P L D 1961 (W (PLP)

"Appeal.‑(1) (a) Government may by a general or special order, by notification, confer on such District Judges as it thinks fit, the powers of appellate authorities for the purposes of this Ordinance, in such area, or in such classes of cases, as may be specified in the order. (b) Any party aggrieved by an order passed by the Controller may within thirty days from the date of such order prefer an appeal in writing to the appellate authority having jurisdiction. (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal. (3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller. (4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1), and if an appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final. Explanation.‑An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings. (5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question any Court of law by suit or otherwise, except as provided under this Ordinance." Learned counsel for the appellants urged that the reason why the appeal in this Court was not presented within the time fixed by section 15 was that the point whether the appeal lay to this Court or to the Court of the learned District Judge was shrouded in some difficulty. I have considered the various provisions of law relating to appeals against orders of Rent Controllers appointed under the West Pakistan Urban Rent Restriction Ordinance, 1959, and have arrived at the conclusion that the mistake committed by the learned counsel for the appellant in the present case could not be said to be so gross as to disentitle ‑ his clients from getting the benefit of section 5 of the Limitation Act for condon ing the delay in the presentation of the appeal. Consequently, I overrule the preliminary objection.

4. With regard to the merits of the appeal, the learned counsel for the appellant urged that as there was no provision in the West Pakistan Urban Rent Restriction Ordinance that a legal representative of a tenant against whom proceedings under the Ordinance had been lodged could be brought on the record, there was no power in the Rent Controller to implead the legal representatives of a tenant, who happened to die during the pendency of the proceedings. I cannot accept this argument because I am of the view that section 141, C. P. C., which is in the following terms :‑ The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction," has application to proceedings taken under the West Pakistan Urban Rent Restriction Ordinance, 1959. It will be noticed that the language used in this section is comprehensive. If, there fore, the proceedings before the Rent Controller are proceedings of a civil nature, this section could be invoked for regulating the procedure with regard to the trial of the application presented to the Rent Controller. If the contention of the learned counsel for the respondent be accepted, it will have to be held that the Rent Controller is not bound by any fixed rules of procedure and if that were so, there would be nothing in law to prevent a Rent) Controller from following any procedure that. he liked, with the result that different Rent Controllers would be following different forms of procedure and the result will be chaos. Section 141, C. P. C., has been applied to various kinds of proceedings of a civil nature, though the law under which those proceedings were taken did not specifically make section 141, C. P. C., applicable to those proceedings, I would, therefore, hold that the conten tion of the learned counsel for the appellants that if a tenant happened to die during the pendency of proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, the pro ceedings terminated and could not be continued by bringing his legal representatives on the record is without force.

5. The question that now arises is whether the legal represen tatives of Syed Fazal Haq could be brought on the record the present case. The grounds on which ejectment of 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 a tenant. I have held already that the provisions of the Code of Civil Procedure apply to proceedings under the West Pakistan Urban Rent Restriction Act, and the question to determine now is whether the legal representatives of Fazal Haq could be impleaded in his place. The law relating to what has to be done on the death of a party to a proceeding is contained in Order XXII of the Code of Civil Procedure. Rules 1, 2 and 4 of this Order read as follows :‑ Rule 1. "The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives". Rule 2.‑"Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants." Rule 4.‑(1) "Where one of two or more defendants dies and the right to sue does not survive against the surviving defend ant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal represen tative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appro priate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant." In the present case, Fazal Haq was not the only respondent to the application and, therefore rules 2 and 4 of Order XXII, C. P. C. will be applicable to the case and one has to see whether the right to sue survived against the remaining respondents and the legal representatives of Fazal Haq. It is clear that the default of Fazal Haq could not adversely affect the remaining respondents, and the question to determine, therefore, is whether it survived against the legal representatives of Fazal Haq. The default was made by Fazal Haq and though his heirs may be liable for the rent that may be found due from Fazal Haq to the extent of the property inherited by them from him, it is clear that the default committed by Fazal Haq could not be deemed to be the default of his legal representatives who, I may mention, I would be deemed to be tenants by reason of the definition of that expression given in clause (1) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is 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. The legal representatives of Fazal Haq have committed no default and, therefore, they cannot be ejected on the ground that they had committed a default which entailed ejectment and the defaults of the original respondent, namely, Fazal Haq, cannot, in my view, be used against his legal repre sentatives. It follows, therefore, that though in proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, the legal representatives of a dead tenant can be brought on the record because the Code of Civil Procedure governs the proceedings in matters of procedure, it is clear that if the original tenant had committed a default his legal representatives could not be ejected from the premises as if it was their default. For this reason, the order of the learned Rent Controller allowing the legal representatives of Fazal Haq to be brought on the record in his place cannot be sustained. I would, therefore, allow the appeal and vacate the order of the learned Rent Controller which is the subject of this appeal, but will pass no order as to costs. K. B. A. Appeal accepted.