1980 PLP 154 (CLC)

4. Respondent No. 1-defendant contested the suit, inter alia, on the grounds that the suit was a dilatory tactic, it was collusive ; the civil Court had no jurisdiction to entertain the same ; and that the order of the Rent Controller could not be challenged in the civil Court.

5. On the divergent pleadings of the parties, six issues were framed by the trial Court. The only issue relevant for the purpose of the present controversy is issue No. 5 which is reproduced hereunder for facility of reference (5) Whether plaintiffs are not bound by the order of ejectment of Rent Controller dated 29th N1ay, 1972 ? O.P.P.

6. It would be pertinent to mention here that out of the four other issues two, inter alia, pertained to estoppel by conduct of the petitioners plaintiffs to file the suit and of lack of jurisdiction of the civil Court to adjudicate. upon it. Both these issues were decided against the respon dents-defendants by the learned trial Court and findings thereon were not challenged by the contesting respondent-defendant in appeal before the learned lower Appellate Court, and, thus, those findings attained finality.

7. The learned counsel for the petitioners contended Firstly, that the petitioners, on the demise of their predecessor-in interest, had become tenants in the shop in dispute jointly with respondent No. 2 as provided by section 2(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and that the order passed by the learned Rent Controller in proceedings wherein they were admittedly not made parties cannot operate adversely as against them. He elaborated his contention by submitting that the heirs of a tenant become joint tenants in a demised property irrespective of the position whether the premises was a residential house or a commercial one and no distinction in this regard could be drawn. In support of his above contention, the learned counsel placed reliance on Sheikh Muhammad Nawaz v. Muhammad Azeem and others P L D 1961 Lab. 788 and Fazal Ahmad v. Mst. Ramzan Bibi P L D 1975 Lah. 790 Secondly, that the order of ejectment passed by the learned Rent Controller could not bind the petitioners having admittedly been passed in their absence and was thus against the principles of natural justice.

8. On the contrary, the learned counsel for the contesting-respon dents submitted that since respondent No. 2 after the death of his father, the original tenant, carried on business in the shop in dispute and alone paid rent to respondent No. 1, he was the only person who could be treated as tenant. He also submitted that the present revision petition is not competent as the revision is only maintainable if the impugned judgment contravened the ingredients of section 115, C. P. C. Reliance was placed by the learned counsel in support of his second contention on N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (P L D 1949 P C 26).

9. The learned counsel also attempted to argue that the petitioners plaintifs were estopped by their conduct from filing the present suit as they were all along aware of the proceedings of ejectment initiated by respondent No. 1 against respondent No. 2 but kept quiet and did not get themselves impleaded as parties in the said proceedings and as such should be deemed to have waived their right to file the present suit. He submitted that the ejectment order was passed on 29th May, 1972, and the review application having been filed by the petitioners on the same date it should be taken that they all along knew about the ejectment proceedings.

10. The contention ."firstly" raised on behalf of the petitioners has great force. The term "tenant 'has been defined in section 2(i) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) and is reproduced hereunder for facility of reference :- "2(i).-'Tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes (a) tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of a deceased tenant, but does not include ...." On a true construction of the above provision it emerges that the term `tenant' for the purposes of the West Pakistan Urban Rent Restriction Ordinance, 1959, includes the wife and children of a deceased tenant. On the death of a tenant the wife and children of a deceased tenant, would, thus, be invested with the status of a `tenant' and obviously jointly. It may be observed that in Halsbury's Laws of England, Vol. 23, 3rd Edition, at page 661, under the heading "Devolution on death of tenant", it has been stated as under :-- "The interest of a tenant, whether for a term of years or from year to year, in the demised property, vests, upon his death. in his personal representatives." The tenancy of a demised premises is therefore, a heritable asset. It may also be pointed out that since neither the definition of the term 'tenant' as given in the Ordinance admits of any distinction about tenancy in! respect of a residential premises or a commercial premises nor any other provision therein envisages it, no distinction can be drawn in respect thereof as has been done by the first Appellate Court by stating the tenancy in the case of a shop will only devolve upon a person who after the death of the original tenant carried on business there unless, of court it had been proved on record that with the consent of the wife and all the children of the deceased tenant, a fresh tenancy in favour of one on them had been created.

11. I am fortified in my above view by Fazal Ahmad v. Mst. Ramzan Bibi (P L D 1975 Lah. 790) and Sheikh Muhammad Nawaz v. Muhammad Azim and others (P L D 1961 Lah. 788). In P L D 1961 Lab. 788 it was held that the default com mitted by a deceased tenant passed on to his heirs on his death as the term 'tenant' as defined by section 2(i) of the West Pakistan Urban Rent Restriction Ordinance includes his heirs and they succeed also to default of the deceased tenant. This case related to a commercial premises. If therefore the heirs of a deceased tenant are to succeed to a default they would naturally succeed to the tenancy as well.

12. As already pointed out above, the basis of the judgment impugned in this revision petition is that since the premises in dispute was a shop, the tenancy pertaining thereto devolved only on the heir who carried on business there. It was on this premises that the learned first Appellate Court attempted to distinguish the authority cited before him and reported as P L D 1975 Lah.

790. The distinction attempted to be drawn is misconceived as the definition of the term 'tenant' does not permit such an interpretation to be put on the cited authority. 13. 1t may also be worth pointing out here that the impugned judgment also suffers from misreading of the record. While referring to para. 3 of Exh. D. 3, which is the review application filed by the peti tioners before the learned Rent Controller, the first Appellate Court observed : "in para 3 thereof, they admitted that the business in the disputed shop was being run by respondent No. 2". Now, para 3 -of the said Exh. D. 3 reads as under :- 1t is therefore, manifest that the impugned judgment is based on misreading of record in that if the whole of the para conjuctively read it does not warrant drawing of an inference of such an admission as has been inferred by the first Appellate Court.

14. Adverting now, to the contention raised by the learned counsel for the contesting respondent in this regard, it may be pointed out that there is nothing on record to show that respondent No. 2 was carrying on business in the shop is dispute exclusively for his own self and to the exclusion of the petitioners-plaintiffs after the demise of the original tenant Mine Abdul Latif. The evidence of P. W. 2 and P. W. 3 as also that of D. W. 1 clearly tends to show that business in the shop in dispute was being carried on jointly by the petitioners and respondent No.

2. The document produced in this regard by the contesting-respondent himself, i. e. Exh. D. 3 also lends support to the position as has been discussed above while dealing with the impugned judgment in respect, of para. 3 of the document aforementioned.

15. Again, the contention of the learned counsel for the respondent that after the death of the original tenant the rent was being paid by respondent No. 2 and as such he was the only tenant is not well founded. The mere payment of rent by a co-tenant by itself does not establish that he is not paying it on behalf of the other co-tenants as well especially when there is nothing on record to show that the tenancy had been surrendered by the co-tenants in favour of one of them who was paying the rent. The own act of respondent No. 2 could not bind the petitioners.

16. The other contention raised on behalf of the petitioners as to the order being violative of the principles of natural justice is not really necessary to be adjudicated upon in the circumstances of this case. Suffice it to say that the .petitioners being not party to the proceedings any decision given therein binds them not.

17. It may be pointed out that the petitioners having been held tenants in the premises in dispute could not be evicted therefrom without having been afforded a reasonable opportunity of showing cause against the application for ejectment as provided by section 13(2) of the Ordi nance. Not to say of giving a reasonable opportunity of showing cause the petitioners were not even impleaded as party to the proceedings commenced on the basis of the application for ejectment which resulted in the order of eviction dated 29-5-1972.

18. Before parting with the case, it would be appropriate to deal with the contention raised on behalf of the contesting respondent that the revision is not maintainable. The contention apparently cannot be accepted. The provisions of section 115, C.P.C. inter alia, empower the Nigh Court to set aside any order passed by easy Court subordinate to it if it comes to the conclusion that the order hid been passed illegally, in excess of jurisdiction or with material irregularity. Now, as discussed above the impugned judgments of the trial Court and the first Appellate Court bad been passed without considering the effect of the provisions of section 2(i) as also of section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959, and thus, were illegal. The judgment of the first Appellate Court was also based on misreading of the record as pointed out above, and thus, suffered from material irregularity. These surely attracted the revisional jurisdiction of this Court and for reasons given above cannot be maintained.

19. In view of the foregoing discussion, this revision petition is accepted and judgments and decrees passed by the learned District Judge, Campbellpur and the learned Civil Judge First Class, Campbellpur dated 11-2-1978 and 21-7-1976 respectively are set aside. In the result the suit of the petitioners-plaintiffs shall stand decreed. There will., however, be no order as to costs. M. A. K Petition accepted,