IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Revision Application No.204 of 2019
Adeel Baqai & Nafees Hafeez : through M/s. Syed Amir Shah,
Applicants Syed Raza Ali Shah, Naveed Kamran and Farzana Naheed, Advocates.
State : through Mr. Jan Muhammad Khuhro, Addl: A.G. Sindh assisted by Mr. Kamran Khan Asst. A.G Sindh, Ms. Seema Zaidi, Addl: P.G. Sindh.
Hassan Asad & Asad Sadiq : through M/s. Irtafa-ur-Rehman and
Respondents No.2 to 5 Mukesh Talerja, Advocates.
Dates of hearing: : 29.05.2024
Date of Judgment : 26.06.2024
Date of announcement : 03.07.2024
J U D G M E N T
MUHAMMAD SALEEM JESSAR. J- By means of instant Criminal Revision Application filed under Section 439 Cr. P.C., applicants have assailed the order dated 12.10.2019 passed by learned Additional Sessions Judge-VII, Karachi (South), whereby Illegal Dispossession Application No.590 of 2019 filed by the applicants, was dismissed and the complaint was not brought on record.
Briefly, the facts, relevant for the purpose of deciding instant Cr. Revision Application, are; that Applicants filed complaint under Sections 3,4,5,7 and 8 of Illegal Dispossession Act, 2005 (the Act) stating therein that they are tenants in respect of disputed shops of previous owners namely, Fatima Ahmed Ali and her legal heirs. It was further stated that respondents introduced themselves as new owners. It is the case of the complainants that they were in litigation with previous owners and at one stage even after eviction of complainants from the tenement, the possession was returned by the court to them and they enjoyed the possession till 11.12.2018. It was further stated that respondents No.1 & 2 occupied the disputed shops illegally and dispossessed the complainants without adopting due process of law, hence the complaint was filed by them for restoration of possession and for taking legal action against the respondents/proposed accused.
After filing of the complaint, Court below directed the SHO of P.S. concerned to investigate the matter and submit his report. Accordingly, SHO P.S. Preedy submitted report dated 23.05.2019 wherein it was stated that the complainants had failed to produce any document in respect of their tenancy over the disputed property. It was further stated in the report that the complainants put stalls at footpath illegally which were removed by KMC and other concerned departments under the order of Honorable Supreme Court of Pakistan.
After hearing the counsel for the parties, the court below dismissed the complaint vide impugned order which has been assailed by the applicants / complainants through instant Cr. Revision Application.
I have heard the arguments advanced by learned counsel for parties and have perused the material available on the record.
Learned counsel for the applicants submitted that Suit No.142 of 1973, copy of plaint whereof is available at page-121 of the Court file, was filed by the respondents for possession, declaration and injunction, in which previous owner was shown as defendant No.1 while defendant No.4 is the father of applicant No.2 whereas defendant No.7 is the father of applicant No.1; however, said suit was dismissed. They next submitted that applicants have been depositing rent amount in Court through MRC; besides, they were paying utility bills (available at page-171 of the Court file) and same was declared in the Annual Returns NTN (available at page173 of the Court file). They; however, admitted that there was no written agreement having been executed between the applicants and the owner. The applicants have been depositing rent through MRC since 1984. Learned counsel further submitted that respondents, as per their claim, had become subsequent owners; however, without issuing notice in terms of Section 18 of the Sindh Rented Premises Ordinance, 1979 (SRPO) to the applicants, they had dispossessed them on 11.12.2018. He next submitted that since the applicants were statutory tenants, therefore, respondents by dispossessing them had committed offence in terms of provisions contained under Illegal Dispossession Act, 2005 (Act, 2005); hence, are liable to be prosecuted but the Court below has not appreciated the submissions advanced by the applicants and has wrongly dismissed their complaint which constrained the applicants to maintain instant revision application. In support of their contentions, learned counsel placed reliance upon the cases of MUHAMMAD TARIQ KHAN Versus Khawaja MUHAMMAD JAWAD ASAMI and others (2007 SCMR 818) and ADEEL ZAHOOR MALIK through Attorney and another Versus ABDUL SATTAR SHAIKH and 2 others (2023 YLR 187).
They further submitted that applicants had filed C.P No. D-247 of 1991 before this Court, in which present respondent has been shown as respondent No.2(e) and the same was allowed by this Court (available at page-79 of the Court file). Against said order, KMC as well as previous owner Shabbir Burhani had filed Civil Appeal No.912-K of 1995 before Honourable Supreme Court of Pakistan, which by means of order dated 06.10.1998 was disposed of in the terms that applicants were directed to be restored possession and the order passed by this Court was maintained. They; however, drew attention of the Court towards photographs available at pages-179, 185 and 193 showing that respondents were dispossessing the applicants by installing certain gates as well as raising walls in front of their shops. They also filed a statement dated 29.05.2024 along with certain set of documents. In support of their contention, learned counsel place reliance upon an unreported judgment dated 24.04.2015 passed by this Court in Criminal Revision Application No.145 of 2014.
Learned counsel for the respondents opposed the revision application and submitted that basic ingredients for maintaining complaint in terms of provisions of Illegal Dispossession Act, 2005, are lacking in this case; hence, the impugned order does not suffer from any illegality or infirmity which may warrant interference by this Court. They further submitted that there was no written tenancy agreement and if the applicants had any relationship with previous owners even then per available record they had no written agreement with previous owners. Learned counsel further submitted that, in fact, the applicants were dispossessed by the KMC officials being encroachers as at that time they were running their business in front of KMC property and not inside the shops. They further submitted that respondents had purchased the property in the year 2015 and applicants have annexed two MRC receipts, one is at page-145 dated 17.12.2002 and other is at page-147 which is dated 09.01.2019 and no other MRC receipt has been produced. Learned counsel further submitted that since they had not entered into any agreement with the applicants, therefore, it was not mandatory for them to issue any notice to them in terms of Section 18 of the SRPO, 1979; more particularly when they had not made parties to Burhani Family, allegedly the previous owners / landlords, as well as KMC, in the proceedings. They placed reliance upon the cases of NOORULLAH Versus MUHAMMAD FARRUKH and 4 others (2023 YLR Note 9) and SAEED AHMAD Versus MUHAMMAD NAEEM and others (2023 YLR Note 83). They also filed written synapsis which were taken on record. As far as, illegal dispossession is concerned, learned counsel submitted that respondents had not dispossessed the applicants and they being bonafide purchasers, are the lawful owners of the property in dispute; hence, in case contention so raised by the applicants in their complaint is presumed to be true, even then no offence was committed by the respondents being bonafide purchasers as well as owners.
Learned Additional A.G. Sindh, assisted by learned Assistant A.G. Sindh, opposed the revision application and submitted that the agreement, as alleged by the applicants, was with KMC; however, KMC has not been made party to the proceedings and on this score alone, instant revision application is liable to be dismissed. They, therefore, submitted that impugned order does not suffer from any illegality or infirmity which may warrant interference by this Court.
Learned Addl. P.G. Sindh also opposed the revision application on the ground that no tenancy agreement was executed by the applicants with the respondents, even MRCs, as stated above, pertain to the year 2002 and 2019 whereas the respondents had purchased property in dispute from previous owners in the year 2015. In such a situation, impugned order seems to be justified and does not require interference by this Court.
At the very outset, it may be observed that from bare perusal of Section 3 of the Illegal Dispossession Act, 2005, it appears that before invoking the provisions of Illegal Dispossession Act, 2005, it is incumbent upon the complainant to establish the following ingredients / pre-requisites of the Act, 2005:
(i) That the complainant is the actual owner (or occupier i.e. in lawful possession) of the immovable property in question.
(ii) That the accused has entered into or upon the said property.
(iii) That the entry of the accused into or upon the said property is without any lawful authority; and
(iv) That the accused has done so with the intention to dispossess the complainant, in order to grab or to control or to occupy the property.
In order to invoke the provisions of Illegal Dispossession Act, 2005, it is obligatory for the complainant to make out all abovesaid ingredients or elements. In this connection, reference may be made to the case of Mst. NASEEM AZIZ Vs. The STATE and 7 others, reported in 2016 P Cr. L J 786 [Sindh], wherein it was held as under:
“On the contrary it is pre-requisite of the Act, 2005 that all the ingredients or elements must be made-out before it is established that the offence has been committed by the accused person. If even one of the ingredients or elements is missing, then no offence is made-out and in this context, I may refer to the decision as appeared in 2010 PCr.LJ p.1046..”
Now, it is to be adjudged as to whether the applicants / complainants have succeeded in making out all the aforesaid ingredients.
As regards the first ingredient, it may be observed that in subsection (1) to Section 3 of the Illegal Dispossession Act, 2005, protection has been provided to the “owner” and “occupier”, against illegal and forcible dispossession. Clause (c) of Section 2 of the Act, 2005 defines “occupier” to be “person who is in lawful possession of a property”. The claim of the applicants / complainants in instant case is that they being lawful occupiers / tenants, could not be illegally and forcibly dispossessed by the respondents.
However, from perusal of the contents of complaint, it seems that nowhere the complainants have alleged that they are / were tenants of the present respondents. What they have alleged, is; that they were tenants of previous owners. In para (3) of the complaint they have admitted that the respondents introduced themselves as new owners of the premises in question. Besides, they have also admitted that they have been paying the rent to previous owners. The word ‘previous’ itself reflects the understanding / admission on the part of the complainants that they were well aware of the fact that the present respondents were the new owners of the premises in question. Despite that, not a single word has been uttered by them that at any point of time they had made payment of rent to the respondents or even requested them to accept the monthly rent. Although they have alleged that no notice under section 18 of the SRPO was served by the respondents upon them; however, from their own pleadings / conduct, it is manifestly clear that they were well aware that the respondents were the new owners of the premises in question. They have also admitted that they had been depositing the rent in the name of previous owners and that at no point of time the present respondents had withdrawn any rent amount allegedly deposited by them through MRC. This shows that the complainants had never tried to establish the relationship of landlord and tenant between the respondents and themselves. In such an eventuality, they cannot be termed to be lawful occupiers as appearing in Section 3 of the Illegal Dispossession Act, 2005, thus they, neither being ‘owners’ nor ‘occupiers’, cannot avail the concession of initiating proceedings and seek protection under the provisions of Illegal Dispossession Act, 2005 against the respondents. It is also noteworthy to point out that the complainants have failed to produce any tenancy agreement in order to substantiate their version of being lawful tenants. Besides, although the complainant's have claimed that they had paid rent to the previous owners; however, they have not been made them party in the proceedings.
So far as second and third ingredients are concerned, the complainants have not been able to establish that the entry of the respondents into the premises In question was without any lawful authority for the simple reason that they have themselves admitted in the complaint that the respondents had introduced themselves as new owners. In this context, it may also be observed that vague and sketchy statement in respect of alleged illegal entry of the accused and thereafter illegal dispossession of the complainant is not sufficient, but the complainant is under a legal obligation to narrate all the relevant events, including the exact location of the premises in question, date and time of the alleged offence, as well as names of the persons / witnesses in whose presence the act of illegal dispossession was committed by the proposed accused. The complainants have not mentioned exact location of premises in question in the building, the floor number, or even the covered area of the shops. In case reported as Mohammad Haneef Vs. Barkat, (2021 YLR 732), no date and time of occurrence as well as specific area of land was mentioned by the complainant, thus the conviction of the accused under the Illegal Dispossession Act, 2005 was set aside and he was acquitted.
From perusal of the complaint filed by the applicants it seems that in para 11 of the complaint they have made following assertion:
“That on 11.12.2018 suddenly respondents vacate complainants from the tenement without any due course of law and without notice.”
From above, it is apparent that even they have not alleged they were illegally or forcibly dispossessed but they have used the word “vacate”. Besides, neither the time of the offence, nor the exact location of the shops in question has been mentioned, and nor the persons in whose presence such offence took place have been named as witnesses. Thus, it is crystal clear that nowhere in entire complaint the complainants have alleged that the respondents had illegally or forcibly dispossessed them from the property in question. In case of Asim Siddique Butt Vs. Mohammad Khursheed Mirza and 4 others (2017 YLR Note 64 [Lahore]), the Honourable Lahore High Court held as under:
"The bare reading of the preamble makes it manifest that the enactment has been done to protect the lawful owners and occupiers of immoveable property from their illegal or forcible dispossession therefrom meaning thereby, the forcible or illegal dispossession of the occupier is a prerequisite to set the special law ibid into motion."
In this view of the matter, it is obvious that the basic ingredients for setting the provisions of Illegal Dispossession Act, 2005 into motion are lacking in instant case as it is not, at all, the case of the complainants that the respondents on certain specific date and time illegally entered the property in question and forcibly or illegally dispossessed them therefrom.
So far as the receipts pertaining to rent allegedly paid through MRC are concerned, it seems that the complainants / applicants have annexed two such receipts viz. Annex. A/9 and A/10 at pages 145 and 147 respectively of the court file. The first receipt pertains to the year 2002, whereas second receipt pertains to the year 2019, no other receipt has been produced meaning thereby that there is a sudden and long gap. This also casts serious doubts on the complainant's continuous lawful occupancy claims.
As regards past litigation as alleged by the complainants, particularly the orders passed by Honourable Supreme Court and this Court, it seems that the same pertain to restoration of their possession in the years 1998. However, upon a minute scrutiny of these litigation / records, it appears that their possession was restored not on the basis that their claim was declared as lawful, but because the KMC failed to serve upon them a proper notice. Moreover, previous litigation did not relate to any shop within the premises of a building. In fact, from perusal of the order passed in a previously filed CP bearing No. D-347 of 1991, it is evident that the complainants’ claim was in respect of premises which laid on the road-side and not inside the building. This also shows that the complainants’ status was not that of ‘lawful tenants’, but of ‘encroachers’. In fact, the main disputes of the complainants were with city authorities like the KMC which had earlier evicted the complainants declaring them to be the encroachers.
It would also be worthwhile to point out at this juncture that even the police inquiry report, available at page 31 of the court file shows that the complainants failed to furnish any tenancy or title documents to substantiate their possession / claim. In fact, in the police report it was categorically stated that the complainants were removed on account of encroachment by the KMC on the directions issued by Hon'ble Supreme Court.
In the case reported as Allah Rakhio Vs. State, reported in 2017 YLR Note 409 [Sindh], complaint under the ID Act was not entertained on, interalia, the ground that Inquiry Report of the concerned SHO was not supporting the case of the complainant.
It is also significant to point out that pursuant to the order dated 10.03.2022 passed in instant Cr. Revision Application, a notice was issued to the Administrator KMC to depute any officer who could shed light on the removal of encroachments. Consequent upon such direction, the Deputy Director of KMC submitted a report dated 10.05.2022, stating therein that directions were issued by Hon'ble Supreme Court vide order dated 27.10.2018 in C.P No. 09 of 2010 for removal of all obstructions in Saddar and its neighboring areas. In compliance of such directions, multiple agencies, including the KMC and the DMC South, under the supervision of Assistant Commissioner, launched an extensive operation to clear the encroachments, including the stalls installed by the complainants. In fact, all this happened on the directions issued by Honourable Supreme Court to clear such encroachments from the city, during which the complainant's setup was also cleared, thus the plea of complainants that such removal was done by the respondents, does not appeal to common sense.
The upshot of above discussion is that the impugned order was passed in accordance with the law and does not require any interference by this Court in exercise of its revisional jurisdiction. Consequently, instant Criminal Revision Application is hereby dismissed, with the result impugned order dated 12.10.2019 passed by learned Additional Sessions Judge-VII, Karachi (South), in Illegal Dispossession Application No.590 of 2019 is hereby maintained.
Sd/- 26.06.2024
JUDGE
Karachi
Dated: 26th June, 2024.
APPROVED FOR REPORTING