1986 PLP 1371 (MLD)

This appeal has been filed challenging the order dated 17‑4‑1983 of the Rent Controller, Karachi, allowing the application ‑for review of the earlier order; dated 27‑3‑1982 passed by the Rent Controller and dismissing the rent application as not maintainable. Originally the ejectment application was filed by Mst. Masooma Khatoon for ejectment of Messrs National Sanitary Mart through Muhammad Asim Hussain, described as the managing partner of Messrs National Sanitary Mart. It may be observed here that Muhammad Asim Hussain was the son of Mst. Masooma Khatoon. During the pendency of the ejectment application, Mst. Masooma died and her legalkheirs were brought on record and amongst her legal heirs was Muhammad Asim, Hussain, her son. Later on, during the pendency of the present appeal, Muhammad Asim Hussain also died and his legal representatives are his widow and four minor children, who have been made respondents but‑in the list of appellants also their names appear as app3llants Nos.8 to

12. On a question from the Court, Mr. Qutubuddin Ahmed, learned counsel stated that he was appearing for all the legal heirs of the deceased Mst. Masooma Khatoon except Muhammad Asim Hussain. Muhammad Asim Hussain and after his death his legal heirs are represented by Mr. Muhammad Ishaque, Advocate. According to Mr. Qutubuddin Ahmed, the legal heirs of Muhammad Asim Hussain are in fact the respondents and their names are only shown in the array of appellants as legal heirs of deceased Muhammad Asim Hussain but in effect they are only respondents. During the pendency of the ejectment application, after the demise of the original applicant Mst. Masooma Khatoon, a statement was made on behalf of the opponent by his learned counsel that the applicant had died and had left behind Muhammad Asim Hussain as one of the several legal heirs and as such, according to law, the ejectment application had become infructuous and was liable to be dismissed. According to the learned counsel this statement, which apparently was treated as an application, was dismissed for non‑prosecution. Thereafter, the opponent filed a regular application for rejection of the ejectment application, dated 13‑12‑1981 on the same ground, as was .aken in the earlier statement. This application was dismissed by order, dated 27‑3‑1982. The application was rejected on the ground that Muhammad Asim Hussain was not a tenant in his individual capacity but his firm was the tenant of the deceased applicant. Thereafter an application for review of the order, dated 27‑3‑1982 was filed on behalf of the opponent on 8‑12‑1982 and this time it was supported by the affidavit of Muhammad Asim Hussaih. In his affidavit, he stated that the Opponent, National Sanitary Mart, belonged to him and that a single man did not constitute a firm and that he had admittedly become one of the owners of the property after the death of the original applicant (his mother) and until the property was partitioned, he could not be ejected from his own property under the law. Objection were filed to this review application, in which it was stated that the review application was belated having been filed in December, 1982, whereas the order sought to be reviewed was, dated 27‑3‑1982 and that there was no provision fur review in the 1979 Rent Ordinance and that Civil Procedure Code was not applicable and that Muhammad Asim Hussain was not the opponent. By the impugned order, dated 17‑4‑1983, the review application was allowed, the earlier order; dated 27‑3‑1982 was reviewed and the ejectment application was held to be not maintainable. I have heard Mr. Qutubuddin Ahmed in the present appeal and Mr. Muhammad Ishaque Shams, Advocate, who has opposed this appeal.

2. It was argued by Mr. Qutubuddin Ahmed that the order, dated 27‑3‑1982 could not be reviewed under the provisions of either 1979 Rent Ordinance or the 1959 Rent Ordinance. Learned counsel relied upon the following authorities:‑ (a) P L D 1986 Quetta 19 (b) P L D 1970 S C 1 (c) P L D 1980 Lah.

414. It was contended that no specific power has been granted by 1959 Rent Ordinance or 1979 Rent Ordinance‑for review and as such the order, dated 27‑3‑1982 could not be reviewed. On the other hand, it was contended by Mr. Muhammad Ishaque Shams that review was maintainable under the 1959 Rent Ordinance and cited P L D 1968 Kar. 589.

3. The law has been laid down very clearly in the case of Hussainl Bux v. Settlement Commissioner reported in P L D 1970 S C 1 that the right of review is a substantive right and it is not a mere matter procedure and it is not available unless it has been conferred by law. The Rent Controller, therefore, could not review his earlier order. Additionally it may be observed that a finding has been give in the impugned order, dated 17‑4‑1983 that deceased Muhammad Asi Hussain was the sole proprietor of National Sanitary Mart. This finding has been reached without recording evidence. The plea of the applicant before the Rent Controller was that National Sanitary Mart was partnership firm and Muhammad Asim Hussain was only a partner. This finding that Muhammad Asim Hussain was the sole proprietor of National Sanitary Mart should not have been given by the Rent Controller without recording evidence. On this ground also the order, dated 17‑4‑1983 is liable to be set aside. The impugned order, dated 17‑4‑1983 is accordingly set aside. The case is remanded to the Rent Controller for decision in accordance with law after recording evidence. An issue can be framed by the Ren Controller as to the status of National Sanitary Mart, whether it was proprietory concern of Muhammad Asim Hussain or it was a partnershid concern and who were its partners. An issue about maintainability of the ejectment application can also be framed, which will be decided after evidence has been recorded. An application will also be moved on behalf of the appellants Nos.1 to 7 before the Rent Controller for amendment of the ejectment application so that the names of the legal heirs of Muhammad Asim Hussain are shown as opponents and not as applicants.

4. First Rent Appeal No.482 of 1983 stands disposed of. A. A. Order accordingly.