1989SCMR470 (PLP)

SHAFIUR RAHMAN, J.‑‑The petitioner who has been adjudged not to be a tenant of the respondent, seeks leave to appeal against the judgment of the Sind High Court dated 7‑5‑1987 whereby while excluding him from the rent control proceedings an undertaking has been obtained from him and an ejectment order has been passed against him. The respondent filed an Ejectment Application in January, 1986 claiming that Abdul Hamid, a brother of the petitioner, was his tenant and he hid failed to pay the rent of the property let out to him which was otherwise also needed by him for his bona fide personal use. Before Abdul Hamid could appear in the proceedings and answer the allegations made against him, the Petitioner intervened by filing an Application to get impleaded in the proceedings as he claimed that he was the tenant of the respondent and not Abdul Hamid. The Rent Controller rejected his request observing as hereunder:‑‑ "The intervenor has not produced any document to show that he is tenant of the applicant. The documents produced by him only show that he is in possession of disputed premises but so far the relationship of landlord and tenant between the parties is concerned no document has been produced by the intervenor. On the contrary the applicant has produced the rent deed executed by Abdul Hameed in favour of the applicant in which Abdul Hameed has undertaken that he will not sub‑let the disputed premises to any other person. The rent agreement does not contain the name of intervenor that he was also residing alongwith Abdul Hameed. I, therefore, agree with the arguments of learned counsel for the applicant and dismiss this application in the interest of justice." An appeal was preferred in the High Court which too was dismissed holding as hereunder:‑‑ "The respondent is the landlord of the premises and Abdul Hameed is the tenant. The appellant is not the tenant of the respondent as there exists no relationship of landlord and tenant between the parties. Evidently the respondent is not the landlord of the appellant, the appellant cannot be impleaded as a party to the proceedings. The Controller has correctly found that the appellant is not the tenant of the premises in dispute. I affirm the order of the learned Controller and dismiss the appeal in limine. The appellant cannot claim protection from eviction under the Ordinance." The learned Judge in the High Court concluded the order by observing as hereunder:‑‑ "In the result, this appeal is dismissed in limine. The appellant has given an undertaking that he will vacate the premises within six months. I direct the execution of the eviction order be stayed till 30‑6‑1987. The writ of possession will be issued without any notic th appellant on the expiry of the above period." The contention of the learned counsel for the Petitioner is that the two portions of the same order are contradictory and inconsistent. After holding that the Petitioner was not the tenant and had no locus standi to be impleaded m the proceedings, there was left no jurisdiction either in the Rent Controller or in the Appellate Court to bring him within their jurisdiction with a view to pass an order as if he was a tenant. Besides, the impugned order suffers, according to the learned counsel for the Petitioner, apparently from a misconception that an ejectment order had already been passed against the tenant on merits and the order was awaiting execution. This was not so. In view of these legal submissions a notice was ordered to issue to 16 respondent as the point involved was short and could be disposed of by converting the Petition into Appeal. The respondent‑landlord has appeared in response to the notice and we have heard him on merits. It is borne out from the record and is admitted before us by the parties that the proceedings before the Rent Controller were still at the initial stages and were against Abdul Hameed. The Orders of the Rent Controller as well as that of the Appellate Authority have the effect of not treating the Petitioner tenant, and on that account he is not entitled to be impleaded before the Rent Controller. Having given that findings, the Rent Controller could not exercise the jurisdiction over the person who was not tenant or the landlord nor could an ejectment Order be passed against him even with his consent because the Rent Controller's jurisdiction is restricted and limited as that of a Tribunal. Besides, there appears to be a complete misapprehension that there was an order which was to be executed against Abdul Hameed. Proceedings against Abdul Hameed have yet to be concluded. In the circumstances we convert this Petition into an Appeal, accept it, set aside the impugned order in so far as it directs that the undertaking of the Petitioner shall be enforced by execution of the eviction order against him. The matter as against Abdul Hameed shall be decided on its own merits and in accordance with law.???????????? MA.K./M‑653/S???????????????????????????????????????????????????????????????????????????????? Appeal accepted.