1989 PLP 1296 (CLC)

WALI MUHAMMAD KHAN, J.‑Through this writ petition, Haji Muhammad Saddique tenant/petitioner (hereinafter to be called as tenant) has called in question the orders dated 8‑2‑1986 and 4‑12‑1986, respectively passed by the Rent Controller (respondent No.2) and District Judge, Peshawar (respondent No.]) whereby the former ordered his eviction from the suit shop and the latter, concurring with him, dismissed the appeal filed by the tenant.

2. It is not denied that Syed Mir Afzal Shah, since dead, now represented by respondents Nos.3 to 12 herein (hereinafter to be as landlords) was tile owner of the suit shop and that he had rented out the same to the tenant on payment of Rs.30 per month as rent. He filed an application for eviction of the tenant in the Court of Rent Controller on the ground of default in payment of rent as well as requirement for the use of his son Syed Fiaz Ali Shah. The tenant, in his written statement, refuted both the allegations of the landlord and the learned Rent Controller after framing necessary issues in the Case and the recording of the evidence of the parties, pro and contra thereon, came to the conclusion that the tenant was not proved to be guilty of wilful default in the payment of rent but the ground of requirement for the use of the son of the original landlord (now dead) found favour with him and vide his order dated 8‑2‑1986, he passed the order of eviction of the tenant in favour of the landlords. Aggrieved with the same, the tenant filed appeal before the learned District Judge, Peshawar but with no success. Hence the instant writ petition.

3. We have heard learned counsel for the parties and have perused the record of the case with their assistance.

4. The grievance of the tenant is that the landlord Syed Mir Afzal Shah died before the impugned order of his eviction by the learned Rent Controller and, therefore, in view of the Maxim Actio personalis moritur cum persona, the pica of personal requirement ceased to exist with his death and that in consequence thereof the learned Rent Controller had no jurisdiction to order the eviction of the tenant under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. He further contended that Syed Fiaz Ali Shah, for whose benefit the instant eviction application had been filed, was already possessing a shop of the M.C. wherein he was running his own business and that the claim of the landlords for personal requirement was not bona fide. On the contrary learned counsel for .the landlords vehemently argued that the first ground agitated on behalf of the tenant was not raised before the lower forums and could not be agitated for the first time before this Court in the exercise of its constitutional jurisdiction. As regards the second ground it was submitted that there is no legal bar for the eviction of the tenant for personal use if the building already m possession of the landlords is a rented one.

5. We have minutely considered the submissions made by the counsel for either side. Learned counsel for the tenant supported his arguments by citing two judgments of the Supreme Court in case, Haji Ibrahim v. S. Rehmatullah reported as 1985 SCMR 241 and Muhammad Aslam v. Wazir Muhammad reported as PLD 1985 SC

46. We have minutely gone through them and are of the opinion that they do not advance the cause of the tenant. No doubt, both the judgments pertain to the eviction of tenants on the ground of bona fide requirement for the use of son but they are in‑applicable to the instant case inasmuch as, in both the cited cases, the landlord had died after the order of eviction was passed in his favour and their Lordships of the Supreme Court graciously held therein that the legal representative of the deceased landlord had acquired vested right to defend the order of eviction passed in favour of their predecessor. In the instant case the landlord had died during the pendency of the proceedings before the learned Rent Controller and the learned counsel for the tenant argues with vehemence that on the death of the landlord before the order of eviction the Maxim: Actio pcrsonalis moritur cum persona came into operation and the proceedings before the learned Rent Controller had automatically lapsed. The operative part of both the cited judgments, which is the same verbatim, is being reproduced hereunder:‑ "The .upshot of the above discussion is as follows:‑ (i) the need of the landlord under section 13(3)(a)(ii) of the Ordinance of a non‑residential premises is personal to himself or his male child, or to both, as the case may be. It implies, therefore, that if the death of the relevant person takes place during the pendency of the proceedings before an order of eviction is made, the proceedings abate and do not survive his death. (ii) once an order of eviction of the tenant is made under section 13(3)(a)(ii) of the Ordinance, it becomes, on the death of the landlord beneficiary of the order, a part of his heritable estate and the legal representatives can defend the order and claim the benefits arising there under subject to all the limitations and exceptions attaching to such an order. (iii) The ordinary power of a Court of appeal is to scrutinise the judgment or order under appeal by reference to facts, circumstances, and record as before the Authority or Court passing the impugned order, supplemented by such further inquiry as may have been undertaken under section 15(6) of the West Pakistan Urban Rent Restriction Ordinance or under section 21(3) of the Sind Rented Premises Ordinance, 1979 and administer the law of the land at the date when the appellate Court is administering it. (iv) Exceptionally, in its discretion, the appellate Court, may take note of and give effect to admitted or proved subsequent events m order to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice:"

6. In the instant case the premises were required by Syed Mir Afzal Shah deceased landlord for the use of his son namely Sycd Fiaz Ali Shah. On his death all of his heirs including Syed Fiaz Ali Shah were brought on record as his legal representatives on the file vide order of the learned Rent Controller dated 18‑1‑1986. Consequently Syed Fiaz Ali Shah, for whose benefit the shop in dispute was being required, also became an applicant alongwith his co‑heirs and. thereafter, they not only jointly prosecuted the eviction application against the tenant but jointly defended the appeal filed against them before the appellate Court as well, and are, at the moment, jointly defending the instant writ petition the eviction petitions filed under the Rent Restriction Laws the plea of, personal use may die with the death of landlord under the maxim stated earlier but the same principle cannot be attracted to cases in which the requirement is for the use of son in which case the son acquires a valid right to be impleaded as legal representative under the provisions of Order XXII, rules 4 and 11 C.P.C. the principles whereof are to be followed by the Rent Controller. Thus the' proceedings before the Rent Controller do not come to an end ipso facto on the death of the original applicant/landlord. but are continued by legal representatives in whom the right to sue survives. The dictum i' of the august Supreme Court reproduced above also supports this view inasmuch as it has been specifically mentioned therein that if the death of the relevant person takes place during the pendency of the proceedings before an order of eviction is made, the proceedings abate and do not survive his death. In the case in hand the relevant person would be Syed Fiaz Ali Shah for whom the suit premises were required and since he is alive and is an applicant for the eviction of the tenant after the death of the original applicant, the proceedings cannot be considered to have abated. The aforesaid judgments of the Supreme Court also contain a direction to' the Courts to take note of and give effect to admitted or proved subsequent events. In order to avoid multiplicity of litigation to shorten litigation, and to do justice between the parties and mould relief according to the altered circumstances, in the larger interest of justice. The prayer of the landlords prima facie is on a much stronger footing, because all ]he successors of the original landlord, have opted to jointly prosecute the proceedings before the learned Rent Controller for the eviction of the tenant on the ground of requirement for the use of Syed Fiiz Ali Shah, one of the heir/landlord and in case the plea of the learned counsel for the tenant is accepted, this will only result in the multiplicity of the proceedings and may prolong the possession of the tenant but cannot stand in the way of the landlords or any one of them to file a fresh petition on the ground of personal requirement. We, therefore, hold that the death of the original landlord does not result in the lapse of the proceedings if the premises are required for the use of son and the order of the learned Rent Controller was, therefore, perfectly legal and within his jurisdiction.

7. Section 199 of the Constitution of Islamic Republic of Pakistan, 1973. confers jurisdiction on the High Court to strike down any judgment or order of any forum if it finds that the same is without lawful authority and of no legal effect. However, there is abundant case‑law on the point that before invoking such jurisdiction the aggrieved parties must exhaust their remedy before the lower forums before whom, they are expect to agitated all their grievances specifically and to get a decision thereupon. Their failure to raise such points before the lower forums disentitles them to agitate them for the first time in Constitutional petition. The tenant was, therefore, bound to apply to the learned Rent Controller for filing the eviction petition as having been lapsed on account of the death of theoriginal landlord. In his presence the respondents Nos.3 to 12 (landlords) were brought on record in the panel of the applicants, as the legal representatives of the deceased landlord by the learned Rent Controller without any objection on his part. He also did not take up this plea specifically before the learned Appellate Court in his grounds of appeal and a presumption can safely be drawn that he acquiesced in the prosecution of the eviction petition by the landlords (respondents Nos.3 to 12), as the representatives of the deceased landlord. In this view of the matter the tenant is not permitted to agitate this plea for the first time in this Constitutional petition.

8. Syed Fiaz Ali Shah undisputedly is running his business in a rented shop belonging to M.C. and there seems to be nothing wrong or illegal in his desire to shift business to the premises owned by him, provided the dominant intention is the bona fide use and not any other ulterior motive. In this connection the judgment of the Supreme Court in case Abdul Aziz and another v. Muhammad Ibrahim reported as PLD 1977 SC 442 is relevant wherein this objection has been over ruled and it was held that the requirement of section 13(3)(a)(ii)(b) does not extend to cover rented premises. The learned lower two forums have concurrently held that the suit premises are required bona fide and in good faith by the landlord Syed Fiaz Ali Shah for his personal use and since the learned counsel for the tenant has not been able to pin point any illegality, material irregularity, mis reading and non‑reading of evidence in the conclusions arrived at by the two Courts below, we are not inclined to disturb the said findings.

9. The upshot of the above discussion is that the petition. being without merit is dismissed, with no order as to costs. A.A./724/P Petition dismissed.