P L D 1979 Lahore 793 (PLP)

This revision petition is directed against the judgment dated 8-7-1978, passed by the learned Additional District Judge, Lahore, maintaining the order of the learned Civil Judge, dated 28-5-1978 whereby the petitioner's plaint was rejected by him under, Order V11, rule 11 of the Civil Procedure Code.

2. Briefly put, the facts of this case are that the respondents filed a petition against the present petitioner and his four brothers, namely, Javaidul Haq, Ehsanul Haq, Naeemul Haq and Abrarul Haq and his sister Mst. Salma Parveen and one Muhammad Ramzan, for their ejectment from the first and second floor of Property No. S-III-10-S-32, Abkari Road, New Anarkali, on the ground of default, reconstruction of the property, subletting and bonafide personal requirement.

3. It appears that neither any notice was served by the learned Rent Controller on the petitioner nor did he sign any "Vakalat-Nama" in favour of the counsel. Nevertheless the written statement was filed before the learned Rent Controller on 3-2-1977 on behalf of the tenants-respondents which did not give any indication that the petitioner 'was not a party thereto. Even a Fard Pala embodying the address of the petitioner not signed by anyone was annexed with the written statement. The file shows that, in that ejectment petition, throughout the proceedings, the presence of the learned counsel was noted by the learned Rent Controller on behalf of all the respondents including the petitioner. The learned Rent Controller passed an order under section 13(6) of the Rent Ordinance, which was not complied with. Consequently, the defence of the tenants-respondents was struck off by him vide his order dated 25-5-1977.

4. An appeal was preferred against this order and in the memorandum of appeal along with his brothers and sister the petitioner was also cited as appellant and at Serial No.

1. Although at the appellate stage, too, the petitioner did not sign any "Vakalat-Nama" in favour of the learned counsel yet the appeal was shown to have been preferred on his behalf as well. The proceedings recorded by the learned first appellate Court portray that the learned counsel represented all the appellants. This appeal was dismissed on 12-11-1977.' This dismissal was challenged through second appeal before this Court (S. A. O. 13/78). Following the same wake, here too in the list of the names of the parties, appended with the memorandum of appeal, the petitioner was mentioned as appellant No.

1. Even this S. A. O. could not succeed, and with its dismissal, the first round of litigation was concluded. It is noteworthy that both the appeals were filed by the same learned counsel who conducted the case before the learned Rent Controller.

5. Two days after the dismissal of the S. A. O. the petitioner filed a suit for declaration that the ejectment order dated 25-7-1977, passed by the learned Rent Controller is void, illegal and not binding on him. Permanent injunction also prayed for. The petitioner took the plea that he had gone abroad and returned to Pakistan on 25-5-1978 and that he was not aware of the ejectment petition, and came to know of the same on 23-5-1978 when he reached Lahore. It was pleaded that neither any notice was served on him nor at any stage he was posted with the knowledge of the ejectment proceedings.

6. The learned Civil Judge, who was seized of the suit, on 28-5-1978, rejected the plaint under Order VII, rule 11 of the Civil Procedure Code. He was of the view that the petitioner was a party to the ejectment proceedings and the ejectment order had attained finality. He also held that under section 15 (5) of the Rent Restriction Ordinance, the impugned order could not be challenged before the civil Court. Relying on Ali Hussain v. Rafiquddin (P L J 1977 Lah. 199), he further came to the conclusion that the petitioner could not seek the remedy without first handing over the possession of the house to the decree-holder. Having been denied relief by the learned trial Court, the unsuccessful plaintiff filed an appeal which also failed.

7. The main plank of the arguments of the learned counsel for the petitioner, is, that he was out of the country and was neither served by any of the Courts nor did he acquire knowledge of these proceedings till 22nd/23rd of May 1978, i.e. when he came to Pakistan and became aware of the ejectment order passed against him. He asserted that the learned counsel, who appeared on behalf of the petitioner's brothers and sister, was never appointed as his counsel by the petitioner as he did not sign any Vakalat-Nama in his favour. Section 22 of the Legal Practitioners and Bar Councils Act, 1973, was relied upon to argue that no Advocate can appear or act for any person in any Court, unless he has been appointed by a writing signed by such person and such document is filed in the Court. It was argued that as the petitioner was condemned unheard, the order passed by the learned Rent Controller was without jurisdiction and the subsequent order affirming the same suffered from the same legal infirmity. The learned counsel also cited some precedents to augment his these submissions which need not be discussed. The propriety of the findings that the suit was hit by section 15(5) of the Rent Restriction Ordinance, was vehemently assailed by him and rejection of the plaint under Order VII, rule 1 i of the Civil Procedure Code, dubbed as a material irregularity cause, in exercise of his jurisdiction by the learned Civil Judge, which called for intervention by this Court. He relied on Din Muhammad v. Mehr Ali (P L D 1978 Kar. 267) to justify invocation of revisional jurisdiction. Arguments were also advanced that as the petitioner was not a party to the previous litigation, he could not file objections against the execution of the decree and that therefore, his case was not hit by the ratio decidendi of Ali Hussain's case. The other submission was that as the executing Court could not go behind the decree, any action commenced by the ,petitioner before that Court would merely be an exercise in futility.

8. In reply to these submissions, the learned counsel for the respondents forcefully argued that the petitioner was a party to the proceedings which attracted the applicability of section 15 (5) of the Rent Restriction Ordinance, rendering the petitioner's suit unmaintainable before the civil Court. He contended, if the petitioner was treated as a party, section 47 of the Civil Procedure Code would govern the situation, and all questions relating to the execution, discharge or satisfaction of the decree, were to be determined by the Court executing the decree and not by a separate suit. Alternatively, in case he was not considered as a party, his suit would be barred under Order XXI, rule 103 of the Civil Procedure Code. 9. 1 have heard the learned counsel for the parties at some length and also perused the record. There is no denial of the fact that the petitioner was not served with any notice throughout the proceedings under the Ordinance. The circumstances of .the case, however, fully betray that, in the written statement and the two appeals filed by his brothers and sister, the petitioner was a willing name, lender and conceivably could not have been ignorant of the ejectment. Proceedings. It is evident from the record that actually the petitioner's father held the house as a tenant under the present respondents or for that matter their predecessor-in-title, and on his death the tenancy devolved on his children including the petitioner. In the memorandum of revision, it has been pleaded that the petitioner held a joint tenancy along with his brothers and sisters, under the respondents. As an essential incident of joint tenancy the petitioner could not claim an exclusive right in the demised premises. The Judicial Committee in Harihar Banerji and others v. Ramshashi Roy and others (A I R 1918 P C 102 ), held that service of notice to quit or one of the several defendants, who are joint tenants is prima facie evidence that it reached the rest. The principle applied to such like cases is, that each tenant sharing the joint tenancy is to be bound by the information of the intended action, imparted to one of them.

10. It is not the petitioner's case that his brothers, and sisters who sternly resisted the ejectment petition had any interest adverse to him. It is clear from the record that in the first round of litigation the petitioner' brother Javaid-ul-Haq, who himself was party to the ejectment petition, pursued the case on behalf of others. Significantly this revision petition has also been instituted by the petitioner through Javaid-ul-Haq. It is well established that the conduct of a defendant and admission made by him of his character as a person jointly interested with other parties, in the subject-matter of suit, is binding on the co-defendant.

11. I am not unaware of the precedents laying down that mere knowledge of the suit will not justify dispensation with the necessity of service of summons on a defendant, The legal position his however radically changed now and the authority of these rulings dwindled down, for by virtue of Law Reforms Ordinance, 1972 an amendment was incorporated in Order IX, rule 13, C. P. C. and second proviso added thereto, which runs as follows "Provided further that no decree, passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reasons to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim." Defendant's knowledge of the institution of proceedings `aliunde' is now a relevant factor for sustenance of the ex parte decree passed again him. In order to establish the petitioner's interest in the property i dispute, even during his stay abroad, it was argued by his learned counsel that his family resided in the house. In a case like the one in hand a defendant having common interest with the other codefendants in the subject-matter of the suit and not objecting to the array of his name in the written statement and the memoranda of appeals, can be legitimately presumed to be well informed of the litigation pending against him. Indeed it will be a gross abuse of the process of Court, after an adverse finding is given against such a litigant to permit him to turn round and thwart the entire proceedings on the plea that h was not served. The petitioner's contention is not bona fiche and the principle of estoppel by conduct will actively be attracted. 12: It has already been held that the petitioner was in the know of the ejectment petition and the filing of the written statement and the appeals by the counsel could not have without his consent. The non-signing of the written statement by the petitioner is also not material. In Mohni Mohun Das v. Bungs Buddan Das (ILR 17 Ca1. 580), three joint creditors were the co-plaintiffs but the plaint was neither signed nor verified by one of the plaintiffs, who was named on the face of the plaint. Both the Courts below held that the suit was defective with which the Judicial Committee did not agree and Lord Macnaghtan observed : "There is no rule providing that a person named as co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint." The case was conducted by a senior Advocate of this Court would not have represented the petitioner unless he was instructed by him on his behalf. I am of the view that the non-compliance with section 22 of the Legal Practitioners and Bar Councils Act, in the facts and circumstances of the case does not invalidate the orders passed against the petitioner and he cannot be heard to plead his own pretence to avoid the liability. In this view of the matter, mere non-signing of the power of attorney by the petitioner is not sufficient to rebut the inference that he was deeply involved in the proceedings throughout.

13. There is no force in the submission of the learned counsel for the petitioner that the learned Rent Controller's order suffered from jurisdictional error on account of non-service of notice on the petitioner. The facts of this case indicate, that non-service of notice did not in any manner work to the prejudice of the petitioner. The case-law relied upon by' him, thus, cannot advance his cause.

14. There is some merit in the submission of the learned counsel for the respondents that the petitioner should have filed objections before , the executing Court. Any way the case is hit either by section 47 0 ` alternatively by Order XXI, rule 103 of the Civil Procedure Code. Looked from any angle the suit did not live.

15. It was also pointed out by the learned counsel for the respondents that the petitioner himself considered the ejectment order passed against him as an ex parte order and he has already moved an application under Order IX, rule 13 of the Civil Procedure Code for setting aside the said orders. This will also be a relevant factor, for the adjudication of the matter in issue.

16. The jurisdiction under section 115 of the Civil Procedure Code is discretionary and in a case where substantial justice has been done, even if the impugned order suffers from some irregularity, this Court shall be loath to interfere. No relief can be given to the petitioner on the basis of the technicalities of law resulting in prolonged deprivation of his adversary. The ruling in Din Muhammad's case does not advance the petitioner's cause.

17. For all these reasons, I am of the view that the learned trial Court rightly rejected the plaint under Order VII, rule I 1 of the Civil Procedure Code. The impugned judgment is hereby affirmed and the revision petition dismissed with costs. S. A. H. Petition dismissed.