with IR Abu Bakar Ali Shinwari Vs Maqsood Perviz & others

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PESIIA\MAR HIGH COI'RT, PESIIA\MAR.

FORM OFORDERSHEET

Date of Order or other proceedins with Signature ofJudge Order or Proceeding

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15.04.2025 W.P No. 501GP of 9024 with IR (Abu Brlr AIi Slhinrui VIS Itlaorood Pcryaiz & othcrr) h,esent: I\[r. Mnbammad Moazam Butt Advocatc for 6e pafiiocr.

MUIItulttutAD NAEEM AIt{WtiR, .l- ltlbu Bakar Ali Shinwari, the petitioner, has moved an application under Order I Rule l0 of the Code of Civil Procedure, 1908 ('CPC1 in Rent Petition No. 396/R C titled oMaosood Patvez VS Maltk seeking ejectrnent of Malik Javed the tenant of shop "faved", situated at Abresham Garan Chowk Yadgar, Peshawar on the ground of default in the payment of ren! darnage allegedly caused to the structure of the shop, and recovery of the outstanding amount, with the plea that he (the petitioner) has become the owner of the shop on the strength of deed executed in his favour on 31.12.2021 from one Syed Mubashir Ali Shah and his presence before the Rent Controller is essential to protect his right being necessary and proper party, which application was dismissed, hence, the instant petition.

2.Mr. Muhammad Moazzam But, Advocate in whose favour no wakalatuama is available on file however, the counsel for petitioner is his associate, contended that on the basis of the deed, the petitioner has become a necessary party in the 1rs pending before the Rent Controller because the petitioner has also entered into a rent agreement with Malik Javed, who was the tenant of respondents No. 1 to 3. He further contended that there was a decree which was challenged through application under Section l2(2) CPC, but the same is still pending adjudication. According to him, the status of Malik Javed, in view of the purchase of the property by petitioner, is that of tenant and for this determinafion, unless the petitioner is before the Court, the Court would be unable to reach to a just

conclusion.

E. Arguments heard, record perused.

1.Perusal of the record reveals that MalikJaved, the tenant of respondents No. 1 to 3, was a party before the Rent Controller, but has not been arrayed in the instant petition for the reason best known to the petitioner. Respondents No. 1 to 3 have alleged that MalikJaved was their tenant who has made default in payment of rent also caused damage to the rented property. It appears from the impugned order that to the extent of the relationship of tenant and landlord of respondents No. 1 to 3 and their tenants, the tenant has not denied his relationship with respondents No. I to 3 as reflecting from the impugned order dated 05.06.2024. Moreover, the wriften statement of MalikJaved has not been annexed with the instant petition, and that too for the reiron best known to the petitioner. The vendor of the petitioner based on the deed is reflecting to be Syed Mubashir Ali Shah, who too is not the party before the Rent Controller. When confronted Mr. Moazzam Butt, Advocafe contended that Malik Javed is now the tenant of the petitioner, and the petitioner intends for his impleadment in the array of respondents before the Rent Controller.

5.It is an established law that Rent Conffoller cannot decide the question of title as to whether the vendor of the petitioner was the owner from whom he allegedly derives title of the rented premises and, thereafter, had entered into any agreement of tenancy with Malik Javed because these matters are pending adjudication before the Civil Court and even an application under Section 12(21 CPC is also sub,judice. karned Rent Controller has got limited jurisdiction to determine the relationship of landlord and tenant and ancillary matters thereto, determination of the ejectrnent of the tenants and fair rent. The petitioner may have purchased the property, but based on such purchase, neither could he resist the application for ejectment of the tenant nor his presence before the Rent Controller is indispensable. The petitioner may get determine his right of ownership not only against respondents

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No. I to 3, but also prove the validity, authenticity, and correctness of the deed through which he has allegedly purchased the rented premises, but before the court of ultimate jurisdiction and the Rent Controller cannot enter into any such dispu0e because of his limited jurisdiction. The tenant has already admined his relationship with respondents No. I to 3 being their tenant, thus, on establishment of the grounds alleged by respondent No. I to 3 the tenant will have to surrender the possession of the rented premises to the landlord and thereafter, he or anyone including petitioner could file a suit for determination of his right before the civil court or through pending cases he may establish his title. Insofar as the pending adjudication of the Civil suit or the application under Section 12 (2) CPC questioning the judgment and decree of the Civil Court, it has got no nexus with the application for ejectmen/eviction of Malik Javed pending before the Rent Controller, rather the Rent Controller is required to decide the fate of the ejectrnent application within the particular time as held by the Apex Court in the case reported as "Barkat Ali VS Muharunad Elxan & anotJter"'(N00 SCMR 556,)- and by on no stretch of imagination, the sale in favour of the petitioner could be made as a ground for his impleadment in the array of respondents before the Rent Controller on the strength of registered deed No. l0 Book 1 Volume No. 2604 dated 03.0r.2022.

6.The division bench of this court in the case of Mst Farida Bano w, Muhatnmad and 4 othen €0r0 MLD 809) has dismissed the application of petitioner who was the purchaser of the rented premises by holding that she has no locus standi a be impleaded in rent case between landlord and tenant on the basis of her claim of ownership and possession, especially when she has already lodged a civil suit therein seeking declaration in respect of her right of ownership and possession. Sindh Hish Court in the case of Muhammad Muslim us, A.reem Ahmad and 3 othen 2017 MLD 185 has held:

'lhc dispute aad allegatioas leueld by the pctitioncr agzinst rcspndent No. l/the bcnefiabry of thc rcgisteted salc deed w:as all in the naare of ciuil dispute lzhi& rcrc ouBtde the sapc of Re.nt hndoller. 7hc pefr'tioner has prycd a be implcadcd iB iatencner in the exeantion prwdinp. IIc has aot antcndd that thc euiaion otda' of thc bnant ras m'thout jrisdictbn or on arcount of any As long as the rcgbtcred sale dced exeanted by the petitioner ia favour of rcspondent Nal is in dze freld for the pulpsc of juritdiAion of Rcnt hnfroller, Rapondat NaI is laadbrd and the teaaat lus no say in thc mater of omenhip once he is khg informcd hat thc omrcnla'p of the tenement shnd fransfenld by a rcgietcrd sale deed and hc lns rccciwd notie tmder Scction 18 of S.RP.O. 199.

8.Thercforc, peadiry the daim of the pctitioner that thc tqistercd salc deed is liablc to be a nccllcd beforc a competcnt civil bun, the otmcnhtp of the said taremeat tlrorrd an adailtecl raisercd doament azaot b frasaated by thc petitioncr throryh a alhtaal pocccdins bfiryeen rcspoadatE Nu. I and 2 in rcspcd of the sid taemcDt bcfore the Rent hndollen The pctidoncr is neither landlotd nor teaant in the said tcncmcnt fioa the datc of exeantion of rWicbred salc ded by him ia fawt"u'of rcspondat Na l. Ihe tidc of the tcaement saad nansfercd in favow ofrcspoadent Nal by operation ofhw.

9.In uicwof thc aborc disatssion, f do notfrad any force in this a nstidttion Wdabn, whrich is dicmi$ccl vzith no otder as to coct Ilorcve,r, the exeattiag hrrt, f aheady scizsd of execution poceedings, may euia whoevcr is in the posscssion of the nid aaaat in exeatubn of iu oder in Rent Case No.8.f/2013, lhc exeantioa prcaediag must t\. @me b an end wikk thitty dala fiom the daa of this oder and ampliance b rcprted to tltis buft thoueh tlrc MIT-II for pausal in danrfu.'

7.Ukewise, Lahore Hish in the case of l(ausar frrdous and us. Mian M. Zia (20f5 CIJC 606) has ruled

that:

"Besides &ete is no maadal atailable on rcand to sugest tbat thc qcchrc-at pwediags werc collusircIy instiattdlust to harm thc iotctwt of thc If he applhna arc allorcd a b implcadcd and to contmt the q/cctnent petitio4 tlten t]re simplc qjcancnt casc for euiaion of the tcnaatwould b anvemd intoiafiaa question of tide wtulch is not mnanted tmder thc hw. Thetefote, in no manner it an b said dlat ptescnce ofappellana beforc the Rat Condollcr is aaasty for a frnal and dccdtal daisbn ia the elixdneat asc or tlnt in their akene no fieaive order ould be passcd, thercforc, uader Order.I, Rule 10 of CEC. ms d*dy disnitsed by the leaned au* blow and ao exceptioa an bc dnmt thac,fton'

In the same manner, in the case of lfrikhar Ahmad Khan w. Muhamnad Qavrum 2015 1381 the petitioner who intended for his impleadment in the rent petition based on his title apinst the landlord his petition was dismissed, and it was held that he has no right for his impleadment in the ejectrnent petition. In the case of Tario Saddioue w, Additional Rent C;ontollerand othen (201EjIA A!j) it was observed by the lahore High Court that: "12 From ewry aryle wben I enmind this ase that thc rcspondatt No2 was allowed to implead in the giccancnt pa'tio4 the myth of tlte genaal laws as well as the spccial hw harc bcca violated by impleading an alien lruson lzho lns rp loap sbndi with rcerd to thc rcnted punite* In this my a gnvc injustia has been a used Oa the saength of u

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abow-meationcd rcfercnces tltat is no bar to sct naught tbe mong order by inuoking the pouiioru of awtiutioaal unds scdbn l9 of the hwdattion of Islanab Republic of hkisbn, 1973 cvat in the peseacc of broflachcs",

8.Sigrrificantly, the main thrust of the arguments of learned counsel for petitioner was that since the petitioner has purchased the property from one of the owners and in view of

his interest, his presence for protection of his rights is indispensable, but his submission is misconstrued particularly, when the tenant in possession of the landlords (respondents No. 1 to 3) has admitted himself to be their tenanL lramed counsel for petitioner could not point out any illegality, legal error, jurisdictional error in the findings of the Rent Controller. Thus, for the forgoing reasons, this petition being without substances is dismissed n limine.

Announced:

$.04.n2!t fADGE

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Ze/ 'D. B' Mn Justice Muhamnad Naeem furuar, J, Mn Justice Kamnn Haft Miankhe!, J.