S.M. SOHAIL vs Mst. SITARA KABIR-UD-DIN and others

' MUHAMMAD MOOSA K. LEGHARI, J.---The order dated 19-9-2008 passed by learned single Judge of High Court of Sindh at Karachi has been assailed through this petition for leave to appeal. By the impugned order, C.M.A. No,2069 of 2006, filed by the petitioner in C.P. No,S-617 of 2003 was dismissed.

2. The admitted facts are, that on the application, moved by the respondent/landlady under section 15 of Sindh Rented Premises Ordinance, 1979, the petitioner was ordered to be ejected from shop No,1, situated at ground-floor of a building, known as Zamzama Super Market, North Nazimabad, Karachi, on two grounds viz. The personal bona fid use and impairing the value of the property. After the dismissal of his appeal vide order dated 8-7-2003 passed by the District Judge, Karachi (Central) the petitioner invoked constitutional jurisdiction of the High Court of Sindh, by filing C.P. No,617 of 2003, which was also dismissed on 11-8-2005. The petitioner ultimately approached this Court but his petition for leave to appeal was dismissed vide order dated 1-3- 2006. Subsequently the petitioner moved an application under section 12(2) of C.P.C. Before the High Court of Sindh at Karachi praying therein for setting aside the order dated 11-8-2005 passed by the High Court, on the ground that the same was obtained by fraud and misrepresentation. It appears that on an interlocutory application, moved along with the main application for execution proceedings before the Rent Controller were stayed by the High Court. The application under section 12(2), C.P.C. Along with other applications was taken up by the High Court on 19-9-2008 when nobody was present on behalf of the applicant. However, the High Court after scrutinizing the record and considering the contentions raised in the application under section 12(2), C.P.C.

Dismissed the same holding that the same was misconceived.

3. Mr. A.S.K. Ghori, learned Advocate-on-Record for the petitioner simply contended that the order of the High Court was unlawful and legally invalid as the same was passed behind the back of the petitioner. He candidly submitted that at the most the applications could have been dismissed for non-prosecution and that no dismissal touching the merits of the case was warranted.

4. On perusal of the record we found that the judgment passed by learned Rent Controller in the ejectment proceedings had attained finality after pronouncement of the order dated 1-3-2006 passed by this Court in C.P. No,817-K/2005 whereby the petition for leave to appeal, filed by the petitioner, was dismissed. We asked Mr. Ghori, learned A.O.R. Even if the order of the High Court is set aside, how the main application moved under section 12(2), C.P.C. Could be competent before the High Court. He has no answer. It is apparently clear that after proceedings having culminated into dismissal of petition for leave to appeal before this Court, no proceedings were maintainable before the High Court under section 12(2), C.P.C. Learned High Court rightly observed that "due to the frivolous application the rights of the landlady has been hampered and the process of the justice has been put to stake on account of the act of the tenant by resorting to file frivolous applications bearing no merits". We have absolutely no doubt in ruling that the observations recorded by the High Court while dismissing the application of the petitioner were legally valid and correct. We are of the considered view that the petitioner had clear intention of dragging the landlady in the frivolous litigation and filing of the present petition before this Court was a clear proof of it.

5. In such situation it is high time for the courts to take effective measures to curb the uncalled for and frivolous litigation and imposition of suitable cost could be one of the deterrent modes to eliminate the concocted litigation. The present petition having been filed to achieve ulterior object, merits to be dismissed. Besides that the petitioner deserves to be saddled with a cost.

5-A. For the foregoing reasons the petition, being without merit, is dismissed and leave to appeal declined. A cost of Rs,25,000 is imposed upon the petitioner, which shall be deposited in this Court within four weeks of the date of communication of this order.