District Police Officer, Abbottabad Vs Mst. Noor Jahan and others

JUDGMENT SHET]7

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

Ouaicisl Deportmenil

WP No. 492-N2014.

District Police Officer, Abbottabud.

Petitioner(s)

Versus.

Mst. Noor Juhan & others.

Respondent(s)

Iror Petitioner(s):

(DPO, Abhottabad) Sardar Aman Khan, Adyocate For Respondent:

(No t) Mr. Sajjud Ahmed Abbosi, ldvocate.

Respondents Mr. Sr[id lqbal, Advocate (llo.4 and 5).

Date oJ'heoring 30.10.2023,

MUIIAMMAD IJAZ KHAN. J. 'l'hrough this single judgment this Court shall decide this i.c Wp tyo. 492- A/2014 as well as the following three connccted pctitions, as all these petitions arc ha.ring comlnon cluestion(s) of law and fact(s)

'y i) WP llo. 493-A/2014.

Di,;tricl Police Olficer, lhbot tubacl Vs.

MsL Noor.lehan & othcrs.

ii). o. 494-A/2014.

Di.ctr ic I Police (fficer, tl b bot tabacl Vs.

l4sl. Noor,Iehan & others.

iii). lItP No.49'5-A/2014.

District P olice Officer, lbbotl abad Vs.

Mst. Noor Jehan & others.

I Brief but relevant facts of all these petitions are that initially in the ycar 2008, the respondentNo. 1 namely Mst. Noor Jehan w'idow of Muhammad Suleman (hereinafter shall be referred as respondent/landlady) had filed four different rent petitions under section 13 of The West Pakistan Rent Restriction Ordinance, 1959 with respect to four shops bearing No. 249211, 249212, 249213 and 249214 before the worlhy Rcnt Controllcr, Abbottabad, for the ejectment of privatc rcspondcnts (hereinafter shall be rrtrred AS

respondents/tenants) on the ground of default in payment of rent. Respondents/tenants wcre sumrnoned in each rent petition, who appeared and contested their respective petitions by filing thcir written replies. From the divergent pleadings of thc pafties, the worthy Rent Controller framcd issucs and then after recording of pro and contra evidencc, frr the r,vorthy Rent Controller vide its separate jrrdgments of even date i.e 13.12.2010 accepted the petitions of Mst. Noor Jahan and directed the respondents to vacate thc dernised shops. Fecling aggrieved from the judgments and decrees of the

Itent Controller, the respondents/tetrants namely Ital-rim Gul, Saeed-ur-Rehman, Abdul Jalil and Itustam Khan preferred their respectivc appcals and it was during the pendency of thosc appcals, when the present petitioner i.e Police Deparlment through District Police Officer, Abbottabad also filed applications for its impleadment in these cases on the ground that it is the police departmcnt who is the owner of the demised shops and thc learned appellate Court vide separate judgmcnt dated A7.06.2011 set-aside the judgment of thc Rcnt Controller dated 13.12.2010 and remandcd thc cascs to it with the directions to frame propcr issues in the case and parties may be allowed to produce additional evidence if, they so wish. In the said judgment(s) the appellate Court also hcld that the police department through District Policc Officer, Abbottabad may file application(s) for its inrpleadment before the wofthy Rent Cor-rtrollcr in the remanded rent petition(s).

Nlt n J After the rernand, the worthy Rcnt a/ Controiler framed the issues and thc petitioner (District Police Officer, Abbottabad) was also impleaded as a necessary party in the rcnt pctition(s) vicle order(s) dated 24.01.2012 and all the contcsting

parties were directed to produce their respective evidence, which they have accordingly produced.

After completion of evidence and thcn after hearing of the learned counsel for parties, thc worthy Itent Controller (Civil Judge-XI, Abbottabad) vidc separate judgments datcd 10.07.2012 held that respondent No.1 (Mst. Noor Jahan) is the landlord of the shops whereas, the plea of the petitioner of being the owner-cum-landlord of the rented premiscs was declined and respondents/tenants wcrc directed to vacate the shops and also to pay thc outstanding rent.

4.Being aggrieved and dis-satisfied from the above judgment(s), the petitioners (District Police C//icer, Abbottabad) as well as privatc respondents namely Muhammad Younus, Muharnmad Miskeen, Abdul Jalil and Mst. Noor Jahan filcd lburtccn (14) number of separate appeals, which wcre decided by the learned appellate Court/ Additional District Judge-II, Abbottabad vide consolidatcd impugned judgment dated: 2I.04.2014, who rnodified the .fu judgrnent of learned Rent Controllcr with thc following findings:

Resultuntly, I held tltat tlte lundlord of the suit shops is Mst. Noor lehon w/o Sulenrun wltile its ownership ,.f, of tlte Federul

government under the administrutiorr qf settlement uuthorities. The police departmenl Itos got no concern with the suit propertlt. Tha tenants cfinnot be condemned ./br chunging their position, due to the interferance of tha police depurtment nor can be kept ul lhe mercy of landlord. There is no defuult in puymcnt of rent. Tlte puyment o./ rent since Jul, 2006 tiil to tlute is regularly received h.l, the polic:e depurtment for whiclt they were not competent.

It is further held thtt hencefortlt, tlte tenunts slrall pay rent to tlte lundlord Msl. Noor Jehan regularly witltout defirult. Mst. Noor Jehan if .ro desired, moy enter into .fresh rent agreement with the tenunts, ltowaver, in cuse of defoult, slte may file .fresh petitiotr uguinst tlte tenant under tlte Rent Restricliorr Ordinonce. Tlte renl received hJ, the Polica Deportment w,.e.f July, 2006 tiil totluy shall he deposited by the Police Deportnrcnt with tha Nazir of tlris Court within u ntonllt, wlterer(ier tlte sume sltall be dishursed to the landlord (Mst. Noor Jelton).

5 Being dis-satisfied with aforcsaid consolidated judgment of learned appcllate Court, the petitioner i.e District Police Officer, tlbbottabad has filed the above mentioned petitions, whercas, thc respondents/tenants have not challenged the aforesaid order/judgment of the appcllate Court Arguments of learned counsel lbr the

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parties were heard in considerablc dctail and the rccord./evidence was gone through with thcir able assistance.

7 The record would show that initially the respondent No.1 nameiy Mst. Noor Jahan had filed four ejectment petitions with respcct to thc fbur shops bearing No. 249211, 249212, 249213 and 249214 for the ejectment of her tcnants namcly Shahzad Khan, Raheem Gul Khan, Abdul Jalil, Muhammad Miskeen, Rustam Khan, Saccd-ur- Rehman and Muhammad Younis, on the ground of subletting and default in payment o1- rent, which ejectment petitions were contestcd by thc respondents/tenants and after recording of pro and contra evidence, the same werc allowcd, howcvcr, tl-re respondents/tenants being not satisficd with thc same filed their respective appeals and it was during the pendency of those appeals whcn thc prescnt petitioner i.e Police Department through District Police Officer, Abbottabad filed application(s) lor its impleadment in the pending appcals. 'l'hc rccorcl lurther shows that the learned appcllate Courl allowed those appeals and cases wcre remanded back to the worthy Rent Controller fcrr lraming of V proper issues, whereas, the present pctitioncr/District Police Officer, Abbottabad was also dircctcd to filc application(s) for its impleadment bcfore worthy Rent (Jontroller. After the remand. thc prcscnt

petitioner was impleaded as party and the petitioner alongwith private respondents/tenants contested the ejectment petitions, however, after a full-fledged trial, the said ejectment petitions wcrc allowcd and the respondents/tenants rvere directed to vacatc thc srril- shops lor the respondent No.l namcly Mst.

Noor Jahan, whereas, the plea of present petitioner qua being the owner-curn-landlord of the derniscd shops r,vas also declined on thc ground that its plca of ownership with respect to thc propcrty bcncath thc suit shops has already been rcfuscd up to thc apex Court. The record further shows that thc albresaid order and judgrnent of the worlhy Rent Contr:oller was challenged by the prescnt petitioner as well as by the tenants and Mst. Noor Jahan, as 14 nr-unber of appeals were filed bcforc the district appeal Court vide rent appeals No. l/RC to l4lltC of 2012, where too, the plca of prcsent pctitioncr as well as private respondents was dcclined vidc consolidated order and judgment of thc appellate Court dated 21.04.2014. Th.e aforcsaid ordcr and judg,ment has not bcen challengcd by the respondents/tenants, whereas, the prcsent pctitioncr has challenged the samc through ttrc instant writ pctitions, therefore, this Court would addrcss thc

grievance and plea of present petitior-rcr through this judgrnent.

8 It is part of the record that thc husband of the respondentllandlady namely Muhammad Sulcman was an employee of the policc depaftmcnt, who obtained an area of 874 sqf through a lease agreement in the year 1988 and thcrcafter, as per record of the case as produced by PW-l i.e letler regarding acceptance qf appliccttion rlf Muhammad ,Sttlemon ..for construction qf shops (lix PW-1/1),, copy of form "8" (Ex PW-l12), cop)t rtf admissiott .fees (Ex PW-1/3), cop)s qf lease agreement (trx PW- u4) and approved map for constru.clion of shops (lJx PW-1/5), the husband of respondcnt/Mst. Noor Jahan had constructed four shops and also cxecuted tenancl' agreement(s) with the respondcnts/tcnants, rvho too during the course of their statcments have admitted that initially they have bccn bcing paying the rent to the respondent/landlord, howcvcr, it was in tlre month of July, 2006 when respondents/tenants V stopped paying the rent to the respondent/landlady and insteacl started payment of rent to thc policc department, which dcfault in paymcnt of rcnt continued up to December, 2007, thcrcforc, thc

respondent/landlady felt the need to llle the instant ejectment petition on 15.01.2008.

9 It is part of the record and as spelling out from the evidence of this case as wcll as from thc previous litigation carricd out by onc Muhammad Aslam against the present petitioner/District Police Officer, Abbottabad that the subject property as wcll rls property which is in the possession of pctitioner was an evacuee property, as as pcr rccord, thc offlcial residence of the Senior Supcrintendent of Policc, Hazara now DIG,Yla'zara was trans{brrcd to tl-re police department vide PTD datcd 27.01.1965 and apart from the area allotted to the petitioner through aforesaid PTD, there was an cxcess arca too which was occupied by some privatc pcrsons having their houses on the same. The record also indicates that subsequently, the police deparlmcnt obtaincd an arnended PTD on 04.09.1979 whercby, thc excess land apart from the area which was allotted to the petitioner vide PTD dated 17 .01.1965 was also included to the ownership of the policc deparlmcnt.

'Ihe said amended Pl'D was challcngcd by onc Muha.mmad Aslam through a suit filcd in thc ycar 1976 and ultimately, it was hcld by this Cor-rrt as well as by the apex Court that the amcndcd P fD was

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void ab-initto and unlawful, therefore, the cxcess property granted to the police deparlment vide amended PTD was declared as illcgal, howcvcr, despite this, the petitioner till date is insisting that it is also th.e owner of an excess propcrty bcyond thc property given to them vide I'}TD datcd 17 .01.1965

10.It is relevant to mention hcrc that in the earlier proceedings a commission rvas scnt lbr spot inspection and measurement of land was carricd out, r,vho had accordingly mcasurcd the housc o1'Scnior Superintendent of Police now DlG, llazara alongwith two barracks, which was granted to it vidc P'fD dated 17.01 .1965 and it was found that thc area beneath them is 18177sql, which mcasurcmcnt is exactly the same which was grantcd to thc petitioner's department vidc PTD of 1965, whcrcas, the excess area was found as l93,l4Ssqf and thus, the total area comes out as 2l1,325sqL lt is also part of the record that the suit shops havc been constructed on khasra No. 1720 having oorresponding old khasra No. 1185 alongwith othcr khasra numbers i.e 1182 to 1184 & 1190, which were included in the amendment PTD of 1979, and thus, when the plea of the petitioncr regarding orvnership over the excess area on the basis of

amended PTD has already becn dcclined by this Court as well as by the apex Courl in CP No. 105-P of 1998 decided on 20.05.1999, then it could not bc allowed to re-agitate thc same plca in thesc proceedings, which piea of the petitioncr has already been laid to rest by this Court as well as by the apex Court. In the case of Messrs Klrursltid and Ltd-Vs-l-ederstion o,

Pakistan reported as PLD 2020 Sunreme Court 641 , the apex Court has held that oncc a controvcrsy with regard to a right in property or a right to olficc is adjudicated upon and attains finality through a .iudicial pronouncement o1'a cornpctcnt Court ol'law', it no more remains open to agitate in any subscqucnt judicial proceedings. The said principle is intended not to afford a litigant more than onc opportunity for resolution of a judicial dispute and thr-rs climinates thc chances of repetition and succcssivc litigation on the same issue. The apex Courl in an arrother case title O uetto Development A ut ho r itv-Vs-A h d ul B crs it und others-reported as 2022 PLC (C.S) 288 has hcld that when an earlier part of litigation it come an cnd and had attained finalit), betwccn thc partics, thc questions in the eariier round of litigation oncc decided by the competent Court of law, could not bc

re-agitated again, such issue would act as res- judicata

11.It is also relevant to mcntion herc that ctwnership and land-lordship have distinct meanino as a man may not be the owner but hc may be thc landlord and conversely a man may not bc a landlord but he would be an owner, however, in thc prcscnt case, the petitioner is neither the owner of the suit shops, as its such plea has already bccn discardcd up to the apex Court, nor it is the landlord of thc thcsc shops, as respondents/tenants have admitted in Court statement(s) that initially they were paying rent(s) to the respondent/landlady, however, under the influence of police department, they started paying rent(s) to the petitioner, thercfore, rccciving ol'such rent(s) by the petitioner, if any, is prima facic on thc basis of tbr:ceful authority'of the policc and thus, thc same would not confer any right of owncrship or lar-rd-lordship on the petitioncr. As statcd hereinabove that the term landlord and owner arc not synonymous as interpreted by thc apex Court in the case of Khaliq Roza Khun-Vs-Messrs Pakistan Stute Ot! Compsnv L reported as 1998 SCMR ZW2- wherein, it was held that landlord lncans crwner of the premises and includes a person who is

for the time being authorized or entitlcd 1o reccive rent in respect of such premises, whcreas, the owner means a person in whom the property for thc time being is beneficially vested or who has a control or occupation of it.

12.It is also relevant to mention herc that after passing the impugned order dated 21.04-2014 of the leamed Additional District Judgc wherc it was held that henceforlh the respondcnts/tcnants shall pay rent to the respondcnt/landlady namciy Vlst Noor Jahan and she may enter into a lresh agrcemcnt with the tenants, however, in case of dclault, shc may file fresh petition(s) against the tenants under The Rent Restriction Ordinance. Thc record would show that even thereafter, respclndents/tena.nts made dcfault in payment of rent, sct rcspottdcnt/la"ndlady filed ejectment petitions on 11 .A5.2017, which wcrc duly contested by the respondents/tenants, how'cvcr, the said applications have ultimately been allorvcd as ry well vide order and judgment dated 22.03.2018 but astonishingly, the present petitioner has not challenged the aforesaid order cithcr bcforc the appellate Court or before this Cour1, thcrclbre, on this ground too, the desired writ couid not be issued.

13.It is also relevant to mention here that through the instant writ petition thc pelitioncr is seeking the issuance of writ of certiorari to declare the impugned order and judgment dated 21.04.2014 of the leamed Additional District Judge-II, Abbottabad as well as order of worlhy rent controller dated 10.07.2012 as illegal, unlawful & arbitrary, and consequently of having no legal effect, however the learned counsel rcprcsenting thc petitioner could not pointed out any cxccss of jurisdiction or improper or illegal exercisc of jurisdiction vested in them. Furthermore, during the course of arguments leamred counsel lor pctitioncr was confronted that as to whether in absencc of any ground of lack of jurisdiction or exccss o1' jurisdiction or improper exercise of jurisdiction, thc desired writ could be issued, however, hc w'as unable to wriggle out of this legal impcdiment in his w?y, therefore, when the two fora below havc properly exercised their jurisdiction, thcn thcir Ft orders could not be interlered by this Courl in its constitutional jurisdiction. In the casc of Amiad Khun vs. Muh Irshud uclt

Apex Courl has held that the l{igh Courts must not

exercise their constitutionai jurisdiction in ordcr to interfere with the discretion exerciscd by lower Courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified irt cases r.vherc the impugneci order has becn passcd rvithout jurisdiction or is based on misrcading or non- reading of evidence, or is not in accordance with the law. If none of these errors is prcsent, the Itligh Courts must not exercise their constitutional juriscliction to interfere with thc findings of lowcr Courts merely because it rcached a diffcrcnt conclusion as to the controversy than thc lattcr.

Similarly, in the case of |Chief Executive Mepo & others v/s Muh Fuzil & o thers" reportcd as 2012 SCM& 919, the flon'blc Apcx Court has 'l'ribunal has dcclared that where the Court or thc

jurisdiction and it determincs specilic qucsticln o1' fact or even of law, unless patent lcgal dcfect' or material irregularity is pointcd-out, such Ft determination cannot ordinarily be interlcrcd with by thc Liigh Court white cxercisitrg jurisdiction uncler Article 199 0f the constitution. In the casc of mqn I'{AB v/s Muh n& qthers" reported as PLD 20@',

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the Hon'trle Apex Court has held that the powcrs o{' judicial review vestcd in I Iigh Court undcr Article 199 of the Constitution is no doubt a grcat weapon in the Judge's hands, howcver, thc same shall not be exercised in a case whcrc discrction is exercised by the subordinate Court/'l'ribunal in a fair and just manner without violating or disregarding statutory provision ol' law, likcly to occasion the failure of justice. Ordinarily such cxtraordinary jurisdiction shall not be excrciscd at random and in routine rlanner.

14.In view o1' thc above discussion and exposition of law, the impugncd ordcrs & judgrncnts of fora below are neither arbitrary nor pcrversc nor the result of excess, improper or illcgal cxcrcisc of jurisdiction vested with them, therefbrc, same are rnaintained & upheld, and consequcntly, the instant rvrit petition alongwith connected writ pctitions, being bereft of any merit, are heleby dismisscd' Announcecl.

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'lihir l'S

JUDG