M. GHANI vs M. A. MULLICK & Brother AND 3 Other

1. SALAHUDDIN AHMED, J.-This petition for leave is from the order of a Division Bench of the Lahore High Court dismissing the petitioner's Letters Patent Appeal in limine. The Letters Patent Appeal was from the order of a learned Single Judge of the Court passed on Constitution Petition No. 501 of 1972 made by respondent No. 1 (M. A. Mullick & Brothers) declaring the action of Ch. Ghulam Mohyuddin, sapurdar taking over posses--sion of the premises in question on the 13th March 1972, and locking it up as without lawful authority, and also declaring as illegal the subsequent action of the sapurdar in delivering posses--sion of the premises to the petitioner-auction-purchaser on the 12th April 1972. The learned Single Judge had also ordered the possession of the premises to be restored to respondent No. 1.

2. It appears that respondent No. 1 is a tenant under respondent No. 3 Ch. Muhammad Afzal in respect of the shop premises. An application for ejectment was filed by the landlord against the tenant but a compromise was made in terms of which a conditional decree for ejectment was passed against the tenant. The decree for ejectment was, however, never executed and the tenant was never ejected, although it is claimed that the tenant had failed to observe the conditions laid down in the compromise decree. The tenant had borrowed a sum of Rs. 1,40,000 from respondent No. 4. Lahore Central Co-operative Bank, which he failed to pay. Accordingly, under Martial Law Order No. 241 the Assistant Registrar of the Co-operative Societies (respondent No. 2) took steps for the realisation of the debt from the tenant, and locked up the shop premises together with the goods of the tenant.

3. The custody of the goods and the premises was put in charge of supurdar. Mr. Ghulam Mohyud-- din, Manager of the respondent-Bank. An auction was held on the 3rd April 1972, for the sale of the goods thus attached and a bid of Rs. 9,000 was received for the goods. The bid was held to be inadequate and thus not accepted. Another auction of the goods was fixed for the 10th April 1972. In the meantime, on the 20th March 1972, the tenant filed Writ Petition No. 289 of 1972, challenging the action taken against him under Martial Law Order No. 241 on various grounds. Although an interim order was asked for it was not granted by the High Court with the result that on the 10th April 1972, the second auction was held and the goods of the tenant were sold to the petitioner, who had offered the highest bid of Rs. 65,000 for the purchase of the goods. The petitioner's bid was accepted and he paid Rs. 16,000 immediately and the balance on the 12th April 1972. After the auction the premises were again locked up by the sapurdar, and the petitioner put his seal on the lock. Upon the payment of the full price by the petitioner the Assistant Registrar issued him the necessary certificate. There--after, instead of the goods being handed over to the petitioner, and the premises restored to the tenant respondent, the premises were permitted to be occupied by the petitioner on the 12th April 1972. Subsequently the landlord accepted the petitioner as his tenant and received some rent from him in advance. Respondent No. 1, therefore, filed the present writ petition before the High Court on the 17th April 1972, and it was allowed as mentioned already.

4. Mr. Manzoor Qadir, learned counsel appearing on behalf of the petitioner has challenged the order of the High Court and strenuously contended that the writ jurisdiction of the High Court being discretionary, it could not and ought not to have been exercised in aid of injustice. He has further contended that the writ was directed by the learned Single Judge of the High Court to issue upon a person who was not a public functionary. Furthermore, there were disputed questions of fact involved in the case and the writ petition was not an appropriate procedure for determining it.

5. We are unable to find substance in any one of these con--tentions. As regards the first contention it is quite evident that the action of the Assistant Registrar of Co-operative Societies and the sapurdar in locking up and sealing the premises and later permitting the petitioner to occupy it were wholly illegal. The High Court could not permit such flagrant illegalities to continue. The Court in giving the declaration acted quite in consonance with justice. The submission of Mr. Manzool Qadir in this connection that the tenant-respondent was a defaulter and be had no legal or moral right to be on the property is untenable. Until and unless the tenant was ejected in due process of law be had a right to be on the premises, and he could not be evicted by the Assistant Registrar.

6. The action of the sealing of the premises and the handing over of the premise to the petitioner having been declared to be without lawful authority the consequential order for putting the premises in the possession of the tenant respondent was only logical.

7. We do not find any substance in the petition and it is accordingly dismissed.