P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This revision application is directed against the judgment of Sardar Allah Nawaz Khan, Fourth Sub-Judge, First Class, Karachi, dated 15th December 1956, whereby the opponent's suit under section 9 of the Specific Relief Act has been decreed. The applicant is the owner of shop No. S.B.-208/3 situated in Frere Street, Saddar Bazar, Karachi. This shop was let out originally to one Ghulam Muhammad. In April 1953 Khan Mustafa Khan is alleged to have come in possession of the property as a sub-tenant. On 11th March 1954 Khan Mustafa Khan, through a receipt, sold this shop to Sakhawat Hussain the opponent and till 7th April 1956 the last named gentleman was in possession of the property in dispute. On 8th August 1955 the opponent served the applicant with a notice and received a reply on 5th September 1955. This clearly shows that the applicant was aware that the opponent was in occupation of the shop. It further appears that the applicant filed an appli cation for ejectment, being Ejectment Application No. 440 of 1955 against Ghulam Muhammad under section 18 of the Karachi Small Causes Court Act and obtained an ex-parte ejectment order against him. In execution of this decree the applicant obtained possession of the property in dispute in the absence of the opponent on or about 7th April 1956 through the aid of the bailiffs of the Karachi Small Causes Court. On 10th April 1956, the opponent, who is a goldsmith, went to his shop and found the lock of some other person on it. The matter was reported to the Police and it was revealed that the applicant, without the knowledge of the opponent, got the lock of the opponent's shop opened and took possession of the shop through the aid of the Court. The opponent thereupon filed suit No. 5 of 1956 in the Court of the First Class Sub-Judge, Karachi under section 9 of the Specific Relief Act and obtained a decree for restoration of possession. Mr: Parial, the learned counsel for the applicant, has challenged this judgment inter alia on the ground that a suit under section 9 of the Specific Relief Act was not maintainable ; the opponent was claiming property through Ghulam Muhammad a tenant and therefore he should have filed an application under section 47 and in any case steps should have been taken under Order XXI, Rule 100, Civil P. C. It was urged that in view of these provisions a separate suit was barred. He also urged that the opponent was dis possessed in due course of law and the learned Judge was not justified in passing a decree under section 9 of the Specific Relief Act. The learned counsel further contended that the opponent was bound by the decree and was not protected from the ejectment order. He also maintained that relief under section 9 was of a discretionary nature and as the opponent was liable to be ejected even in a regular suit, the learned trial Judge should not have exercised his discretion in favour of the opponent. In support of his contention the learned counsel for the applicant has strenuously argued that the opponent was a sub-tenant of the applicant and was bound by the decree passed in the ejectment suit by the Karachi Small Causes Court and it was not at all necessary to implead him as a party as he was neither a necessary party nor a proper party. In support of this contention he has relied on a number of authorities including Suganchand Savaichand and others v. Motilal Durgaprasad and others (67 I C 130). Peruri Suryanarayanan v. W. L. Narasimha (A I R 1925 Bom. 415). Sheikh Yusuf v. Jyotish Chandra Banerjee and others (A I R 1932 Cal. 241), Thakur Dayal Singh and others v. Rai Promatha Nath Mitra and others (A I R 1936 Pat. 493), Mangaldas Girdhardas v. Govindlal Ishwarlal and another (A I R 1945 Bom. 237). Out of these authorities the decisions of the Bombay High Court are relevant to the present case as they are based on the Bombay Rent Restriction Acts of 1918 and 1939 which are in some respects on identical terms with the Karachi Rent Restriction Act of 1953. The other authorities viz. Sheikh Yusuf . v. Jyotish Chandra Banerjee, and others; (A I R.1932 Cal. 241) Sailendra Nath Bhattacharjee v. Bijan Lal Chakravarty and others (A I R 1945 Cal. 283) and Thakur Dayal Singh and others v. Rai Promatha Nath Mitra and others (A I R 1936 Pat 493) are under the ordinary law. In the last mentioned authority it was held that in a suit for ejectment by the landlord the original tenant, who was also a party, it was not necessary to implead the sub-tenant as a party to the suit and if a decree for ejectment had been passed against the tenant, then the transferees from such tenant are liable to be ejected under the decree. The principle of law enunciated in these authorities cannot be challenged as any person deriving title from a party is bound by the decree and under Order XXI, Rule 35 of the Civil Procedure Code such persons are liable to be evicted from the property in dispute. The difficulty, however, arises on account of the Rent Restriction Act, which has given protection to the tenants and which regulates the relationship between the landlords and the, tenants. The learned counsel for the applicant has therefore relied on the Bombay authorities in support of the conten tion. In Peruri Suryanarayanan v. W. L. Narasimha (A I R 1925 Bom. 415) it was held that :- " If a tenant sublets premises, he becomes a landlord with regard to his own tenant, but his tenant does not come in contact with the original landlord unless there has been an assignment by which the rights and liabilities of the original tenant have been transferred to his sub tenant, so that privity of contract arises between the landlord and the sub-tenant. Consequently the sub-tenant is only a tenant under the Rent Act with regard to his own immediate landlord, and when the owner of the premises seeks to evict his own tenant, he cannot be opposed by the person who has been put in possession without his consent by his tenant ". In A I R 1945 Bom. 237 a Full Bench of the Bombay High Court held :- " There is no statutory right or any other right which gives an under-tenant a title or right to intervene in proceedings between a superior landlord and his own landlord in order to seek relief against an order of forfeiture. -Hence in an ejectment suit by land lord against a tenant, the sub-tenant has no right to be joined as a party. If the sub-tenant has any legal right to remain in occupation of the premises by virtue of the Rent Restriction Act the time to raise that matter will be in the execution proceedings ". In Jafferji lbrahimji v. Miyandin Mangal (23 Bom. L R 1251) the Bombay High Court held :- " that although the defendants might be tenants with regard to their immediate lessor and so entitled to protection against him, there was nothing in the Bombay Rent Act to protect them against the landlord of the premises, with whom there was no privity of contract ". It will, however, be observed that in all these cases the sub-tenant was a party to the proceedings. In Peruri Suryanarayanan v. W. L. Narasimha (A I R 1925 Bom. 415) the sub-tenant was a party to the suit and he claimed protection under the Bombay Rent (War Restrictions) Act, 1918, but the Court negatived his contention. In Jaferji Ibrahimji v. Miyadin Mangal also the landlord obtained a decree against the other tenant, who obstructed and claimed protection under the Bombay Rent (War Restrictions) Act, 1918, and the learned Judge of the High Court held that he was not protected, and he could not claim any protection. In A I R 1945 Bom. 237 the sub-tenant wanted to become a party to the ejectment suit filed by the landlord against the tenant and the learned Judges held that the proper time to decide the claim of the sub-tenant would be when it was sought to eject him under the Act. Stone, C. J. in his concluding remark observed : " If the applicant has any legal right to remain in occupation of the premises by virtue of the Rent Restriction Act, on which I pronounce no opinion, the time to raise that matter will be in the execution proceedings ". Kania, J. observed, while considering the matter under Order I, Rule 10, : " It must be realised that the Court pronounces judgment between the parties who are impleaded, and the judgment does not affect other parties. If any decision is given which affects a third party, the same is clearly not binding on him unless the third party derives his title under one of the parties. That is an elementary principle of law which cannot be disputed. In the present case nothing is pointed out to support the contention that a decision between the parties to this suit will necessarily prejudice the applicant, without the applicant having any remedy at all. If the applicant has a right to remain in the premises, as against the superior landlord, either by virtue of a contract or a statutory right, be will have an opportunity to urge it before a judicial tribunal, when he is attempted to be evicted, after a decree is passed in favour of the superior landlord. Unless it can be established that his rights were likely to be prejudiced, I do not see how can be called a proper party ". Divatia, J. however, supported the decision taken in 27 Bom. L R 1938 and came to the conclusion " that the petitioner was not put in possession with the superior landlord's consent and therefore he is not a necessary party to the suit. These authorities are also distinguishable on the ground that neither under the Bombay Rent (War Restrictions) Act, 1918 nor under the Bombay Rent Res triction Act XVI of 1939 it was necessary for a landlord, before filing a suit for ejectment to obtain the certificate of the Rent Controller for the ejectment of his tenant. This is incumbent under section 10 of the Karachi Rent Res triction Act, 1954, except in those cases where the tenant is not ready and willing to pay the rent. These authorities are not therefore of much value for the decision of this case. It is true that the definition of " tenant " in the Bombay Rent Restriction Act is almost in identical terms as in the Karachi Rent Restriction Act, but that cannot, in my opinion, make these authorities conclusive on the point under consideration. At this stage I have also noted that in Punamchand Velraj and others v. Bombay Cloth Market Co. Ltd., (A I R 1943 Bom. 141) Beaumont, C. J. took a different view than those taken in the above-mentioned Bombay authorities. The learned Chief Justice of the Bombay High Court observed: " Generally speaking, a judge ought to follow a decision of a Court of co-ordinate jurisdiction as to the cons truction of an Act of the Legislature, but judges are not entitled " to legislate or to bind their successors to a construction of an Act, which the language plainly does not justify. It seems to me that Pratt, J. has completely ignored that part of the definition which includes a sub tenant, and I feel considerable doubt whether if it were necessary for me to decide the question, I ought to follow Mr. Justice Pratt's view. The extent of the defini tion is of very great importance, because the argument of the plaintiffs is that the fundamental principle of the Act is to protects tenants, and as the definition of " tenant " excludes, by reason of this decision, a sub-tenant, the Act protects tenants only, and pub-tenants are not entitled to any protection. The learned Judge has adopted that view, relying to some extent on decisions of English Courts under the English Rent Restriction Acts, which are not worded in terms identical with those of the Indian Acts. Under the English Act of 1923, sub-letting without the consent of the landlord took the premises out of the Act and, in my view, decisions on the English Acts are not of much help in construing the Indian Act. I would agree that the fundamental principle of the Rent Restriction Act is to protect persons in occupation of the class of premises which fall within the Act, and not to protect persons who are making profits by sub-letting such premises. But, in my opinion, there is no reason for supposing that the Legislature intended to protect only tenants, who hold from an intermediate landlord. The definitions of " landlord " and "tenant" and the terms of section 15 (1) (a) seem to me to preclude such an idea. However, for the purpose of my present judgment, I will assume that defendant 2 as sub-tenant is not entitled to object to an ejectment order. That point, however, is really immaterial : because I consider that defendant 1 has a perfectly good answer to the landlord's claim for possession, and defendant 2 will get the benefit of defendant 1's defence. " My learned brother Lari, J. in Ramzanali Premji Khoja v. Kassim Brother & Co., (P L D 1957 Kar. 224 at page 225), while considering the Sind Rent Restriction Act of 1947, came to the con clusion that a sub-tenant is a necessary party to the suit by a tenant and if a decree is obtained by a landlord against his tenant, then the sub-tenant should also be impleaded as a party. He was further of the opinion that if the sub-tenant was not impleaded as a party to the suit, then he was not bound by such decree and could not be evicted under that decree. The learned judge observed: " It has been argued by the learned counsel for the defendants that the plaintiff was not a necessary party to the suit and has relied on Jafferji Ibrahimji v. Miyadin Mangal and others (46 Bom. 526) and Sheikh Yousuf v. Jyotish Chandra Banerjee and others (35 C W N 1132). But these are the cases of a sub-tenant under a tenant who still continued to be a tenant. In this case the original tenant Kakubhai left for Bharat after having transferred the tenancy right in favour of the predecessor-in-interest of the plaintiff. In other words the original tenant surrendered his tenancy in favour of the predeces sor-in-interest of the plaintiff and the plaintiff or his predecessor-in-interest could not be regarded as mere sub-tenant. They i.e., plaintiff and his " prede cessor-in-interest were tenants within the meaning of Act X of 1947. It is admitted that the plaintiff was in actual physical possession of the premises at the time of the filing of Suit No. 217 of 1948. The question whether the plaintiff was a necessary party has to be determined in the light of the principles governing application of Order I, rule

3. The plaintiff claimed to be a tenant to the knowledge of the defendants and was actually in possession. He could not be ejected if he was a tenant within the meaning of Act X of 1947. His presence was therefore necessary to decide the question whether the defendants were entitled to possession of the premises. Reliance in this connection was placed by the learned counsel for the plaintiff on observation of the Honourable judges in case of Arunadoya Chakarbarty and others v. Muhammad Ali and others (1928 Cal. 138). Their Lordships observed: 'The principles governing the rule of joinder of defendants in an action for ejectment are mainly two ; first, if any of the persons in possession is left out, he remains in possession as not being affected by the decree, and the decree as one in ejectment and for possession becomes infructuous because the persons ejected as being bound by the decree 'can always come in under the person who remains in possession; and second, there is certain amount of risk involved in not making the persons in actual possession defendants, for, in execution of the decree, persons may happen to be turned out who may then bring actions against the plaintiff for wrongful dispossession not being bound by the decree.' I am in complete agreement with the above observations. The learned counsel for the defendants contended that the above principles did not apply in case of a tenancy. This is not so. Their Lordships in this case took note of such an objection and observed : ' there is no distinction in principle between the cases of trespassers and of tenants who claim to hold under a title, because all actions in ejectment proceed on the assumption that the plaintiff has title, and hence the right to possession, and that the defen dant has none.' I have come to the conclusion that in the, circumstances of this case the plaintiff who was in actual possession, claimed tenancy and was in fact a tenant within the meaning of Act X of 1947 was a necessary party. The defendants knew that the plaintiff was in possession and that Kakubhai whom they were suing had actually left for Bharat and must thank themselves for having obtained an infructuous decree," It appears to me that the provisions of section 10 of tae Karachi Rent Restriction Act have considerably changed the position and a landlord cannot bind the sub-tenant merely by obtaining a decree against his tenant, In the changed circum stances all the parties in occupation of the premises in dispute should be before the Court in order to pass a binding decree. In fact, under section 18 of the Karachi Small Causes Court Act, in my opinion, the person in occupation of the premises is a necessary party to the suit. Section 18 of the Karachi Small Causes Courts Act provides :- " When any person has had possession of any immovable property situate within. the local limits of the Court's jurisdiction and of which the annual rental value does not exceed two thousand, as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has deter mined or been withdrawn, and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property." The language of the section makes it very clear that if the landlord wants to evict the occupant of the property, who claims possession through a tenant, a suit can be filed and a decree can be obtained against him. The learned counsel for the opponent has drawn my attention to certain later Bombay decisions in support of his contention. In Importers and Manufacturers Ltd. v. Pheroze Framrose Taraporewala ((1953) 4 S C R 226) it was held :- " Although he (sub-tenant) is not a necessary party, he is a proper party in order that the questions whether the lease had been properly determined and the plaintiff is entitled to recover possession may be decided in his presence so that he may see that the landlord and the tenant do not collude, and to find whether he is entitled to any protection or not. In a suit between a landlord and a tenant, if the sub-tenant is made a party, the claim of such sub-tenant to claim protection of the Act is a claim or question arising out of the Act, and it can be raised and decided." In Suri Ltd. v. Phiroze Framji Taraporewala, (C R A No. 1119 of 1951 (Bom.)) Chagla, C. J. held :- " In a suit between a landlord and a tenant joinder of the sub-tenant who claimed protection of the Act is right under Order I, rule 3 of the Civil P. C. in order to decide all issues efficaciously." In P. K. Kripalani v. Mahibir Ram and another (53 Cr. L J 971). it was held :- " But if such sub-tenant or the person who derived title from the tenant is entitled to protection of this Act by being given by this Act an independent status of a tenant either under section 14 or section 5 (11) of this Act, such a person could be said to be in possession of the premises bona fide in his own -right and he could resist the execu tion proceedings under the provisions of Order XXI, rule 99 of the Civil P. C." ' The definition of "tenant" in section 2 (7) and the pro visions of section 10 of the Karachi Rent Restriction Act, in my opinion, clearly impose a duty on the landlord to implead the sub-tenant as a party to the suit, in order to obtain an effec tive decree against him. The recent decision of the Supreme Court of India supports this view and I consider that the view taken by my learned brother. Lari, J, is correct that if a sub-tenant has not been made a party and claims pro tection under the Rent Restriction Act, he is not bound by such decree and he cannot be evicted under that decree. This view is also consistent with the observations made in Sheikh Yousuf v, Jyotish Chandra Banerjee and others (A I R 1932 Cal. 241) and Salilendra Nath Bhattacharjee v. Bijan Lal Chakravarty and others (A I R 1945 Cal. 283), These two cases are, however, under the ordinary law, but even under the ordinary law the learned judges in A I R (1932) Cal. 241 observed :- " A decree in ejectment passed against a lessee at the instance of a lessor is not only binding upon the lessee, but also upon his sub-tenants provided they have no right independent of the right of their lessor in the demised premises. In A I R 1945 Cal. 283 at page 292 the learned Judges observed :- "In our opinion, therefore, a sub-lessee could be bound by a decree for possession obtained by the lessor against the lessee if the eviction is based upon a ground which determines the under-lease also, unless he succeeds in showing that the judgment was vitiated by fraud or that the lessee collusively suffered the decree to be passed against him. If, however, the decree for possession proceeds on a ground which does not by itself annul the sub-lease, the decree would not be binding on the sub-lessee nor could the sub-lessee be evict ed in execution of the decree if he had acquired a statutory right or protection, e.g. under the Bengal Tenancy Act which he could assert against the lessor. Within these limits, we think a sub-lessee could be held to be bound by a decree obtained against his lessor and when he is so bound he can undoubtedly be ousted in execution of the decree obtained against his lessor under Order XXI, rule 35, Civil P. C., though he was not made a party to the suit itself." The question, however, in this case is very doubtful whether the opponent is a sub-tenant or claims any title through the tenant of the applicant. The evidence on the record clearly establishes that Ghulam Muhammad the original tenant left as long back as 1953, and the oppo nent came in occupation of the premises in 1954, not through Ghulam Muhammad but through Mustafa Khan who, according to the applicant, was looking after the property of Ghulam Muhammad. There is no evidence on the record to show that Mustafa Khan was in any way convinected with Ghulam Muhammad or was an agent of Ghulam Muhammad. On this evidence the status of the opponent is merely that of a trespasser and under no circumstance the decree passed against Ghulam Muhammad can be treated as binding on him. The procedure adopted by the applicant in this case was certainly not proper. He was aware that the opponent was in occupation ; he also knew that Ghulam Muhammad was no longer at Karachi and would not contest the suit. He should have filed a suit and obtained the decree against the opponent. The possession taken by him under an ex-pane decree against Ghulam Muhammad was not justified and cannot be approved. I think, in circumstances, the opponent was perfectly justified to seek the protection of the Court for the restoration of the possession and to leave the applicant to file a regular suit for possession of the property so that the dispute between the parties may be determined by a judicial tribual. The contention raised by the learned counsel for the applicant that the only remedy open to the opponent was either to make an application under section 47, Civil P. C. or to file an application under Order XXI rule 100 Civil P. C. also holds no ground. I have already observed that it has not been established in these proceedings that the opponent derived any title from the tenant and, therefore, by no stretch of imagina tion he can be considered to be a representative of the judgment Debtor within the provisions of section

47. Civil P. C. Moreover, section 47 enjoins on the Court to treat such application as a regular suit to determine the dispute between the parties. The provision of the Karachi Small Causes Court Act, however, does not permit it. The pro cedure adopted in that Court is of a summary nature and in such circumstances the provisions of section 47, Civil P. C. cannot be invoked. The next contention of the learned counsel that an application under Order XXI, rule 100 Civil P. C. was the proper remedy is also devoid of all force. It is for the party aggrieved to decide whether he would make an application, under Order XXI, rule 100 or would file a suit under section 9 of the Specific Relief Act. He can even file a regular suit on the basis of title and claim possession of the property in dispute. These are alternative remedies and the aggrieved party is not prevented to adopt any course that he considers best in the circumstances of the case. If the aggrieved party has invoked the provisions of Order XXI, rule 100, then such order is conclusive between the parties as long as a suit under Order XXI, rule 103 is not filed in a Court of competent jurisdiction. The remedy provided under section 9 of the Specific Relief Act is an independent remedy and does not preclude the successful assertion of a possessory title in the ordinary way without recourse to the provisions of the Civil P. C. This view is supported by the decision of the Full the Calcutta High Court in Tamizuddin v. Ashrub Ali (I L R 31 Cal. 647). There the contention was that a person dispossessed was only entitled to file a suit under section 9, and if he filed a suit on the basis of title, then he could not avoid the period of limitation prescribed under section 9 of the Limitation Act. The learned Judges, on a reference, observed :- "The remedy indicated in section 9 of the Specific Relief Act is not the only remedy which the Legislature has pro vided for a non-occupancy raiyat, who has been dispossessed otherwise than in due course of Law." This view is also supported by the decisions in Rajai Singh and others v. Suraj Bali (A I R 1942 Oudh 179) and Anoopchand Revashander Metha v. Amerchand (A I R 1951 Mysore 101). The learned counsel for the applicant has relied on three cases viz. XV Calcutta Weekly Notes 956, Murlidhar and another v. Jainti Prasad arid others A I R (1932) All. 703 and A I R (1931) All. 205 these authorities are distinguishable. In XV Calcutta Weekly Notes the learned judges have given no reasoning and therefore 'L is difficult to appreciate how they came to the conclusion that where the burgadars of tenant were dispossesses: from their land in execution of a decree against the tenant to which the burgadars were not parties and which was obtained upon a false admission by the tenant himself, the dispossession was in due course of law within the meaning of section 9 of the Specific Relief Act. In A I R (1931) All. 205, the decree was passed by a Revenue Court and the contention was that the Civil Court had juris diction only to try the suit. The learned judge came to the conclusion that the Revenue Court had jurisdiction to pass a decree for ejectment against the sub-tenant. In AIR (1932) AII. 703, the position was also entirely different. In that case objections were filed under Order XXI, rule 100 which were dismissed and then a suit was filed under section 9 of the Specific Relief Act. A Division Bench of the Allahabad High Court came to the conclusion that under the provisions of Order XXI, rule 103 a suit under section 9 was barred and the only remedy open to the party aggrieved was to file a suit under Order XXI, rule

103. No one can dispute the principle of law enunciated in this authority. The learned Subordinate judge in this case approached the question correctly. He had only to consider whether the opponent was dispossessed within six months of the filing of the suit, not in due course of law. Having come to this conclusion, he was perfectly justified in passing a decree in favour of the opponent. I have not been able to discover any illegality in the order under revision and would therefore dismiss this application with costs. Dismissal of this revision or the decree of the Subordinate judge will not, however, preclude the applicant from tiling such other suits as may be necessary for the protection of his rights in respect of the property in suit. A. H. Petition dismissed.