P L D 1966 Supreme Court 182 (PLP)

Respondents Nos. 2 and 3: Ex parte. Date of hearing: 29th October 1964. CORNELIUS, C. J.‑This appeal by special leave arises out of proceedings commenced about five and a half years ago before a Rent Controller for eviction of tenants on three grounds, namely, (1) that they had defaulted in the payment of rent for five months, (2) that they had sublet the premises in part, and (3) that the landlord required the shop for his own purposes. Above the shop there was residential accommodation occupied by the prin cipal defendant, Sayyed Fazal‑e‑Haq, who with his son Muhammad Saleem ran a business known as Oriental Sports on the ground floor shop. These two persons were defendants in the case, and upon being summoned by the Rent Controller, the admission was made by Sayyed Fazal‑i‑Haq that there had been default in respect of rent, but only for three months. The other grounds for eviction wore traversed. The Rent Controller acting under the Ordinance, directed that rent for six months should be deposited by Sayyed Fazal‑i‑Haq and that thereafter until the decision of the case, the rent for each month should be deposited before the 5th day of the month following. There was default in compliance even with this order, for although deposit of six months' rent was made, there was default in payment of rent for two subsequent months, as ordered. On the 10th September 1959, the landlord applied that the defence of the tenants should be struck off for failure to pay rent for two months in due time. While this application was pending Sayyed Fazal‑i‑Haq died on the 26th October 1959, and two days later the landlord applied for his representatives to be brought on the record. On the 28th May 1960, another applica tion was made by the landlord for the defence to be struck off by reason of non‑payment of rent for September 1959, and late payment for the months of November and December 1959, and January 1960. On this account, on the 8th June 1960, the defence of Muhammad Saleem was struck off and at the same time the legal representatives of Sayyed Fazal‑i‑Haq were ordered to be brought on the record. An appeal was attempted before the District Judge, which was later taken before the High Court under section 15, subsection (4) of the Ordinance. It was heard by a learned Single Judge, who overruled an objection to the compe tence of the appeal on the ground of limitation, holding that there was sufficient reason for the grant of extension under section

5. The learned Judge overruled the plea put forward on behalf of the appellants, namely, five sons of Sayyed Fazal‑i‑Haq as well as Messrs Oriental Sports, that as the Ordinance contained no provi sion for impleading of legal representatives in such a case, the order of the Rent Controller was liable to be set aside. He held that as provided by section 141, C. P. C., the provisions of that Code relating to substitution of parties in civil cases were appli cable. The order of the learned Single Judge shows that account was not taken of one of the grounds upon which ejectment had been sought. In discussing the question whether the legal repre sentatives of Sayyed Fazal‑i‑Haq could be impleaded, the learned Judge stated the grounds in the following sentence:‑ "The grounds on which ejectment of Syed Fazal. Haq had been sought were that he had not paid rent for a number of months and that he had taken some other tenants in the shop which was in his occupation as tenant." This ignores the third ground, namely, that the landlord required the premises for his own use. As to the defaults of Sayyed Fazal‑I-Haq, the learned Single Judge, held that they could not "obviously" affect the remaining respondents, who could only be held liable for the rent that might have been due from Sayyed Fazal‑i‑Haq "to the extent of the property inherited by them from him," but his defaults could not be deemed to be their defaults to furnish grounds for ejecting them. He observed that it was‑ "hardly open to question that if the proceedings for ejectment had started after the death of Fazal Haq, his default could not have been availed of against his legal representatives who would have become tenants in his place.", Reiterating that the default of the original tenant could not be deemed to be the default of his legal representatives for their ejectment, the learned Single Judge set aside the order of the Rent Controller impleading the legal representatives. This order was reversed in appeal by a Division Bench of the same High Court in Letters Patent Appeal. The Division Bench held as follows:‑ "The death of the original tenant cannot obliterate the effect of the default which has conferred an advantage on the landlord. The default was not personal, for it was committed in respect of property, and since the children succeed to the tenancy, they succeed to the default also. We cannot accept the argument that a defaulter's death can efface the fact of the default." The learned Judges accepted the view that if the proceedings for ejectment had been started after the death of Sayyed Fazal‑i‑Haq, as against his legal representatives they could not have been based upon his default, giving the reason that the landlord would be deemed in such a case to have condoned the default during the balance of the lifetime of the tenant. But here the tenancy which the legal representatives took was "encumbered with litigation under section 13." They also took into consideration the third ground on which the petition for eviction was based, namely, the need of the landlord and expressed the view that this ground would be "as effective against the original tenant as against his representatives." There had also been an application by the land lord that the defence should be struck off because of default for a period long after the dearth of Sayyed Fazal‑i‑Haq, and for this reason also his legal representatives should be brought on the file. Special leave to appeal was granted by this Court, after refusals of a certificate by the Division Bench, to consider whether in the circumstances of the case default by the deceased Sayyed Fazal Haq was a ground upon which his legal representatives, as tenant could be evicted. Mr. Siraj‑ud‑Din appearing for the tenants has places: particular reliance upon an English decision, Tickner v. Clifton (1) (1929) 1 K B 207 in relation to the question upon which special leave to appeal was granted. In that case, it. was held that the daughter of the deceased tenant was not responsible for what had occurred before she became a statutory tenant on the death of her father. She could not be regarded as an equitable assignee of the tenure, but was statutory tenant in her own right. Mr. Siraj‑ud‑Din, however, agreed that there being other grounds, besides that of default in payment of rent committed by Sayyed Fazal‑i‑Haq, upon which ejectment was sought, and the legal representatives of Sayyed Fazal‑i‑Haq being proper persons to resist eviction on those grounds, they should be brought on the record of the Rent Controller and. the case should proceed. In the‑course of the appellate proceedings however, a decision had been given by the Division Bench which would operate to the detriment of the appellants, i.e., to the effect that the legal representatives were liable to eviction for default in payment of rent committed by Sayyed Fazal‑i‑Haq. He wished the Court to give a final decision on this point, on which the decision of the case before the Rent Controller might conceivably turn. The case from the English Court shows several features of difference on points of fact from the present case. Arrears of rent were due at the death of a tenant, who was succeeded in the tenancy by his daughter, she remaining in possession and becoming thereby a statutory tenant. The daughter paid rent regularly and the landlord received it, but without prejudice to his claim of 25.10 arrears of rent which were due from the father when he died. The daughter refusing to pay this amount later, the landlord had commenced proceedings for possession on the ground of such non‑payment as well as, for recovery of the amount of the arrears, and for mesne profits, i.e., the equivalent of rent. With respect to the forfeiture of the tenancy, the decision given was as quoted above, namely, that the daughter was not an equitable assignee of the tenancy, but a statutory tenant in her own right, and she could not be evicted for default committed by her father. Here, the position is clearly different inasmuch as the proceedings for eviction were started during the lifetime of Sayyed Fazal‑i‑Haq, on the ground of' default in payment of rent on his part. There was a further allegation also against Sayyed Fazal‑i‑Haq, via., that he had sublet the premises. As has been mentioned already, Sayyed Fazal‑i‑Haq had been served in the case, and had com plied with certain orders of the Court before he died. These circumstances are sufficient to show that there was a defect in the right which he could claim as a tenant, which had been made the subject of proceedings for termination of the tenancy against him and from the time when the proceedings were commenced the retention of the tenancy was subject to the result of these proceed ings. It was' not a case of the defects being noticed and made a ground for eviction upon or after the death of the tenant. The tenure which Sayyed Fazal‑i‑Haq enjoyed from the time when the proceedings were started against him was subject to the result of those proceedings and his legal representatives, who, under the law, were entitled to continue in occupation, held that tenancy subject to this defect. I find myself ‑ in complete agreement with the view expressed by the Division Bench on this point. Although the legal representatives could claim to be statutory tenants upon the death of Sayyed Fazal‑i‑Haq, yet their tenancy was not free from embarrassment, for litigation had already been commenced on the basis of defaults, sufficient in themselves, if found, to extin guish that right. Therefore, in my view, the legal representatives, if they wished to continue as tenants, were bound to undertake to establish that there was no default either in payment of rent, or by sub‑letting of the premises, by their deceased father Sayyed Fazal‑i‑Haq. Their presence in the litigation was therefore necessary. It was also necessary for the purpose of resisting the claim of the landlord that he required the premises for his own use, and that he (the landlord) was entitled to delivery of posses sion on that ground as well. For these reasons I would dismiss this appeal with costs. S. A. RAHMAN, J.‑I agree. FAZAL‑E‑AKBAR, J.‑I agree. HAMOODUR RAHMAN, J.‑I agree, B. Z. KAIKAUS, J.‑I am in agreement with my Lord the Chief Justice with respect to the conclusion reached and generally with the reasoning except for a matter which I want to clarify. To me it appears that the decision of the question as to whether a person is or is not to be impleaded as a legal representative of a deceased C defendant depends upon whether he derives his title from the deceased. The Division Bench of the High Court had in this case found that the children of the deceased were bound by the default committed by the deceased because if they succeeded to the tenancy of the deceased they succeeded to the default also. My Lord the Chief Justice has said "I find myself in complete agreement with the view expressed by the Division Bench on this point". This would mean that according to the view of my Lord the Chief Justice the children of the deceased derived title to the tenancy from the deceased. However, while distinguishing Tickner v. Clifton (1) (1929)K B 207 my Lord has used words which may read to the conclusion that the children are bound by the default of the father, because proceedings for ejectment had been filed during the lifetime of the father. I do not take those words to mean that if the proceedings had not been filed during the lifetime of the father the children would not be affected by the default. If the children derived their right from the father then they would be affected by the default committed by him even though proceedings for ejectment had not started in his lifetime. On the other hand if they do not derive their title from the father their right would not be affected by the fact that proceedings for ejectment had started against the father for in that case those proceedings would be proceedings against the father personally and would come to an end by his death. I have myself fully considered the question as to whether the children of the deceased derived their right from their father, with reference to the definition of "tenant" in the Rent Restriction Ordinance. I have come to the conclusion without any hesitation that they do derive their right from their father. I do not feel the need, however, of discussing this matter because of the concession made by learned counsel for the appellants. It has been conceded by learned counsel for the appellants that the children were properly brought on the record as legal representatives of the deceased with respect to grounds of ejectment other than default in the payment of rent. If in respect of other grounds it be admitted that the children are legal representatives of the deceased the implication is that they do derive their right from the deceased. Once this is accepted there can be no question that default of the deceased can be pleaded against them. I agree that this appeal be dismissed with costs. A. H. Appeal dismissed.