1988MLD1219 (PLP)

This peal is directed against the order passed by the learned VIth Senior G'A Judge and Rent Controller, South Karachi dated 2-10-1985. rejecting the appellant's application filed under Order 1, Rule 10, C.P.C. The facts of the case are that -on 12-5-1985 respondent No.1, State Life Insurance Corporation Pakistan, filed an ejectment application against the respondents Nos.2 and 3 on the ground that the premises m question, which consisted of a residential flat, situated at Framroze Road Bath Island, Karachi, were sublet by the respondent No.2, who was its original tenant, to the respondent No.3. It is the case of the appellant that when the ejectment application was filed, the appellant was already in possession of the premises in question since 1975 and was already paying rent to respondent No.1 through his own printed cheques which were being accepted by the aforesaid respondent. It may be pointed out that the respondent No.3, namely, Aslam Toosy, who was alleged in the ejectment application to be the sub tenant of the respondent No.2, namely, Mirza Yousuf Yaqubian, had left Pakistan leaving the premises in question in possession of the appellant. He was consequently served by substituted service. Thereafter, the respondent No3 appeared before the learned Controller and filed a written statement, admitting that he had left the country, leaving the premises in possession of the appellant who was his wife's paternal-uncle. The respondent No.3 also stated that he had nothing to do with the premises in question. It may also be pointed out that the original tenant, namely the respondent No.2 also could not be served as he was an Iranian National and had since left the country. The case, therefore, was proceeded ex pane against him.

3. It was in the background of such circumstances that the appellant on 2-5-1985 filed an application under Order I, Rule 10, C.P.C., requesting the Controller to join him as a party to the ejectment proceedings. This application was resisted by the respondent No.1 and consequently the same was rejected by the learned Controller by the impugned order dated 2-10-1985.

4. The reasons which weighed with the learned Controller are reproduced in his own words as under:- "After hearing the arguments and going through the contents of the application and the counter-affidavit 1 hold that under, section 5(2) of Sind Rented Premises Ordinance, 1979 the rent agreement is necessary for the regulation of the relationship of tenant arty landlord between the parties but in the instant case the Intervenor has not produced any rent agreement which can show that there exists the relationship of tenant and landlord between him and the applicant. Moreover, under the Sind Rented Premises Ordinance, 1979 there is no provision of admitting Intervenor as a party to the case."

5. I have heard Mr. Abdul Aziz Khan, learned counsel for the appellant and Mr: Mushtaq Ahmed, learned counsel for the respondent.

6. Mr. A. Aziz Khan has argued that in view of the circumstances, referred to above, the learned Controller was not justified in rejecting the appellant's request to join him as a party to the proceedings as the appellant had remained in possession of the premises since 1975 without any objection being raised in this respect by the respondent No.1 who admittedly had been accepting rent this prated cheques from him. Consequently, according to the learned counsel, the impugned order was liable lobe set aside. Mr. Mushtaq Ahmed, on the other hand, has argued that the appellant had failed to prima facie establish that he was a tenant in respect of the premises in question and, therefore, the application filed by him had been rightly rejected by the learned Controller.

7. After hearing the learned counsel for the appellant and the respondent, I have no hesitation in agreeing with the learned counsel for the appellant that the application under Order I, Rule 10, C.P.C. has been erroneously rejected by the learned Controller. The reasons given by the learned Controller for rejecting the appellant's application, which have already been reproduced above, are firstly, than under section 5(2) of the Sind Rented Premises Ordinance, 1979 a rent agreement was necessary for regulating the relationship of landlord and tenant between the parties. Since, admittedly, no such agreement was in existence, the learned Controller came to a conclusion that no relationship of the landlord and the tenant existed between the appellant sect the resent No.1. These conclusions, drawn by the learned Controller, were dearly erroneous. First of all, there is no provision in the Ordinance to the effect that without an agreement in writing no relationship of the tenant and the landlord could exist between the parties. It clearly appears that the learned Controller has misconceived the provisions of scion .5 of the Rent Ordinance, which only provides that the agreement under which a landlord lets out a premises to a tenant shall be in writing and if such agreement is not compulsorily registrable under the law for the time being in force, it shall be attested by, signed by and sealed with the seal of the filer within whose jurisdiction the premises is situate or any Civil or a Fast Class Magistrate. On the basis of the language used in section 5(I)of the aforesaid Ordinance, it cannot be construed that no relationship of landlord and tenant can exist between the parties in absence of an agreement in writing. Furthermore, the section after providing that an agreement shall be in writing and attested and signed as aforesaid does not further provide that in the event of its non-compliance no relationship of landlord and tenant would be deemed to exist between the parties concerned. The conclusions drawn by the learned Controller, therefore, are not understandable and clearly not warranted by law. In this respect, a reference may also be made to the proviso occurring after subsection (2) of section 5, according to which nothing in section 5 AN affect any agreement between the landlord and the tenant immediately before coming into force of the aforesaid Rent Ordinance Since in the instant case,, according to the appellant, he was in physical possession of the premises since 1975 and the rent was also being accepted from him directly by the respondent No.1 without any objection since such time, the proviso to section 5 would be clearly attracted to the fads of the instant case, if by such conduct of the parties, any relationship of the landlord and the tenant is deemed to have been created between there.

8. The other ground stated by the learned Controller for rejecting the appellant's application is that there is no provision in the Sind Rented Premises Ordinance, 1979 relating to the admission of an intervenor as a party to a case. This finding by the learned Controller is also not tenable as the Code of Civil Procedure governs all proceedings of civil nature and the proceedings before the learned Controller being of civil nature, were clearly governable by the procedural provisions of the Code. If any authorities are needed in this respect, reference may be made to the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi P L D 1970 S C 1 and Messrs Bambino Ltd, v: Messrs Selmor Ltd. P L D 1983 S C

155. It is accordingly clear that both the reasons stated by the learned Controller in the impugned order are not tenable under the lava. It may further be pointed out that according to the affidavit fled by the aunt alongwith his application under Order 1, Rule 10, C.P.C., as already pointed out above, he was in possession of the disputed premises since 1975. He wow paying rent to the respondent No.1 through ~ own printed chaques which were accepted by the respondent throughout without making any objection as to the status of the appellant vis-a-vis the premises. The fact that the appellant had throughout remained in possession of premises since 1975 which also appears to be within the knowledge of the respondent No.1, as admitted by him inpxra.3 of the counter-affidavit, could not have been overlooked Mr. Mushtaq Ahmed. learned counsel for respondent No.1 has, however, argued that this Court snot ignore the letter admittedly written by the appellant to the respondent No.1 dated 18-2-1985, which according to him, clearly rtes that the appellant Was paying the rent to the respondent No.1 on bell' of respondent No.2 and not on his own behalf and in view of such position the request of the appellant to join him as a party to the ejectment proceedings could not have been considered by the learned Controller. Be that as it may, but first of all no reference can be found in the impugned order to the letter, dated 18-2-1, and secondly the said Letter fails to materially change the position as far as the application under Order 1, Rule 10, C.P.C. is concerned since in the circumstances, referred to above, the appellant was in any case a necessary party to the proceedings and for the purposes of completely and effectively adjudicating on the rights of the parties it was necessary that he should have been joined as a party to the proceedings. Therefore, I find myself in full agreement with the learned counsel for the appellant that the latter should not have been kept outside the proceedings by the learned Controller

9. It now remains to be decided whether the name of Mrs. Rifat Toosy, who claims to be the niece of the appellant, ears b e substituted in his place for the purpose of the present proceedings in view of the fact that the appellant admittedly died during the pendency of the instant appeal. The Contention of Mr. A. Aziz Khan, learned counsel for the appellant is that the aforesaid Mrs. Rifat Toosy was a heir of the appellant and had retrained in occupation of the premise` at the time of the death of the appellant and consequently, according to the definition of the term "tenant" in section 2(j) of the Sind Rented Premises Ordinance, 1979, she also falls within the purview of the term tenant Section 2(j) is as under:- "2(j) `tenant' means any person who undertakes or is bound to pay rest is consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:- (i) any person who continues to be in possession or occupation of the. premises after the termination bf his tenancy, (ii) heirs of the tenant inn possession car occupation of the premises after the death of the tenant;"

10. The contention of Mr. Mushtaq Ahmed, on the other band, is that since the tenancy between the parties relates back to the time much prior to coming into force of the Sind Rented Permission Ordinance, 1979, the rights between the parties cannot be governed, by the definition ref the word `tenant' as given in the new Ordinance. Reliance has been placed by ham can Abdur Rahman. v. Haji Mir Ahmed Khan P L D 1983 S C 21, according to which the `anew Ordinance is prospective in nature as fair as procedure is concerned, but not so in relation to other matters. In my opinion, the observations made by the Supreme Court in the aforesaid case are not attracted to the facts of the present case because in that case the question which was to be determined by the Supreme Court was whether an ejectment application could be filed in respect of a hotel under the new Ordinance since hotels did not fall within the purview of the same. The question in the instant case, in my opinion, is quite different. In the instant case the aforesaid Mrs. Rifat Toosy came to live with the appellant at the time when the new Ordinance was already in force. Since, as pointed out above, according to the definition of the word `tenant' given in the new Ordinance, even the heirs of the tenant in possession or occupation of the premises, after the death of the tenant were to be deemed as tenants, Mrs Rifat Toosy who, admittedly, was the heir of the appellant/tenant and was in occupation of the premises at the time of his death, would obviously be governed by the definition of the word 'tenant' in the new Ordinance. Consequently, in my opinion, the case, just referred to above, is not attracted to the facts of the present case and the applicant in C.M.A. No.579 of 1987 is entitled to get her name substituted in place of the original appellant. In the result, both the appeal as well as C.M.A. No.579 of 1987 are allowed and the order of the learned Controller dated 2-10-1985, is set aside. It is further directed that the name of Mrs. Rifat Toosy may be added in Rent Case No.693 of 1985 as Opponent No3 if such application is bled by her before the Controller. With these directions, the case is remanded to the learned Controller for disposal in accordance with the law. The parties are directed to appear before the learned Rent Controller on 20-2-1988. There will be no order as to costs. H.B.T./M-421/K Case remanded.