1989 PLP 881 (CLC)

Mr. M.G.. Dastgir, learned counsel for the appellants has placed reliance on the case of M/s. Bambino Limited v. M/s. Salmor Inter national PLD 1983 SC

155. In support of his contention that the, orders passed by the Rent Controller in execution of order of ejectment is appealable before the High Court. He has argued that it is settled view of the superior Courts that although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller has its own force, the Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure. It was held b) their Lordships in the above‑said case which reads as under:‑ "and the settled view in this Court has been that although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller by its own force, the Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure. There is no reason, therefore, to take a different view so far as the provisions of the Sind Rented Premises Ordinance are concerned, which governed the proceedings for execution of the order in this case. Under the repealed Ordinance of 1959, the order passed by the Controller or in appeal by the Appellate Authority was to be executed under section 17 of the, said Ordinance, by a Civil Court having jurisdiction in the area as if it were a decree .of that Court. However, under section 22 of the Sind Rented Premises Ordinance,1979 an order passed by the Controller or the Appellate Authority has to be executed in such manner as may be determined by the Controller or as the case may be, by the appellate authority. Plainly, therefore, the Controller was competent to adopt any procedure deemed by him suitable for the purpose of execution of his order. It has further observed:‑ "As regards the second contention that no appeal lay from the order passed by the Rent Controller in execution of the. order of ejectment it may be stated that a plain reading of section 21 of the Sind Rented Premises Ordinance, 1979 shows, that such an order not being an interim order, was appealable before the High Court. There is, therefore, no substance in this contention as well." In view of the above I see no reasons to differ with the contention of the learned counsel for the appellants. Mr. M.G. Dastgir has then argued that since the deceased Mukhtar Ahmad was originally the tenant of the disputed premises who has expired in the year 1973 and the tenancy devolved upon his widow and 5 daughters and two sons, therefore, all were the necessary parties to the ejectment proceedings and the order of the ejectment passed only against the present respondent No.2 cannot be factually executed to eject the remaining heirs also. He has placed reliance on the case of Fazal Ahmad v. Ramzan Bibi 1984 CLC 2196 and the case of Khalid Saeed v. Allauddin Pahalwan and 3 others 1980 CLC

133. Mr. Nizam Ahmad learned counsel for the respondent No.l/landlord repelling the above contention of the appellant's counsel has argued that it is an admitted position that the premises in dispute is a shop wherein the respondent No.2 is carrying on the business in the name of Hamdard Shoes Store. Therefore, the first case of Fazal Ahmad v. Ramzan Bibi which dealt with the residential house will not apply in the pres?nt case. Mr. Nizam Ahmad, has then referred to the definition of tenant ,as provided it section. 2(j;,which reads as under:‑ 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any ocher person on his behalf and includes: ‑ (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant; and" He has argued that the clause (2) referred to above includes only the heirs who are in occupation or in possession of the premises after the death of the tenant. He has further submitted that the B present appellant has failed to prove that they were factually in occupation of the said shop or that there was a partnership business. It has been further argued by the learned counsel for the respondent No. 1. that there is nothing on record to show that the appellant had ever participated in the said business or share usufruct of the said business Hamdard Shoes Store while as against this the notice reply dated 1‑4‑1982 sent by M/s Mukhtar & Co., Advocates, on behalf of the present respondent No.2 in paragraph 1 shows that the subject property was acquired on rent by their said client (S.M. Ibrahim. respondent No. 2.) from its previous landlord Khawaja Muhammad Hussain and in paragraph 3 of the said reply notice, it has further stated that the said S.M‑ Ihrahim is in physical as well as legal possession of the subject property‑ wherein he is running the business through his employee Mr. Ahmad Shaikh. Mr. Nizam Ahmad has further contended that this was the actual stand taken by the respondent No.l before the filing of the ejectment proceedings and that after filing of the ejectment proceedings he changed his stand and pleaded in the written statement that the tenancy had devolved upon the widow Mst. Anwar Begum. The widow had also moved an application to be joined a intervenor which was dismissed by the Rent Controller and no further action had been taken by her. Yet the 3rd stand was taken in execution application that the tenancy had devolved upon all the daughters, sons and widow left by the deceased Mukhtar Ahmad and that all of them were depositing the rent in Court through respondent No.2. Mr. Nizam Ahmad has argued in view of the said inconsistent pleas taken by the appellants and respondent No.2. no case has been proved by them but in view of the statement made in the reply notice dated 1‑4‑1982 it stands established that the respondent No.2 is the tenant in occupation and possession of the disputed shop and he is rightly sued as opponent and the ejectment order against him. Mr. Nizam Ahmad has further argued that the case of Khalid Saeed v. Allauddin Pahalwan 1980 CI.C 133 does not support the apppllantc' case but the same would rather help the case of the respondent No.l. He has referred to:‑ '

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." From the above discussion I find no reasons to disagree with the order of the Rent Controller which is maintained and the present appeal is dismissed. However, there will be no order as to costs. H.B.T./N‑160/K Appeal dismissed.