1989SCMR905 (PLP)

SIIAFIUR RAHMAN, J.‑‑Leave to appeal was granted to examine whether the refusal of the Rent Controller to implead Custodian, Enemy Property, Government of Pakistan, was fatal and the proceedings for eviction of , appellant No.1 from the rented premises were defective and no order of eviction could be passed against the appellant No. l in the absence of the Appellant No.2. The predecessor‑in‑interest of the respondents was landlord‑ transferee of the premises tenanted by the appellant No.1 under the Displaced Person (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). The respondents instituted an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 (hereinafter referred to as the Ordinance), seeking the eviction of the tenant on the ground that he had failed to pay rent at the rate of Rs.1,000 per month from 1‑10‑1973 up to the institution the eviction petition in 1977. Two preliminary objections were taken by appellant No.1 which alone was impleaded in the proceedings. The first was that no notice under section 30 of the Act had been served and the second that a notice under section 13‑A of the Ordinance had not been served. These objections were rejected by the learned Rent Controller who ordered that rent at the rate of Rs.540 per month be deposited for arrears as well as in future and on merits the question of default and the exact amount of monthly rent was examined. During the proceedings before the Rent Controller and at the initial stages an application was moved by appellant No.l seeking amendment of the reply to the Ejectment Application with a view to taking up the ground that appellant No.2 was a necessary party in the proceedings and no order of eviction could be passed against appellant No.l m the absence of appellant No.2. The learned Rent Controller refused this application on 29‑7‑1978 on the ground that no such plea had been taken in the first reply that was submitted by the appellant No. l. The Rent Controller finally found appellant No.l to be in default and the monthly rent to be Rs.540 and passed an order of eviction against the appellant No.l. The appellant No.l the tenant as well as the respondents landlords both filed appeals before the District Judge. The respondent 'Landlords' appeal concerned rate of rent as they thought Rs.1,000 should have been fixed as rent and not Rs.540. The appellant No.l objected to the order of the Rent Controller on the ground of preliminary objections of want of notice taken by it and also on the ground of failure to implead respondent No.2. In the Grounds of appeal this objection with regard to the absence of appellant No.2 was taken in the following words:‑‑ "The position of the appellant changed altogether with the assumption off its control by the Custodian of Enemy Property and therefore the findings of the learned Rent Controller on the basis of Exh.P/1 for holding the appellant responsible for wilful default in payment of rent is illegal. That the appellant made an application for the amendment of its written statement with the prayer that as the appellant company was under the control of the Custodian, Enemy Property, therefore, the appellant be allowed to include a preliminary objection in its written statement to the following effect:‑‑ The ejectment application of the respondent merits dismissal for not impleading Custodian of Enemy Property as respondent in ejectment application." The learned Rent Controller erred in law in rejecting the said application as the Custodian of the Enemy Property, Government of Pakistan is a necessary party in the ejectment proceedings." The District Judge as the first appellate authority dealt with the question of non‑impleadment of appellant No.2 in the following words:‑‑ "Learned counsel for the appellant during arguments has also tried to argue that during the period 1‑4 G3 to 1‑9‑1973 some time the property in dispute was declared as Enemy Property and again released and again declared as such and for this reason the appellant did not tender the rent is of no avail to the appellant because no such plea has been taken by the appellant in their reply to the application." The appeal of the tenant/appellant No.l was dismissed but that of the respondents was allowed and the monthly rate of rent was re‑fixed at Rs.1,000 per month instead of Rs.540 per month as fixed by the Rent Controller. The tenant as well as the Custodian, Enemy Property, filed separate Constitution Petitions in the High Court, Writ Petition No.3069 of 1982 concerning the enhancement of rent from Rs.540 to Rs.1,0t10 per month and Writ Petition No.3070 of 1982 concerning the eviction order against the respondent No.l. Apart from other grounds taken up in the two Constitution Petitions, it was urged as hereunder:‑‑ "Petitioner‑Company being an Enemy Company, legally vested in the Custodian, Enemy Property, Government of Pakistan, i.e. petitioner No.2, but the respondents did not implead the Custodian as party in the ejectment application in spite of the objection having been raised to that effect by petitioner No.l, through an application for amendment. Legally, the Custodian was the tenant under the respondents and ejectment could not be ordered without impleading him as a party." The learned Judge in the High Court dismissed both the Constitution Petitions in limine but as regards the contention of necessity of impleading appellant No.2 in the rent control proceedings, the learned Judge observed as here under:‑ "Regarding the second contention, it has been noticed that the petitioner‑Company is a limited Corporation, incorporated under the Companies Act. Such a Corporate Company is thus itself a juristic person and can sue or be sued in its Corporate name. In this view of the matter, the petitioner‑Company can lawfully be sued for ejectment from the premises in its occupation as tenant in spite of the fact that its management vested in the Custodian, Enemy Property, Government of Pakistan." The learned counsel for the appellants has drawn our attention to sub rule (2) of Rule 172 of the Defence of Pakistan Rules, 1971 to point out that appellant No.1 had indeed become an enemy firm as held by this Court in Government of Pakistan v. Indo‑Pakistan Corporation Limited etc. P L D 1979 S C 723 and its property was an enemy property and had vested in the Custodian of Enemy Property and was not liable to be proceeded against unless the custodian, Enemy Property had been impleaded as a party in the proceedings. Mr. A.K. Dogar, Advocate, the learned counsel for the respondents on the other hand contended that no doubt the appellant‑Company vested in the Custodian Enemy Property but the General Manager through which it was sued before the Rent Controller had been appointed by the Custodian Enemy Property to take charge of the firm and manage. it and he had been irnpleaded in the proceedings. There was, according to him, substantial compliance with the requisite provisions of the law. In support of his claim he. has relied on A.F. Ferguson & Co. and others v. Lalit Mohan Ghosh (A I R 1954 Pat. 596) where the impleading of management as distingui:,hed froin the Custodian or Government Functionaries was considered sufficient compliance with the provisions of Defence of India Rules (Rule 113‑A). On the outbreak of war with India in 1971, appellant Company had become an enemy Firm within the meaning of rule 172(2)(c) of the Defence of Pakistan Rules, 1971. By a notification, dated 6‑11‑1973 the Federal Government notified that the assets of the company had vested in the Custodian of Enemy Property. This notification and the effects thereof was challenged but upheld in Government of Pakistan v. Messrs Indo‑Pakistan Corporation. Subsequently, in exercise of the powers conferred by sub‑rule (1) of Rule 185 of the Defence of Pakistan Rules, the Federal Government made an order on the 24th of September, 1978. 1t is published in P L D 1978 Volume of Central Statutes, at page

173. There was a provision made in para. 5 thereof that "all Enemy Property vesting in the Custodian shall be exempt from attachment, seizure or sale in execution of a civil Court decree or orders of any other authority". Ejectment from the premises necessarily involved seizure of the property for the purposes of getting the occupant evicted there from if necessary by adopting coercive methods. The Court executing an order of eviction has to dispossess the occupant and put the decree‑holder, in possession of the property and in the property remains seized of by the Authority executing the order circumstances the Custodian becomes a necessary party to the Rent Controller, which may ultimately result in ouster of its interest The case referred to by the learned counsel for the respondents from the. Indian jurisdiction relates to the Central Government's power of transferring management of the firm which in fact was exercised in that case under Rule 113‑, A of the Defence of India Rules. The provision in pari matcria with it in Defence of Pakistan Rules, 1971 is Rule

184. No such order under‑ Rule 184 of the Defence of Pakistan Rules was passed in this case and no substitutive authority managing the property has come into existence. None of the authorities dealing with the matter took note of these legal provisions for determining whether the presence of Custodian, Enemy Property before the Rent Controller was necessary or not. It is on account of these statutory developments that the Custodian Enemy Property had become a necessary party. We accept the two appeals, se: aside the judgment of the High Court, of the first appellate authority and of the Rent Controller and remand the proceedings to the Rent Controller to proceed with the matter afresh after impleading the Custodian of the Enemy Property. No order as to costs.