1990 PLP 1789 (MLD)

The appellant filed ejectment case in which the opponent was described in the following manner:‑‑ "Muhammad Jaffer son of Noor Muhammad, deceased through his legal representative Halima Bai wife of Muhammad Jaffer, Muslim, adult, resident of Flat No.1, Wahid Building, Mir Karam Ali Talpur Road, Karachi." On service of notice the respondent appeared and filed her written statement. Despite replying on merits a preliminary objection was raised that the application has been filed against a dead person and therefore, it is not maintainable. This objection was upheld by the learned Controller and the ejectment application was dismissed. Prior to filing this ejectment application the appellant had filed another ejectment application against Muhammad Jaffer. However, that application was dismissed because before the institution of the case Muhammad Jaffer had died. In this background the ejectment application under appeal was filed with the above description. By going through the description the learned Controller is of the view that a dead person has been sued by the appellant. It is an elementary principle of construction of document and pleadings that one has to examine the A entire document and then come to the conclusion. In this case in the title as reproduced above, although name of Muhammad Jaffer deceased has been mentioned, it also states that `through his legal representative Halima Bai.' Therefore, the name of the legal representative who could have been the tenant on the death of Muhammad Jaffer does find place in the title of the ejectment application. Further in paragraph 4 of the ejectment application it has been stated as follows:‑‑ "That even otherwise in law the opponent continued to be the tenant of the applicant and she failed to pay the rent of January, 1.987 within aforesaid period and thereby committed a default notwithstanding her offer of rent after filing of R.C. No. 563/87 making herself liable to ejectment." These averments clearly stipulate that it is Mst. Halima Bai the widow of B Muhammad Jaffer who is being sued as tenant for the purposes of ejectment. If this averment would have been consciously examined by the learned Controller, probably he would not have fallen in error to treat Muhammad Jaffer as the person to be sued. It is true that a dead person cannot sue or be sued but the question is whether a dead person has been sued in the present case. The intention of the appellant has been to indicate that originally Muhammad Jaffer was the tenant but after his death his legal representative Mst. Halima has ,succeeded in the tenancy and she has been sought to be ejected not only on the ground of default committed by Muhammad Jaffer but on her personal default after the death of Muhammad Jaffer. I therefore, set aside the order of the learned Controller and the case is remanded for hearing according to law. M.B.A./M‑606/K Case remanded,