2017 MLD 1339 KARACHI-HIGH-COURT-SINDH

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BARKAT ALI (deceased) through Legal Heirs VS MOHAMMAD UMER 2004 MLD 1008, 2005 YLR 1985, Appeal--TERM , Code of Civil Procedure 1908--12 , Sindh Rented Premises Ordinance 1979--15 , Sindh Rented Premises Ordinance 1979--21 , Specific Relief Act 1877--12 , Ss. 21 & 15---Civil Procedure Code (V of 1908), S. 12(2)---Specific Relief Act (I of 1877), S. 12---eviction order---Appeal---Scope---Tenants filed appeal against eviction order but same was withdrawn and an application under S.12(2), C.P.C. was moved to assail the said order on the grounds of concealment and misrepresentation of facts which was dismissed concurrently---Validity---If tenants were aggrieved by the order of eviction, an adequate remedy was an appeal---Tenants instead of availing the adequate and efficacious remedy filed application under S.12(2), C.P.C. which was not substitute of an appeal---Application under S.12(2), C.P.C. could only be moved when judgment/decree had been obtained on the back of a party by playing fraud upon the court---Nothing was on record, in the present case, as to why appeal was withdrawn and petition under S.12(2), C.P.C. was moved---No order was passed behind the back of the tenants and in each case their counsel was present---Facts which were alleged to have been suppressed/concealed by the landlord were within the knowledge of tenants and they were not precluded from bringing the same on record---Pleas raised in the application under S. 12(2), C.P.C. could have been agitated in the appeal which had a far wider scope than petition under S. 12(2), C.P.C.---Tenants were not put in possession of the demised premises as part performance of sale agreement---Tenants should have filed a suit for specific performance to enforce the sale agreement and once they had succeeded therein, they should be put in possession of demised premises as owners---Tenants could not deny relationship of landlord and tenant till they had obtained specific performance of such agreement---If demised premises was a leased property and pursuant to sale agreement the same was transferred and mutated in the name of tenants, they would have been justified in denying the existence of relationship of landlord and tenant between the parties---Constitutional petition being not maintainable, was dismissed.