P L D 1962 (W (PLP)

Iqbal Kazi for Appellant. Joshi for Respondent. Date of hearing : 27th February 1962. MASUD AHMAD, J.‑This is a Letters Patent Appeal against‑ the judgment of a Single Judge, who dismissed a Second Appeal filed by Abdullah Khan.

2. The brief facts are that the respondent, Seth Haridas Lalji, had let out his shop No. 1‑B, on Plot No‑20, R. C.

1. Ranchore Quarters, Karachi, to one Ayub Khan, who, after some time, transferred the assets of his shop to Abdullah Khan, appellant. It is also alleged that Ayub Khan had assigned the tenancy rights in favour of Abdullah Khan, but the correct ness of this allegation is not admitted by the opposite‑party. The respondent filed an application under section 10 of the Karachi Rent Restriction Act, 1953, in the Court of the Rent Controller for obtaining a certificate to enable him to have his tenant, Ayub Khan, evicted from the shop. The certificate asked for was granted on the ground that Ayub Khan had sub‑let the shop without permission of the landlord. After obtaining the certificate, the respondent filed a suit for ejectment against Ayub Khan, under section 18 of the Karachi Small Causes Court Act, 1929. Abdullah Khan was not made a party in that case, but he objected as an intervenor, and applied that he be made a party to the proceedings. His application was rejected, and the Court passed a decree for eviction of the tenant. Abdullah Khan then filed a suit, presumably, under section 24 of the Karachi Small Causes Court Act, 1929, to seek a declaration that he was an assignee of the tenancy rights of the shop in question, and, as such the decree of the Small Causes Court, was ineffective against him. His suit was dismissed, and so was his appeal. The Second Appeal filed by him in this Court was also dismissed, and hence this Letters Patent Appeal.

3. The learned Single Judge, after reviewing the evidence produced in the trial Court, came to the conclusion that Abdullah Khan appellant was not an "assignee absolute" of the tenancy rights of Ayub Khan, and that, in any case, the assignment of the tenancy rights amounted to a sub‑lease, and, hence, the landlord was entitled to obtain a decree for eviction of his tenant. The learned Single Judge also came to the conclusion that the certificate granted by the Rent Controller, under section 10 of the Karachi Rent Restriction Act, 1953, was final and conclusive, and that the validity of such a certificate could not be challenged by means of a separate suit. In Mohsin and Tahir v. Feroz Nana and another (P L D 1958 Kar, 32), D. B. of this Court held that the Karachi Rent Restriction Act, 1953, prohibited any sub‑lease or transfer absolute made by a tenant without permission of the landlord, and, as such, on this ground the Rent Controller can grant a certificate to the landlord for eviction of his tenant. A contrary view was taken by another D. B. of this Court in Mohammad Ibrahim Mamji v. Jolaluddin (I. A. No. 47 of 1950), the judgment of which has not yet been reported. It was held in this case that section 12 of the Sind Rent Restriction Act, 1947, did not prohibit assignment of tenancy rights, although sub‑letting of tenancy was prohibited by it. As the views expressed in this case are different from those expressed in Mohsin and Taher's case, we would have referred the present case to a larger Bench, but we find that this appeal is to be accepted on another ground and, therefore, it is unnecessary to refer this case to a larger Bench for resolving the conflict of views on the question as to A whether assignment of tenancy rights amounts to sub‑letting of tenancy or not.

4. As stated above, the appellant, Abdullah Khan, was not made a party in the suit filed by the respondent under section 18 of the Karachi Small Causes Court Act, 1929, and although he applied for being made a party as an intervenor, his applica tion was dismissed by the Court. The learned counsel for the appellant contended that a suit under section 18 of the Act has to be filed against a person in possession and not only against a tenant. As in the present case, admittedly, the appellant was in possession of the shop in dispute, and as he had not been made a party by the respondent, nor was he given an opportunity to show cause against the order of eviction of the tenant, the decree passed by the Small Causes Court is not binding on him, because it was passed in violation of the express provisions of section 18 of the Act.

5. A reference, in this connection, may be made to the case of Kassim Bros. & Co. v. Ramzan Ali (P L D 1959 Kar. 370) in which a D. B. of this Court, agreeing with the decision of one of us, held that in a suit under section 18 of the Karachi Small Causes Court Act, 1929, a person who claims possession through a tenant, must be made a party.

6. No doubt, the appellant was heard in support of his application for being made a party, but no opportunity to show cause against his eviction was granted to him, and hence, he cannot be held bound by the decree passed in that suit. The learned Single Judge has held that a certificate granted by the Rent Controller under section 10 of the Karachi Rent Restric tion Act, 1953, is final and conclusive and its validity cannot be challenged by the tenant in a separate suit. It is unnecessary, for the purpose of disposal of this appeal, to give any deter mination on this point, and even if it be assumed that the certi ficate granted by the Rent Controller is final and conclusive, that certificate would not validate the decree passed by the Court of Small Causes on the basis of the certificate, because of the non‑joinder of necessary parties. Whether that certificate is or is not final and conclusive, the fact remains that the decree passed on its basis is not binding on the appellant, and, hence, he was entitled to obtain the declaration asked for, in the suit filed by him under section 24 of the Karachi Small Causes Courtly Act, 1929.

7. We, therefore, accept this appeal, set aside the decree and judgment of the learned Single Judge, as well as those of the two Courts below, and decree the appellant's suit as prayed for. We, however, make no order as to costs. A.H. Appeal accepted.