P L D 1957 (W (PLP)

LARI, J.

This is a suit for declaration that the decree in Civil Suit No. 217 of 1948 dated 11th January 1949 Kassim Bros. v. Kakubhai Galabhai is a nullity and not binding on the plaintiff. It appears that the premises in question originally belonged to Valji Verji and another Hindu gentleman who transferred the same to the defendants by a registered sale deed dated 28th October 1947 and left for Bharat. This sale-deed was confirmed by Additional Deputy Custodian (Judicial) Evacuee Property, Karachi on 7th November 1950. Prior to the confirmation the plaintiff filed Suit No. 217 of 1948 for possession against Kakubhai the original tenant of the premises. This Kakubhai admittedly migrated to India some time in 1947. The plaintiff's case is that prior to his migration Kakubhai transferred his tenancy rights on 28th October 1947 to Ghulam Hussain Bhanji P. W. 2, who on his part transferred the tenancy rights to the plaintiff Ramzanali on 11th December 1947. The plaintiff was ad mittedly in possession when the suit resulting in the impugned decree was instituted but the suit was only filed against Kakubhai the original tenant. The plaintiffs asserted that he was a necessary party and the suit was fraudulently instituted against Kakubhai who had transferred his rights of tenancy and consequently the suit was not binding on plaintiff. The defendants filed a written statement in which they denied that Kakubhai transferred the tenancy to Ghulam Hussain or that Ghulam Hussain on his part transferred the tenancy rights to the plaintiff and pleaded that the suit was barred by limitation as well as because an earlier suit for the same relief had been dismissed in default of the parties and their advocates. A large number of issues were framed but in the light of the arguments addressed from the bar the following points arise for determination :- (1) Whether the plaintiff is a tenant of the premises in question ? (2) Whether the plaintiff was a necessary party to Suit No. 217 of 1948 ? (3) Whether the decree in Suit No. 217- of 1948 is binding on the plaintiff ? (4) Whether the present suit is barred as the earlier Suit No. 764 of 1950 with the same allegations had been dismissed for default of parties and their advocates on 30th August 1951 ? Decisions with reasons thereof: Point No. 1.

Whether the plaintiff is a tenant of the premises in question. The plaintiff examined Ghulam Hussain P. W.

2. He has stated that Kakubhai kept a grocery shop inside the premises. Kakubbai sold the grocery articles in the shop to him and also transferred the tenancy rights. He produced an agree ment marked Exh.

10. The statement of this witness is fully corroborated by the following recital in agreement Exh. 10. "The' seller has paid rent of the shop premises to the landlord up to this date and if not so paid he alone shall be liable therefore from 28th October 1947. The purchaser shall pay rent of the shop premises to landlord from to-day". This witness further stated that he sold the articles in the shop to the plaintiff and also transferred tenancy rights to him. The plaintiff Ramzanali stated to the same effect as Ghulam Hussain. Ramzanali also relied on a document dated 11th December 1947 to corroborate his version. This document however did not bear sufficient stamp and as the plaintiff did not pay deficient stamp with penalty it was ruled out as inadmissible. The evidence of the plaintiff and Ghulam Hussain, however, is to the effect that Ghulam Hussain first got the possession of the premises from the original tenant and thereafter Ramzanali. The evidence of these two witnesses is further supported by the admission of Ismail Yusuf D. W. 1, examined on behalf of the defendants. This witness stated that Kakubhai had promised to hand over the possession of the shop to the defendants but when he actually left he put the plaintiff in possession. The witness further admitted iii cross-examination that he knew that from the tune of disturbances Ramzanali (plaintiff) had been sitting at the strop and Kakubhai had left. He enquired from the plaintiff: as to how he was sitting at the shop and had been told by Ramianali that he had taken it from the third person meaning thereby Ghulam Hussain. It is -clear from the evidence of Ramzanali and Ghulam Hussain, admission of Ismail Yousuf D. W. 1 and document Exh. 10 that Kakubhai transferred his tenancy right to Ghulam Hussain and Ghulam Hussain on his part transferred the tenancy rights to the plaintiff. Under section 108 of the Transfer of Property Act a lessee is entitled 'to transfer lease rights in the absence of any contract to the contrary. There is no allegation or proof that Kakubbai was under any disability to transfer his tenancy rights. In 1948 Sind Rent Restriction Act X of 1947 was enforced: The word tenant as defined in that Act included any person deriving title under a tenant. The plaintiff there fore was a tenant within the meaning of Act X of 1947. The point is decided accordingly. Point No. 2.-Whether the plaintiff was a necessary party to Suit No. 217 of 1948 ? It has been argued by the learned counsel for the defen dants that the plaintiff was not I necessary party to the suit and has relied on Jafferji Ibrahimji v. Miyadin Mangal and others (46 Bom. 526) and Sheikh Yousuf v. Jyotish Chandra Banerjee and others-(35 C W N 1132). But these are the cases of a sub-tenant under a tenant who still continued to be a tenant. In this case the original tenant Kakubhai left for Bharat after having trans ferred the tenancy right in favour of the predecessor-in -interest of the plaintiff. In other words the original tenant surrendered his tenancy in favour of the predecessor-in-interest of the plaintiff and the plaintiff or his predecessor-in- interest could not be regarded as mere sub-tenant they i.e., plaintiff and his predecessor-in-interest were tenants within the meaning of Act X of 1947. It is admitted that the plaintiff was in actual physical possession of the premises at the time of the filing of Suit No. 217 of 1948. The question whether the plaintiff was a necessary party has to be deter mined in the light of the principles governing application of Order I Rule

3. The plaintiff claimed to be a tenant to the t knowledge of the defendants and was actually in possession He could not be ejected if he was a tenant within the meaning of Act X of 1947. His presence, was therefore necessary to decide the question whether the defendants were entitled to possession of the premises. Reliance in this connection was placed by the learned counsel for the plaintiff on observations of the Hon'ble judges in case of Arunadoya Chakarbarty and others v. Muhammad Ali and others (1928 Cal. 138). Their Lordships observed : "The principles governing the rule of joinder of defendants in an action for ejectment are mainly two : first, if any of the persons in possession is left out, he remains in possession as not being affected by the decree, and the decree as one in ejectment and for possession becomes infructuous because the persons ejected as being bound by the decree can always come in under the person who remains in possession ; and second, there is certain amount of risk involved in not making the persons in actual possession defendants, for, in execution of the decree, persons may happen to be turned out who may then bring actions against the plaintiff for wrongful dispossession not being bound by the decree" I am in complete agreement with the above observations. The learned counsel for the defendants contended that the above principles did not apply ire case of a tenancy. This is not so. Their Lordships in this case took note of such an objection and observed 'there is no distinction in principle between the cases of trespassers and of tenants who claim to hold under a title, because all actions in ejectment proceed on the assumption that the plaintiff has title, and hence the right to possession, and that the defendant has none". I have come to the conclusion that in the circumstances of this case the plaintiff who was in actual possession, claimed tenancy and was in fact a tenant within the meaning of Act X of 1947 was a necessary party. The defendants knew that the plaintiff was in possession and that Kakubhai whom they were suing had actually left for Bharat and must thank them selves for having obtained an infructuous decree. Point No. 3.

Whether the decree in Suit No. 217 of 1948 is binding on the plaintiff ? In view of my decision on points No. 1 and 2 it must be held that the decree in suit No. 217 of 1948 is not binding on the plaintiff. It was argued that the ejectment certificate was only against Kakubhai and therefore the defendants could not implead the plaintiff in the suit. The certificate was issued on 29th November 1947. Before that Kakubhai had left Pakistan leaving another person in possession. This was to the knowledge of the defendants as it appears from the certificate itself. This certificate Exh. 12/1 shows that the defendants had stated before the Rent Controller that Kakubhai had left Pakistan having created rights in favour of another person and that person should have been heard before the certificate was issued. Any way the plaintiff being a necessary party the decree in the Civil Suit cannot be held to be binding on him. Point No. 4.-Whether the present suit is barred as the earlier Suit No. 764 of 1950 with the same allegations had been dismissed for default of parties and their advocates on 30th August 1951 ? The earlier suit namely Suit No. 764 of 1950 was dismissed according to para. II of the plaint under O. IX, Rule 3, Civil P. C. This para was not denied. Order 1X Rule 4 provides that "where a suit is dismissed under Rule 2 or 3, the plaintiff may (subject to the law of limitation) bring a fresh suit ; or he may apply for an order to set the dismissal aside". In this case the plaintiff applied to have the order of dismissal set aside but the application was rejected. He subsequently brought the present suit. The contention of the learned counsel for the defendants is that both the remedies are not open to the plaintiff. He can exercise only one of the rights given under O. IX Rule 4 and the plaintiff having filed an application to have the dismissal order set aside it was no longer open to him to file a fresh suit. There is no force in this contention. The two remedies given in Rule 4 are no exclusive of each other. Both the remedies are open to the D plaintiff. If he fails to have the order of dismissal set aside it is open to the plaintiff to file a fresh suit. I am fortified in this opinion by decisions of Allahabad High Court. I may refer to one of them namely Tulsi Singh and another v. Sheoran Rai and others (1926 All. 678). The result is that the suit succeeds and I hereby declare that Suit No, 217 of 1948 is not binding on the plaintiff. I order that the parties do bear their own costs. A. H. Suit decreed.