Messrs PAKISTAN BURMAH SHELL LTD. vs KHALIL AHMAD and another

ORDER

1. ' An application under section 12(2), C.P.C. Filed by one Muhammad Aslam Karimi is put up for consideration wherein the said applicant has prayed for setting aside the judgment dated 23-10- 1995 passed by this Court in F.R.A. No,371 of 1991 (M/s. Pakistan Burmah Shell Limited and Khalil Ahmed and another) on the ground of collusion between the parties in the appeal and on the ground of misrepresentation and fraud.

2. ' I have heard Mr. Mirza Waqar Hussain learned counsel for the applicant Muhammad Aslam Karimi and Mr. Khalilur -Rahman learned counsel for the respondents and have perused the record and proceedings of the case.

3. ' The main contention of the learned counsel Mr. Mirza Waqar Hussain is that the applicant Muhammad Aslam Karimi is the dealer of the appellant/tenant and was in authorised possession, therefore, he should have been impleaded as party in the ejectment proceedings filed against the appellant/tenant and by not impleading him he has been made to suffer irreparable loss because of the collusion between the parties and by practising fraud and misrepresentation upon the applicant. Mr. Mirza Waqar Hussain learned counsel for the applicant, has placed reliance upon Mamoor Khan v. Nasiruddin Nasir Muhammad and 5 others 1995 CLC 130.

4. ' Mr. Khalilur Rahman, learned counsel for the respondents has argued that the said applicant claims to be the dealer of the appellant M/s. Pakistan Burmah Shell Limited though no such agreement of dealership has been filed and said dealership of the petrol pump is stated to have been acquired by the applicant from the outgoing dealer of the said petrol pump in the year 1988, therefore, he could not be said to be the tenant 'as to be impleaded as a party in the ejectment proceedings filed under section 14 of Sindh Rented Premises Ordinance, 1970. He further contends that there has been neither fraud nor misrepresentation nor any collusion between the landlords/respondents and tenant/appellant M/s. Pakistan Burmah Shell Limited as would appear from the judgments passed by this Court and by the learned Rent Controller where the tenant/appellant and vehemently contested the ejectment proceedings. He has placed reliance Qutubuddin Ahmed Khan v. Mst. Zohra Musarat Amin and another 1981 CLC 212, Agha Muhammad v. Haji Maula Dad PLD 1971 Quetta 10 and Khawaja Muhammad Yaqub Khan and another v. Shaikh Abdur Rahim and others 1968 SCMR 734 in support of his contentions.

5. ' The main point for consideration in this application filed under section 12(2), C.P.C. Is whether the applicant was necessary party to be joined in the ejectment application filed under section 14 of the Rent Ordinance. Perusal of section 14 of the Rent Ordinance would show that landlord could seek eviction against the tenant on the grounds mentioned in the said provision of Rent Ordinance.

6. The applicant claims to be dealer of the appellants M/s. Pakistan Burmah Shell Limited and has been selling and disposing of all the products of the appellants/tenants on commission and he acquired the said dealership from the outgoing dealer of the appellants M/s. Pakistan Burmah Shell Limited/tenants. There has been no agreement between the applicant and the respondents/landlords. The applicant cannot claim to be tenant or sub-tenant or sub-lettee even if he is a dealer of the appellants he has no right to be added or impleaded in the ejectment proceedings which initiated between the appellants and respondents i,e, landlord and tenant. If the applicant has invested huge amount in the business then the outgoing dealer from whom he acquired the dealership could be blamed for not informing him about the pendency of the proceedings as applicant claimed to be ignorant about the pendency of the ejectment proceedings between the parties for which the respondents/landlords could not be blamed for not informing him about the pendency of ejectment proceedings. The applicant cannot be said to be in occupation or in possession on his own account in good faith and even if he claims to be in possession through the outgoing dealer or through the appellants then also he would be bound by the ejectment order passed against the appellants and he would have to leave the premises in dispute with the appellants/tenants. The applicant being in. Possession would not become tenant of the respondent so as to have the right to be impleaded as party in the ejectment proceedings.

7. Reference is made to Khawaja Muhammad Yaqui). Khan v. Shaikh Abdur Rahman 1968 SCMR 734.

8. There has been no sub-tenancy between the respondents and the applicant and has not claimed the possession of property in good faith on his account or on account of some person other than judgment-debtor, therefore, the ejectment order passed against the appellants/tenants would be binding upon him and he would not be necessary party to be impleaded in the ejectment proceedings. Reference is made to Agha Muhammad v. Haji Maula Dad PLD 1971 Quetta 10 and Qutubuddin Ahmed Khan v. Mst. Zohra Musarat Amin 1981 CLC 212.

9. ' In view of the aforesaid reasonings and case-law the applicant cannot be said to be a necessary party to be impleaded in the ejectment proceedings filed under section 14 of the Sindh Rented Premises Ordinance, 1979 and, therefore, question of fraud or misrepresentation having been played upon him would not arise. It will not be out of place to state here that initially the respondents had filed Ejectment Application No,1048 of 1980 under section 15 of the Rent Ordinance on the ground of their personal need and requirement which was granted by the learned Rent Controller on 15-9-1983 but the said ejectment order was set aside by this Court in F.R.A. No, 804 of 1983 on the ground that the respondents/landlords were not entitled to have the possession of the said plot on the ground of personal requirement as the period of lease-deed had not expired then.

10. Thereafter, the respondent/landlords filed Ejectment Application No,496 of 1989 under section 14 of Sindh Rented Premises Ordinance, 1979 which was also allowed by the learned Rent Controller on 30-5-1991 thereafter F.R.A. No,371 of 1991 was filed by the appellant M/s. Pakistan Burmah Shell Limited which was disposed of by this Court on 23-10-1995. The applicant could not be said to be unaware from 1989 till October, 1995 about the pendency of proceedings but even if he was unaware then also he will have no right to protect the possession of the premises in dispute under the law. Neither fraud nor misrepresentation or collusion could be said to have been committed in the proceedings between the parties. Accordingly the contention raised by the learned counsel for the applicant has no merits, consequently this application filed under section 12(2), C.P.C. Is dismissed.