Mst. MEMOONA BEGUM AND 7 Others vs FDA HUSSAIN AND Another
This matter concerns a dispute over tenancy rights in a room in Karachi, following the death of the original tenant, Abdul Kadir Patel. The petitioners, heirs of the deceased, challenged ejectment proceedings initiated by the landlord (respondent No. 1) against another heir (respondent No. 2). Following multiple unsuccessful legal attempts to intervene through applications under the Code of Civil Procedure 1908, including applications for impleadment and objections to execution, the petitioners filed a civil suit and subsequent revisions, all of which were dismissed by lower courts and the High Court. The Supreme Court addressed the core question of whether the petitioners could continue to challenge the ejectment order after having previously consented to vacate the premises in the High Court. The Court held that the petition lacked merit, ruling that the petitioners' prior consent to vacate constituted a waiver of their legal right to pursue the claim further. The principle laid down is that a party who has consented to vacate premises in judicial proceedings is foreclosed from subsequently challenging the merits of the ejectment order.
- Does a party's consent to vacate premises in judicial proceedings constitute a waiver of their right to further challenge the ejectment order?
- Can heirs of a deceased tenant maintain a challenge to an ejectment order after previously consenting to vacate the premises?
- Order I Rule 10, Code of Civil Procedure 1908
- Order XXI Rule 99, Code of Civil Procedure 1908
- Order XIV Rule 1, Code of Civil Procedure 1908
- Order XIV Rule 2, Code of Civil Procedure 1908
ORDER
1. MUHAMMAD HALEEM, Acrd. C. J.-The dispute in this petition relates to Room No. 9 of Kbambati Bohra Building. Soldier Bazar, Karachi. One Abdul Kadir Patel was a tenant of this building who died on 10-4-1966 leaving him surviving the petitioners and respondent No. 2 as his heirs. It so happened that respondent No. 1 changed the tenancy of the Room in favour of respondent No. 2, and thereafter sued for his ejectment and succeeded as the Rent Controller by his order dated 12th September, 1975, allowed his prayer. The appeal against this order failed as it was dis--missed by the Additional District Judge, Karachi, on 5th July, 1976. The petitioners thereafter learnt about the order of ejectment having been passed against respondent No. 2 and also of the pending execution proceed--ings. They filed an application under Order I, rule 10, C. P. C., before the Civil Judge and Rent Controller which was di3missed, and an appeal against this order also failed. They filed an application under Order XXI, rule 99, C. P. C., which was rejected. This was followed by a suit for declaration and injunction which was also dismissed on 18th December, 1973, as being not maintainable. Lastly they again repeated the application under Order XXI, rule 99, C. P. C., and also filed an application under Order XIV, rules 1 and 2, C. P. C., which were dismissed by a common order dated 8th March, 1979. An appeal was referred against this order which was dismissed with costs by the III Additional District Judge, Karachi. , This order was challenged in Civil Revision before the High Court and again the petitioners could not succeed. Having heard the counsel for the petitioners we are of the view that there is no merit in the contentions as the petitioners themselves consented in the High Court to vacate the premises which facts amounted to a waive of legal right to pursue the claim, It is not now open to them to urge on the merits of the case as they had already foreclosed their right to do so.
2. Accordingly the petition is dismissed. However, the petitioners are allowed two month's time to vacate the room subject to the payment of rent