Constitutional Petition No.S-04 of 2008

Date Order with Signature of the Judge

Hearing/priority case.

1.For hearing of CMA No.27/2008.

2.For hearing of main case.

Statement of attorney filed as flagged.

Submissions filed as flagged.

04.02.2016.

Mr. Javed Musarrat, Advocate for petitioner.

Mr. M. Farooq Hashim, Advocate for respondent.

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SYED MUHAMMAD FAROOQ SHAH, J.:- By invoking the extra-ordinary constitutional jurisdiction of this Court, the petitioner being tenant in the case premises bearing Shop No.2, Shakeel Building at Plot No.W.S.A.19, Block 10, Federal ‘B’ Area, Karachi approached this Court with a prayer to set aside the impugned order dated 20.10.2007 passed by the IInd Additional District Judge, Karachi-Central in FRA No.134/2007. He has also made a prayer to maintain the order dated 29.5.2007 passed in Rent Application No.239/2007 passed by learned Vth Senior Civil Judge, Karachi-Central, which was assailed in the appeal.

2. Perusal of record transpires that both orders passed by learned lower courts are based on exparte proceedings as by exparte order learned Controller dismissed the Rent Application and the appeal preferred by respondent No.3, claiming himself to be the exclusive landlord/owner of the case premises, was allowed; consequently the petitioner was directed to handover the vacant physical possession of the premises in question to respondent No.3.

3. During proceedings of instant petition, respondent Nos.4 & 5 were arrayed as respondent Nos.4 & 5 by order dated 28.10.2008 passed on application i.e. CMA No.1657/2008 under Order 1 Rule 10 CPC read with section 151 CPC, as they were claiming to be co-owners of the case premises and have not been joined in the rent proceedings. As per their contentions, respondent No.3 has concealed such facts.

4. Arguments advanced by learned counsel for the parties are considered and record has also been perused with their assistance.

5. It is worthwhile to mention here that the facts narrated by Mrs. Nazmeen Tariq (Nazmeen Raees) in her affidavit annexed with application CMA No.1567/2008 under Order 1 Rule 10 CPC, are that ejectment proceedings against tenant/petitioner have been initiated without their consent and knowledge by the respondent No.3, posing himself to be sole and exclusive owner of case property though their father Haji Raees Ahmed expired at Karachi on 07.5.2003 and left behind one widow, four sons including respondent No.3 and six daughters including respondent Nos.4 & 5. They had filed Suit No.858/2006 in the Hon'ble High Court of Sindh, which is subjudice. It is stated that the shop in question is one of the property shown in the plaint of aforesaid suit though the contents of counter affidavit filed by respondent No.3 have not been considered by this Court by adding the interveners as respondent Nos.4 and 5, vide order dated 07.10.2010; however, the respondent No.3 stated in para No.3 of his counter affidavit that proposed interveners have no right in the property as the same has been gifted to him by his mother on 14.11.1973 and mutated in the joint names of himself and his elder brother and transferred on 26.2.1986 in the record of KDA/CDGK in the life time of their deceased father, without any objection as the suit property was/is never belong to their deceased father, therefore, proposed interveners/respondent Nos.4 & 5 have no right to claim the case property, nor they have right to even interfere in the rented premises under the law. Copy of written statement filed in suit No.858/2006 has also been annexed.

6. Aforementioned conduct of the respondent No.3 shows that Rent Case No.239/2007 was instituted by him on 07.4.2007 and the Suit No.858/2006 has been filed on 26.5.2006 by the respondent Nos.4 and 5, which depicts that the suit was very much in existence prior to rent proceedings and knowingly, deliberately and intentionally the respondent No.3 did not mention about adjudication of civil litigation amongst the legal heirs of Late Haji Raees Ahmed. Pleadings of civil proceedings reveal that case premises were transferred as “Benami” and such issue is involved in the above stated civil suit. The respondent No.3 was very much aware of the civil proceedings, subjudiced against him but he concealed such fact.

7. A perusal of record reflects that the rent proceedings were culminated on the basis of exparte proceedings, whereby the Rent Application was dismissed by the learned Rent Controller by concluding that petitioner did not commit willful default in payment of rent. In appeal filed by respondent No.3, the exparte order against the applicant was reversed and ejectment application was allowed by the appellate court by holding that the petitioner has committed default in payment of rent.

8. Learned counsel for the petitioner submitted that the service of summons on petitioner in compliance of Civil Procedure Code and Sindh Chief Court Rules has not been made as service on the member of family was not a valid service; more so, fixation of summons on the last known address of defendant being mandatory has not been made, therefore, service of summons was not proper which nullifies the whole proceedings. Reliance in this respect is being placed on the cases of TAHIR MEHMOOD AFRIDI V/S MUHAMMAD DAYAR (2011 YLR 615), PEHALWAN KHAN V/S MRS. NAJMA MUJTABA (1986 CLC 1735), MST. ALIYA MASOOD V/S MRS. MUSSARAT MUSAVER & OTHERS (PLD 1993 Karachi 676), MST. BIBI KUTI V/S MST ATIQA KHANUM (1999 CLC 342), MIRZA FAROOQ BEG V/S MUHAMMAD KASHIF KAMAL SIDDIQUI (1987 CLC 516).

9. Admittedly there are conflicting views of both the lower courts regarding willful default in payment of rent by the petitioner. Suit No.858/2006 much prior to filing the rent proceedings, is subjudiced before this Court, wherein the case premises is shown as one of the disputed intestate property but such fact does not appear in the rent proceedings. The respondent Nos.4 and 5 being real sisters of respondent No.3 were arrayed in this petition by order dated 28.10.2008, which order has not been challenged nor respondent No.3 has sought its review, which has attained finality.

10. The above referred circumstances clearly show that the impugned order has been passed without considering the contentions of petitioner and without arraying the legal heirs of late Haji Raees Ahmed who are claiming to be the co-owners in the case premises. Exparte proceedings have been initiated before both learned lower courts against the petitioner. It needs not to iterate that law favours adjudication of disputes on merits instead of technicalities. Hon'ble Apex Court held that “a party should not be denied a relief on account of technicalities in the procedural law as the same is formed for the purpose of regulating the legal proceedings through their design extended and design of foster the cause of justice than to defeat it.” Reliance in this respect may conveniently be placed upon the cases of SAID MUHAMMD V/S M.SARDAR (PLD 1989 SC 532) and SARDAR BEGUM  V/S MUHAMMAD ANWAR SHAH (1993 SCMR 363).

11. In view of whatever discussed above, the instant petition is allowed, judgments/orders of both the Courts below are set aside, and the case is remanded back to the learned trial Court with the directions to proceed with its trial in accordance with law after affording opportunity to all the concerned parties. Since it is an old matter pertaining to the year 2008, the trial Court is directed to conclude the same as expeditious as possible. Parties are directed to appear before the trial Court (Vth Rent Controller, Karachi-Central) on 17^th February, 2016.

Captioned petition is disposed of in the manner indicated above.

*Aamir/PS* J U D G E