Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No. S – 674 of 2013
Present :
Mr. Justice Nadeem Akhtar
Petitioner : Muhammad Nasir Kaleem, through
Mr. Imtiaz Ali Effendi, Advocate.
Respondent No.1 : Muhammad Khizar Khan, through
Syed Nasir Hussain Jaffery, Advocate.
Respondents 2 & 3 : VIth Rent Controller, Karachi, South, and
VIth Additional District Judge, Karachi South.
Dates of hearing : 13.08.2013 and 15.08.2013.
J U D G M E N T
NADEEM AKHTAR, J. – This petition has been filed by the petitioner against the judgment delivered on 31.05.2013 by the VIth Additional District Judge, Karachi South / respondent No.3 in FRA No.138/2013, whereby the said appeal filed by the petitioner was dismissed and the order passed on 16.05.2013 by the VIth Rent Controller, Karachi South / respondent No.2 in Rent Case No.1307/2010, was upheld. Through the impugned judgment and order, the applications filed by the petitioner under Order I Rule 10 CPC and under Section 12(2) CPC were dismissed.
2. Relevant facts of the case are that respondent No.1 filed Rent Case No.1307/2010 on 13.10.2010 before the Rent Controller against one Imranullah (‘the tenant’), seeking his eviction from Shop No.5-A, ground floor, Saddar Cooperative Market, Abdullah Haroon Road, Karachi (‘the demised premises’), on the ground of default. It was the case of respondent No.1 that the tenant paid rent to him till July 2010, and thereafter he committed default. The tenant filed his written statement, wherein he admitted being the tenant of respondent No.1, but denied that he was the tenant in respect of the demised premises. It was alleged by him that wall fixture No.24 was given to him on rent by respondent No.1, but in the rent agreement, respondent No.1 fraudulently mentioned the demised premises instead of wall fixture No.24. In support of his case, respondent No.1 / landlord produced evidence, but he was not cross examined by the tenant. No evidence was produced at all by the tenant to rebut the evidence produced by respondent No.1. On 28.07.2011, the tenant filed an application under Order I Rule 10 CPC in the said Rent Case, praying that the present petitioner be joined as a party therein. The said application was dismissed for non-prosecution on 07.10.2011. Thereafter, the eviction application filed by respondent No.1 was allowed on 08.12.2011 by the Rent Controller with the direction to the tenant to vacate the demised premises and to hand over its peaceful possession to respondent No.1 within sixty (60) days. Against the said order of his eviction, the tenant filed an appeal before the learned District Judge, which was dismissed.
3. Respondent No.1 filed Execution Application No.41/2012 against the tenant for execution of the order of eviction passed by the Rent Controller. On 18.10.2012, the present petitioner, as an intervenor, filed applications under Order I Rule 10 CPC and Section 12(2) CPC before the Rent Controller. Through the impugned order dated 16.05.2013, the Rent Controller dismissed the said applications, and through the impugned judgment dated 31.05.2013, the appeal filed by the petitioner against the said order was dismissed by the learned Additional District Judge.
4. Mr. Imtiaz Ali Effendi, the learned counsel for the petitioner, submitted that wall fixture No.24 is owned by the Cooperative Development Fund and Projects, who, vide agreement dated 01.07.2010, rented out the said wall fixture to him. It was further submitted that the said wall fixture is situated adjacent to the shop owned by respondent No.1, and both the said premises are separate and distinct premises. It was urged that the petitioner is in possession of the said wall fixture in his own right as the lawful tenant thereof, and respondent No.1 is trying to take over the possession of the petitioner’s wall fixture under the garb of the order of eviction obtained by him against his tenant in respect of Shop No.5-A. It was contended that Suit No. 1183/2010 was filed by respondent No.1 before this Court for declaration and permanent injunction, against the Province of Sindh, the Cooperative Development Fund and Projects, the Project Director, Cooperative Development Fund and Projects, and the present petitioner, which is sub judice. It was urged that the above fact was sufficient to show that the contention of the petitioner was correct. It was further urged that, since respondent No.1 had played fraud upon the court, the petitioner, being a necessary party to the proceedings, ought to have been joined in the proceedings ; and, the order obtained by respondent No.1 through fraud and misrepresentation, ought to have been set aside under Section 12(2) CPC. The learned counsel argued that both the learned courts below failed to appreciate this important aspect of the case, which has resulted into miscarriage of justice. He prayed that, after setting aside the impugned order and judgment, the applications filed by the petitioner under Order I Rule 10 CPC and Section 12(2) CPC be allowed.
5. On the other hand, Syed Nasir Hussain Jaffery, the learned counsel for respondent No.1 vehemently opposed this petition by submitting that the same is misconceived and is based on misrepresentation of facts. He relied upon the objections and the documents filed therewith by respondent No.1. He referred to letter dated 01.09.1992 addressed to respondent No.1 by the Cooperative Development Fund and Projects, whereby permission was granted to respondent No.1 for opening the side wall of his corner Shop No.5 for fixing a glass. He also referred to letter dated 29.11.1992, addressed by the Cooperative Development Fund and Projects to the Food and Cooperation Department, Government of Sindh, Karachi, wherein it was stated that wall fixture No.24 was allotted to one Mr. Hakimuddin, but subsequently wall fixture No.29 was given to him, and finally wall fixture No.23 was given to him on rent on 16.06.1970. It was confirmed in the said letter dated 29.11.1992 that wall fixture No.24 did not exist in the Market, and the place which was being claimed as wall fixture No.24, had already been allotted on 09.04.1970 to the owner of Shop No.5 (respondent No.1) as a part of his shop. He also referred to letter dated 24.08.2010, addressed to the Project Director, Cooperative Development Fund and Projects, Government of Sindh, by the Registrar, Cooperative Societies, Sindh, wherein it was again confirmed that wall fixture No.24 had already been utilized in Shop No.5 as a part thereof, and the tenancy agreement of the petitioner in respect of wall fixture No.24 may be cancelled.
6. The learned counsel for respondent No.1 submitted that the Rent Case was filed by respondent No.1 in respect of the demised premises (Shop No.5-A), which is a part and parcel of Shop No.5 belonging to respondent No.1 ; the eviction order was also passed in respect of the demised premises ; and, respondent No.1 is seeking execution of the eviction order only to the extent of the demised premises. He further submitted that the petitioner has no concern with the demised premises, and the tenant of the demised premises has lost the appeal filed against the order of his eviction. The learned counsel referred to the copy of the partnership deed dated 15.07.2010 between the tenant and the petitioner, filed by respondent No.1 along with his objections, to show that the petitioner is in fact a partner of the tenant. It was contended that the petitioner and the tenant are in collusion with one another, and they are trying to frustrate the order of eviction. In support of this contention, the learned counsel submitted that the petitioner, being the partner of the tenant, was fully aware of the eviction proceedings since their inception in the year 2010, but he filed the applications under Order I Rule 10 CPC and under Section 12(2) CPC in October 2012 in the respondent No.1’s Rent Case, after the application filed by the tenant under Order I Rule 10 CPC in the respondent No.1’s Rent Case for joining the petitioner as a party therein, was dismissed. It was further submitted that the petitioner filed a Civil Suit against respondent No.1 for injunction and damages, which was dismissed. It was prayed on behalf of respondent No.1 that this petition be dismissed with heavy costs.
7. I have heard the learned counsel at length, and have also perused the record available before me. From the averments made by the petitioner in his applications under Order I Rule 10 CPC and Section 12(2) CPC, it transpires that the petitioner is asserting his alleged rights as a tenant of the Cooperative Development Fund and Projects in respect of wall fixture No.24. Thus, it is an admitted position that the petitioner has not claimed that he is a tenant or a sub-tenant of respondent No.1. It is also an admitted position that the petitioner is claiming to be the tenant of wall fixture No.24 and not the demised premises, as it has never been alleged by the petitioner that wall fixture No.24 is a part and parcel of the demised premises. The record shows that, vide aforementioned letters dated 29.11.1992 and 24.08.2010, the Cooperative Development Fund and Projects, and the Registrar, Cooperative Societies, Sindh, had confirmed that wall fixture No.24 did not exist in the Market ; the place that was being claimed as wall fixture No.24, had already been utilized by the demised premises as a part and parcel thereof in pursuance of the order passed on 09.04.1970 by the then Chairman, Advisory Committee, Saddar Cooperative Market Ltd., Karachi ; and, the tenancy agreement of the petitioner in respect of wall fixture No.24 may be cancelled. It was conceded by the learned counsel for the petitioner that the petitioner did not initiate any proceedings either against the Cooperative Development Fund and Projects, or against the Registrar, Cooperative Societies, Sindh, regarding their above actions and decisions.
8. In view of the above admitted position, I am of the view that the petitioner has no locus standi either to join the rent proceedings, or to seek the setting aside of the judgment delivered by the Rent Controller for the eviction of the tenant. There is no doubt that a third party can also file an application under Section 12(2) CPC for setting aside of a judgment, decree or order on any of the grounds enumerated in Section 12(2) CPC, provided such third party is aggrieved by such judgment, decree or order. In the instant case, the necessary party to the rent proceedings was the tenant, against whom the eviction was ordered. The tenant never challenged the judgment of the Rent Controller under Section 12(2) CPC, and the appeal filed by him was dismissed. Since the petitioner is admittedly neither the tenant of respondent No.1 nor is he the tenant in respect of the demised premises, he was neither a necessary party to the rent proceedings, nor can he claim that he was aggrieved by the judgment delivered by the Rent Controller for the eviction of the tenant. Therefore, the applications filed by the petitioner under Order I Rule 10 CPC and Section 12(2) CPC, were not maintainable. In any case, the petitioner was not able to show any element of fraud or misrepresentation in the judgment of the Rent Controller, and the jurisdiction of the Rent Controller was not questioned.
In view of the above discussion, the impugned judgment and order do not call for any interference by this Court. Accordingly, this petition and C.M.A. No. 3361 of 2013 are dismissed with no order as to costs.
J U D G E
*********