1989CLC473 (PLP)

Munawar Ali for Respondent. Date of hearing: 20th November, 1988. By this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, the appellants have questioned the legality of the order dated 25‑3‑1986, passed by Vth Senior Civil Judge and Rent Controller (West) Karachi, whereby he had dismissed the application for ejectment filed by late Mst. Anwar Jehan against the respondent.

2. Mst. Anwar Jehan, predecessor‑in‑interest of the appellants, filed an application for ejectment against the respondent. On her death, the appellants applied to be impleaded as legal representatives. This application was rejected by the learned Rent Controller on the ground that the same was made after the expiry of ninety days. As a result thereof the application for ejectment was also dismissed. 3.Under the existing law no application for ejectment can be dismissed for the reasons which had prevailed upon the learned Rent Controller. The case of Rashid Ahmed and 8 others v. Muhammad Arshad reported in P L D 1975 La h. 1195 is a direct authority on this subject. Paras. Nos.3 and 4 of the judgment are relevant and are reproduced below:‑‑ "3.The next question which arises for determination is that if the petition could not be dismissed, could it proceed without impleading the legal representatives? The Civil Procedure Code is not applicable and, therefore, application under Order XXII to implead the legal representatives is not competent. Since, however, the petition for ejectment does not abate; nor can it be dismissed on the death of a party the principles of Order XXIT can be invoked because the Rent Controller, with a view to deciding the matter before him, can adopt any procedure unless it is prohibited.

4. There is yet another aspect of the case. If Order XXII, C.P.C. is not applicable a suit or a petition in which the right to sue survives cannot be dismissed because the right, by operation of law, becomes vested in the legal representatives, If the legal representatives do not appear the petition can be dismissed for non‑prosecution. However, if the legal representatives or anyone of them appears, the Court cannot refuse to substitute them for the deceased. In a case where the petitioner is represented by an Advocate the position becomes all the more simple. An Advocate enters into a contract with the suiter to conduct the proceedings. He may be obliged, according to the terms of the power of attorney, to conduct the case till it concludes. On the death of a party the contract between the counsel and a client in such a case and where the right to sue survives does not come to an end. He, in such a situation, has the contractual rights and the obligations towards the legal representatives. Thus, even if the legal representatives are not expressly impleaded, they shall be deemed in law to be the parties and the decision in the case will be in their favour or against them and not against a dead person. In this view of the matter, the orders passed by the Rent Controller and the District Judge, dismissing the application and refusing to implead the legal representatives are not valid. They are set aside and the case is remanded to the Rent Controller for decision on merits. There shall be no order as to costs."

4. This view was followed in Mst. Barkat Bibi and another v. Abdul Qudus, reported in 1983 C L C 1895, M/s. Syed Brothers v. M/s. Film Exhibitors Ltd. and 10 others, reported in 1984 C L C 3434 and Abdul Rashid v. Haji Syed Ainullah, reported in P L D 1985 Quetta 56.

5. In this view of the matter, the order passed by the Rent Controller dismissing the application for ejectment and refusing to implead the legal representatives of Mst. Anwar Jehan, is not valid. The same is set aside and the case is remanded to the Rent Controller for decision on merits. The parties are, however, left to bear their own costs. H.B.T./A‑465/K Appeal allowed/order accordingly.