PLJ 2006
[
Present: Muhammad Jehangir Arhsad, J.
AUQAF DEPARTMENT through ADMINISTRATOR
and another--Petitioners
versus
MUHAMMAD SADIQ and 2 others--Respondents
C.R. No. 19-D of 2000/BWP, decided on
15.12.2005.
----S. 98 & Preamble--Bona fide
occupation of property--Scope--Petitioner obtained leasehold rights in public
auction and got possession through Auqaf Department--Validity--Tenancy rights
would not fall on the grounds of cancellation of leasehold rights of respondent
and his eviction was void--Held: Leasehold rights of respondent were neither
terminated by the Auqaf Department for any fault of respondent nor was evicted
at the instance of other respondent, rather respondent obtained leasehold
rights in public auction and was inducted into possession by the Auqaf
Department in accordance with law--Tenancy rights of petitioner would fall on
the ground as cancellation of leasehold rights of respondent and his eviction
from the disputed property void, is not the correct interpretation of law on
the subject. [P. 1338] C
Specific Relief Act, 1877 (I of 1877)--
----Ss. 8, 9 & 42--Discretionary
relief--Scope--Validity--Held: Relief under Sections 8, 9 or 42 of Specific
Relief Act is discretionary and cannot be granted to a person either guilty of
delay, slackness, estoppel or has approached the Court with unclean hands i.e.
being defaulter as well as guilty of subletting the Waqaf Property. [P. 1338] D
----R. 7(3)--Punjab Waqaf Properties
Ordinance, (IV of 1979), S. 9(2)--Audi Alteram Partem--Inapplicability
of--Respondent was defaulter as well as guilty of subletting the property--Held:
No room is left for High Court to hold that respondent was still entitled to
notice within the meanings of S. 9 of the Ordinance, as even by issuance of
notice the ultimate result would have been the same. [P. 1336] A
----R. 7(3) & Preamble--
S. 9(2)--Respondent, a defaulter and guilty of subletting waqaf
property--Non-service of notice on respondent before terminating his tenancy
and eviction--Held: No fatal prejudice caused--Applicability--Non-service of
notice on respondent before terminating his tenancy and eviction from the
property in dispute, caused no fatal prejudice of First Appelltae Court holding
him as defaulter and guilty of subletting Waqaf Property without permission by
the competent authority. [P.
1338] B
1996 CLC 213; 1997 MLD 2444; 1982 CLC 1249; 1983 CLC 2872;
2000 SCMR 907; PLD 1991 SC 1029; 1995 MLD 45; PLD 1966 SC 639;
1972 SCMR 168; PLD 1963 SC 109; 1985 SCMR 9; PLD 2003 KR 237;
2000 CLC 1207 and NLR 1995 Civil 180 ref.
Mr. Aejaz Ahmad Ansari and M. Shamshir
Iqbal Chughtai, Advocates for Petitioners.
Sardar Muhammad Hussain Khan, Advocate
for Respondent No. 1.
Date of hearing: 9.12.2005.
Judgment
Through this single order, I propose to
dispose of C.R. No. 19-D/2000 alongwith Cross-Objections No. 74/2000 and C.R.
No. 11-D/2000 alongwith Cross-Objections No. 73/2000, as similar questions of
law and facts are involved in all these matters and also because these
petitions have been filed against the same judgment of the learned trial Court
as well as of the learned Appellate Court.
2.
The facts briefly giving rise to the institution of these petitions are
that commercial property (Thalla No. 1) situated in the market of Jamia Masjid
Sadiq, Bahawalpur was leased out to Muhammad Sadiq Respondent No. 1 by the
Auqaf Department some twenty five years before the filing of the suit i.e.
23.4.1990 but later on he was ejected on 19.3.1987 (vide Ex.D/6) by the Auqaf
Department for breach of leasehold rights. Muhammad Sadiq Plaintiff/Respondent
No. 1 filed the present suit on 23.4.1990 seeking a declaration that he being
tenant/lessee of the suit property under Auqaf, was entitled to have its
possession restored as his ejectment from the said property was illegal,
without lawful authority and also that suit property could not be further
leased out to Muhammad Sajid Respondent No. 2 in C.R. No. 19-D/2000 &
petitioner in C.R. No. 11-D/2000 (hereinafter to be referred as respondent/petitioner)
and for mandatory injunction by way of direction to the petitioner for
restoration of possession of the suit property. The suit was contested by the
Auqaf Department present petitioner as well as Muhammad Sajid
respondent/petitioner by way of filing separate written statements. The above
said petitioners in both the Civil Revisions in their respective written
statements, besides taking several preliminary objections, especially about the
non-maintainability of the suit having not been instituted against competent
persons within the meaning of Section 3(3) of the Punjab Waqaf Properties
Ordinance, 1979 and also that Respondent No. 1 had no locus standi to file the
suit on account of his ejectment from the suit property in a lawful manner. It
was further alleged that Muhammad Sadiq Plaintiff/Respondent No. 1 was guilty
of breach of leasehold rights, he was rightly dispossessed and the property in
dispute was correctly leased out to Muhammad Sajid respondent/petitioner
through open auction.
3.
Keeping in view the divergent pleadings of the parties, the learned
trial Court put the parties at trial after framing the following issues:-
ISSUES:-
1. Whether
this Court lacks the jurisdiction to take cognizance of the matter in issue?
OPD.
2. Whether
the suit is not maintainable in view of the preliminary Objections Nos. 1 to 3
of the written statement filed on behalf of the Defendants Nos. 2 to 3? OPD.
3. Whether
the plaintiff has no cause of action and locus standi to file the present suit
and has not come with clean hands? OPD.
4. Whether
the suit is time-barred? OPD.
5. Whether
the plaintiff was in occupancy of disputed property under the Defendants Nos. 2
and 3 and he has forcibly and illegally ejected there-form on behalf of the
defendants? If so, whether the plaintiff is entitled to decree as prayed for?
OPP.
6. Whether
the Defendant No. 1 is bon fide occupant of the disputed property as tenant? If
so, its effect? OPD-1.
7. Whether
the defendants are entitled to get the compensatory costs from the plaintiff
under Section 35-A CPC? If so, to what extent? OPD.
8. Relief.
4.
During trial, Muhammad Sadiq Plaintiff/Respondent No. 1 got examined one
Khalil Ahmad PW-1, Fazal Elahi PW-2, Muhammad Hussain PW-3 and Muhammad Ashiq
brother as his Attorney PW-4. By tendering documents Ex.P-1 to Ex.P-4 closed
his evidence. On the other hand, Muhammad Sajid defendant/respondent/petitioner
appeared himself as DW-1 and closed his case after producing documents Ex.D-1
to Ex.D-32. The remaining defendants i.e. Auqaf Department, etc. relied upon
the evidence produced by Muhammad Sajid defendant. On conclusion of the trial,
the learned trial Court vide judgment dated 10.12.1995 decreed the suit of
Plaintiff/Respondent No. 1 and besides granting declaration sought for i.e.
declaring the leasehold rights in favour of respondent/petitioner Muhammad
Sajid through public auction as illegal, also directed delivery of possession
by way of mandatory injunction to Plaintiff/Respondent No. 1 Muhammad Sadiq.
Against the said judgment and decree of the learned trial Court dated
10.12.1995, the petitioner Auqaf Department as well as respondent Muhammad
Sajid filed two separate appeals which were heard by a learned Additional
District Judge, Hasilpur Camp at
5.
Against the above mentioned judgments and decrees of two Courts below,
the Auqaf Department has filed the instant Civil Revision (C.R. No. 19-D/2000),
whereas Muhammad Sajid, subsequently lessee, has filed the connected Civil
Revision (C.R. No. 11-D/2000). Further Muhammad Sadiq Plaintiff/Respondent No.
1, feeling aggrieved of the above referred findings of the learned Appellate
Court in Paras 21 and 22 of its judgment, has filed two separate Cross
Objections Nos. 73/2000 and 74/2000 in respective Civil Revisions. As stated
above, all these matters are being decided by means of this single judgment.
6.
It has been argued by Mr. Shamshair Iqbal Chughtai, Advocate learned
counsel for the petitioner in C.R. No. 19-D/2000 that per force of Rule 7 of West
Pakistan Waqaf Properties (Administration) Rules, 1960, it is mandatory that
lease must be in writing but in this case the respondents/plaintiffs have
failed to produce any such lease. Further submits that under Section 9(2) of
the Punjab Waqaf Properties Ordinance, 1979 Administrator Auqaf has got the
power to terminate the lease or to resume the tenancy where he is satisfied
that the lessee or the tenant of immovable property, owned by the Auqaf
Department, has committed breach of lease or tenancy and that it is established
from the record, as also held by the Additional District Judge in Para 23 of
his judgment that respondent/plaintiff not only committed default in payment of
the rent but also sublet the property in dispute without any permission from
the competent authority. His further contention is that plaintiff/respondent
filed the suit with unclean hands and that admittedly he was evicted from the
property in dispute on 13.5.1984 but remained silent till 1990 i.e. filing of
the suit. Further contends that respondent/plaintiff could not claim
opportunity of hearing as he had no vested right in the property in dispute;
that in terms of Section 3(3) of the Punjab Waqaf Properties Ordinance, 1979,
the Chief Administrator Auqaf being a corporate body could only be sued in his
corporate name and that the suit filed by the plaintiff/respondent against the
Auqaf Department and District Manager Auqaf, Bahawalpur was not competently
filed. Learned counsel finally argued that the suit filed by respondent/plaintiff
was time barred under Article 14 of the Limitation Act having been filed beyond
the period of one year of his eviction from the property in dispute.
7.
Mr. Aejaz Ahmad Ansar, Advocate appearing on behalf of Muhammad Sajid
petitioner in C.R. No. 11-D/2000 besides adopting arguments of Mr. Shamshair
Iqbal Chughtai, Advocate, has further argued that tenancy in dispute being not
perpetual in nature; after findings of Appellate Court holding Muhammad Sadiq a
defaulter in payment of rent and guilty of subletting the property in dispute,
no useful purpose would be served by giving plaintiff/respondent a notice and
affording him opportunity of hearing. It is contended that if any illegality or
irregularity was committed by Auqaf Department in cancelling the lease of
plaintiff, the same was not due to any act or fault of Muhammad Sajid
petitioner who obtained the property through open auction held on 31.5.1984 and
to whom possession was delivered on 19.3.1987 in execution of order of the
Administrator dated 1.1.1986, confirming auction in his favour and directing
vacation of disputed property from unauthorized occupants and its delivery to
Muhammad Sajid. Learned counsel argues that accordingly Muhammad Sajid is in
occupation of suit property as lessee tenant of Auqaf Department but the
learned two Courts below passed the impugned judgments and decrees by ignoring
the chequered history of the case, conduct of plaintiff and nature of the
tenancy granted by Auqaf Department earlier to plaintiff/respondent and now to
Muhammad Sajid. Both the learned counsels in support of their above arguments
have placed reliance on the following case law:
"Millac
"Additional Commissioner-II, K. Division
versus Shahid Raza and others" (1997 MLD 2444)
"Muhammad Hussain versus Akbar
Hussain" (1982 CLC 1249)
"Nasir Mahmood versus Mustajabi
Begum" (1983 CLC 2872)
"Abdul Haq Indhar and others versus
Province of Sindh through Secretary Forest, Fisheries and Livestock Department,
Karachi and 3 others" (2000 SCMR 907)
"Abdul Qadir and others versus The
Settlement Commissioner and others" (PLD 1991 SC 1029)
"Zarghun Shah versus Surgeon General
and another" (PLD 1998 SC 540).
8.
On the other hand, Sardar Muhammad Hussain Khan, Advocate appearing on
behalf of the respondent/cross-objector has argued that suit filed by
plaintiff/respondent was fully covered by Section 8 of the Specific Relief Act;
that lease was terminated without notice; that respondent having got statutory
protection and that as no order was passed within the meaning of Section 9 of
the Punjab Waqaf Properties Ordinance, hence the respondent was not obliged to
file any appeal and since the basic order of ejectment of the respondent was
void, ab-initio hence, the superstructure raised on such an order i.e. further
leasing out the suit property to Muhammad Sajid petitioner, has also got no
legal sanctity. Learned counsel argues that without conceding that petitioner
has committed default, non-payment of rent was rectifiable breach, hence his
ejectment from the suit property was without lawful authority. Learned counsel
in support of his pleas has placed reliance on the following judgments:--
"Shahab ud Din and others versus
Mst. Mariam Bibi and others" (1995 MLD 45)
"Anjuman-e-Ahmadiya,
"Rehmat Ullah and another versus The
Secretary, Evacuee Property Trust Board, Government of Pakistan, Lahore and 2
others" (1972 SCMR 168)
"The Majlis-i-Intizamia, Jamia
Masjid, Ghulam Muhammad Abad Colony, Lyallpur versus The Secretary to
Government of West Pakistan, Communication and Works Department, Lahore"
(PLD 1963 SC 109)
"Sardar Muhammad Aslam Sial and 3
others versus Government of Pakistan and 3 others" (1985 SCMR 9)
"Sharif Haroon versus
"Walidad versus Shah Din and
another" (2000 CLC 1207)
"Chand Foundation versus Federation
of
9.
The main crux of findings of two Courts below is that as the respondent
was ejected from the demised property without issuing any notice to him,
affording him opportunity of hearing and even without passing the formal order
of cancellation/termination of his tenancy/lease in terms of Section 9 of the
Punjab Waqaf Properties Ordinance, 1979, hence the act of Auqaf Department is
without lawful authority and of no legal effect and thus respondent Muhammad
Sadiq was entitled to restoration of his tenancy. Prima facie the findings of
two Courts below to this extent do not suffer from any misreading or
non-reading of evidence, especially when nothing has been produced by the Auqaf
Department showing that leasehold rights of Respondent No. 1 were terminated
after giving him notice as well as affording him opportunity of hearing. But
the fact remains that Muhammad Sadiq respondent was evicted from the property
in dispute on 19.3.1987 through proceedings conducted by the then City
Magistrate,
10.
Another important aspect of the case is the findings recorded by the
learned Appellate Court in Paras Nos. 21 and 22 of its judgment that Muhammad
Sadiq respondent is a defaulter as well as guilty of subletting the property in
dispute in violation of Rule 7(3) of the West Pakistan Waqaf Properties
(Administration) Rules, 1960. Although, against the above findings of learned
Appellate Court Muhammad Sadiq respondent has filed Cross-Objections Nos. 73
and 74 of 2000 yet Sardar Muhammad Hussain, Advocate appearing on behalf of
said respondent during course of arguments has not been able to convince this
Court that above findings of the learned Appellate Court to this extent, are
not based on proper and correct appreciation of evidence on record. The learned
Appellate Court while passing the said findings has come to the said conclusion
by non-production of any receipt of payment of rent after June, 1983 or any other
evidence to this effect and has also relied upon the evidence of PW-1 Khalil
Ahmad and Muhammad Ashiq General Attorney of Muhammad Sadiq respondent as PW-4
admitting in cross-examination that Respondent No. 1 had inducted one Usman
Shah in the shop in dispute. The learned Appellate Court while reaching to the
said conclusion has also placed reliance and rightly so on ejectment
proceedings conducted on 19.3.1987 vide Ex.D/6, according to which at the time
of ejectment proceedings Muhammad Sadiq Respondent No. 1 was not in possession
of the property in dispute and possession was taken over from some one else.
The above-mentioned findings of the learned Appellate Court are not only based
on proper appreciation of evidence but have also not been rebutted by the
learned counsel for Respondent No. 1 during course of his arguments.
11.
In the presence of above-mentioned evidence and the findings recorded by
the learned Additional District Judge holding Respondent No. 1 as defaulter as
well as guilty of subletting the property without permission of the Auqaf
Department, no room is left for this Court to hold that Respondent No. 1 was
still entitled to notice within the meanings of Section 9 of Punjab Waqaf
Properties Ordinance, 1979, as even by issuance of notice the ultimate result
would have been the same. Although, there is no cavil to the proposition that
no body be condemned unheard and right of opportunity of hearing is basic right
before any adverse action is taken against a person, yet as held by Hon'ble Supreme
Court of Pakistan in case "Abdul Qadir and others versus The Settlement
Commissioner and others" (PLD 1991 Supreme Court 1029), "issuance of
notice or affording opportunity of hearing depends upon the facts and
circumstances as to whether the observance of technical rule of audi alteram
partem would serve the ends of justice or it would negate the ends of
justice". It was further held by the Apex Court in the cited judgment that
if forum before which the question of want of notice or affording opportunity
of hearing is raised, is able to examine the merits, there would be nothing
wrong in deciding the matter finally and refraining from multiplicity of
proceedings, which as an end-product also causes injustice and misery in so far
as delay, expense and anxiety are concerned. In almost similar circumstances,
the Hon'ble Supreme Court in the case "Abdul Haque Indhar and others
versus Province of Sindh through Secretary Forest, Fisheries and Livestock
Department, Karachi and 3 others" (2000 SCMR 907), after discussing the
case law on the subject in detail held as under:
"There is no cavil with the
proposition that the principle of natural justice enshrined in maxim "audi
alteram partem" is always deemed to be embedded in the statute and even if
there is no such specific or express provisions, it would be deemed to be one
of the parts of State because no adverse action can be taken against a person
without providing right of hearing to him. But at the same time this principle
cannot be deemed to be of universal nature because before invoking/applying
this principle one has to specify that the person against whom action is
contemplated to be taken prima facie has a vested right to defend the action
and in those cases where the claimant has no basis or entitlement in his favour
he would not be entitled for protection of the principle of natural
justice."
It was further held in the said judgment
as under:
"It may be noted that his Lordship
Mr. Justice Ajmal Mian (as he then was) has concluded the principle of
"audi alteram partem" is to be read into the relevant provision if
the action is to affect any vested right of a person. Further, adding to these
reasons we would observe that if this rider is not palced for applying the
principle of "audi alteram partem" then in certain cases where the
law demands that action must be taken promptly shall defeat the ends of justice
and there is very likelihood that the object is required to be achieved by an
immediate action shall not be accomplished and in the meanwhile a person who
has no vested right shall continue to enjoy the benefits of the deeds without
any legal entitlement. It is also to be noted that it is high time to ensure
that transaction between the individuals vis-a-vis the State are just, fair,
open, honest and transparent. Therefore, action of individuals which is not
honest and based on mala fide may not be allowed to exist merely for the reason
that the principle of natural justice was violated. As in the instant case
initially petitioners obtained a temporary lease of Forest through auction for
a period of 5 years and immediately thereafter successfully made an attempt to
get the period of lease extended by 30 years without auctioning the land after
the expiry of period of 5 years in terms of Part II of the Martial Law Order 60
or under West Pakistan Delegation of Powers under Financial Rules because we
are of the opinion that if for such long period the lease of the Forestry is
auctioned it would have fetched high auction price for the Forest Department.
But to deprive the State petitioners anyhow managed extension of lease in their
favour through good offices of Chief Minister illegally. Therefore, such deeds
on the part of the petitioners or the authority who granted the sanction cannot
be allowed to exist on the strength of argument of the learned counsel for the
petitioners that action against the petitioners have been taken in violation of
principles of natural justice."
In the light of the law declared by the
Hon'ble Supreme Court of Pakistan in the above referred two judgments, I am
satisfied that non-service of notice on respondent before terminating his
tenancy and eviction from the property in dispute, caused no fatal prejudice to
him, especially in the presence of findings of the learned Additional District
Judge holding him as defaulter and guilty of subletting Waqaf Property without
permission by the competent authority. The findings of two Courts below on
Issue No. 5 are not sustainable and same are accordingly set-aside. Since there
is no cavil to the proposition that no person can be condemned unheard or
without issuing any notice and affording opportunity of hearing, yet
inapplicability of such principle to the facts and circumstances of the present
case, in the light of above-mentioned judgments of the Hon'ble Supreme Court,
has been approved, hence the case law cited on behalf of Muhammad Sadiq
Respondent No. 1 need not be discussed in detail.
12.
So far as the findings of two Courts below on Issue No. 6 are concerned,
the same also cannot remain in field for the reasons recorded under Issue No.
5. The principle applied by the two Courts below under Issue No. 6 against
Sajid respondent/petitioner cannot be used against him as leasehold rights of
Muhammad Sadiq were neither terminated by the Auqaf Department for any fault of
Respondent No. 2 nor Sadiq respondent was evicted at the instance of Sajid
Respondent No. 2, rather Sajid obtained leasehold rights in public auction and
was inducted into possession by the Auqaf Department in accordance with law. To
hold that tenancy rights of Sajid respondent would fall on the ground as the
very cancellation of leasehold rights of Sadiq and his eviction from the
disputed property was void, is not the correct interpretation of law on the
subject. However, without going into further controversy, since I have upset
the findings of two Courts below on Issue No. 6, therefore, I am also inclined
to upset the findings of two Courts below on Issue No. 6.
13.
Lastly, it would not be out of place to mention here that relief either
under Sections 8, 9 or 42 of the Specific Relief Act is discretionary and
cannot be granted to a person either guilty of delay, slackness, estoppel or
has approached the Court with unclean hands i.e. being defaulter as well as
guilty of subletting the Waqaf Property. Reliance to this effect is palced on
"Municipal Committee, Jhang versus Muhammad Ramzan" (PLD 1978 Lahore
498) and "Sheikh Ghulam Ahmad and others versus Raja Muhammad Yusuf Khan
and others" (PLD 1986 SC AJ&K 16). Since in the present case it is
established that despite his ejectment from the property in dispute, Muhammad
Sadiq Respondent No. 1 remained silent till 1988 and allowed Muhammad Sajid
Respondent No. 2 to enjoy the possession over the disputed property peacefully
after having been inducted by the Auqaf Department on 19.3.1987 vide Ex.D/6 and
in the presence of expressed findings by the learned Additional District Judge
holding him defaulter as well as guilty of subletting the property of Auqaf
Department, I do not find any justification or
sense in the
findings of two
Courts below granting a decree in favour of Muhammad Sadiq Respondent
No. 1 for declaration and possession with mandatory injunction.
14.
The upshot of above discussion is that C.R. No. 19-D/00 (Auqaf Department,
etc. versus Muhammad Sadiq, etc.) and C.R. No. 11-D/2000 (Muhammad Sajid versus
Muhammad Sadiq, etc.) are allowed and after setting aside the judgments and
decrees of two Courts below, the suit filed by Muhammad Sadiq Respondent No. 1
is dismissed. For the same reasons, Cross-Objections Nos. 74 and 73 of 2000
filed by Muhammad Sadiq Respondent No. 1, are also rejected.
(Rao Farid-ul-Haque Khan) Petition allowed.