P L D 1961 (W (PLP)

QADEERUDDIN AHMAD, J.‑--The facts which form the back ground of this appeal are that the respondent gave on lease to the appellants at a monthly rent of Rs. 30‑-- "a small room on the north side at the end of tenements on the ground floor of the building situated on 39, Garden Road, Preedy Quarter, Karazhi, Survey Sheet No. P. R. 2, in the City of Karachi, together with the independent use of tank and water line from connection and small space surrounding the tank for drying clothes." An additional water connection was given to the tenants and the rent was increased in February 1948, to Rs. 45 per month. On the 30th of November 1949, the respondent gave a notice, Exh. 7, to three appellants, excluding appellant No. 1, Ala Din, purport ing to increase the rent to Rs. 50 p.m. The latter increase of rent was disputed and the rent was not paid.

2. On the 12th of September 1950, ‑the respondent applied to the Rent Controller under section 9 of the Sind Rent Restric tion Act for a certificate to eject three appellants on the grounds that they had made unauthorised construction on the premises; sub‑let a part of it; were creating nuisance, and that the premises were needed for himself for constructing a new building on the plot of land. The application was rejected by the Rent Controller, who did not in his order consider the allegation that the premises were needed by the respondent and held inter alia that the super structures erected on the premises were temporary; therefore, no action could be taken "on such type of arrangements in such days of acute shortage of accommodation, when so much vacant land was at the disposal of the tenants" The respondent went in revision, and the Chief Judge, Small Causes Court, accepting the revision application held that the tenants had violated the terms of tenancy by constructing superstructures and that the landlord needed the plot of land for constructing a new building on it.

3. The appellants, including Ala Din, filed Suit No. 615 of 1952 in the Sind Chief Court for a declaration that the order of the Chief Judge, Small Causes Court was not binding on them, and for an injunction against the landlord to restrain him from taking action on the basis of that order. Paragraph 7 of the plaint contained reasons for making the allegation that the order was illegal and ultra vires. They were that the landlord did not require the premises for constructing a new building on it; that plans sanctioned by K. M. C. for constructing a building were wrongly admitted and taken into consideration by the Chief Judge; therefore, the order of the Chief Judge was in excess of his revisional authority; that the tenants had not violated the terms of tenancy, and that temporary huts had been constructed with the permission of the landlord. The landlord countered the suit by instituting Suit No. 706 of 1952 against all the tenants, including Ala Din, on the basis of the certificate obtained by him and non -payment of rent. The suit was for ejectment and recovery of Rs. 1,500 as arrears of rent at the rate of Rs. 50 p.m. and for mesne profits at the rate of Rs. 100 p.m. The two suits were heard and decided by Muhammad Bakhsh, J. He decreed Suit No. 706 of 1952, in favour of the landlord for ejectment, for Rs. 1,500 as arrears of rent, and for mesne profits at the rate of Rs. 50 p.m. till possession was delivered to the landlord; and dismissed suit No. 615 of 1952. The tenants have not appealed against the decision of Suit No. 615 of 1952, but have preferred this appeal against the judgment and decree given in Suit No. 706 of 1952.

4. Counsel for the respondent raised a preliminary objection that this appeal was not maintainable because the judgment and decree given in suit No. 615 of 1952, barred it by resjudicata. We have seen the judgment given in Suit No. 615 of 1952 and found that the judgment in Suit No. 706 of 1952, was delivered first. Moreover, the two suits were tried together and the evidence adduced in Suit No. 706 of 1952, was treated as evidence in the other suit. Counsel for the appellants has, in reply to the objection referred to the case of Mufti Muhammad Baqar and another v. Namwar Singh and others (A I R 1931 All. 660), in which a Single Judge relying on Ghansham v. Bhola (45 All. 506) has observed as follows:‑ "It is true that here we are not dealing with two identical decrees but in effect the case does come clearly within the principle of the quotation first made. All the points raised in Suit No. 442 were raised in Suit No. 289, and there is nothing prejudicial to the appellant in the decree in Suit No. 442 which is not raised and cannot be set right in the appeal in Suit No. 289." It is unnecessary to reproduce the quotation, to which reference has been made by the learned Single Judge, because the principle of that quotation has been stated by him in the second sentence. A judgment by a Division Bench of the Nagpur High Court also helps counsel. The learned Judges have held in Manohar Vinayak v. Laxman Anandrao Deshmukh (A I R 1947 Nag. 248) as follows:‑ "In order that a decision should operate a resjudicata it should be quite independent of the proceeding to which it is; pleaded as a bar. The principle of resjudicata cannot apply in the same proceeding in which the decision is given and by parity of reasoning it cannot apply to the consolidated proceedings. 4 When by consent of parties or by an order of the Court two suits are consolidated, they have no independent existence and nothing decided in one of the consolidated suits can operate as resjudicata if that decision was appealed against. This is because there are no two independent decisions." Suit No. 615 of 1952 and Suit No. 706 of 1952, were, strictly speaking not consolidated, but the judgment given in Suit No. 615 of 1952, shows that it was not an independent judgment. On the contrary, it was more or less a recapitulation of the reasons on a which judgment was given in Suit No. 706 of 1952. In these circumstances, the judgment given in Suit No. 615 of 1952, cannot be said to be a bar to this appeal. We, therefore, overrule the preliminary objection.

5. Turning now to the contentions raised by counsel for the appellants, we take up the first and the most important of them namely, that a suit for ejectment could not be brought against four joint tenants on the basis of a certificate that was obtained against three of them only. Counsel argued that the certificate might have been effective against three appellants if the tenancy was divisible, but the entire premises were let jointly to four of them; therefore, it was of no value against any of them. He urged that the defect of the proceedings by which the respondent obtained the certificate was glaring because realising that he could not eject three out of four joint tenants, he has brought the suit for ejectment against all of them.

6. Counsel for the respondent has advanced three arguments to meet this contention. Firstly, he argued that orders made under the Sind Rent Restriction Act, 1947 are operative in rem, because the Act when applicable was applicable to the premises and that its operation was not restricted to the parties to the proceedings taken under that law. In support of this contention he relied on two passages from "Principles of Rent Control" (1952 Ed. by R. B. Addharujina. At page 171, the author has expressed his views as follows:‑ "The scheme of our Act is that the Act is made applicable to premises falling within a particular description and situate in certain localities or arears, that is to say, the premises acquire a fixed status for the duration of the statute or till the Govern ment decontrols them. This position is described by saying that the Rent Act operates in rem, and not in personam: It has normally nothing to do with the fact as to whom the premises belong; but section 4 is an exception to this rule. The section, however, provides that the Act will not apply to premises belonging to owners of certain description. Conse quently to that extent‑and to that extent only the Act operates in personam." Again at page 563, the author has written as follows:‑ "In Percy G. Moore Limited v. Stretch (1951 W N 2), the Court of Appeal, construing section 3, subsection (2) of the Act of 1939 (which exempts premises owned by a local authority from the operation of the Act), held that the exemption applies even though the premises are let out to a private citizen and the private citizen sub‑lets them, so that in an action for eviction by the lessee the under‑lessee is not protected by the Rent Acts. Somervell, L. J., in this case observed that it had been said that the Rent Acts operated in rem and not in personam and that that might not be a wholly apt or precise expression but it meant that the Acts operated on property. Our Courts also, while interpreting section 4 of our Act, have held to the same effect."

7. We felt that the views were expressed rather broadly and, therefore, we have referred to Blundell's Rent Restrictions Cases for our satisfaction. Eight cases are mentioned in the "Digest of Cases" which is attached to the book, under the heading. "The Acts apply in rem". In some of them observations occur accord ing to which the right of a tenant to have a standard rent fixed is a right in rem, and that such rent is attached to the premises. Moreover, there are observations that the Rent Acts to which the book relates operate in rem. In Lazarus‑Barlow v. Regent Estates, a distinction is drawn between the expressions "the Acts apply in rem" and a "judgment in rem", as follows:‑ "Without attempting a precise definition, the words `the Acts apply in rem' illustrate the point that, given certain facts, the Acts will or may operate in relation to the premises as distinct from the parties to a particular tenancy. But determina tions by the Courts of matters of fact or of mixed law and fact essential to the application, or non‑application, of the Acts to particular premises on particular dates do not operate in rem in the sense of binding all persons who may thereafter be interested in the premises. The terms of section 11 (1) of the 1923 Act, which enables a County Court on the application of landlord or tenant, to determine summarily any question as to the amount of the standard rent of any dwelling house to which the Acts apply, would be inapposite if a determina tion of the standard rent of a dwelling house once made between particular individuals were conclusive for all time." In R. v. Fulham, Hammersmit and Kensington Rent Tribunal Ex. P. Gormly Slade, 1. has referred to the Lazarus‑Barlow case as follows:‑ "I understand the Lazarus‑Barlow case to decide merely that the fact that the Rent Acts might operate in rem did not mean that judgments under those Acts were conclusive against all persons and for all purposes . . . . . The Lazarus‑Barlow Case . . . . . in no way undermined the previous decisions of the Court of Appeal that for the purposes of the Rent Acts a determination of the standard rent operated in rem so as to fix the status of the premises." In the annotation, under the above judgment, the authors of Blundell's Rent Restrictions Cases have reproduced the following observation of Goddard L. J. made by him in (1952) 1 K. B. . at 187: " .. if collusive proceedings were taken it would amount to a fraud on the Tribunal, and where a fraud was proved I have little doubt that this Court could intervene if necessary by certiorari to get rid of a decision which the Tribunal had been misled into making."

8. The views expressed by the author of "Principles of Rent Control," therefore, can be adopted for our purposes with a little modification. The recognizable principle for our purposes appears to be only that decisions of a rent tribunal relating to controlled property, if made after a sound inquiry under a Rent Act that controls properties and applies to demised premises, should be enforced as applicable to the premises and not merely as applicable to those persons who were parties to such decisions. We may note here that there is little doubt that the Sind Rent Restriction Act, 1947 controlled party and applied to demised premises. If the landlord made an application under it to the Rent Controller for a certificate for ejectment on the allegation that he needed the premises or that certain tenants named by C him had committed a breach of the terms of tenancy and the Rent Controller granted such a certificate, then the tenant of the premises who was not impleaded in the proceedings and who felt aggrieved by the order, may question the soundness of the proceedings in consequence of which the certificate was granted, but cannot succeed merely on the plea that by name he was not impleaded as a party to those proceedings. In this view, the first question to be considered is: whether the proceedings which took place before the Rent Controller and the Chief Judge, Small Causes Court were sound?

9. This leads us to the second argument of counsel for the respondent. He pointed out that there was evidence on record to show that Ala Din had ceased to be interested in the premises because he was doing his trade at another place and came forward to question the certificate and to contest the suit for ejectment merely as an act of friendliness towards the other three tenants. Counsel for the appellants admitted that Ala Din had not returned to the premises, but contended that his residence was not a necessary ingredient of tenancy; therefore, his rights as a tenant could be enforced irrespective of considerations of his residence. The argument is sound as far as it goes, but it shows that the landlord had a sufficient reason in this case not to implead Ala Din as a party to the proceedings taken before the Rent Controller and the Chief Judge, Small Causes Court, and it does not show that Ala Din had a case different from that of the other three tenants. If we are right in this conclusion then the ground on which the appellants stand is merely of a technical nature.

10. We may add that as a joint tenant Ala Din was respon sible for the violation of the terms of tenancy committed by the other three tenants. Moreover, it is clear now that he had no defence apart from that which was raised by them. In Suit No. 615, which was instituted by all the four tenants for a declaration that the order of the Chief Judge, Small Causes Court, was not binding on them, the grounds of attack did not include an allegation that Ala Din was not represented before the Rent Controller or the Chief Judge. It is a ground of defence in Suit No. 706, which was subsequently instituted by the landlord. Additionally it is noteworthy that three tenants only had applied to the Rent Controller for fixation of fair rent. The previous omission to urge that ground and its subsequent adoption show in this case that it was an after‑thought without a real sense of injury to the Ala Din's interest. His such interest as it was can therefore be taken to have been substantially represented before the Rent Controller and the Chief Judge.

11. Counsel for the respondent thirdly argued that the omission to implead Ala Din as a party to the proceedings before the Rent Controller and the Chief Judge, Small Causes Court did not violate any technical provision of law, because there is nothing in section 9 of the Sind Rent Restriction Act to compel the landlord to implead all tenants as respondents in the proceedings taken under the Act. His contention is based on an observation made by Muhammad Bakhsh, J. in Suit No. 706 of 1952. He is right in making this argument, but the absence of a statutory provision in the Sind Rent Restriction Act, 1947 does not make the ordinary principles of law inapplicable to those proceeding. Natural principles of justice required that al those who were interested should have been impleaded. What counsel apparently meant was that natural principles of justice are not to be treated as technicalities. They are to be enforced for doing justice and not like technical provisions of statutes. It appears to us to be an adequate reply to the objection of counsel for the appellants that Ala Din's interest was for all intents and purposes represented in those proceedings. Our conclusion, therefore, is that the certificate granted by the Chief Judge, Small Causes Court, on the grounds that three appellants had violated the terms of tenancy and that the respondent needed the premises for constructing a new building on it is, in the circumstances of this case, binding on all the appellants including Ala Din, although he was not by name made a party to those proceedings, because he had created an impression that he had lost interest in the demised premises, and had allowed the other three tenants to act as if he was no longer a tenant, or for him also.

12. The second contention of counsel for the appellants in support of the appeal was that the certificate of ejectment was invalid because the Chief Judge had admitted fresh evidence during the hearing of the revision application. The legal aspect of his contention is supported by the judgment in Ahmad v. Chief Judge, Karachi Small Causes Court and another (P L D 1958 Kar. 42); but the explanation of counsel for the respondent was that the plans sanctioned by the Karachi Municipal Corporation for construc ting a new building on the plot of land were shown to the Rent Controller, and were again shown to the Chief Judge, Karachi Small Causes Court. There is no reference to them in the order of the Rent Controller because he did not decide whether the premises were needed for new construction or not. We have no reason to discredit the explanation given by counsel and accepting it hold that fresh evidence was not admitted by the Chief Judge, Small Causes Court during the hearing of the revision application.

13. Counsel for the respondent tried to oppose the appeal by additionally contending that the original Sind Rent Restric tion Act, 1947 and the subsequent Rent Acts did not apply to this case because open land was a part of the demised premises and that the suit was based on non‑payment of rent also. The first contention is erroneous because it leaves the room which is the main part of the premises out of consideration, and the second is bad because the rate of rent is rightly disputable. The dispute justified non‑payment of rent.

14. Counsel for the appellants argued that the rate of rent accepted by the learned trial Judge as correct was erroneous because the notice (Exh. 7) by which the rent was increased from Rs. 45 to Rs. 50 per month was invalid for two reasons it was addressed to three tenants only and did not comply with the terms of the proviso to section 7 of the Sind Rent Restriction Act, 1947. 1n support of his second argument, counsel relied on Abdullah v. S. M. Sattar (P L D 1958 Kar. 330). A glance at the notice shows that the contention of counsel is correct and therefore, the rate of rent is held to be Rs. 45 per month.

15. In conclusion, the decree for ejectment and possession is confirmed, but the decree for rent is reduced from Rs. 1,500 to Rs. 1,350 and the rate of compensation for use and occupa tion is similarly reduced from Rs. 50 to Rs. 45 per month from the 1st of July, 1952 until delivery of the possession of the premises to the respondent. The appeal is rejected subject to the above modification. The respondent will pay costs of this appeal to the appellants in proportion to the value to which the decree is modified. K. B. A. Appeal dismissed with certain modification.