IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petitions No. S-2465 & S-2466 of 2017
Petitioner : Abdul Majeed Sohail,
through Mr. Abdul Abid Advocate.
Respondent No.1 : Muhammad Mahboob-uz-Zaman Khan,
through Mr. Babar Ali Shaikh Advocate.
Respondent No.2 : IInd Additional District Judge Karachi Central.
Respondent No.3 : IIIrd Senior Civil Judge & Rent Controller
Date of hearing : 25.02.2019.
J U D G M E N T
NADEEM AKHTAR, J. – Rent Cases No.159/2015 and 160/2015 filed by respondent No.1 against the petitioner for his eviction on the grounds of default and personal need proceeded ex-parte against him and were eventually allowed by the learned Rent Controller vide separate orders dated 30.10.2015 whereby he was directed to handover possession of the demised premises to respondent No.1 within thirty (30) days. The petitioner filed applications under Section 12(2) CPC before the learned Rent Controller for setting aside the above ex-parte orders which were dismissed vide separate orders dated 01.03.2017. Thereafter, the petitioner filed First Rent Appeals No.105/2017 and 106/2017 which have been dismissed by the learned appellate Court through the impugned orders dated 13.11.2017.
2. Relevant facts of the case are that the above rent cases were filed by respondent No.1 for eviction of the petitioner on the grounds of default and personal need in respect of Shops No.1 and 2 situated in premises No.227, Sector 11-E, U.P. Society, North Karachi, Karachi (‘demised premises’). Notice was initially issued to the petitioner through bailiff, registered post AD and courier service and as service could not be effected upon him through such modes, notice was ordered to be pasted and then was published in newspaper. After exhausting all the modes of service prescribed by law, the learned Rent Controller proceeded ex-parte against the petitioner and eventually allowed the eviction applications vide separate orders dated 30.10.2015. Thereafter, the petitioner filed separate applications under Section 12(2) CPC before the learned Rent Controller in both the above cases for setting aside the said orders by alleging that the same were obtained by respondent No.1 through fraud and misrepresentation. The main ground urged in the above applications was that notice was never served upon him and as such he was unaware of the proceedings. Both the above applications were dismissed by the learned Rent Controller through separate orders dated 01.03.2017 by observing that as per the endorsements made by the bailiff the petitioner had initially refused to receive notices by showing himself as his servant ; in order to ensure service upon him, notice was ordered to be pasted, but he did not appear ; thereafter, notice was published in newspaper, but he still failed to appear ; after adopting all the modes of service prescribed in law, service was held good upon him ; after fulfilling all such formalities, respondent No.1 / landlord was called upon to lead evidence ; and, after recording his evidence, the orders of eviction were passed. It was further observed by the learned Rent Controller that the petitioner had not alleged in his applications under Section 12(2) CPC that his address or parentage were wrongly mentioned in the eviction applications, and in fact all his relevant particulars were correctly mentioned. In view of the above observations, it was held by the learned Rent Controller that the petitioner had not succeeded in making a case under Section 12(2) CPC.
3. Against the orders of dismissal of his applications under Section 12(2) CPC, the petitioner filed FRA Nos.105/2017 and 106/2017. Since the said appeals were barred by time, he made a written request to the learned appellate Court to convert the same into revision applications and for some reason his request was allowed. The said orders of conversion of the petitioner’s rent appeals into revision applications passed by the learned appellate Court were challenged by respondent No.1 before this Court in C.P. No.S-2144/2017 which was disposed of vide order dated 31.10.2017 by directing the learned appellate Court to decide the same within four weeks by considering the grounds urged in the aforesaid petition. Thereafter, both the appeals filed by the petitioner were dismissed by the learned appellate Court through the impugned orders dated 13.11.2017 by holding that the appellate Court had no powers of revisional Court in rent matters and also that the orders of dismissal of the petitioner’s application under Section 12(2) CPC passed by the learned Rent Controller did not require any interference.
4. It is an admitted position that the rent appeals filed by the petitioner were barred by time and the same were converted by the learned appellate Court into revision applications at his written request. The reason for making such request by the petitioner was obvious as the rent appeals, which ought to have been filed by him within thirty (30) days under Section 21 of the Sindh Rented Premises Ordinance, 1979 (‘Ordinance of 1979’), were within the period of limitation of ninety (90) days prescribed for filing revision application under Section 115 CPC. However, it may be observed that such request could not be made by the petitioner and it could not have been allowed by the learned appellate Court as only an appeal under Section 21 of the Ordinance of 1979 can be filed if any of the parties is aggrieved by an order, not being an interim order, passed by the Rent Controller in rent proceedings under the Ordinance of 1979 ; and, a revision application is not maintainable under any circumstances against any order passed by the Rent Controller exercising jurisdiction under the Ordinance of 1979. It may be noted that a revision application under Section 115 CPC is maintainable and revisional jurisdiction under the said Section can be exercised only in proceedings arising out of a civil Suit wherein an order is passed against which an appeal does not lie. In view of the above legal position, the order of conversion of the petitioner’s rent appeals into revision applications passed by the learned appellate Court was void and thus all proceedings arising and orders ensuing therefrom were also void. It may also be observed that when the said void order of conversion was challenged by respondent No.1 before this Court in C.P. No.S-2144/2017, the same ought to have been struck down straight away instead of remanding the matter to the appellate Court to decide the same after taking into consideration the grounds urged in the said petition. In my humble opinion, the order passed in C.P. No.S-2144/2017 was also void because of the legal position discussed above.
5. In view of the above, finding of the learned appellate Court in the orders impugned herein that it could not exercise powers of revisional Court in rent matters, is correct and proper. Since the order of conversion of the petitioner’s rent appeals into revision applications was void as held above, the said appeals were to be entertained and decided as appeals under Section 21 of the Ordinance of 1979 ; and, as the said appeals were admittedly barred by limitation, the same were liable to be dismissed.
6. In addition to the above, finding of the learned appellate Court that the petitioner had not succeeded in making out a case under Section 12(2) CPC, is also correct. Perusal of his applications under Section 12(2) CPC shows that except for vague and evasive allegations, specific details of the alleged fraud and misrepresentation were not pleaded by him. Under Rule 4 of Order VI CPC, the petitioner was duty-bound to specifically plead all relevant and material particulars, including dates, in order to establish the fraud alleged by him beyond all reasonable doubt. It is well-settled that mere allegations not supported by any material would not invariably warrant inquiry or investigation in each case ; and, in the absence of specific allegations with dates and other relevant particulars, an application under Section 12(2) CPC is not maintainable. These views expressed by me is fortified by Messrs Dadabhoy Cement Industries Limited and others V/S Messrs National Development Finance Corporation, 2002 CLC 166, and Messrs Dadabhoy Cement Industries Limited and 6 others V/S Messrs National Development Finance Corporation, Karachi, PLD 2002 SC 500. Moreover, it was argued before me on behalf of the petitioner that notice was not pasted at his address and it was also not noticed or read by him in the newspaper as he was not a subscriber of the said newspaper. None of the above grounds was urged by him in his application under Section 12(2) CPC.
7. The above discussion leads us to the conclusion that the applications filed by the petitioner under Section 12(2) CPC, being incompetent, were rightly dismissed by the learned Rent Controller, and the appeals filed by him against such dismissal, being barred by limitation, were also liable to be dismissed. Accordingly, both these petitions must fail.
8. Foregoing are the reasons of the short order announced by me on 25.02.2019 whereby both these petitions and all applications pending therein were dismissed with costs of Rs.15,000.00 (Rupees fifteen thousand only) each and the petitioner was directed to hand over physical, vacant and peaceful possession of the demised premises to respondent No.1 within thirty (30) days from the date of this judgment.
J U D G E