2023 PLP 380 (MLD)

KAUSAR SULTANA HUSSAIN, J.

Through instant Constitution Petition, the petitioner has impugned orders and eviction proceedings dated 05.12.2019 and 05.03.2020 respectively, passed by learned VIIth Rent Controller/Senior Civil Judge Karachi (South)/ Respondent No.1, in Rent Case No, 1160 of 2017, whereby an application under Order I, Rule 10, C.P.C. and another application under section 114, C.P.C., both filed by the petitioner/intervener had been disposed of/dismissed.

2. The necessary facts spelt out from instant petition are that respondent No, 2/applicant Saleem Ahmed Tariq (Since deceased) filed a Rent Case against one Muhammad Adnan as opponent/tenant under section 15 of Sindh Rented Premises Ordinance, 1979 on the ground that he is lawful owner of shop Nos. 1 and 2 admeasuring 5 x 8 and 5 x 5 Square Feet, situated at ground floor, plot. No. BR-5/18, 1-D/74, (G-2 and G-4), Tower Market, Laxmi Das Street, Off M.A. Jinnah Road, Marie Weather Tower, Karachi and the opponent Muhammad Adnan is tenant in respect of aforesaid shops on monthly rent of Rs.1600/- payable in advance of each calendar month excluding other taxes charges and utility bills.

3. Upon institution of the said Eviction Proceedings, the Petitioner Mahmood Andha was served with the notice and summons thereof as according to the Petitioner he is in possession of the tenement and in order to defend his lawful possession as a tenant of the tenement, he filed an application under Order I, Rule 10, C.P.C. seeking impletion as a party thereto on the ground that he is actual tenant of the tenement and is therefore, a necessary and proper party thereto and submits that he was inducted into shops in question, as tenant in the year 1971 by Ahmed and he known Iqbal Ahmed as the landlord and the Rent Collector of the tenement. From the time of his induction into the tenement, he has been making payments of monthly rent to said Iqbal Ahmed directly and at occasions through his nominated Rent Collector and he has not defaulted towards his contractual obligations owned to Iqbal Ahmed, insofar as the tenement is concerned.

4. The respondent No.2/applicant Saleem Ahmed Tariq has denied the claim of the petitioner/intervener and further submitted in his Counter Affidavit that the petitioner/intervener has failed to prove his legal status to be impleaded as opponent in his Rent Case as the tenant/opponent has already been debarred from filing his Written Statement in the Rent Case.

5. The petitioner/intervener Mahmood Andha through filing his affidavit in rejoinder reiterated the contents of his affidavit and further corroborated his claim that in-fact he is in occupation of the demised premises as tenant since 1971 and is regularly paying rent to its actual landlord. Per petitioner/intervener the opponent Muhammad Adnan has no concerned with the demised premises.

6. The learned counsel for the petitioner/intervener in his arguments has emphasized on the point that the petitioner/intervener was/is and always remained in possession of the tenement and eviction proceedings have been wrongly initiated by the respondent No.2/ applicant in the name of Mohammad Adnan, while he has no nexus with the tenement. He further argued that the learned Rent Controller without analyzing and appreciating the circumstances of the eviction proceedings individually dismissed his application filed under Order I, Rule 10, C.P.C., vide order dated 5,12.2019 and when in order to seek rectification the petitioner/intervener had moved an application under section 114 read with section 141 of the C.P.C. for review of the order dated 5,12.2019, the learned Rent Controller had also dismissed the said application for review. He prayed that keeping in view the circumstances of the case the impugned orders dated 5.12.2019 and 05.03.2020 may be set aside and he may be allowed to be impleaded as respondent No.2 with providing opportunity to prove his case before the learned Rent Controller.

7. On the contrary, the learned counsel appearing on behalf of the respondent No. 2/applicant/landlord has argued that the petitioner/ intervener could not prove his alleged status of tenant of the demised premises and in fact he is illegal occupant of the demised premises therefore, against illegal occupant Rent proceedings cannot be initiated even he cannot be impleaded in the Rent Case as party. He prayed for dismissal of the instant Constitution Petition filed by the petitioner/ intervener.

8. After hearing arguments of both the side and perusal of the record, I am of the view that in instant matter admittedly the petitioner/intervener is in occupation of the demised premises and claims his tenancy with another landlord, who per petitioner/intervener inducted him as tenant in the demised premises and also was receiving rent from him. It is very astonish that when the Respondent No.2/applicant has admitted his occupation over the demises premises then why he has opposed to be impleaded, him as opponent under Order I, Rule 10, C.P.C. It is conducive for administration of justice that all parties having interest in the property should be before the Court and heard to defend their rights. The petitioner/intervener is claiming, his possession over the demised premises as tenant, therefore, Rent Controller has jurisdiction in order to decide existence of relationship between the petitioner-and respondent No.2 as tenant and landlord only if the Rent Controller is to decide that the petitioner is the tenant of the respondent No.2 or he is not the tenant of the respondent No.2, in other way on merits his matter should be decided. It is settled principle of law that in case of special laws the procedure, prescribed in the Civil Procedure Code can be applicable only where the Act does not provide for that procedure. The Sindh Rented Premises Ordinance, 1979 is a special law and it has not been provided procedure to implead necessary parties in the Rent Case, however; if Rent Controller found any party as necessary to join as applicant or opponent in order to decide the matter on merits, he can do it as the procedure provided under Order I, Rule 10, C.P.C. can also be applicable in Rent Cases to that extent. I, therefore, allow this Petition and set aside the impugned orders dated 05.12.2019 and 05.03.2020 respectively passed by the Court below with direction to the learned Rent Controller to do the needful and decide this matter on merits after impleading him as opponent No.2.

9. These are the reasons of my order passed on 17.02.2021. SA/M-18/Sindh Petition allowed.