2026 M L D 27
[Balochistan]
Before Muhammad Najam -ud-Din Mengal, J
Molvi NAJEEBULLAH and others ---Appellants
Versus
KHAN GUL and others ---Respondents
F.A.O Nos. 11, 12, 13, 14, 15 and 16 of 2025, decided on 29th August, 2025. Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13---Balochistan Waqf Properties Act (III of 2020), S.7 ---Civil Procedure Code (V
of 1908), O.VII, R.11 ---Eviction application ---Summary rejection of plaint by Rent
Controller ---Validity ---Mixed questions of law and facts ---Recording of evidence
necessary ---Applicability of provisions of C.P.C. in rent laws/special laws ---Scope ---
Control of mosque by Auqaf department ---Notification and registration, absence of ---
Effect ---In absence of notification and registration with Auqaf department, mosque does
not fall exclusively within the control of the Auqaf Department ---The appellant acting as
Mutawalli/Munazzim- e-Ala of a mosque filed eviction applications under S.13 of the
Balochistan Urban Rent Restriction Ordinance, 1959 against the respondents who
occupied shops belonging to the mosque as tenants ---The eviction was sought on the
ground that the mosque, accommodating around 200 worshippers, required reconstruction
and expansion due to congestion, as worshippers were forced to pray outside ---The
tenants had also defaulted in paying monthly rent ---The Trial court/Rent Controller
dismissed the applications under O.VII R.11, C.P.C., holding the same not maintainable --
-The appellant challenged that dismissal through several connected appeals ---Question
for determination was as to “Whether the Rent Controller erred in law by dismissing the appellant’s eviction applications under O.VII R.11, C.P.C., despite such provisions of the C.P.C. not being strictly applicable to proceedings governed by the special law of rent restriction, and whether the mosque property in question, not notified by the Auqaf Department, fell within the purview of rent laws permitting eviction of tenants for reconstruction and expansion purposes”? ---Held: No notification establishing that the
mosque had been notified or assumed by the religious affairs department under the provisions of S.7 of the Balochistan Waqf Properties Act, 2020 and duly registered with Auqaf department had been produced, therefore, the contention that mosque fell exclusively within the control of the Auqaf department was without legal foundation--- As
far as applicability of the provision of C.P.C. was concerned, though provisions of C.P.C. were not applicable in their strict sense to proceedings before a Rent Controller, nevertheless, equitable principles embodied therein could be resorted for a just and proper adjudication--- Even then, dismissal of an eviction application under O.VII, R.11
of C.P.C., without affording opportunity to the parties to lead evidence, was not justified---Rent Controller was bound to adopt a legal procedure that ensured fair trial and complete adjudication of the dispute ---Question of locus standi and authorization of the
appellant to institute the proceedings being a Muntazim -e-Ala of the registered society
was essentially a mixed question of law and fact which ought to have been decided after framing of issues and recording of evidence rather than through summary rejection ---
Impugned orders passed by trial court/ Rent Controller was set aside and matter were remanded with direction to proceed with the matters by framing of issues with regard to properties being waqf and duly notified cum registered with the Auqaf department and provide full and fair opportunity to parties to lead evidence ---Appeals were partly
allowed, in circumstances.
Chief Administrator, Auqaf, Sindh, Thandi Sarak, Hyderabad and another v. Mst.
Masooma PLD 2001 SC 75; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 and Saeed Pervaiz v. Syed Masood Hussain 2008 SCMR 568 rel.
Tariq Ali Tahir for Appellants.
Ameenullah Tareen for Respondents.
Date of hearing: 20th August, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J .---Since common question of law and
facts is involved in the FAOs Nos.11, 12, 13, 14, 15 and 16 of 2025 filed by the appellant against
the order dated 8th April 2025 passed by learned Judicial Magistrate -IV/Rent Controller, Quetta
(“the trial Court/Rent Controller”), whereby separate eviction applications under Section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 filed by the appellant against the respondents have been dismissed under Order VII Rule 11, C.P.C. Thus, all the appeals are being decided through this common judgment, while facts and law pertaining to all the appeals are
similar, as such, there is no need to draw the facts of each appeal separately.
2. It is suffice to mention here that it is fifth round of litigation between the parties on the
same subject matter. In the first round of litigation the matter came up for hearing before this
Court by means of filing FAO against Order passed by the Civil Judge -III/Rent Controller,
Quetta on 10th December 2001, whereby this Court set aside the said order and remanded the matter to the trial Court, vide judgment dated 10th September 2002. After remand, the application was again dismissed by the trial Court on 2nd September 2004, which was
challenged before this Court through First Appeal against order of trial Court and the same being
second round of litigation, this Court once again remanded the matter to the trial Court, vide
judgment dated 10th June 2005. After second time remand, the eviction application was tried by
the learned trial Court and the same was dismissed on the ground that the applicant has not
attained the status of owner or as Mutawali. Being aggrieved, thirdly the appellant preferred
FAO No.16 of 2006 before this Court, which was dismissed, vide judgment dated 27th April 2007. While, in the fourth round of litigation, the appellant/applicant filed an eviction application
against the respondent in the Court of learned Civil Judge -III/Rent Controller, Quetta; which was
dismissed, vide judgment dated 19th June 2021. Feeling aggrieved, the appellant assailed the
said judgment before this Court in FAO No.40 of 2021, whereby this Court partly allowed the appeal and remanded the matter to trial Court/Rent Controller to proceed with the matter afresh in accordance with law by affording an opportunity to the parties to lead their evidence, vide judgment dated 15th December 2021. After remand of the case, the eviction application against the respondents was disposed of by the learned trial Court/Rent Controller on the basis of compromise/agreement, vide order dated 29th April 2023.
3. Relevant facts arising out of the instant appeal are that the appellant (applicant) filed an
eviction application under Section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959,
against the respondent in the Court of learned Judicial Magistrate/Rent Controller, Quetta with the averments the appellant (applicant) is serving as Mutawalli/Munazzim- e-Ala of Masjid Pir
Sahib, Kasi Road, Quetta, which is duly registered with the Registrar of Societies, Balochistan. The Masjid, built prior to partition, accommodates about 200 worshippers, which is insufficient for the growing number of worshippers and students, forcing many to pray outside and causing public inconvenience. The Masjid premises having six shops, which are occupied by the respondents as tenant at a monthly rent of Rs. 2,750/ -, payable on the 1st of every month, but the
respondent has defaulted in rent payments. To address space constraints, the Masjid Committee, with approval of the Metropolitan Corporation, decided to reconstruct and expand the Masjid, requiring demolition of the shops.
4. The application filed by the appellant (applicant) was contested by the respondent/tenants
by means of fling rejoinders to the application, whereby vehemently opposed the application on
legal as well on factual grounds; whereby raised certain objections. Subsequently, the application of the appellant was dismissed for under Order VII Rule 11, C.P.C., vide impugned order dated 8th April 2025. Whereafter, the instant appeal has been filed.
5. Learned counsel for the appellant, at the very outset, contended that the Masjid in
question does not fall within the purview of the Auqaf Department, as it has never been notified by the Auqaf Administration. It was further argued that the learned trial Court/Rent Controller erred in law by dismissing the eviction application under Order VII Rule 11, C.P.C., whereas the provisions of C.P.C. are not applicable in stricto sensu to proceedings under special rent laws. Finally, he prayed for remand of the case for decision afresh on merits.
6. Conversely, learned counsel for the respondents vehemently opposed the contentions of
the appellant and submitted that the appellant had no locus standi to maintain the eviction
proceedings, as the property in question is waqf property, and only the Auqaf Department could competently seek eviction of tenants therefrom. He further argued that the learned trial Court had rightly dismissed the eviction application, which requires no interference.
7. Having considered the rival submissions and perused the record, since it is an admitted
position that though Masjid is waqf property, but there is no documentary evidence available on record to establish that the Masjid had been notified or assumed by the Religious Affairs Department, Balochistan under the provisions Section 7 of the Balochistan Waqf Properties Act, 2020 and duly registered with the Auqaf Department, which empowers the Auqaf authorities to take over the administration, control, and management of a waqf property only after its registration. In the instant case, no such notification has been produced, hence the contention that the Masjid falls exclusively within the control of the Auqaf Department is without legal foundation. For the sake of convenience, the provisions of Section 7 of the Balochistan Waqf Properties Act, 2020 are reproduced hereinbelow:
“Registration of Waqf Property. 7. (1) Any Deputy Manager Auqaf, whether a creator of
the Waqf or otherwise, or any authorized representative nominated by him, shall get the waqf property registered with the Director General Balochistan Charities (Registration, Regulation and Facilitation Authority through Religious Affairs Department in the prescribed circumstances and manner.
(2) The Information to be contained in the registration of any waqf shall be prescribed.
(3) Any waqf property not registered with the Director General Balochistan Charities
(Registration, Regulation and Facilitation Authority through Religious Affairs Department as required under subsection (1) shall be deemed to have been notified under section 9.
(4)The District Administrator Auqaf / Deputy Commissioner, being the custodian of the
land record and the Additional Deputy Commissioner (Revenue) / Assistant Commissioner
(Revenue), being the focal point of registering all deeds, agreements and requisite documents, shall furnish, In the prescribed circumstances and manner, a consolidated annual report of all waqf properties recorded as waqf during the year In respect of their respective Districts to the Chief Administrator for Information and further necessary action, or as deemed appropriate by the Chief Administrator, under the provisions of law for the time being enforced.
(5) Any change in the waqf property Information shall be updated by the Deputy
Manager Auqaf to the Additional Deputy Commissioner (Revenue) / Assistant Commissioner (Revenue) In a timely manner as prescribed.”
8. While dealing with such like case with regard to waqf properties the Hon’ble Supreme
Court of Pakistan has comprehensively dilated upon the waqf property in its land mark judgment in the case titled as “Chief Administrator, Auqaf, Sindh, Thandi Sarak, Hyderabad and another v. Mst. Masooma, (PLD 2001 SC 75)”; wherein it has been held as under:
“However, in the, instant case the petitioners/defendants have produced no such
documentary or oral evidence to prove any of the requirements of law as stated above for treating the same to be Waqf property. It would appear from section 6 of the Ordinance that the petitioners/defendants could take over and assume the administration and control, management and maintenance only of a Waqf property, whereas in the instant case the property in question could not be said to be Waqf property in terms of section 2(d) of the said Ordinance, therefore, could not have been declared to be Waqf property by the petitioners/defendants. Mere fact that the respondent/plaintiff paid rent for short period to the petitioners/defendants erroneously would not make the property as Waqf property within the meaning of section 2(d) of the said Ordinance, consequently, could not have been notified to be the same under section 6 of the Ordinance. As the impugned notification was issued by the petitioners/defendants who were not vested with powers to
take over other than Waqf property under the Ordinance, consequently, it was not necessary for the respondent/plaintiff to pursue the remedy as provided under section 7 of the said Ordinance. The Civil Court would not be barred from entertaining the suit in the circumstances of the case. It may be observed that provisions of section 17 of the
Ordinance would not be a bar to the jurisdiction of the Civil Court from entertaining the
suit in the said circumstances in view of evidence produced. Reference maybe made to Inayat Ullah v. M.A. Khan PLD 1964 SC 126 at 135 wherein this Court has held: --
“The Chief Administrator, Auqaf, and the Manager appointed by him are creatures of a
statute and despite the provisions of the Ordinance shutting out jurisdiction of the ordinary Courts in respect of orders passed or acts done under the Ordinance, the corrective process of the Civil Courts would be available if these functionaries exceed their statutory powers. A certiorari, the High Court could interfere in such a contingency under Article 98 of the present Constitution.”
9. Now adverting to the second limb of arguments of learned counsel for appellant with
regard to applicability of C.P.C., it is settled dictum that though the provisions of the Code are not applicable in their strict sense to proceedings before a Rent Controller, nevertheless, equitable principles embodied therein may be resorted for a just and proper adjudication. Even then, dismissal of an eviction application under Order VII Rule 11, C.P.C., without affording opportunity to the parties to lead evidence, was not justified. The Rent Controller is bound to adopt a legal procedure that ensures fair trial and complete adjudication of the dispute. Reliance with regard to applicability of C.P.C. in Rent Restriction Ordinance can be placed on the judgment of Hon’ble Apex Court in the case of “Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others, (2007 SCMR 818), following is the relevant portion thereof:
“6. It is a settled law that provisions of C.P.C. are not applicable in the rent
proceedings in stricto senso, however, learned Rent Controller in exercise of the discretion
is entitled to follow the equitable principles of C.P.C. as law laid down by this Court in Ayub Khan's case PLD 1976 SC 422 and Messrs Bambino Ltd.'s case PLD 1983 SC 155. It is pertinent to mention here that principle incorporated in section 144, C.P.C. being
equitable principle could be invoked in ejectment cases. See Sh. Abdul Hameed's case PLD
1994 Kar. 379, Atta -ul-Haq's case NLR 1992 Civil 479, Abdul Hameed's case 1986 MLD
541, Sh. Miraj Din's case PLD 1965 Lah. 374, Sr. Lakshmi Narayan's case PLD 1964
Dacca 177; Ahmad -ul- Haq's case PLD (sic) Dacca 452 and Mst. Fatima Bibi's case 1991
SCMR 1031. It is also a settled law that while executing order under section 17 of the Ordinance, the Rent Controller remained persona designata and does not become a civil court merely because he has to execute his order like decree of civil Court. It is proper to mention here that the deeming provisions (as if it was a decree of civil Court) is meant to make it clear that force of ejectment order is that of a decree of Civil Court. See Syed Sarwar Abbas's case 1969 SCMR 689 and Ghulam Murtaza's case 1986 CLC 1577. It is settled law that where a Rent Controller feels that complicated question requiring or protracted inquiry would be necessary for deciding a specific question, then he can observe that such question should be decided by a Court of general jurisdiction, namely the ordinary Civil Court. See Ghulam Murtaza's case 1986 CLC 1577; Rehmat Ullah's case 1983 SCMR 1064 and Abdul Ghani's case PLD 1985 SC 1. The power of the Rent Controller under the provisions of Ordinance was discussed in Jam Muhammad's case 1996 MLD 1845 and laid down the following principle:
“Needless to emphasize that learned Controller could not assume the powers of a Civil
Court to enter into question of title raised by the appellant within the limited scope of authority conferred on him by section 22 of the Ordinance. Controller has been authorized to determine all questions arising between the parties and relating to the execution, discharge or satisfaction of the order. The objections filed by the appellant were thus rightly dismissed and there is no scope for interference with the exercise of discretion by the learned Controller."
10. Similar view has also been taken by the Hon’ble Supreme Court in the case of “Saeed
Pervaiz v. Syed Masood Hassan, (2008 SCMR 568), for facilitation the operative para whereof is mentioned as below:
“The contention was repelled and it was held that though the Rent Controller, in his
discretion was entitled to follow the equitable principles of the C.P.C. but he was also free not to follow technical provision of the Code. In the case of Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 which is somewhat identical to the one in hand, petitioner's defence, who was tenant in the premises, was struck off by the Rent Controller as a result of failure to
deposit the arrears of rent. It was argued that since provisions of C.P.C. were not applicable
under the Rent Restriction Ordinance, therefore, the Rent Controller could not have done so. The contention was found without merit on the ground that although the provisions of C.P.C. were not applicable in terms to the proceedings under the Rent Restriction Ordinance yet, the Controller was in his discretion competent to apply them if he had considered it necessary. In
the case of Abdul Majid v. Syed Azhar Ali Shah and others PLD 1985 SC 191, the contention
that since power of attorney was not filed by the counsel in accordance with the provisions of
Order III, Rule 4 of the C.P.C., therefore, application submitted along with the same was not maintainable too, was found to be without substance on the ground that though Civil Procedure Code as well as the Evidence Act both were not applicable yet, proceedings before the Rent Controller were not to be frustrated by mere formalism as in such cases the only requirement was to ensure that no party is prejudiced by the procedure adopted by him. In the case of Shaikh Muhammad Ibrahim v. Syed Abdul Aziz Shah and others 1990 SCMR 542, the objection taken that since before withdrawing the earlier eviction application permission was not sought from the Court within the ambit of Order XXIII, Rule 1, C.P.C., therefore, the
subsequent application was not maintainable too, was repelled and it was laid down that
though C.P.C. was not applicable to the rent cases yet, equitable principles might be applied to
advance justice. In a recent judgment delivered in the case of Muhammad Tariq Khan v. Khawaja Muhammad Javad Asami and others 2007 SCMR 118, while referring the cases of Ayub Khan (supra) and Messrs Bambino Ltd. v. Messrs Selmore International Ltd. and another
PLD 1983 SC 155; Sh. Abdul Hameed's case PLD 1994 Kar. 379; Atta -ul-Haq's case 1992
MLD 1409; Abdul Hameed's case 1986 MLD 541; Sh. Miraj Din's case PLD 1965 Lah. 374;
Sr. Lakslum Narayan's case PLD 1964 Dacca 177; Ahmad- ul-Haq's case PLD 1960 Dacca 452
and Mst. Fatima Bibi's case 1991 SCMR 1031, it has once again been reiterated that provisions of C.P.C. are not applicable to the rent proceedings in stricto senso, however, Rent Controller
is entitled to follow principles thereof. The contention therefore has no force.”
11. In view of the above, the question of locus standi and authorization of the appellant to
institute the proceedings being a Muntazim -e-Ala of the registered society, is essentially a mixed
question of law and fact, which ought to have been decided after framing of issues and recording of evidence rather than through summary rejection.
For the foregoing reasons, the appeals are partly allowed and the impugned passed the
learned trial Court/Rent Controller dated 8th April 2025 is set aside. The matters are remanded to
the trial Court/Rent Controller with direction to proceed with the matters by framing issues with regard to the properties being waqf and duly notified cum registered with the Auqaf Department and provide full and fair opportunity to the parties to lead their evidence and thereafter decide the cases in accordance with law within a period of three months, positively.
UN/125/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.