P L D 1994 Karachi 404 (PLP)

Appellant Amjad Khan has filed this appeal under section 21 of Sindh Rented Premises Ordinance (hereinafter mentioned as the Ordinance) against the order dated 11‑5‑1994 passed by IVth Senior Civil Judge and Rent Controller, Karachi (Central) Rent Case No. 246 of 1988 (old No.5422 of 1980) was filed by Mst.Mariam predecessor and wife of respondent Haji Muhammad Yameen against appellant Amjad Khan for latter's eviction from the premises in litigation standing on Plot No.26/10‑5/F, New Karachi on the ground of default in the payment of rent and personal requirement. Under an order dated 29‑8‑1989 IInd Senior Civil Judge and Rent Controller, Karachi (Central) ordered eviction of the appellant from the premises in litigation on the ground that the premises were required by Mst. Mariam for her personal bona fide use. The finding on the ground of default was against Mst.Mariam and in favour of the appellant/tenant. Appellant filed FRA No. 610/89 against the order of eviction but the same was dismissed on 24‑8‑1992 by a learned Single Judge of this Court. Appellant moved Civil Petition for Leave to Appeal . No.519‑K of 1992 in the Supreme Court of Pakistan against the concurrent judgments dated 29‑8‑1989 and 24‑8‑1992 but the same was dismissed on 14‑3‑1993. During pendency of the matter in the Supreme Court of Pakistan Mst.Mariam expired on 14 .2‑1993. Execution Application No.63 of 1993 was filed on behalf of Mst. Mariam during her lifetime for implementation of the ejectment order dated 29‑8‑1989. After death of Mst.Maliam, the appellant filed objections in the said Execution Case. Those objections were overruled under the impugned order dated 11‑5‑1994. Hence this appeal. Mr. Zajid Marghoob learned counsel for the appellant argued that the order of eviction was based on the personal requirement of the premises in stricto senso by Mst.Mariam, that such requirement had died with the death of Mst. Mariam, that the order of eviction dated 29‑5-1989 had abated after death of Mst. Mariam, that the right to possession of the premises in litigation, did not survive to the legal heirs of Mst. Mariam as the provisions contained in Order 22 of the Civil Procedure Code were not applicable to the rent proceedings. It was also argued that Mst. Mariam had died issueless and her husband or her step‑children cannot reap the fruit of the ejectment order dated 29‑8‑1989. In support the learned counsel for the appellant cited the case of Mst.Fatima Bai v. Muhammad Zaki and others (1990 CLC 1064). Mr.Syed Naqi Mirza, learned counsel for the respondent appearing on pre‑admission notice argued that death of Mst.Mariam would not affect the order of eviction because her personal action had been perfected by the order of ejectment dated 29‑8‑1989 which was maintained by this Court as well as by 'the Supreme Court of Pakistan. It was added that matured personal right of Mst.Mariam had become part of her estate. It was also argued that right to immediately possess a property is a tangible right and it vests in owner of the property an/d on his death it passes on to his heirs who inherit estate of the deceased. That the heirs of Mst.Mariam have vested right to obtain physical possession of the premises in litigation. In support learned counsel for the respondent cited the cases of M.Aslam v. Wazeer Muhammad (PT.D 1985 SC 46) and Mst.Shirin Majid v. Subaktagin Majid and another (1984 CLC 1531). In the case of Mst.Fatima Bai (1990 CLC 1064) the view taken was that a landlord seeking ejectment of a tenant on ground of his personal need has to establish his genuine personal need of the premises which must not merely a desire and honesty of his need. This authority could be relevant when the matter was before the Rent Controller or before the Appellate Authority under the Rent Ordinance or before the Supreme Court of Pakistan. The point at issue as to what should be result of the death of Mst.Mariam after she obtained order of eviction against her tenant on the ground of personal bona fide need, has not been answered by the cited case. Similar point arose in the case of Muhammad Aslam (PLD 1985 SC 46). In said case the person who obtained an order of eviction of his tenant on the ground of personal need, died pending hearing of second appeal in the High Court. On death of the landlord the question arose, whether his death disentitled his legal representatives to sustain or avail the order of eviction on the ground of personal need of the &ceased landlord. While replying such question the Supreme Court of Pakistan observed that general law is that the disputes are decided by reference to the date of the institution and decision of the suit and the rights of the parties as then. It was also observed in that context that every Court has an inherent power to adopt methods with a view to avoid multiplicity of proceedings. To shorten litigation, to do complete justice between the parties and mould relief according to altered circumstances in the larger interest of justice. It was further observed that if death of a landlord who has obtained an order of eviction, is by itself taken to bring to an end the proceedings, then actually there will be multiplicity of proceedings because another ground of litigation will forth with start ab initio which will .be altogether different proceedings unconnected with the earlier and a vested right of property would thereby get lost or impaired. Hon'ble Supreme Court of Pakistan also held that there was an Important exception to the rule, that personal actions connected with individuality of a person do not survive him, and such exception was where personal actions have matured into a decree or become part of the estate of the deceased. Reference was made to Salmond who has put that a right vests when all the facts have occurred in which by law occur in order for the person in question to have the right. In the same case it was also observed that by a judgment, decree or order a personal action gets perfected and become a part of the estate of the deceased and the right to immediately possess a property subject to its being tested in appeal is a tangible, valuable property right which comes to vest in the owner of the property and on his death passes on to his heirs, who inherent his estate alongwith vested right to obtain actual physical possession of the dismissed premises with the attaching limitation of law in the form of condition attaching to such an order of possession. In said case it was also observed that a landlord's need for residential purposes has always been considered to be the need of the family and hence his death, pending proceedings makes no difference. This authority replies the questions at issue more than enough. The case of Mst.Shirin Majid (1984 CLC 1531) says that an Executing Court cannot go behind a decree. In view of the elaborate discussion and the conclusions arrived at in the case of Muhammad Aslan. (PLD 1985 SC 46), 1 am of the view that on death of Mst.Mariam her right of immediate possession of the premises in litigation, passed on to her legal heirs and such right did not die with Mst.Mariam. In this view of the matter, I am of the view that there is no substance in this appeal which is dismissed in limine. Such short order was passed on 2 6 1994 and these are the reasons for the same. AA./A-1476/K Appeal dismissed