GOVERNMENT OF PAKISTAN, MINISTRY OF HOUSING AND WORKS Versus FAZAL WAHAB
MUHAMMAD NAEEM ANWAR, J .---Through this judgment, I intend to dispose of this Civil Revision bearing No. 24-P/2018 as well as the connected Civil Revision No.17-P/2018 as both the petitions are arising out of the same judgment and decree of learned Additional District Judge-XI, Peshawar, whereby the appeal filed by the respondent/plaintiff Fazal Wahab, was partially accepted.
2. Facts, in brief, are that the plaintiff/respondent Fazal Wahab filed a suit for declaration that Quarter No. F-128, FG Colony Hassan Ghari, Peshawar, was allotted to him on 20.09.2009, so, the cancellation of allotment order, vide memorandum No. F/128/ HG/EO/PR/1124 dated 10.08.2009 and the order dated 11.05.2010, whereby he was ejected, possession was taken from him and its allotment in favour of defendant No.7 Amal Bacha, the added petitioner No.2, are illegal, void ab initio and ineffective upon his right, therefore, restoration of possession, recovery of Rs.100000/- and two boxes containing documents and clothes was sought and, lastly, permanent injunction to the effect that the quarter in question may not be allotted to anyone else was also sought.
3. When summoned, only defendant No.1 contested the suit by filing of written statement. The controverted pleadings of the parties were reduced into the framing of legal and factual issues. Parties i.e. plaintiff/respondent (Fazal Wahab) and defendant/petitioner No.1 produced their respective evidence. After completion of the evidence, suit of the plaintiff/respondent was dismissed through judgment and decree dated 29.09.2011, which was assailed by the plaintiff/respondent by filing an appeal. The appeal was allowed partially and, consequently, a decree for declaration and recovery of possession was granted in favour of the plaintiff/respondent whereas rest of his suit was dismissed. The plaintiff/respondent called in question the judgment and decree of the learned Additional District Judge-XI, Peshawar, through Civil Revision No. 17 of 2018, whereas the defendant No.1, i.e., Government of Pakistan Ministry of Housing and Works through Joint Estate Officer, at FG Colony Hassan Ghari, Peshawar, filed Civil Revision No.24-P/2018.
It will be appropriate to mention here that the judgment and decree called in question through these petitions was passed on 09.10.2018, whereas the added petitioner Amal Bacha had filed a Civil Miscellaneous Application No. 390-P/2018 on 10.04.2018 for his impleadment in the array of petitioner, which was allowed by this court on 25.03.2019 and, as such, he was impleaded as petitioner No. 2 in C.R No. 24-P/2018.
4. Learned Additional Attorney General on behalf of petitioner No.1 in Civil Revision No. 24-P/2018 contended that quarter No. F-128, FG Colony Hassan Ghari, Peshawar, was allotted to the plaintiff/respondent, vide allotment order dated 20.09.2002, but he has sublet the same to other person for which he was served with a show-cause notice dated 04.08.2009 by which he was directed to appear in person on 06.08.2009 at 11.00 a.m, therefore, upon his failure to appear, the allotment order dated 20.09.2002 was cancelled on 10.08.2009 on the ground of its subletting the same to other person. He added that in order to clarify the position as to whether the quarter in question was sublet to someone else or not, an inquiry was conducted, wherein the subletee was found in possession of quarter, thus, the Inquiry Officer submitted his report on the basis of which the allotment in favour of the plaintiff/respondent was cancelled and the unauthorized occupant was ejected from the premises. According to the learned Additional Attorney General, all the requisite notices were served upon the respondents. At the end, he contended that in accordance with the provisions of Accommodation Allocation Rules, 2002, the plaintiff/respondent has to file an appeal against the cancellation order dated 10.08.2009 and by not doing so his suit was liable to be dismissed.
5. Likewise, Amal Bacha, the added petitioner No.2, contended that the quarter in question was allotted to him in accordance with the rules and after cancellation of the allotment of the quarter the plaintiff/respondent is not entitled for any relief because he has got no vested right in connection with the disputed quarter.
6. As against that, the plaintiff/respondent Fazal Wahab argued that he has never sublet the disputed house to anyone including Manel Taj. According to him, no inquiry was conducted in respect of the alleged subletting and he was never associated with any such alleged inquiry. He argued that in his absence when the possession of quarter in dispute was taken, his two boxes along with documents and an amount of Rs.1,00,000/- were also taken away by the petitioner No. 1 in Civil Revision No.24-P/2018, regarding which he produced sufficient evidence but the learned courts below have not considered the direct and convincing evidence, as such, to that extent illegality was committed by the learned courts below.
7. Heard and record perused.
8. It appears from the record that Amal Bacha, the added petitioner No.2 was arrayed as party by the plaintiff/respondent in his suit at serial No.7 of the plaint, as defendant, however, the suit was contested only by defendant No.1, namely, Joint Estate Office, Estate Officer, Government of Pakistan, FG colony Hassan Ghari, Peshawar, by filing written statement. Amal Bacha (defendant No.7 and now added petitioner No.2 in C.R No. 24-P/2018) has neither contested the suit nor filed his written statement. Similarly, he was also party, i.e., respondent No.7, in the appeal filed by the plaintiff/respondent Fazal Wahab, but he did not opt to contest the same and in similar fashion, he never appeared before the appellate court. Interestingly, the appeal was decided on 09.10.2017, petitioner No.1 submitted application for obtaining attested copy of the judgment and decree on 10.10.2017, which were prepared and delivered to him on 31.10.2017 and, as such, Civil Revision No. 24-P/2018 was filed by him on 08.01.2018 but, amazingly, an application was filed by Amal Bacha on 10.04.2018 for his impleadment in the Civil Revision No. 24-P/2018 before this court in the panel of petitioner on the grounds, inter alia, that:-
"The petitioner is necessary party and requires to be impleaded in the column of petitioners with effect to defend his allotment. Furthermore, the petitioner has been shown as judgment debtor in warrant of possession."
The aforementioned application of the petitioner for his impleadment in the panel of petitioners was accepted by this Court on 23.05.2019 and, as such, he was impleaded as petitioner No.2 in Civil Revision No. 24-P/ 2018. Now, with the aforesaid background of this Para of the judgment, the fate of revision petition is to be decided with respect to each of the petitioner i.e., the petitioner No.1 and the added petitioner No.2 separately for the reason that the added petitioner No. 2 has never contested the suit instituted before the trial Court. Neither he opted to file an application for setting aside of the decree against him in term of Order IX, Rule 13, C.P.C or intended to seek the remedy under Order XXI, Rule 97 of the C.P.C before the Executing Court. He has come to this Court by his impleadment in the petition already filed by petitioner No.1 and that too without any application for condonation of delay within the meaning of section 5 of the Limitation Act as has been made applicable to section 115 of the Code of Civil Procedure. Irrespective of the aforesaid facts, his application was allowed, thus, his revision petition is also to be decided on merit. Admittedly, his case/plea is that the quarter in question was allotted to him. Now it depends upon fate of the revision of his co-petitioner No.1 because the respondent/plaintiff had challenged the cancellation of his allotment. When cancellation of the allotment of quarter in question does not hold field then the added petitioner No.2 ( Amal Bacha) would stand nowhere.
9. Now, it is to be determined that whether the quarter in question was sublet to someone by the plaintiff/respondent or not. Undeniably, the so-called sublettee was not examined by the defendants/petitioners before the trial Court. The defendants/petitioners have not brought on record any evidence to substantiate their plea of subletting. Learned Additional Attorney General argued that the inquiry was properly conducted in that respect and on the basis of the inquiry report, the allotment in favour of plaintiff/respondent was cancelled. Once again, the officer/official, who conducted the inquiry, was not produced before the court. Even during inquiry, the plaintiff/respondent was not associated with it. No evidence, what to say about of convincing or concrete, was neither collected during the inquiry proceedings nor was placed on record in support of so-called subletting of the premises by the plaintiff. The onus was on the defendants/petitioners to prove the factum of subletting in accordance with the provision of Article 117 of the Qanun-e-Shahadat Order, 1984, which reads as under:-
"Burden of proof (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist,
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
The petitioner was required to prove that the plaintiff/respondent has sublet the quarter in dispute to anyone else. It could be proved during inquiry by associating him with the inquiry and by collecting some direct or tangible evidence or during the proceedings before the trial court. But, amazingly, he could not discharge the burden of proof as required by the Qanun-e-Shahadat Order, 1984. Reference can be made to the case law reported in 2008 SCMR 139 wherein it has been held that:-
"Burden of proof as to any particular fact lies on the person who wishes to believe the court in its existence unless it is provided by law that proof of the fact lies on another person"
Initially, it was to be proved by the defendants/petitioners that the allotted quarter has been sublet by the plaintiff/respondent Fazal Wahab but the record reveals that the defendants/petitioners have never taken it seriously, so, mere alleging a particular fact is not sufficient unless it is proved by the reliable evidence which is lacking on the part of the defendants/petitioners.
10. Another feature of the case was that during the trial, the defendant No. 1/petitioner No.1 has placed on record a document as Ex.DW 1/8 wherein it was asserted that Manel Taj stated that she was residing in the disputed quarter and the said statement was witnessed by Khadim Muhammad and Hameed Ullah. Thus, as per the contention of the defendant/petitioner the said statement was recorded during inquiry. Now four persons could corroborate the version of the defendant No.1/ petitioner No.1. (1) Inquiry officer, (2) Menal Taj, (3) Hameed ullah and (4) Khadim Hussain but none of them was produced before the Court in order to justify the plea of subletting. So, in the circumstances of the case, Article 129 (g) of the Qanun-e-Shahadat Order would apply to the matter in hand, which reads as:-
"129. The Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it:".
By not producing the above named persons as witnesses by the defendants/petitioners adverse inference would be taken against them. Reliance can be placed on the case titled Mst. Sobia Bano v. EFU Life Insurance Ltd. through Chairman and another 2018 CLD 1313 wherein it has been held that:-
"Admittedly the said sale representative has arranged many sitting with deceased and was well aware of about health condition of the insured being expert in his field but this star witness has also not been produced in evidence and non production of both the witnesses lead to irresistible conclusion that the respondent has deliberately withheld the material evidence and it would be legally presumed had the said witnesses produced in witness box, they would have deposed against the respondent, as such, presumption of withholding best evidence goes against the respondent."
Reliance is also placed on the case reported as Sugran Bibi v. Mst. Aziz Begum and others (1996 SCMR 137).
As the petitioners/defendants have not been able to prove the subletting of the disputed quarter to Menal Taj, then the learned appellate court has rightly reversed the findings of the learned trial Court and decreed the suit of respondent/plaintiff. In the same manner as the cancellation of allotment of disputed quarter is based on no sound footing, thus, in the circumstances, the allotment of disputed quarter in favour of Amal Bacha stands annulled.
11. Next, the objection of petitioner No.1 is that civil court lacks jurisdiction within the parameters of Accommodation Allocation Rules, 2002, as the plaintiff/respondent has not preferred an appeal as required by the ibid rules. Admittedly, there is no specific bar on the jurisdiction of the civil court to entertain and adjudicate upon the matters in issue. Thus, unless and until jurisdiction of civil court is barred, civil court being the court of ultimate jurisdiction could try the instant suit, especially, when allegations against the petitioner were that no inquiry with respect to alleged subletting was either conducted nor any opportunity was given to the plaintiff/respondent. With respect to the jurisdiction of civil court reference can be made to the case law Hamid Hussain v. Government of West Pakistan and others (1974 SCMR 356) wherein the principle of law has been enunciated as such:-
"In Muhammad Jamail Asghar v. Improvement Trust (PLD 1965 SC 698 p. 1404) is a complete answer, In that case, the appellant in this Court was transferee of a bungalow under Act XXVIII of 1958, and a P.T.O. was issued in his favour. The Rawalpindi Improvement Trust who was the respondent in the, appeal claimed that 6 kanals and 14 marlas out of the land included in the bungalow had been acquired by the Trust in 1954-55. This obliged the appellant to file a suit for a declaration that the alleged acquisition of 6 kanals 14 marlas was illegal and void, and for restraining the Trust from interfering with the appellant's possession of the bungalow in that case. On the 16th July 1960, the Deputy Settlement Commissioner made an order amending the order transferring the bungalow in favour of the appellant in that case so as to exclude the area of 6 kanals and 14 marlas from the property transferred to the appellant in that case. On the basis of this order a plea of lack of jurisdiction was taken. It was held in that case that a civil Court of plenary jurisdiction under section 9 of the C.P.C. can make an inquiry as to the existence or otherwise of facts which gave exclusive jurisdiction to a tribunal of special jurisdiction. Such tribunal of special jurisdiction has no jurisdiction to determine any facts on the basis of which it will have the power to assume jurisdiction and make order falling within its jurisdiction. It was further observed in that case that even if a Court or tribunal of special jurisdiction is empowered to determine facts on the proof of which it has passed an order, even that will be open to scrutiny of Courts of general jurisdiction and consequently :---
"With respect to the nature of the property . . . . . . the Settlement Authorities have no jurisdiction to record a binding determination."
It is a well-established principle that even where the jurisdiction of civil court is barred and conferred upon special tribunals, civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts 6 of such forums to see whether their acts are in accordance with law or are illegal or even mala fide."
Thus, the suit was rightly entertained by the learned courts below. Similarly, the suits relating to the allotment /accommodation were instituted and decided by the civil court. Reference can be made to the case Muhammad Yaqub Brohi v. Ministry of Housing and Works through Secretary and 2 others (2017 CLC 369).
12. Adverting to the civil revision filed by plaintiff/respondent bearing No. 17/2018 whereby his suit to the extent of recovery of Rs.1,00,000/- (one lac only) some personal documents, clothes and two boxes was dismissed. The plaint reveals that in Para No. 3, it was averred by the plaintiff/respondent that on 11.05.2010 by breaking the lock of the disputed quarter, possession of it was taken wherein his personal belongings i.e., two boxes, Rs. 1,00,000/-, clothes and documents were lying there. In Para No.3 of the written statement, the aforementioned aspect was not specifically denied. Furthermore, during evidence, the defendant has placed on file a document as "ejectment of un-authorized and occupant" Exh. DW 1/9 regarding which the learned Additional Attorney General stated that it was an inventory of the articles which were lying in the disputed quarter when the possession of it was taken by the joint Estate Officer, which contains as " " household goods found in the quarter. When learned AAG was confronted that as per the inventory two boxes were found and as to whom those were handed over or kept, he could not satisfactory reply to it, however, representative of the defendants stated that those boxes were given to Menal Taj but there is nothing available in support of his statement. Be that as it may, one thing is clear that two small boxes were found in the disputed quarter, which were mentioned by joint Estate Officer in inventory, thus, to that extent both the learned courts below have overlooked the record, however, the plaintiff could not prove that, apart from boxes, Rs.1,00,000/- were also kept in the disputed quarter by him and taken away by the defendant/respondent, therefore, to that extent he was rightly non-suited by the courts below.
13. For all that has been discussed above, C.R. No. 24-P/2018 is hereby dismissed while C.R. No. 17/2018 is partially allowed, resultantly, the petitioner/plaintiff Fazal Wahab is also entitled to the decree of two boxes, leaving the parties to bear their own costs.
ZC/89/P Order accordingly.