990 PLP 1353 (CLC)

Respondent in person. Date of hearing: 15th March, 1990. The material facts culminating in this rent appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, briefly, are that respondent Faiz Muhammad who is landlord of commercial premises bearing No. B‑1395, situated at Dhak Road Sukkur, filed ejectment application against Gabind Mal (since dead) and his son Gurmukhdas, on 11‑4‑1983, before Rent Controller Sukkur, on the grounds of default in payment of rent and personal requirement. The tenants contested the application for their eviction which was dismissed on 18‑2‑1985. The respondent challenged this order before this Court, but without success and his appeal was dismissed on 22‑5‑1986. The Civil Appeal No. 129‑K of 1987, filed by respondent before Supreme Court was, however, accepted vide judgment dated 3‑9‑1989, and the tenants were directed to vacate the said premises. The respondent filed execution application on 14‑11‑1989, but by that time Gobind Mal, the co‑tenant had expired. In the meanwhile the appellants also filed a suit for declaration and perpetual injunction against respondent and two others in the Court of Ist Senior Civil Judge, Sukkur, which is pending decision. On 20‑12‑1989, appellant Gurmukhdas filed objection by stating that eviction order cannot be executed against a dead person. On 25‑1‑1990, appellants Sint. Sadori Bai, Sint. Chandran Bai, Sint. Maya Bai and Sint. Daya Bai, daughters of late Gobind Mal were brought on record, but before the notice could be issued to them it was brought to the notice of learned Rent Controller that Gurmukhdas who is tenant of the disputed premises within the meaning of section 2 (j) of the Sindh Rented Premises Ordinance, 1979, was already on record and his eviction was in fact sought. The learned Rent Controller, therefore, issued writ of possession against appellant Gurmukhdas. This order dated 21‑2‑1990 is the subject‑matter of this appeal.

2. The tenant as defined by section 2 (j) of the Sindh Rented Premises Ordinance, 1979, 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 other person on his behalf and includes:‑ (i) any person who continues to be in possession or occupation of the A premises after the termination of his tenancy; (ii) heirs of the tenant in possession or occupation of the premises after the death of tenant. It is thus clear that only those heirs of a deceased tenant who are actually in possession of premises are to be treated as tenants and not those who are not occupying the same. The case reported as Ghulam Nabi v. Muhammad Sachal 1986 C L C 2858 is relevant on this point. The objections filed by appellant Gurmukhdas are also silent on this aspect of the case. He never pleaded before the Rent Controller that `appellants No.1 to 4 or any one of them are in occupation of the disputed premises, which is commercial one. The Sindh Rented Premises Ordinance, 1979, brought about a change in the definition of "tenant" from the one provided in the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed). In the repealed Ordinance, "tenant means any person by whom or on whose account rent is payable for a building or a rented land and includes (a) a tenant continuing in possession after the termination of tenancy in his favour, and (b) the wife and children of a deceased tenant :"

3. The cases reported as Muhammad (through his heirs) and others v. Abdur Rehman P L D 1976 Kar. 612, Ghulam Hyder v. Muhammad Haneef and others‑P L D 1979 Kar. 167; Majid Hussain and 5 others v. Muhammad RAfiqne and another 1980 C L C 154; Fazal Ahmed v. Ramzan Bibi 1984 C L C 2196 and Abdul Rashid v. Haji Syed Abdullah P L D 1985 Quetta 56, are not attracted to the facts of the present case as in all those cases the definition of "tenant" as provided in the West Pakistan Urban Rent Restriction Ordinance, 1959, was considered, and in that context it was observed that wife and children of deceased tenant were necessary parties.

4. It may be added that appellant Gurmukhdas has contested the eviction proceedings from the very outset. The case finally went upto Supreme Court 1B where the tenants lost. It appears that technicalities are being pushed to extreme by Gurmukhdas to prolong his possession. The appeal is wholly misconceived and is dismissed in limine. One month's time is, however, allowed to appellant Gurmukhdas to vacate the demised premises. A.A./S‑588/K Appeal dismissed.