ANJUMAN-I-IMAMIA ASKARIA (AHALIAN-I-BALTISTAN) Versus DIN MUHAMMAD
1. The premises, subject‑matter of the present revision application are situated on the ground floor of a building located in Kharadar, Karachi, which are at present in occupation of the applicant Anjuman. Respondents Nos.2 to 10 and deceased respondent Mst. Ismat filed Rent Case No.2430 of 1973 against one Haji Mehdi and one He# Ibrahim as opponents alleging that Haji Mehdi was the tenant of the said respondents in respect‑ of the said premises and Haji Ibrahim had been unlawfully inducted as a sub‑tenant. In that rent case an application under Order I, rule 10, C.P.C. was filed on 2‑11‑1973 that the applicant Anjuman be joined as an opponent, as Anjuman was the tenant of the premises. The said application was dismissed by the Rent Controller on 13‑2‑1974. An appeal being Miscellaneous Appeal No. 108/74 was filed against the said order dismissing the application for joinder but the said appeal was dismissed for non‑prosecution on 18‑11‑1974 by the learned Additional District Judge, Karachi. The case of the applicant Anjuman was that Haji Mehdi was the ex‑treasurer of the applicant Anjuman and thereafter Haji Ibrahim became the treasurer when Haji Mehdi went to Iskardu. After the dismissal of the aforesaid appeal, the applicant Anjuman filed Suit No.377 of 1975 in the Court of Senior Civil Judge First Class, Karachi, in which, apart from the respondents/ owners, respondent No.1 Din Muhammad was also made defendant. This suit was filed for declaration and injunction. Declaration was claimed to the effect that the applicant Anjuman was the tenant of the ground floor premises of the building belonging to the respondents/ owners and a permanent injunction was also claimed for restraining the defendants from ejecting the applicant without impleading the applicant Anjuman as a party to the ejectment case. The suit was dismissed by the learned Civil Judge by order, dated 26‑11‑1976 under Order VII, rule 11, C.P.C. holding that the Civil Judge had no jurisdiction to give a finding regarding the relationship of landlord and tenant and the suit was barred under the provisions of the Rent Restrictions Ordinance, 1959. Civil Appeal No.28/77 was filed by the applicant Anjuman challenging the order of the Civil Judge but by order, dated 21‑10‑1981 the learned Additional District Judge, Karachi, dismissed the appeal. Hence the present revision application, in which both the judgments of tile Courts below are challenged. I have heard Mr. Aftab Alam Kizilbash, learned counsel for the applicant and Mr. Ahmad Saeed Qureshi and Abdul Majeed, learned counsel for the respondents.
2. 2'. Mr. Aftab Alam Kizilbash, learned counsel for the applicant, submitted that he was relying upon three reported judgments of the High Court but in view of the two later judgments of the Supreme Court, apparently the suit filed by the applicant Anjuman is not maintainable in law. The three judgments, on which he wanted to rely upon are follows:‑
(i) S. M. Yaqub v . Mahomedi Furniture Manufacturing Co. P L D 1958 Kar. 621.
3. In this case it was held that the civil Courts can go behind the Rent Controller's certificate if order granting such certificate was without jurisdiction and the Rent Controller's decision on existence of relationship of landlord and tenant is open to examination by civil Courts.
(ii) Abdul Latif v. Muhammad Latif P L D 1960 Lab 982.
4. In this judgment it was observed that there was nothing in the 109 Rent Ordinance, which excluded the jurisdiction of the civil Courts to adjudicate upon the question whether the relationship of landlord or tenant exists between the parties.
(iii) Qadir v. Byramji D. Mama P L D 1963 Kar. 300.
5. In this judgment it was held that a civil Court was competent to consider propriety of an order passed by the Rent Controller under he Karachi Rent Restrictions Act, 1953, which was alleged to be illegal and without jurisdiction and to declare the same to be illegal if it was so found.
6. However, in view of the pronouncement of the‑Supreme Court in he two judgments referred to hereinafter, it is apparent that the suit filed by the applicant Anjuman was not maintainable. Reference may be made first to the judgment of the Supreme Court in the case of Muhammad Mobin Siddiqui v. Shahzadi Begum 1982 S C M R 233. The facts were that an ejectment case was filed by a landlady against the tenant and the petitioner Muhammad Mobin Siddiqui moved an application under Order 1. rule 10, C. P. C. for being impleaded as a respondent in the ejectment proceedings. The petitioner was made a party but the landlady denied having rented out the premises to the petitioner and therefore, a preliminary issue was framed with regard to the existence of relationship of landlord and tenant between them but on this preliminary issue the Rent Controller decided against the petitioner holding that no relationship of landlord and tenant existed between the landlady and the petitioner and the rent case then proceeded against the tenant, who was the respondent. The ejectment was ordered and after the final order of ejectment the petitioner filed an appeal. His appeal was dismissed and second appeal was also dismissed by the High Court. Paras. 6 and 7 of the judgment of the Supreme Court dismissing the petition for leave to appeal filed by the petitioner are reproduced here:‑
7. "The learned counsel strenuously urged on behalf of Mobin Siddiqyi, petitioner, that he was in fact the tenant of Mst. Shahzadi Begum with respect to the shop in question. He, however, admitted that he had not filed an appeal against the order of the Rent Controller, dated 31‑5‑1978 holding that he was not her tenant. He explained that the petitioner did not file an appeal against it since it was interlocutory order, and waited till the final decision of the ejectment application by the learned Rent Controller which was given, vide his order, dated 19‑9‑1978.
8. This argument has no force because after the decision of the preliminary issue holding that Mobin Siddiqui was not a tenant under Mst. Shahzadi Begum, he was no longer a party to the case. If he, at ail, wished to contest the matter further, he should have filed an appeal against the aforementioned order of the Rent Controller, dated 31‑5‑1978 because as far as he was concerned that was the final order in this case. Not having done so he was not entitled now to file an appeal against the order of ejectment before the Additional District Judge and the High Court, as he was not a party to the case in which that order was passed."
9. The other judgment is in the case of Ainullah v. Abdul Rashid. In more or less similar facts it was held in this case that the intervenor. whose application for joinder had. been dismissed had no locus standi to file an appeal against the order of ejectment, as the intervenor had not filed any appeal against the refection of this application under Order I, rule 10, C . P. C . by the learned Rent Controller Reference was made by the Supreme Court to their earlier judgment reported in 1982 SCMR 233.
3. In the instant case the application moved by the applicant Anjuman itself under Order I, rule 10, C.P.C. for being joined as a party to the ejectment case filled by the respondent /owners was dismissed, as observed earlier on 13‑2‑1974. In so far as the Anjuman was concerned, the said order, dated 13‑2‑1974 was a final order and appeal against that order was maintainable before the District Judge and infact an appeal was filed, as observed earlier, but the same was dismissed for non‑prosecution on 18‑11‑1974. It may further be mentioned that a second application under Order I, rule 10, C.P.C. had also been filed by the applicant Anjuman on 23‑3‑1978 for the same was also dismissed. In the face of these admitted facts, the suit filed by the applicant Anjuman for a declaration that they were tenants of the premises in question was not maintainable. The applicant Anjuman should have pursued their remedy in appeal filed against the order, dated 13‑2‑1974 of the Rent Controller dismissing their application under Order I, rule 10, C. P. C. They did not‑pursue their appeal, as the same was dismissed for non‑prosecution on 18‑11‑1974. No further proceedings were taken against that order. The order refusing to join the applicant Anjuman as a party to the ejectment case by the Rent Controller on the ground that applicant Anjuman was not the tenant in the circumstances became final. No suit could be filed to challenge such finding.
4. As a result, there is no force in this revision application. Revision Application No.358/81 is accordingly dismissed but the parties are left to bear their own costs.
10. A. A. Revision dismissed.