P L D 1959 (W (PLP)

KAYANI, C. J.‑This Letters Patent appeal from a judgment of Lari, J. concerns a shop in Qasim Building which formerly belonged to the evacuees Valji Virji and two others, and which was sold by them on the 28th of October 1947 to Qasim Brothers & Co. when there was no evacuee law in Karachi. Subsequently, when Ordinance No. XVIII of 1948, came into force, Qasim Brothers & Co., made an application under section 12 thereof and the sale was confirmed by the Additional Deputy Custodian (Judicial) on the 7th of November 1950 " with retrospective effect from the date of transfer".

2. Kakubhai was a tenant of a shop in Qasim Building: He sold his goods in the shop to Ghulam Hussain Bhanji Khoja and Muhammad Ali Jiveraj Khoja and delivered to them the possession almost immediately after his own occupation, because the date of this sale is stated to be the 28th of October 1947, Ghulam Husain and Muhammad Ali, in their turn, sold the goods and delivered possession to Ramzan Ali, plaintiff in the present suit, on the 11th of December 1947.

3. On the 7th of November 1947, Qasim Brothers & Co., who are the defendants in the present suit, applied to the Rent Controller against Kakubhai for a certificate of ejectment under section 9 of the Sind Rent Restriction Act, 1947, " for having sublet the Premises without proper authority"' (see page 58 of the paper‑book) and obtained it ex‑parte on the 29th of November 1947, because Kakubhai also had meanwhile become evacuee. On the 28th of February 1948 they gave a month's notice to Kakubhai and filed a suit for ejectment against him on the 1st of April 1948, obtaining a decree ex‑parte on the 11th of January 1949. In execution of the decree a notice was served in May 1950, on Ramzan Ali, plaintiff, who was then in possession of the shop, Ramzan Ali filed objections on the 25th of July 1950, and Agha, J. disposed of them by observing that proceedings should be con tinued and if Ramzan Ali resisted, an application should be made by the decree‑holder under Order XXI, rule 97, C. P. C.

4. Ramzan Ali, plaintiff, thereupon filed a suit on the 21st of December 1950 for the setting aside of the decree passed against Kakubhai on the 11th of January 1949 " as being a nullity and not binding on the plaintiff obtained by fraud and misrepresen tation and suppression of facts ". This was dismissed under Order IX, rule 3, by reason of absence of both parties, and an application for setting aside the order of dismissal having also been rejected, the present suit was filed on the 25th of September 1951, on the same ground and for the same relief.

5. The learned Judge on the original side (Mr. Justice Vellani) framed thirty issues, but Lari, J., who heard the suit and wrote the judgment under appeal, thought that the following points only arose for determination :‑ (1) Whether the plaintiff is a tenant of the premises in question ? (2) Whether the plaintiff was a necessary party to the suit for ejectment brought by Qasim Brothers & Co., against Kakubhai ? (3) Whether the decree in that suit is binding on the plaintiff ? (4) Whether the present suit is barred as the suit on the same subject brought on the 21st of December 1950 had been dismissed under Order IX, rule 3 ? and found on these issues (1) that the plaintiff was a tenant within the meaning of the Sind Rent Restriction Act, 1947, (2) that he was a necessary party in the suit for ejectment, being in actual possession, (3) that the decree in that suit was not bind ing on him, and (4) that the present suit is permissible under Order IX, rule

4. In the result, the learned Judge declared that the decree in the suit for ejectment " is not binding on the plaintiff."

6. In this appeal the points that were argued before us by the learned counsel are somewhat different from the points on which we have decided to give judgment in the appellant's favour. We think that section 9 of the Sind Rent Restriction Act, 1947, contains a complete answer to the plaintiff's conten tion that he was a necessary party to the suit for ejectment brought by Qasim Brothers & Co., against Kakubhai., Section 9, with reference to its relevancy in the present context, is as follows :‑‑ " 9. (1) Save as hereinafter provided, no order for the recovery of possession of any premises shall be made by any Court so long as the tenant pays or is ready and willing to pay the rent payable under this Act and performs the other conditions of the tenancy. (2) Nothing in subsection (1) shall apply where the landlord has obtained a certificate from the Controller, certifying. (a)* * * * * * * * * * * * (b) that the tenant has sublet the premises without the permission of the landlord." This means that an order for the recovery of possession of any premises can be made by a Court if the landlord obtains a 6 certificate from the Controller that the tenant has sublet the premises without his permission, and it is obvious that in the proceedings for obtaining the certificate, the only person who' could be a party is the person who obtained the tenancy from the landlord. With the interest that the sub‑tenant has by virtue of his possession, the landlord has no concern. His agreement was with his own tenant and his grievance, which the law recognises as a grievance, is that this tenant has not obtained his permission, Now, since it is only for the tenant to show that he has obtained the landlord's permission, the impleading of the sub‑tenant is altogether unnecessary and the sub‑tenant is not even a proper party, for, knowing the law as it stands, if he was entering into an agreement with the tenant without the consent of the landlord, he was doing so at his own risk.

7. That a certificate could be obtained from the Controller without impleading the sub‑tenant is not a matter for contest here. The contest relates to the landlord's failure to implead the sub tenant in his suit for ejectment. The reasoning in favour of the landlord, however, will be the same in this case as in the case of the certificate, for the suit is based on the certificate and the certificate being based on the fact that the sub‑letting is without the permission of the landlord, no question of the interest of the sub‑tenant arises. In a suit for ejectment on the basis of a certificate under section 9, subsection (2) (b), therefore, the person 4 in actual possession is not a necessary party. The learned Judge in Chamber has taken the contrary view on the general principles governing tenancy. The question " whether the plaintiff was a necessary party ", he observed, " has to be determined in the light of the principles governing application of Order 1, rule

3. The plaintiff claimed to be a tenant to the knowledge of the defendants and was actually in possession. He could not be ejected if he was a tenant within the meaning of Act X of 1947. His presence was, therefore, necessary to decide the question whether the defendants were entitled to possession of the pre mises". These remarks have been relied upon by Wahiduddin, J. also in Ahmad Ali Noorbhoy v. Sakhawat Husain (P L D 1957 Kar. 790), but almost all the other authorities which Wahiduddin, J. cited in his judgment were of the contrary view and he distinguished them " on the ground that neither under the Bombay Rent (War Restrictions) Act, 1918 nor under the Bombay Rent Restriction Act XVI of 1939 it was necessary for a landlord, before filing a suit for ejectment, to obtain the certificate of the Rent Controller for the ejectment of his tenant. * * * * * These authorities are, therefore, of not much value for the decision of this case. It is true that the definition of ` tenant ' in the Bombay Rent Restric tion Act is; almost in identical terms as in the Karachi Rent Restriction Act, but that cannot, in my opinion, make these authorities conclusive on the point under consideration." We have pointed out that the very circumstance that the Rent Restriction Act makes a suit for ejectment in the present case dependent upon a certificate of the Controller renders it unneces sary for the sub‑tenant to be impleaded. The learned Judge also cited with approval the observations of Beaumont, C. J., in Punamchand velraj and others v. Bombay Cloth Market Co. Ltd. (A I R 1943 Born, 141) wherein, although following the earlier view adopted universally by the Bombay High Court, the Chief Justice pointed out that the earlier view had ignored that part of the definition of tenant which included sub‑tenant. It is true that the definition of a tenant in the present Act also includes " every person from time to time deriving title under a tenant ", but if the provision of the Act with which Beaumont, C. J, was dealing was identical with the provision of section 9, subsection (2) (b), then we say with great respect that he has overlooked the fact that by its very object the word " tenant " in its application to clause (b) of subsection (2) means only the original tenant. It can mean a sub‑tenant only where the dispute is between the tenant and the sub‑tenant, and the tenant is in the position of a landlord in respect of his sub‑tenant, for the definition of ` landlord ' in section 2, clause (3), " includes a tenant who sublets any premises ".

8. Wahiduddin, J. partly based his argument on section 18 of the Karachi Small Causes Court Act, which is as follows ‑: " When any person has had possession of any immovable property situate within the local limits of the Court's jurisdic tion and of which the annual rental value does not. exceed two thousand rupees, as the tenant, or any permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn, and such tenant or occupier (or any person holding under or by assignment from him hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Court for a summons against the occupant, calling .upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property." and observed that " the language of the section makes it very clear that if the landlord wants to evict, the occupant of the property, who claims possession through a tenant, a suit can be filed and a decree can be obtained against him ", the person in occupation being a necessary party to the suit. We notice that section 18 aforesaid scrupulously avoids the use of the word ` landlord ' and uses instead a somewhat inconvenient expression " another person ", because the object of the Act is to provide for ejectment by a small‑cause suit without going into the ques tion of title. For the purposes of section 18, therefore, the most important question is that of possession and the person in possession must be made a party. A suit for ejectment based on a certificate has an entirely different basis.

9. A question arose before us whether a decree could be given in the present case notwithstanding that at one time the property in question was evacuee property, and section 34, subsection (3), of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 was brought to our notice. Section 34 in substance is as follows :‑ Jurisdiction of Courts barred.‑(1) Save as expressly provided in this Ordinance, no Civil or Revenue Court (or any other authority), shall have jurisdiction‑ (a) to entertain or adjudicate upon any question arising in any suit, appeal, application, or other proceedings as to whether any person is or is not an intending evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property, (b) to question the legality of anything done under .this Ordinance by or at the instance of the Custodian, or (c) in respect of any matter which the Custodian is em powered by or under this Ordinance to determine. (2) Whenever any question such as is referred to in clause (a) of subsection (1) arises in any Civil or Revenue Court or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive. (3) No decision of any Court or other authority on any question such as is referred to in clause (a) of subsection (1), given between the fourteenth day of August 1947, and the commencement of this Ordinance, shall be binding on the Custodian or affect any right or interest of any evacuee in any property effected by such decision. (4) No Court (or other authority) shall be competent to grant an injunction or other order in relation to any proceed ing before the Custodian under this Ordinance, or anything done or intended to be done by or at the instance of the Custodian under this Ordinance. (5) No Court (or other authority) shall be competent to grant relief against extinguishment, forfeiture or penalty to a person whose right to any immovable property is or has been extinguished or forfeited in accordance with the terms and conditions of any agreement or grant relating to such property, and who at the time of the extinguishment or forfeiture of such right is or was an evacuee. (6) Nothing in the foregoing subsections shall prevent the adjudication by a Civil Court of a dispute between evacuees relating to a right in evacuee property upon a reference made to it by the Custodian or with the Custodian's previous approval.

10. It is argued that the decree for ejectment‑passed against Kakubhai affects the interest of an evacuee, namely, Kakubhai, and since it has not been approved by the Custodian, it is not binding on him and it does not bind the evacuee's interest: Now, on the wording of subsection (3), it is clear that the property which is being affected must be evacuee property at the time when we wish to apply subsection (3), thereto, and since it ceased to be evacuee property on the 7th of November 1950, when the Additional Deputy Custodian confirmed the sale in favour of Qasim Brothers & Co., subsection (3) should not apply. The object of evacuee law was to protect evacuee property so as to enable the Custodian to deal with it freely and without any obstruction by decrees or orders of other Courts. If subsection (3) of section 34 were applied in the manner suggested by the appellant's counsel, the decree should be submitted for the approval of the Custodian, but the Custodian will be justified in saying that he has no jurisdiction left, because the property in question has ceased to be evacuee property. It will in this context be proper to construe section 20 of the Evacuee. Property Act, which provides for confirmation of sales by the Custodian, so as to make confirmation operative retrospectively from the date of the sale.' Section 16 merely says that no transfer made by an evacuee on or after the first day of March 1947, shall be effective unless it is confirmed by the Custodian. There is nothing in it to suggest that it will not be effective from the date of the transfer after it has been confirmed by the Custodian. Similarly, subsection (3) of section 34 does not say that any decree or order in respect of evacuee property shall be void at its very inception. It is only voidable, and becomes binding after it has been approved by the Custodian. If approval were necessary even after the sale had been confirmed, subsection (3) of section 34 will defeat the very object for which it was intended. That the Custodian and his assistants also understood these provisions in the sense which we have adopted is clear from the fact that the Additional Deputy Custodian confirmed the transac tion "with retrospective effect from the date of transfer".

11. We, therefore, accept this appeal with costs throughout, set aside the decree of the learned Judge in chamber and dismiss the suit. A. H. Appeal accepted.