IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

              C.P.No.S-206 of 2010

 

                       

Mst.Jameela and others ------------------------------------------Petitioners

 

                                                Vs

 

Muhammad Iqbal & others------------------------------------Respondents

 

 

 

Date of hearing:                    02.03.2015

Date of Order:                       02.03.2015

 

Mr.A.M.Mobeen Khan, Advocate for the petitioner.  

Mr.Mukesh Kumar G. Karara Advocate for respondent No.1.

Mr.Agha Athar Hussain A.A.G.  

                             

 

                                            J U D G M E N T

 

MUHAMMAD JUNAID GHAFFAR, J: - Through instant petition the petitioner has impugned judgment dated 10.12.2009 passed by the learned Additional District Judge, Naushehro Ferozee, in Rent Appeal No.01 of 2005, whereby the appeal preferred by the petitioner against the ejectment order dated 3.10.2005 passed by the Rent Controller, Naushehro Ferozee, in Rent Application No.07 of 2004 has been dismissed.

 

2.         Briefly stated facts of the case are that the respondent is the owner of the property bearing Custodian No.I.B-182 Naushehro Ferozee, whereas, the petitioner was in occupation of the said property prior to the purchase of the said premises by the respondent. Thereafter the respondent had filed a Suit for possession bearing No.110 of 1980, which was decreed in favour of the respondent by the Civil Judge, Naushehro Ferozee, vide judgment and decree dated 07.7.1985 against which the petitioner had preferred appeal which was allowed by the Additional District Judge, Nawabshah, vide judgment dated 28.1.1987 in Civil Appeal No.51 of 1985, whereby it was held that the matter pertains to the relationship between the landlord and tenant, hence the Civil Court had no jurisdiction to entertain the Suit for possession. Thereafter, the respondent filed an ejectment application being Rent Application No.2 of 1987 against the petitioner which was allowed vide order dated 31.5.1988, against which the petitioner had preferred an appeal before the learned District Judge, Naushehro Ferozee, who vide judgment dated 20.4.2002 set aside the ejectment order dated 31.05.1988. The said judgment was then impugned by the respondent by filing Constitution Petition bearing No.S-861 of 2002 before this Court which was allowed vide judgment dated 05.5.2003 and after setting aside the judgments of the two Courts below, the matter was remanded back to the Rent Controller with certain directions. Thereafter the Rent Controller after recording of evidence and following the directions as contained in the remand order of this Court dated 5.5.2003 allowed the ejectment application vide judgment dated 03.10.2005 against which an Appeal bearing No.1 of 2005 was preferred by the petitioner before the Additional District Judge, Naushehro Ferozee, who vide impugned judgment dated 10.12.2009 has dismissed the appeal, hence instant petition.

 

3.         Learned Counsel for the petitioner has contended that the petitioner is in possession of property bearing Custodian No.IB-293, Naushehro Ferozee, for which the petitioner has been paying rent to the Custodian / Settlement Department. Per learned Counsel the respondent had not led any evidence by himself, whereas, affidavit-in-evidence was filed on behalf of the respondent through attorney, hence per learned Counsel no evidence was in field against the petitioner. Learned Counsel further contended that the power of attorney, on the basis of which the evidence was led in the matter, was attested by the Oath Commissioner and was not stamped properly, therefore, per learned Counsel only the contents of rent application were in field against the petitioner. Learned Counsel further contended that both the Courts below had erred in rejecting the claim of the petitioner as both the impugned orders were passed on misreading of facts and law as well as the evidence led by the petitioner, including that of the Settlement Clerk produced as a witness on behalf of the petitioner. In support of his contention the learned Counsel has relied upon the case of Mrs.Anis Haider and others Vs S.Amir Haider and others (2008 S C M R 236), Hafeezuddin and 2 others Vs Badaruddin and 2 others (P L D 2003 Karachi 444), Imam Din and 4 others Vs Bashir Ahmed and 10 others ( PLD 2005 Supreme Court 418), Ghulam Mustafa Vs. Rashid Akbar Ansari and others (2009 M L D 538), Muhammad Farooq M.Memon Vs Government of Sind through its Chief Secretary, Karachi (1986 C L C 1408), Muhammad Ashraf Butt and others Vs Muhammad Asif Bhatti and others ( P L D 2011 Supreme Court 905), Safeer Travels (Pvt) Ltd. Vs Muhammad Khalid Shafi (decd) through L.Rs (PLJ 2007 SC 1067).   ­­­­­­­­­­­

 

4.         Conversely the learned Counsel for the respondent has contended that the respondent is being dragged in litigation for the past 25 years and despite having favorable orders, the respondent has been deprived from enjoying the possession and rent of the property in question which had been lawfully purchased by the respondent from the legal heirs of the owner of the property. Learned Counsel further contended that insofar as the present petition is concerned, this Court cannot go and look into the entire evidence of the matter, as in the earlier round of litigation, this Court vide judgment dated 5.5.2003 in C.P.No.S-861 of 2002 had remanded the matter to the Rent Controller with certain directions and per learned Counsel the orders of the Courts below have merged into with the order of remand dated 05.05.2033 passed by this Court and the petitioner cannot agitate or travel beyond the scope of the remand order as aforesaid. Per learned Counsel there are concurrent findings or facts against the petitioner whereas a rent petition has a very limited scope; therefore, instant petition is liable to be dismissed. In support of his contention the learned Counsel has relied upon the case of Nasrullah Khan and others Vs Mukhtar-ul-Hassan and others (P L D 2013 Supreme Court 478).

 

5.         I have heard both the learned Counsel, perused the record and the evidence led by the parties before the Trial Court as well as the case law relied upon by both the learned Counsel. By consent of both the learned Counsel, instant petition is being finally disposed of at katcha peshi stage.

 

6.         On perusal of the record, this matter appears to be a very unfortunate case wherein litigation is going on since almost past three decades and is still continuing in one form or the other. In the first round of litigation, the respondent who claims to be the owner of the property in question had filed a Civil Suit bearing No.110 of 1980 which was decreed in its favour vide judgment and decree dated 7.7.1985 passed by the Civil Judge, Naushehro Ferozee. The said judgment was impugned in appeal by the petitioner before the Additional District Judge, Nawabshah, which was allowed vide judgment dated 28.1.1987 in Civil appeal No.51 of 1985, whereby, it was held that the matter was between the landlord and tenant and therefore, Civil Court had no jurisdiction to entertain the Suit for possession. The respondent being aggrieved by the aforesaid judgment did not prefer any further appeal or revision/petition, however, filed an ejectment application bearing No.2 of 1987, which was allowed by the learned Rent Controller vide order dated 31.5.1988, against which the petitioner preferred an appeal before the District Judge, Naushehro Ferozee, who vide judgment dated 20.4.2002 set aside the ejectment order on a technical ground, whereby it was held that the respondent instead of producing certified copies of the judgments of the earlier proceedings, had been allowed to Exhibit the entire R&Ps of Suit No.66 of 1979 in the rent matter. On this premise, the learned District Judge had set aside the ejectment order, against which the respondent had filed a petition bearing No.S-861 of 2002 before this Court which was allowed vide judgment dated 5.5.2003 by a learned Single Judge of this Court. Thereafter, the matter proceeded before the Rent Controller in Rent Application No.7 of 2004 and after recording of evidence as well as following the directions of this Court as aforesaid, the learned Rent Controller vide judgment dated 3.10.2005 came to the conclusion that the petitioner was found in possession of the demised premises bearing Custodian No.IB-182 Naushehro Ferozee, and had defaulted in payment of rent. Consequently the petitioner was directed to hand over the vacant possession of the premises to the respondent within 90 days from the date of judgment. The said judgment was then impugned before the Additional District Judge, Naushehro Ferozee, by the petitioner in Rent Appeal No.01 of 2005 which was also dismissed vide impugned judgment dated 10.12.2009.

 

7.         Though several objections have been raised by the learned Counsel for the petitioner, including the objection with regard to adducing evidence by the attorney, instead of the respondent himself, and that the power of attorney being attested by an Oath Commissioner with deficit stamps, however, on perusal of the entire material on record, including the judgment dated 5.5.2003 passed in Petition No. S-861 of 2002, it appears that while remanding the matter, this Court had given certain directions to the Rent Controller and had limited the scope of dispute between the parties. It was categorically observed by the learned Single Judge of this Court in the judgment dated 05.05.2003 that insofar as the ownership of the property by the respondent is concerned, it stands settled as it was validly held by the respondent being owner of the said property. This finding of the learned Single Jude was not challenged any further by the petitioner which has attained finality, therefore, the only controversy which was left to be decided between the parties after passing of the remand order was, that whether the petitioner had defaulted in paying rent to the respondent in respect of the said property and whether the petitioner was found holding possession of the property of Respondent bearing No.IB-182, Naushero Ferozee. It would be advantageous to refer to the relevant findings of the learned Single Judge of this Court in the judgment dated 05.05.2003 passed in C.P.No.S-861 of 2002 which reads as under:- 

“In the above circumstances I am of the view that a miscarriage of justice has been taken place and whenever a miscarriage of justice is occasioned, the exercise of jurisdiction to that extent is not according to law. The law requires that discretion/ jurisdiction should be exercised properly and not in any manner rightly or wrongly.

 

As already observed the learned District Judge has not exercised the jurisdiction properly and instead of remanding the case to the Rent Controller has misdirected in setting aside the judgment of the Rent Controller thereby rejecting the ejectment application, it is a fit case for the interference in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.

 

For the foregoing reasons the impugned judgments of both the courts below are set-aside. The case is remanded back to the Rent Controller with the direction that both the parties be given opportunity to lead their respective evidence on the sole point contested between the parties i.e. whether the respondent No.1 Chooto Khan is in possession of IB-182 or not and thereafter to decide the issue pertaining to the relief sought by the petitioner. In addition to the documentary and oral evidence produced by the parties before the Rent Controller he shall consider the possibility of site inspection himself with the assistance of Taluka Mukhtiarkar or Tapedar or any other Revenue Officer who can be of any assistance in determination of the fact as to whether the Respondent Chooto Khan is in possession of the property bearing No.IB-182 or not. The Rent Controller would be at liberty to appoint any Commissioner instead of conducting the site inspection himself if so deemed fit. The petition was fixed today for Katcha Peshi but in view of the chequered history as narrated above the entire petition is disposed of at Katcha Peshi stage. The petition is allowed as above.” (Emphasis supplied)          

 

8.         From perusal of the aforesaid order, it appears that the matter was remanded to the Rent Controller with directions to both the parties to lead their evidence on the sole point contested between them, that whether the petitioner is in possession of property bearing No.IB-182 Naushero Feroze, or not and thereafter to decide the issue pertaining to the relief being sought by the respondent. It was further directed that in addition to hereinabove, the Rent Controller shall also consider the possibility of Site inspection with the assistance of Taluka Mukhtiarkar, to determine such factual aspect of the matter, that as to whether the petitioner was in possession of the property bearing No.IB-182 or not. It appears that on the directions of this Court, the learned Rent Controller instructed the concerned Mukhtiarkar Revenue, Naushehro Ferozee, to conduct the site inspection, who submitted its report before the learned Rent Controller. The concerned Mukhtiarkar was also put into witness box and was cross-examined on behalf of the petitioner which was exhibited as Exh.92 before the learned Rent Controller. From perusal of the evidence and examination-in-chief as well as cross-examination of the said witness it has come on record that the respondent claimed to be the owner of property bearing No.IB-182 Naushero Feroze, on the basis of registered sale deed, whereas, the petitioner was found in possession of the said property since last 50 years and such piece of evidence was not shaken or dislodged in cross-examination and on the basis of such evidence, the learned Rent Controller as well as the Appellate Court, have repelled the contention of the petitioner, that he was in possession of some other property i.e. bearing No.IB-293 Naushero Feroze. It would be pertinent to observe that once a matter is remanded with certain directions, then the scope of dispute is limited thereafter, and has to be resolved by the trial Court only to the extent of the remand order. The Court trying a lis after remand has to regulate the proceedings in terms of the order of remand passed by a higher forum. Reference in this regard may be placed on the case of Jameel Ahmed V/s Saifuddin (PLD 1994 SC 501.) If the matter had been simply remanded without any directions, then perhaps the petitioner could have agitated other issues as are being now agitated in respect of the power of attorney and the alleged deficient affixation of Stamp on the Power of Attorney. Since in the instant matter, the learned Trial Court has followed the directions of this Court as contained in the judgment dated 5.5.2003, whereby the learned Rent Controller was directed to seek assistance from the Mukhtiarkar to inspect the site and submit its report and further the Mukhtiarkar has been put in the witness box, where after it has come on record that the respondent is the owner of the property in question, whereas the petitioner is in possession of the same and for which admittedly no rent is being paid by the petitioner to the respondent, there is nothing left with the petitioner to argue or agitate insofar as the merits of case is concerned. It appears that owing to such failure on the part of the petitioner, new grounds have been raised through instant petition which are otherwise hyper technical in nature and were not agitated by the petitioner in the earlier round of litigation.

 

9.     It is a settled proposition of law that in rent matters, where there are concurrent findings of facts recorded by the Courts below against the petitioner, this Court under its Constitutional jurisdiction cannot deeply appreciate the entire evidence in the matter, as such jurisdiction besides being discretionary in nature is very limited and not plenary in nature, whereas in the instant case the two Courts below have given concurrent findings of facts against the petitioner, against which the petitioner has not been able to bring on record any concrete material or evidence, whereby, such finding could be termed as perverse or having a jurisdictional defect or based on misreading of fact. Even otherwise, the question whether the petitioner was found in possession of property bearing No. IB-182, Naushehro Feroze belonging to the respondent or not, is primarily a question of fact and such disputed questions of fact cannot be allowed to be re-agitated under the Constitutional jurisdiction of this Court as such jurisdiction is primarily intended for providing an expeditious remedy in a case where the illegality in an order can be established without any elaborate investigation of disputed facts. Reliance in this regard may be placed on the case of Secretary to the Government of Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer V/s Ghulam Nabi and 3 Others (PLD 2001 SC 415). This judgment of the Hon’ble Supreme Court has been followed by this Court in the case of Mehraj (Private) Limited V/s Miss Lamia Saeed and Others (2003 MLD 1033). Similar view has been taken in the case of Rehana Hafeez Vs. Muhammad Ali alias Ehsan (2014 CLC 1242) and Ford Rhodes Sidat Hyder and Company Vs. James Finlay Limited (2013 YLR 2541).

 

10.    In view of hereinabove facts and circumstances of the instant case, I am of the view that no case has been made out on behalf of the petitioner to exercise any discretion whereby the concurrent findings recorded by the two Courts below against the petitioner can be interfered with, which otherwise appear to be unexceptionable. Accordingly, instant petition being devoid of any merits was dismissed by me vide short order dated 02.3.2015 and above are the reasons for such short order.   

  

  

                   JUDGE

 

 

 

 

 

Imran