JAMAL AMIR QADRI Versus NASEEM AHMED SIDDIQUI

ORDER

Granted subject to all just exceptions.

2. This First Rent Appeal is directed against the order of IIIrd Senior Civil Judge, Central, Karachi, dated 21‑11‑1991, whereby she dismissed the application under subsection (2) of section 12 read with section 151, C.P.C. filed by the appellant.

The facts forming the background of this appeal are that respondent Naseem Ahmed Siddiqui had filed ejectment application against the appellant alleging that he had purchased the house in dispute from its previous owner Noorul Hassan and was, therefore, the owner thereof, while the appellant was tenant of the house since July, 1981 at Rs.1,500 per month. He further alleged that the appellant was in arrears of rent since May, 1982 and therefore, prayed for his ejectment.

The appellant was served. He filed his written ‑ statement and denied the relationship of landlord and tenant between the parties. He further alleged that Noorul Hassan was brother of his wife Mst. Narjis Fatima, therefore, they were allowed to occupy the plot and build a Pucca house. Accordingly the appellant constructed the house and started living therein. He, therefore, prayed that the application be dismissed.

On the pleadings of the parties the learned Controller, framed issues as to the existence of relationship of landlord and tenant between the parties and default in payment of rent. Respondent Naseem Ahmad Siddiqui filed the affidavit of his Attorney Syed Khursheed Hassan, wherein it was stated that the appellant was the tenant of the house since July, 1981 @ Rs.1,500 per month and had not paid any rent from May, 1982. The 'appellant did not crossexaminer the respondent's Attorney, nor filed his own affidavit‑in‑evidence. Hence the learned Controller held that there was no relationship of landlord and tenant between the parties and that the appellant had defaulted in payment of rent. Consequently she ordered the ejectment of the appellant on 25‑3‑1991.

An application under subsection (2) of section 12 read with section 151, C.P.C. was filed by the appellant wherein he had alleged that he could not appear before the Controller on 22‑11‑1990 and thereafter till the ejectment application was allowed, because the Attorney of the respondent had approached him for settlement outside the Court and had taken him to their Advocate Mr. Mirza Haneef Baig. The reason for non‑appearance given by the appellant was not found satisfactory by the learned Controller. It will be useful to reproduce the reasoning of the learned Controller which reads as under: ‑‑

It appears from the record that the matter was fixed for cross-examination of the applicant on 22‑11‑1990, but as none was present for the opponent, whereas the applicant was present with his advocate since morning, therefore, side of the opponent to cross‑examine the applicant, was closed and the matter was fixed for filing of affidavit of evidence on 22‑12‑1990. Even on this date none was present for the opponent till 2‑40 p.m., nor filed affidavit of evidence, therefore, his side was again closed and the case was adjourned to 9‑1‑1991 for final arguments. The arguments were heard on 9‑1‑1991 and the case was fixed for judgment on 5‑2‑1991 which was subsequently declared holiday by Honourable Prime Minister. The matter was taken up by the Court on 6‑2‑1991, but as there were no ownership documents filed, therefore, the applicant was directed to file the same. After the applicant had filed the ownership documents, this case was decided in his favour on 25‑3‑1991 and the opponent was given 60 days time to vacate the premises and hand over its peaceful possession to the applicant.

The opponent had contested the matter and given the reason that applicant's attorney had offered settlement outside the Court, therefore, he had not attended the Court. He had given the reasons that his Advocate had not attended this Court because he was busy elsewhere. The ground taken by the opponent for setting aside the judgment is not sufficient if the applicant had offered the settlement outside the Court, he could have attended the Court on the dates of hearing and informed the Court about the alleged settlement. The Advocate of the opponent had also not appeared before the Court on the dates of hearing, therefore, I am of the opinion that opponent has not shown cogent reason to recall the judgment and the order of this Court."

Mr. Malik M. Saeed, who appeared for the appellant, referred to a notice filed by him alongwith this First Rent Appeal Annexure `E' which is dated 11‑6‑1981, which was given by the respondent through Mr. Umer Farooq, Advocate to Mst. Narjis Fatima, who was wife of the appellant at that time and has been divorced subsequently, wherein he has alleged that she was wrongfully and illegally in occupation of the said premises and has claimed damages C Rs.1,500 per month from her. He has, therefore, contended that since the relationship of landlord and tenant was disproved from this notice, the learned Controller had no jurisdiction to pass ejectment order. The contention is not tenable. This notice was not produced before the learned Controller and even if it would have been produced, it is admitted that the same was not proved before him and therefore, he was not bound to take it into consideration. Apart from this, the notice of June 11, 1981 is addressed to Mst. Nargis Khatoon, while the allegation in the ejectment application was that Jamal Amir Qadri was inducted as tenant with effect from July, 1981. Therefore, this notice cannot disprove the allegation of the respondent.

Apart from this the appellant has himself admitted in his application under subsection (2) of section 12 read with section.

151. C.P.C. that he had divorced Mst. Narjis Fatima on 8‑9‑1988 and since then he is not living in the house in dispute and has shifted to Flat NoA/4 First floor, Royal Heights, Block 13‑D, Gulshan‑e‑Iqbal and is living there with his second wife. In fact Mst. Narjis Fatima is living in the disputed house now.

In these circumstances, appellant Jamal Amir Qadri has neither any legal, nor moral right to contest the ejectment order. The principle of jus tertii will operate against him. Mst. Narjis Fatima herself has not come forward to contest the ejectment application for the obvious reason that the house must have been sold by her brother Noorul Hassan to the respondent with her consent. Under these circumstances I do not find any merit in this First Rent Appeal and, therefore, dismiss the same, in limine.

3. Civil Miscellaneous Application No.1587 of 1991 is dismissed as infructuous.

H.B.T./J‑130/K Appeal dismissed.