Mistri MIRAJ DIN And Another vs MUHAMMAD YAMIN And Other
The petitioners, claiming to be licensees of the original tenant Fazal Ahmad, filed a constitutional petition under Article 199 of the Constitution of Pakistan 1973 challenging an ejectment order passed against the tenant. The High Court dismissed the writ petition in limine holding that the petitioners, having no independent right and claiming only as workers of the tenant, were not aggrieved parties. In the petition for leave to appeal before the Supreme Court, the petitioners contended that the second ejectment petition was barred by the principles of res judicata under section 14 of the Rent Restriction Ordinance, and sought to assert an independent right. The Supreme Court held that the second ejectment petition was not barred as the questions for determination differed from the first petition, that the plea of an independent right could not be entertained at that stage, and that licensees cannot subsequently change their admitted position. The petition for leave to appeal was accordingly dismissed.
- Whether a licensee of a tenant can challenge an ejectment order against the tenant as an aggrieved party?
- Does a second ejectment petition become barred by res judicata under section 14 of the Rent Restriction Ordinance when the questions for determination differ?
- Can a party change its admitted position as a licensee of the tenant to claim an independent right at the appellate stage?
- Article 199, Constitution of Pakistan 1973
- Section 14, Rent Restriction Ordinance
ORDER
1. NASIM HASAN SHAH, J.-- The petitioners are the licensees of one Fazal Ahmad, now represented by his Legal Representatives (respondents 11-13). An ejectment petition was brought by the predecessor-in-interest of respondents 1-10 against Fazal Ahmad which was dismissed.
2. Sometimes later, he brought another ejectment petition and ultimately an order of ejectment was passed against Fazal Ahmad on 3-5-1978. The appeal against the said order failed on 9-11-1980.
3. The present petitioners brought a constitutional petition under Article 199 of the Constitution challenging the aforesaid order. The status of the petitioners was stated to be that of workers of respondents 11-13 (Legal Representatives of Fazal Ahmad) and it was admitted that they had nothing to do with the suit property which, according to them, stood transferred in the name of Fazal Ahmad.
4. The learned Judge in the High Court held that as the petitioners had asserted no right of their own in the property and had justified their presence only as workers of Fazal Ahmad they must abide by the fate of Fazal Ahmad. Therefore, if Fazal Ahmad was found liable to be ejected, the petitioners could not challenge the finding with respect to his ejectment as they could not be held to be aggrieved parties. The writ petition was, therefore, dismissed in limine.
5. In support of this petition for leave to appeal Mr. M. Aslam Khan has submitted that the second ejectment petition filed by the heirs of Sh. Abdur Rashid (Respondents 1-10 herein) was barred by the principles of res judicata as envisaged in section 14 of the Rent Restriction Ordinance.
6. We find no substance in this plea because the question for determination in the first petition was not the same as was the question to be determined in the second ejectment petition. In these circumstances, the second petition was not barred under section 14 of the Rent Restriction Ordinance.
7. An attempt was also tried to be made to show before us that the petitioners had some independent right in the property. We consider that this plea cannot be entertained at this stage.
8. This petition is liable to be dismissed on the short ground that once they had accepted that they were licensees of Fazal Ahmad they could not change this position subsequently.
9. There is no force in this petition which is hereby dismissed.