1980 PLP 133 (CLC)

S. 13 (6)-Ejectment-Execution against legal heirs-Eject ment order passed against appellant, held, cannot be executed against other legal heirs of deceased tenant. Muhammad Ismail Chaudhry for Appellant. This second appeal calls in question an order directing the appellant, Khalid Saeed to vacate a shop owned by the first respondent, Ala-ud-Din Pehlwan, hereinafter referred to as the respondent. 2. The appellant's ejectment was ordered by a Rent Controller by striking off his defence, under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the said Ordinance) because he had not deposited rent as directed by the learned Rent Controller. His first appeal to the District Judge has also failed. 3. Learned counsel for the appellant contended that the applica tion in which the impugned order was made was not competent and,, therefore, the said order was not sustainable. The argument proceeds that the shop in dispute was originally occupied by one Atta Ullah, who died leaving behind some legal heirs, including the appellant, but as the other legal heirs of the deceased tenant were not impleaded as respondents in the ejectment application this lapse on the part of the respondent was fatal to the application. Learned counsel maintained that to view of the aforesaid legal defect in the ejectment proceedings the learned Rent Controller was not right in directing the deposit of rent by the appellant and as such his failure to deposit rent did not justify the passing of the order of ejectment against him by striking off his defence. 4. Although in the grounds of appeal submitted in this Court it has been stated that in the reply to the ejectment application it was pointed out by the appellant that the legal heirs of Atta Ullah deceased other than the appellant had not been made parties to the ejectment application and, therefore, the application was liable to be dismissed for non joinder of parties yet this plea was not taken by him in the grounds of appeal filed before the learned District Judge. A copy of the reply to the ejectment application has not been placed on the record to show that an objection to the said application on the ground of non-joinder of parties was in fact, raised before the learned Rent Controller. Even if it is assumed that the objection was taken before the learned Rent Controller, it is to be seen whether it operated as a bar to the making of an order for the deposit of rent, under subsection (6) of section 13 of the said Ordinance. It has been held in a number of cases that where the relationship of landlord and tenant is denied it amounts to questioning the jurisdiction of the Rent Controller and, therefore, he cannot make an order regarding the deposit of rent without overruling such an objection. Learned counsel for the appellant, however, expressed his inability to cite any authority for the proposition that a Rent Controller cannot give direction in regard to the deposit of rent even in a case where non-joinder of parties is alleged. 5. The authorities cited by the learned counsel for the appellant to advance his plea are Sh. Muhammad Nawaz v. Muhammad Azeem and others (P L D 1961 Lah. 788) and Fazal Ahmad v. Mst. Ramzan Bibi (P L D 1975 Lah, 790). He also made reference to a judgment delivered by my learned brother Mahboob Ahmad, J. in Civil Revision No. 103 of 1978, Majid Hussain etc. v. Muhammad Rafique, etc. which has been approved for reporting. It was ruled in the case of Sh. Muhammad Nawaz that on the death of original tenant his children automatically became tenant for the purpose of eviction under section 13 of the said Ordinance and, therefore, the children succeeding the tenancy succeeded also the default of the deceased tenant and can be brought on the record as respondents. As for the case of Fazal Ahmad, it was held that when an order of ejectment is obtained against one of the legal heirs of the deceased tenant, his other legal heirs cannot be ejected in execution of that order. In Majid Hussain's case the order of ejectment had been passed against one of the legal heirs of the deceased tenant whereupon the other legal heirs filed a declaratory suit that the order of eviction passed against him was ineffective and void as against their rights. They also prayed for a permanent injunction restraining the landlord from dispossessing them from the disputed property. It was held that according to the definition of word "tenant" as given in clause (i) of section 2 of the said Ordinance the plaintiffs were also tenants of the premises in dispute and, therefore, their suit was decreed. In none of these cases it was ruled that if all the legal heirs of the deceased tenant are not impleaded as respondents an order for deposit of rent under subsection (6) of section 13 of the said Ordinance cannot be made against one or more legal heirs who are impleaded. The cases relied upon by the learned counsel for the appellant are, therefore, of no avail to him. 6. The provisions of sub section (6) of section 13 of the said Ordinance make it obligatory for the Rent Controller to direct the tenant to deposit arrears of rent, if any, as also the future rent. As already stated, if his jurisdiction to entertain an ejectment application is ques tioned he will not be able to order deposit of rent without satisfying himself that he had the jurisdiction to proceed with the case but when no exception is taken to his jurisdiction he is bound to order the deposit of rent notwithstanding the defence put up by the respondent with a view to defeating the application against him. Since the plea of non-joinder of parties raised by the appellant was in relation to the competency of the application and not the jurisdiction of the Rent Controller, the learned Rent Controller did not commit any error in directing him to deposit the rent. 7. It was also urged by the learned counsel for the appellant that the order of ejectment passed against the appellant would not be effective inasmuch as it will not be executed against the legal heirs of the deceased tenant other than the appellant. I agree with the learned counsel for the appellant that in view of the opinion expressed in the cases of Fazal Ahmad and Majid Hussain the order of ejectment passed against the appellant cannot be executed against the other legal heirs of the original tenant; but if the shop in dispute is occupied by the appellant alone, the respondent might, by executing the ejectment order against him only secure possession of the shop. In case the shop is occupied by the other legal heirs of the deceased tenant also, he might face some difficulty in getting possession of the shop, but this consideration does not constitute a valid ground for taking exception to the order of the learned Rent Controller relating to the deposit of rent. 8. In my opinion the order assailed herein does not suffer from any legal infirmity. The appeal is, therefore, dismissed in liming. M. Y. M. Appeal dismissed.