P L D 1986 Karachi 117 (PLP)

This appeal is directed against the order of Miss Mahjabeen XII Senior Civil Judge and Rent Controller, Karachi, dated 8‑9‑1983, whereby she directed the appellant and others to handover the vacant possession of the premises in dispute to respondents Nos. 1 and 2 within 60 days. Briefly stated the facts of the case are that respondents Nos. 1 and 2 were the landlords of building known as Fakhro Mansion, Marriot Road, Karachi. The respondent No. 3 was the tenant of room No. 1 on the first floor thereof on a monthly rent of Rs.

70. The respondents Nos. 1 and 2 filed an ejectment application against the appellant and respon dents Nos. 3 and 4 alleging that respondent No. 3 had sublet the above room to respondent No. 4, and the appellant without their consent. Hence they prayed for the ejectment of all of them. Respondent No. 3 admitted the relationship of landlord and tenant between him rind the respondents Nos. I and

2. He also admitted that in the end of 1972 he had allowed respondent No. 4 and the appellant to set in his above room and run the business as they had promised to vacate the same, as soon as they were able to set another accommodation. He has alleged that the respondent No. 4 and the appellants were not vacating the premises in spite of his repeated requests. Respondent No. 4 has stated that his son Mateen was inducted as sub‑tenant in the premises by respondent No. 3 with the consent of the landlords that is respondents Nos. 1 and

2. The appellant has stated that he is the statutory tenant of the applicant in respect of major portion of room No. 1 on monthly rent of Rs.

200. The main point that came up for the consideration before the learned Rent Controller was as to whether the respondent No. 3 had sublet the promises to respondent No. 4 and the appellant without the consent of the landlords. The appellant, though he had filed a written statement, had not led any evidence nor had he contested the proceedings before the trial Court. Respondent No. 4, had contested the proceedings before the trial Court but has chosen not to file any appeal against the order of the Controller. The respondents Nos. 1 and 2 have sold the premises in dispute to J. B. Saeed & Co., who have been joined as intervenor and substituted in place of respondents Nos. 1 and

2. Hence we are left only with the dispute between sub‑tenant Abdul Raouf and the new landlord. I have heard Mr. Kamaluddin, Advocate for the appellant Abdul Raouf and Mr. Andlib,.Advocate for the new landlord. It has been contended by Mr Kamaluddin, that the original rent application was filed by minors through their mother and next friend Mst. Amtulhaseen. No doubt in view of the provisions of Order XXXII, rule 1., C. P. C., a suit can be instituted on behalf of a minor and in his name by a next friend but there is no such provision in the Rented Premises Ordinance. He further submitted that provisions of C. P. C., are not applicable to rent proceedings. This rent application should have been filed by Nazir Ahmed, father of the minors who is also their legal guardian as well as the Rent Collector on their behalf and is, therefore. included within the definition of `landlord". I do not agree with this contention of the appellant's counsel. No, doubt the provisions of Civil Procedure Code arc not applicable to the proceedings under the Rented Premises Ordinance, 1979, but the fundamental prin ciples of Civil Procedure Code govern the procedure before a Rent Controller in the absence of any specific provisions to the contrary order the said Ordinance. Reference in this connection may be made to .1983 C L C 1623 at page 1625 which reads as under :‑ "Although C. P. C. as a whole is not made applicable to the Rent proceedings yet, the broad principles contained therein, unless in conflict with the provisions of the Ordinance or otherwise are against the spirit of the Ordinance can usefully be pressed into service. In P L D 1976 S C 422 at page 429 it has been held. 'The Rent Controller' should be entitled, in the exercise of his dis cretion, to follow the equitable principles of the C. P. C." A minor landlord is not debarred from filling Rent Application under anyone of the provisions of the Rent Restriction Ordinance, 1959, or eve under the Sind Rented Premises Ordinance, 1979. When he does so he has not other option but to sue through a next friend. Hence there i nothing wrong in filing of the Rent Application by a minor through hi next friend. It was next contended by Mr., Kamaluddin, Advocate that the mother of the minors (who were the landlords) Mst. Amtulhaseen had not stepped into the witness‑box to give 'evidence. Hence burden of proof of the fact that the appellant was sub‑tenant which lay heavily on the respondents Nos. 1 and 2 was not discharged. I do not agree with this contention of Mr. Kamaluddin, as well. It was the appellant who claimed that he was inducted as sub‑tenant b AC respondent No. 3 with the permission of the landlords that is respondents Nos. 1 and

2. Since it was the appellant who was alleging the existence of a certain fact, that is, the expression of the consent by the respondents Nos. 1 and 2, it was his duty to prove the same and the onus heavily lay upon him to prove the same. The appellant had not stepped into the witness‑box to discharge the onus, therefore, there was ‑no corresponding duty upon the landlord to rebut the same. Mr. Andlib, Advocate for respondents Nos. 1 and 2 relied upon P L D 1985 S C 38 in that behalf. In this case the landlady had filed ejectment application on the ground of bona fide requirement of the premises for herself and her children. Neither the landlady nor her sons stepped into the witness‑box. Only her son‑in‑law was examined as a witness. The Rent Controller dismissed the application on the ground that as neither the landlady nor anyone of the children had, stepped into the witness box to give evidence, therefore, their bona fide personal requirement was not proved. It was held that this contention was not correct. It was not at all necessary for the landlord or her children in such a case, to step into the witness‑box. It was next contended by Mr. Kamaluddin, that the fact of transfer of the ownership had not been intimated by either the old landlord or the new transferee to the Court in time and the rent proceedings were con tinued by the old landlords in spite of the fact that they had ceased to be the owner. Hence the proceedings became void. In this connec tion it was pointed out that ejectment application was filed on 16‑7‑1977. Final order of ejectment was passed by the Controller on 3‑9‑1983. . The premises were sold on 30‑10‑1982. Hence from 30‑10‑1982. upto 9‑8‑1984, when the application was made for bringing of new owners on record, the proceedings were continued by respondents Nos. I and 2 who had ceased to be the owners, and landlords of the premises. With this contention of the appellant's counsel also I do not find myself in agreement. It is a settled law that where default has been committed by a tenant during the days of the previous landlords, such default subsists, for the benefit of the subsequent owner as well. Mr. Andlib, Advocate cited 1980 C L C 1223 in which landlord had sold the shop during the pendency of the ejectment application which was filed on the ground of sub‑leting amongst others. It was held that the purchaser cart continue the proceedings as the ground of subletting was not personal to the first owner. In another ruling reported in 1979 C L C 757, 'X' bought a shop from , Y'. While shop was still owned by Y the tenant had illegally sub‑let it to another person. After purchasing the shop 'X' filed ejectment application. It was held that the fact that had not filed ejectment application was meaningless. The right of filing application on the ground of subletting enures to the benefit of the new owner that is 'Y'. The next ruling which was cited on this point ' by the counsel for respondent was P I, D 1976 Kar.

53. In this case eject ment of tenant was sought on the ground of default in payment of rent. The tenant filed an appeal. The property was sold by the tenant during the pendency of appeal. It was held that the new landlord could step in the shoes and continue the appeal. In yet another ruling reported in P L D 1962 Dacca 600, the property was purchased by a new owner during the pendency of the suit. That suit continued in the name of the old owner. New owner filed an applica tion under Order 1, rule 10, C. P. C., read with Order XXII, rule 10, C. P. C. during the appeal. It was held that his having not filed appli cation during the pendency of the suit was immaterial. in the case under ruling the previous owner had died and the legal representatives were not brought on record during the period of 90 days. The other party contended that the appeal had abated. It was thereon that the new purchaser had made the above application. Another ruling reported in A I R 1946 Lah. 33, is also on similar limes. In A I R 1955 S C (Ind.) 376 the plaintiff had instituted a money suit against the defendant. During the pendency of the suit, the plaintiffs transferred all their debts and credits to 'X'. The suit continued in the name of original plaintiffs and was decreed. Latter on 'X' filed Execution Application. It was held that he was entitled to do so. Finally Mr. Andlib, Advocate took a preliminary objection to the maintainability of this appeal and relied upon P L D 1965 Lah. 20 a page

30. It was held therein that if a tenant does not appeal against the finding of unauthorised subletting the sublettee alone, cannot file an appeal. In the present case also Abdul Raouf is admittedly. sublettee. Respondent No. 3 who was the tenant has not filed any appeal against the order of the Rent Controller. Hence this app ca which has been filed by Abdul Raouf the sublettee alone , is incompetent. In view of the above discussion I am satisfied that the Rent Con troller was perfectly justified in ordering the ejectment of the appellant and respondent No.

4. Consequently, I uphold his order. I direct the appellant and respondent No. 4 to handover vacant ‑possession of the premises in dispute to the intervenor. The appellant is allowed to hand over the vacant possession within 4 months from the date of this order, while the respondent 4 who has not appealed from the order of the Rent Controller shall handover the vacant possession within 60 days from the date of this order. A. A. Appeal dismissed.