P L D 1968 Lahore 20 (PLP)

K. E. CHAUHAN, J.‑

Haji Muhammad Yasin (hereinafter called the landlord) filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance Vl of 1959 (hereinafter called the Ordinance) for possession of the building in dispute by eviction of (i) Master Nur Muhammad, who was the main tenant, (ii) Muhammad Amin, (iii) Mehraj Din and (iv) Muhammad Shafi who were described as sub‑tenants. The case of the landlord was that the main tenant had illegally sublet the building in question to the aforesaid sub‑tenants without his permission and, therefore, the tenancy stood forfeited and all of them were thus liable to eviction. Another ground on which the eviction was demanded was that the landlord after having got sanctioned a plan for the reconstruction of the building in dispute wanted to reconstruct the same. The nature of the building was such that in it there were three shops, which had been sublet by the main tenant to the respective sub‑tenants. This application was resisted by all concerned. The sub‑tenants in their written statements admitted their sub‑tenancy under the main tenant but pleaded that the building had been sublet to them with the permission of the previous landlord. Objection was also taken to the misjoinder of parties and causes of action. On the pleadings of the parties, the learned Rent Controller framed the following issues. (In these issues the word petitioner refers to the landlord and the word respondent No. 1 to the head tenant and respon dents 2 to 4 are described as sub‑tenants). (1) Whether the application is bad for misjoinder of parties? (O. R.). (2) Whether the application is bad for misjoinder of causes of action? (O. R.) (3) Whether the petitioner intends to demolish the building for constructing a new one on the same site and has obtained the necessary sanction for the said construction? (O. P.) (4) Whether the respondent No. 1 has sublet the premises to respondents Nos. 2 to 4 with perior permission of the petitioner. (O. R.) (5) Relief. All the issues were decided in favour of the landlord and it was held that there was no defect in the application on account of any misjoinder of parties and causes of action. On Issue No. 3, it was held that the landlord did intend to demolish the a building for constructing a new one and had obtained the necessary sanction for the same. On Issue No. 4, it was held that the sub‑tenants had admitted in their written statements that they were the sub‑lessees of the main tenant. It was further held that they had not been able to prove that they had obtained the permission of any previous landlord as was alleged by them. The landlord had produced one of the previous landlords Karam Elahee by name as P. W. 2 and he gave a direct lie to the plea of the sub‑tenants. Holding that the sub‑tenants of the main tenant had entered into possession without the permission of the landlord the learned Rent Controller found that a case for their eviction had properly been made out. He, therefore, by means of his order, dated the 30th of June, 1966, directed the respondents to vacate the premises by delivering the possession to the landlord within a fortnight.

2. Against the aforesaid judgment and order of the learned Rent Controller, two appeals were taken, one by the main tenant Master Nur Muhammad and the other by two sub‑lessees Mehraj Din and Muhammad Amin. The third sub‑tenant Muhammad Shafi did not file any appeal. Both these appeals were dismissed by the learned Additional District Judge, Lahore, in his capacity as an Appellate Authority under the Ordinance on the 11th of January, 1967. The learned Additional District Judge maintained the findings of the learned Rent Controller on the point of sub‑tenancy and finding the same to be unauthorised dismissed the appeals.

3. At this stage, the main tenant Master Nur Muhammad also dropped out and only Mehraj Din and Muhammad Amin filed a second appeal in the High Court being S. A. A. No. 78 of 1967. This appeal came up for hearing before our learned brother Muhammad Iqbal J., which he was pleased to dismiss in limine, on the 28th of February 1967. Mehraj Din and Muhammad Amin have come up in Letters Patent Appeal against the judgment and order of our learned brother.

4. The first point, which the learned counsel for the appellants wanted to argue was that his clients were not sub‑tenants but were rather in adverse possession of the premises, and, as such, the Rent Controller could not order their eviction. Attention of the learned counsel was drawn to the following passages occurring in the judgment of the learned Single Judge:‑

2. It is contended by the learned counsel for the appellants that they were not the sub‑tenants of Noor Muhammad and that they were in adverse possession of the premises. He also contended that they could not be impleaded as co‑respondents in the ejectment proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance." "

3. So far as the first contention is concerned that the appellants were not the sub‑tenants and that they were in adverse possession of the premises, the matter was directly and substantially in issue before the learned Addition District Judge and he had held them to be the sub‑tenants of Noor Muhammad. He also held' that Noor Muhammad, the tenant of the respondent‑landlord, let out the premises without the permission of the landlord, I asked the learned counsel for the appellants if he could point out any error of procedure on the part of the lower Appellate Court to have arrived at this finding, but he frankly conceded that there was none." We asked the learned counsel in view of the frank concession which he made before the learned Single Judge that there was no error in the findings of the lower Appellate Court, as to how was he re‑agitating the same question before us. We further asked whether he could even now point out any error in the finding of the learned Additional District Judge especially when his clients had themselves admitted in their written‑statements that they were sub tenants under Master Nor Muhammad. When confronted with this situation, the learned counsel for the appellants did not argue this matter any further and submitted that he would argue his case after accepting the finding of the Courts below that his clients were sub‑tenants under Master Nur Muhammad without the permission of the landlord.

5. The second point argued by the learned counsel for the appellants was that according to the definition of tenant as contained in sub‑clause (1) of section 2 of the Ordinance, a sub‑lessee, who has been placed in occupation of a building or rented land by its tenant, without the consent in writing of the landlord, was not a tenant. The learned counsel argues that on the findings of the Courts below since the appellants were sub‑lessees, without the permission of the landlord, they did not fall within the category of tenants. Arguing in this way, the learned counsel submitted that under the Ordinance a Rent Controller can direct only a tenant to be evicted and he has no jurisdiction to pass an order against a person who is not a tenant. In this way, the learned counsel submitted that (a) the appellants could not be joined as co‑respondents in the ejectment application; because they were neither necessary nor proper parties and (b) that in any case, the learned Rent Controller had no jurisdiction to order their eviction. In order to determine the force of these contentions, it is necessary to examine as to what is the position and status of a sub‑tenant of the present kind i.e., a sub‑tenant who has been engrafted on the tenancy by the main tenant without the permission of the landlord.

6. It is a cardinal principle of law that when a decree is obtained by a decree‑holder for possession of immovable property then it can be executed against the defendant (hereinafter called the judgment‑debtor) or any person bound by the decree who refuses to vacate the property. This principle has a statutory recognition in the form of Order XXI, rule 35 of the Code of Civil Procedure (Act V of 1908). It is again well‑settled that a sub‑lessee or an under‑tenant is a person bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub‑lease was created before or after the suit, provided the eviction is based on a ground which determines the sub‑lease also. If authority be needed reference can be made to Sheikh Yusuf v. Jyotish Chandra Banerjee and others (A I R 1932 Cal. 241) where l J., sitting with Graham, J. held:‑-- "The words `any person bound by the decree' in Order XXI, rule 35 include the judgment‑debtor as well as any person who may be held under the law as bound by the decree." "A valid notice to quit not only determines the right of the original demise but any lease which the tenant might have made." "A decree in ejectment passed against a lessee at the instance of a lessor is not only binding upon the lessee, but also upon his sub‑tenants provided they have no right independent of the right of their lessor in the demised premises. The sub‑tenant is, therefore, liable to be evicted in execution of a decree under Order XXI, rule 35, and it is not necessary for the decree‑holder to proceed under Order XXI, rule 97." In Sailendra Nath Bhattacharjee v. Bijan Lai Chakravarty and others (A I R 1945 Cal. 283) where a good deal of case law was surveyed, after reference to elaborate legal literature both English and (the then) Indian on the subject, it was held that the sub‑lessee would be bound by the decree for possession against the lessee, although he was not made a party to the suit. A decree for possession obtained by a lessor against the lessee binds the sub‑lessee if the eviction is based on the ground which determines the under‑lease also unless he succeeds in showing that the judgment was vitiated by fraud or that the lessee collusively suffered the decree to be passed against him. While referring to the English law, Mukhorjea, J., who wrote the leading judgment wrote as follows:‑-- "In English law, the position seems to be this: If the plaintiff in an action for recovery of possession does not make all the persons in possession parties defendants and the Shariff in execution of the writ of possession turns out somebody who is in actual possession of the same, two questions would arise. If the person in occupation is a sub‑tenant under the defendant he would have no remedy against the plaintiff, as his interest would stand annulled with that of his lessor. But if he claims an independent interest in the property in his occupation which he can assert against the plaintiff, he has a right to be added a party to the suit and defend it under Order XII, rule 25 of the Rules of the Supreme Court." Reverting to the position in India, the learned Judge wrote:‑- "In our opinion, the proper way to 'approach the question would be to ascertain on principles of general law as to whether a sub‑lessee, who is not made a party to a suit for ejectment brought by the lessor against the lessee, can be said to be bound by the decree made therein. If he is so bound he would undoubtedly come within the purview of Order XXI, rule 35 Civil P. C. and the provisions of Order XXI, rules 98 and 99 Civil P. C. would not be attracted to such cases at all. Now, it is a settled principle of law that a judgment inter partes can bind only those who are parties or privies to it. In the law of estoppel, as Bigello points out, one person can become a privy to another: (i) by succeeding to the position of that other as regards the subject of the estoppel and (ii) by holding in sub ordination to that other. The ground of privity is property and not personal relation. If the interest of the lessee therefore, is determined in such a way that the interest of the sub‑lessee is extinguished along with it, a lawful judgment against the lessee which gives affect to the determination of the lessee's rights must of necessity extinguish the subordinate rights of the under‑tenant. In such cases, it is immaterial whether the interest of the under tenant began before or after the suit. In our opinion, therefore, a sub‑lessee would be bound by a decree for possession obtained by the lessor against the lessee if the eviction is based upon a ground which determines the under‑lease also, unless he succeeds in showing that the judgment was vitiated by fraud or that the lessee collusively suffered the decree to be passed against him.". These cases were approved by the Supreme Court of India in Shri Jagadguru Gurushiddzswami Guru Gangadharswami Murusavirmath v. The Dakshina Maharashtra Digambar Jain Sabha (AIR 1953 S C 514) where it was held:‑-- "It may be assumed as a proposition of law that a sub‑lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub‑lease was created before or after the suit provided the eviction is based on a ground which determines the sub‑lease also." To the same effect is Devaraja Bhatt v. V. S. Raja and others (A I R 1953 Mad. 356) and Parthasarathy and another v. Krishanarnoorthy and another (AIR 1949 Mad 356).

7. Having, therefore, seen that a sub‑tenant is a person bound by the decree against the main lessee, what remains to be examined is as to whether he can be joined as a party in an ejectment application before a Rent Controller and as to whether the Rent Controller can determine his status so as to bind him down with the decree and direct delivery of possession to the landlord by his removal from the building or the rented land involved in the case. This brings us to section 13(2) (ii) (a) of the Ordinance which so far as relevant, reads as follows:‑ "(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that,‑ (ii) The tenant has, without the written consent of the landlord,‑ (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof: the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application." A perusal of the above provision of law shows that a decision has to be recorded by the Rent Controller before passing an order for putting the landlord in possession that the tenant has sublet the building or the rented land. Since this issue directly concerns the B sub‑tenant, in our opinion, it is just fair and proper that he should be impleaded as a party by the landlord in the ejectment application. The reasons are manifold. Firstly, if he is not impleaded then complications are likely to arise subsequently, whereas if he is impleaded the matter will remain simple and convenient for all concerned. Secondly, if he is not impleaded in the main case, then during the course of execution proceedings, a difficulty will arise if he pleads that he is not bound by the decree, because he was not a party in the main case. Thirdly, in that situation, the executing Court will have still to determine as to whether he is bound by the decree or not within the meaning of Order XXI, rule 35, C. P. C. It means that when this issue will have to be decided and there can be no escape from it, it is better to get it adjudicated through a better procedure of the trial of the main case rather than the more summary proceedings of the execution. Fourthly, if the aim of the Ordinance is to provide a speedy and expedient remedy to the landlords than that purpose will better be achieved by impleading the alleged sub‑tenant in the main case rather than leave over this issue till a late stage of the c execution of the decree. Fifthly, according to the provisions of the Ordinance, where eviction is claimed on ground of illegal sub‑tenancy then a finding about the same will have to be recorded by the Rent Controller. If once this finding is recorded though in the absence of the sub‑tenant and the executing Court is again asked to go into the same, that will simply mean duplication of work, time and labour and at the same time embarrass the position of the executing Court as well in urging it to go beyond the finding of the trial Court and record a different note‑a task which even otherwise will be very difficult rather well‑nigh impossible to be achieved from the executing Court. For all these reasons and looked at from whatever point of view, the conclusion is inescapable that a sub‑lessee in such a situation is a proper party to be impleaded in an ejectment application. When he is so impleaded, the jurisdiction of the Rent Controller will not be ousted simply because the sub‑tenancy is unauthorised. Rather the unauthorised sub‑tenancy will give jurisdiction to the Rent 1 Controller to pass an order directing the landlord to be put in possession of the building or the rented land. Nor the argument that such an illegal sub‑lessee is not a tenant under the Ordinance, can affect on the jurisdiction of the Rent Controller; because though not a tenant, but still being a person bound or to be bound by the order of eviction against the main lessee the jurisdiction does not under go any impairment. The fact that a sub‑lessee is not a tenant within the meaning of the Ordinance, instead of helping such a sub‑lessee will go against him and he will not be eligible to claim such amenities which other tenants may have. This is but logical. The intention of the Ordinance could not be to bestow on unauthorised under‑lessee greater rights than available to the main lessee through whom he is engrafted on the building. The main lessee under the Ordinance cannot be evicted except under the strict conditions laid down therein. Once those conditions are fulfilled and the main lease is statutorily forfeited then the under‑tenures also lapse with the same. The under tenures in this way are really part of the main lease and instead of leaving the eviction order at the stage of the tenant, the Rent Controller will simply be amplifying it by saying that the tenant will be evicted along with his paraphernalia like the unauthorised under‑tenures. Looked at from another point of view if this finding, which has just been mentioned, is already otherwise involved and inherent in the eviction order, then there is no harm in making it clear and absolute in the presence of the sub‑lessee after joining him and hearing him as to what he has to say on the subject. The under‑tenures and sub‑leases thus are no new entities but being only an engraftment on the main lease have to stand or fall with it. Only in cases where sub‑leases are created by the permission in writing of the landlord, the sub‑lessees f acquire the status of an independent tenant. Otherwise, they are bound by such orders which may be passed against the main lessee. Similarly, they are not trespassers to the sense that they have any independent existence of their own so as to oust the jurisdiction of the Rent Controller. Rankin J., in D. E. D. J. Ezra, v. J. E. Gubbay (A I R 1920 Cal. 706) pointed towards the advisability of joining such persons as parties and wrote as follows:‑ "It is not absolutely necessary to join as defendants all persons in possession; in some circumstances it may be wrong and oppressive so to do: Green v. Herring (1905) 1 K B

152. The risk taken by omitting to join any such person is the risk that after decree he may set up a right to possession, independently of the lease which has become forfeited, whether by equity against the lessor or by other adverse title. This however is the extent of the risk and, apart from the Code, I should have no difficulty in enforcing this decree against Messrs Wallace, her estate or interest having come to an end with the forfeiture of the lease Minet v. Johnson (1891) 63 L. T. 507 and there being no title of evidence before me as to the action having been collusive." "There is nothing however in the least paradoxical in the suggestion that, in order to get an effective right to actual possession through the Shariff, a plaintiff must make all persons defendants who were in possession at the date of his suit. This used to be the law in England, and there may well be special reasons in favour of insisting on this rule in India." Then at page 708 Col. I it was held that:‑-- "The result is that, in my view, an action for possession based upon forfeiture of a term should, for practical reasons, be brought against all persons in possession (including constructive possession), which seems to be covered by rule 99 Manchanram v. Fakirchand (I L R (1901) Bom. 478) at the date of the suit: not that the suit is necessarily defective otherwise, but because the decree will be difficult to enforce under the Court." Same view was taken in Shankarrao Govindrao Naik v. Kisanlal Nogarmal and others (AIR 1950 M B 19) where it was held as follows :‑ "The appellant was in actual possession of the Cinemahouse. It is true that according to Yusuf v. Jyotis Chandra A I R (19) 1932 Cal. 241 (137 1 C 139), a decree passed against the lessor would have been binding on the sub‑lessee even if he had not been impleaded but at the same time even if the appellant was not a necessary party to the suit, it cannot be said that he was not a proper party as he was in actual possession and the plaintiffs were interested in evicting him." In the above case it was further held that since the main lessee did not appeal against the order of eviction, the decree became final and the sub‑lessee could not get rid of that decree, because he was bound by the same under Order XXI, rule 35, C. P. C . The facts of the present case are almost similar. Here also the main lessee did not come in second appeal against the order of the Additional District Judge With the result that the said order is accordingly binding on the sub‑lessees and can hardly help them out of the situation in which they were placed. In Ramkisrendas and another v. Binjraj Chowdhury and another (77 I C 910), the facts were that a landlord obtained a decree of eviction against his tenant. The sub‑tenant thereafter brought a suit for declaration that he was not bound by the decree as he was not a party in the previous case of the landlord. It was held that he was bound by the earlier decree and while examining the propriety of having impleaded the sub‑tenant in the earlier suit it was held that:‑ "It is convenient that actions for ejectment based on foreiture should be brought against all the parties interested in the premises, but the omission of the landlord to make every sub‑tenant a party to the action would not limit the landlord's right to execute the decree passed against those persons only who were parties to the decree." In Muhammad Ishaq v. Mst. Jamila Begum, and others (P L D 1955 Lah. 644), B. Z. Kaikaus J., examined the provisions of Order I, rule 3, C. P. C. for the purpose of seeing as to who are the persons who can be joined as defendants in a suit. The learned Judge held that:‑ "Even the binding of a person with a decision is of the nature of relief" and held that persons who are sought to be bound by a decision may properly be joined as defendants in a case for the purpose of an effective adjudication (as for example) of title. Similar was the view expressed in Alluri Venkata Narasimha Raju and another v. Katteboyina Yellamands and others (AIR 1960 A P 32) where it was held that:‑-- "The petitioner who claims under the first defendant would certainly be bound by the decision in the second appeal. He would, therefore, be a proper party to the second appeal. This view was taken by Old field, J., in Rajaratnam Iyer v. Kalasyasundaram Iyer 44 Mad. L J 322." Though the facts of the two cases mentioned above were different, yet they may well be pressed here for the principles which they have laid down. In Abba Ali Mahomed v. Mulraj Gupta and another (A I R 1947 Sind 163), it was held as follows:‑ "It is not in every case that a joinder of a sub‑tenant by the superior landlord must be regarded as unnecessary. It depends upon the nature of the relief sought against the lessee himself. In this case the lessee is dead, and his legal representative who is not in possession of the property in suit has been sued along with defendant."

2. It is obvious that if the landlord had not joined defen dant 2 he could not have obtained a decree for possession against the legal representative of defendant I, because admittedly he is not in possession. Defendant 2 is not liable for rents and mesne profits, and the question, therefore, of the landlord executing the decree against the sub‑tenant, namely, defendant 2 in this case would not have arisen. He would then have to file a suit for recovery of possession against defendant

2. To avoid multiplicity of suits the plaintiff in this case, in my opinion, rightly joined defendant 2 as a party for the purposes of a relief as to possession but not for the purposes of relief as to rent or mesne profits. "There is a passage in the judgment of Rupchand A. J. C. in Govindram Uttamchand v. Muhammad Hussain and others A I R 1925 Sind 296 which deals with the question of joinder of a sub‑tenant. Rupchand A. J. C. was of the opinion that a sub‑tenant could be joined. My finding accordingly on issue 11 is in the affirmative." The upshot of the above discussion is that there is no illegality in the order passed by the Rent Controller against the main tentant and the sub‑lessees (appellants) in the instant case. The sub‑lessees were proper parties in the case and are bound by the order passed against the main lessee. Moreover, the head‑tenant not having filed a second appeal in the High Court, the appeal of E the sub‑tenants was a futile effort and has therefore even otherwise to be dismissed for this reason as well. The appeal is dismissed in limine. A.H. Appeal dismissed.