1987 PLP 380 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑The petitioner was originally the tenant of Mst. Sherbano respondent No. 1, in the disputed premises. On 9th October, 1972, the latter filed an application for the petitioner's ejectment from the premises on the ground of default in the payment of rent, un-authorised construction of the portion of the demised premises and material impairment of the demised building. The petitioner denied these allegations and contested the ejectment application. During the pendency of the proceedings before the Rent Controller, on 6th May, 1974, respondent No. 1, the original landlady, is said to have entered into an agreement of sale of the premises in favour of Mst. Zubeda respondent No.

2. Subsequently on 30th August; 1974, a proper registered sale‑deed was executed by respondent No. 1, in favour of respondent No. 2 transferring the property in her favour. Therefore, by application, dated 25th November, 1974, the petitioner prayed that the ejectment application be dismissed as the relationship of landlord and tenant between the parties had come to an end on account of sale of the property. In the meantime respondent No. 1 had also applied for striking off the defence of the petitioner on the ground that he had failed to comply with the tentative rent deposit order passed by the Rent Controller under section 13(6) of the Sind Urban Rent Restriction Ordinance. The learned Rent Controller by his order, dated 27th March, 1975 found that the petitioner had committed no default in compliance with the order under section 13(6). However, by the same order, he disposed of the application filed by the petitioner, and framed a preliminary issue as under:‑‑ "Whether the applicant has sold the premises in question and the relationship of landlord and tenant has ceased to exist between the parties." The aforesaid preliminary issue was then tried by the learned Rent Controller who found from the sale‑deed produced by the petitioner himself that the property comprising the premises in dispute had been sold by respondent No, 1 to respondent No. 2 but according to the terms of the sale‑deed respondent No. 1 had yet to deliver actual physical possession of the premises in dispute to respondent No. 2, the vendee, after having got the same vacated by the petitioner. In accordance with the aforesaid finding, the learned Rent Controller held that since respondent No. 1 had sold the premises to respondent No. 2, the relationship of landlord and tenant between her and the petitioner had ceased to exist. Accordingly by his order, dated 7th August, 1979, the learned Rent Controller dismissed the ejectment application.

2. Respondent No. 1 then filed first appeal against the aforesaid order and during the pendency of the appeal applied for joinder of respondent No. 2 as a co‑appellant. But the learned Additional District Judge dismissed the application, as well as the first appeal filed by respondent No.

1. On second appeal by the respondents, a learned ingle Judge of the Sind High Court took the view that the application for imp leading respondent No. 2 in the proceedings at the appellate stage was competent under Order XXII, rule 10, C.P.C. or under Order I, rule 10, C.P.C. and, therefore, ought to have been allowed, as with effect from the date of transfer of the property in favour of respondent No. 2, the rights of the original landlady devolved upon her. The learned Judge further considered the question of delay in making the said application and expressed the view that the same occurred on account of the term of the sale‑deed whereby possession of the disputed premises was to be handed over by respondent No. 1 after ejecting the petitioner. For these reasons the learned Single Judge by judgment and order, dated 15th October, 1985, allowed the second appeal, set aside the order passed by the Rent Controller, impleaded respondent No. 2 as an applicant in the original ejectment proceedings and remanded the case to the Rent Controller for decision according to law.

3. In support of this petition for leave to appeal from the judgment of the High Court we have heard Mr. Ali Akbar at some length. His main contention is that respondent No. 2 could have been impleaded as a party during the pendency of the proceedings before the Rent Controller and not in first appeal. As no application for joinder of respondent No. 2 was made before the passing of the final order by the Rent Controller, learned counsel contended that there was no power left in the Court to implead respondent No.

2. The argument is without substance. Provisions of Order XXII, rule 10, C.P.C., are attracted when there is assignment, creation or devolution of any interest during the pendency of the suit, in which event such proceedings can be continued by or against the person to or upon whom such interest has come or devolved. To our mind the only important condition for attracting the aforesaid provisions is that such assignment, creation or devolution of interest should occur during the pendency of the suit. There is no restriction in the aforesaid provisions that would prevent the appellate Court from invoking the aforesaid provisions. Indeed Order XXII, rule 11, C.P.C. makes the aforesaid provisions applicable to appeals. Even otherwise it appears that the provisions of Order XXII, rule 10, C.P.C., are permissible and enabling. Therefore, the person acquiring interest may be joined as a party with the leave of the Court. But he is under no such obligation to necessarily join the proceedings. The reason is that the mere devolution of interest of a party pending a suit or appeal, will not arrest the hearing of the suit which will continue between the original parties, and the person acquiring interest pendent lite will be bound by the decree. In any case under section 146, a person upon whom rights had devolved during the pendency of the proceedings in the original Court, can apply for permission to continue the appeal, even if, no application under Order XXII, rule 10, C.P.C., was made in the original Court.

4. It was next contended by the learned counsel that the High Court was not competent in second appeal to upset the concurrent findings of the two Courts below to the effect that the relationship of landlord and tenant had ceased to exist between the parties on account of the sale in question. We are unable to accept this proposition that on the transfer of the ownership rights by a landlord during the pendency of an ejectment application, the application would ipso facto become infructuous and liable to be dismissed for want of relationship of landlord and tenant between the parties. We have not been shown any provision of law or principle of law which would bring about such a result. At best the person upon whom the ownership rights devolved by virtue of the transfer, can be impleaded as a party to continue the proceedings. This is what the High Court has held to be the position in this case and has allowed the application of the respondent No. 2 to continue the proceedings, which prayer was refused by the First Appellate Court.

5. No other point was urged by the learned counsel and for the reasons mentioned above, we find no merits in this petition which is accordingly dismissed. M.I. Petition dismissed.