion that present appeal is not maintainable and the sole object to file application under reference is to delay the disposal of main ejectment petition. The present appeal is dismissed with costs throughout.