1993 PLP 1042 (CLC)

(ii) that the ejectment proceedings were initiated by Abdul Ghafoor respondent No.3 in his own behalf and on behalf of Muhammad Yaqub as his attorney. The authority on the basis of which, respondent No.3 had initiated the ejectment proceedings of the petitioners on behalf of Muhammad Yaqub deceased in fact did not authorise him to file an application for ejectment. The ejectment proceedings before the Rent Controller were without authority and the orders passed thereon by respondents Nos.1 and 2 are also without jurisdiction, hence bad in law.

7. As against this, the learned counsel for the respondents argued that ejectment proceedings can be initiated by any one of the landlords and respondent No.3 is admittedly co‑sharer in the plot who rightly filed application seeking ejectment of the petitioners who were and are tenants of the plot in question. He further argued that during the lifetime of Muhammad Yaqub, he never objected that he was not interested in the ejectment of the petitioners from the plot in dispute. Therefore, the objection is too late which has no merit in it. He further argued that C.P.C. is not strictly applicable in proceedings conducted under the‑ Rent Restriction Act of 1986. The Rent Controller is an Administrative Tribunal and not a Court, therefore, the provisions of Order 22, C.P.C. are thus not applicable. The Rent Controller and Appellate Authority (District Judge), however, at any stage of the proceedings have the powers to expunge the name of a dead person and to substitute the name of his legal representatives. The learned counsel in this connection relied on 1984 CLC 1574, 1983 CLC 764 and PLD 1975 Lahore 1195.

8. In "Mst. Mariyyam and 3 others v. Abdur Rashid" (1984 CLC 1574), this question came under consideration in somewhat similar circumstances. In this case, the respondent filed an ejectment application on the ground of default, subletting, committing acts as are likely to impair materially the value or utility of the building and also on the grounds of personal use and occupation. The widow of the petitioner moved an application under Order I, Rule 10, C.P.C. contending therein that her husband Yusuf had died long ago. Therefore, the relationship of landlord and tenant was not in existence. The application moved for ejectment was therefore, in the circumstances of the case, not maintainable. However, the learned Rent Controller treated the intervener as opponent by his order dated 9th of October, 1983. After conclusion of the proceedings, the learned Rent Controller allowed the application. An appeal was preferred before the learned District Judge, Karachi which was also dismissed. The orders were assailed in second appeal before the High Court. The objection was taken that in application for ejectment the widow of tenant Yusuf was impleaded as contesting respondent by the consent of the parties whereas under law, it was the responsibility of the landlord to implead the legal representatives of deceased tenant as respondents. The Court observed at page 1574 as under:‑‑‑ "I am of the view that, such an application is not a nullity; the Court has the power at any stage to expunge the name of the person who is dead and also to substitute the name of the legal representatives. I am fortified in my conclusions reached as above by the principle laid down in the case of Seth Gordhandas Vishandas v. Rijhibai and others wherein it is observed as follows:‑‑ `If the plaintiff being ignorant of the death of Pamanmal joined him as a party to the suit, he was in no worse position than that in which he would have been had he failed to join Pamanmal if alive. He could at any time before the period of limitation for instituting the suit against Pamanmal join Pamanmal if he was alive and could likewise join the persons who succeeded to his estate if he was dead.' His contention is that the ejectment application against a dead person was a nullity in law. This plea is completely misconceived, and contrary to the facts on record. The heirs were brought on record in 1963 while the ejectment order was passed on 15th November, 1977. In view of what has gone above, I find no force in the plea of the learned counsel for the appellants that the order was passed against a dead person."

9. Again, in "Begum Ali AI‑Hashmi v. Mst. Amantul Shakoor and another" (1983 CLC 762), the question at issue arose in the following circumstances. An application for ejectment of the tenant was pending when one of the heirs of the deceased landlord moved an application praying therein that he may be added as .petitioner in the application. An objection was taken by the tenant to the effect that as landlord had died, the application on behalf of a dead person was a nullity in law. The application being incompetent be dismissed. In this case at page 764 while dismissing the petition, the proposition was answered as under:‑‑ "The contention of the learned counsel is misconceived. The definition of `landlord' as given in Sindh Rented Premises Ordinance, 1.979 is very wide and it includes every person who is for the time being entitled or authorized to receive rent of the premises. Respondent No.1 was brought on record by the Controller on the strength of a Succession Certificate granted in her favour by the District Judge, Karachi, holding her an heir of the deceased. No exception, therefore, could be taken to the order of Controller joining respondent No.1 as legal representative of the deceased". and further that:‑‑ "It is not disputed before us that Muhammad Jamil died issueless and is not survived by his parents or full brother or sister. Respondent No.1 is admitted to be a step‑sister of deceased Muhammad Jamil but it is urged that alongwith respondent No.1 there are two other step brothers of the deceased who are also entitled to inherit the property left behind by deceased Muhammad Jamil. This fact is not admitted by respondent No.1 but even if it be so, there is no doubt that respondent No.1 was one of the heirs of the deceased landlord Muhammad Jamil and in that capacity she was entitled to be joined in the case and prosecute the same."

10. Again, in "Rashid Ahmed and others v. Muhammad Arshad" (PLD 1975 Lah. 1195), the same proposition came under consideration in the following circumstances. One Chanan Din the predecessor‑in‑interest of the appellants filed an application for ejectment against respondent. On his death, the appellants applied for being impleaded as his legal representatives. The application was rejected by the Rent Controller on the ground that C.P.C. was not applicable. Therefore, Order 22, Rule 3, C.P.C. could not be pressed into service. He also dismissed the application for ejectment. The first appeal brought against this order was dismissed by the District Judge, Sahiwal. In second appeal, the proposition was answered in the following words:‑‑ "The provisions of Order XXII of the Code of Civil Procedure are thus not applicable and that being so the proceedings pending before the Rent Controller do not abate on the death of either the petitioner or the respondent. There is no provision in the Rent Restriction Ordinance to say that in the event of the death of the petitioner the petition shall abate or that it is liable to be dismissed. The order of the Rent Controller dismissing the petition on the ground that the petitioner had died, was therefore, not warranted by law."

11. Before 1986, the disputes between landlord and tenants in urban areas were resolved through provisions contained in Azad Jammu and Kashmir Rent Restriction Ordinance. However, in 1986, the Legislative Assembly of Azad Jammu and Kashmir enacted the Azad Jammu and Kashmir Rent Restriction Act (hereinafter to be called as the Act). In section 20 of the Act, certain provisions of the C.P.C. have been expressly made applicable. Section 20 being relevant is reproduced as under:‑‑ "20. (1) For the purposes of this Ordinance an Appellate Authority or a Controller appointed under this Ordinance shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908. (2) The Controller shall for the purpose of section 480 of the Code of Criminal Procedure, 1898, be deemed to be a Court." Except these provisions no other provision of the C.P.C. including Order 22 of the .C.P.C. has been made applicable. In this view of the matter, if legal representatives of the deceased petitioner Muhammad Yaqub were not impleaded in the line of petitioners, during the pendency of the ejectment proceedings before the Rent Controller, the petition has not abated. An application for ejectment can be dismissed for non‑prosecution. But in case of death of the petitioner, if the legal representatives or any one of them appears, the Court cannot refuse to continue with the proceedings of the application, because by operation of law, the rights vested in the legal representatives. It has not been laid down under the Act that in the event of death of either of the parties, if legal representatives were not brought on record within the stipulated period the petition shall abate and shall be liable to be dismissed. The Rent Controller can adopt any procedure which seems to him reasonable in the given circumstances. In the present case, respondent No.3 and Muhammad Yaqub deceased were arrayed as petitioners before the Rent Controller. Respondent No.3 was appearing before him and conducting the ejectment proceedings. Therefore, in the circumstances of the case, if the death of Muhammad Yaqub deceased was not brought into the notice of the Rent Controller and if his legal representatives were not brought on record, it had made no difference. .

12. In the light of what has been discussed in the foregoing paragraphs, no fault was committed by the Rent Controller or by the appellate Authority (District Judge), Mirpur while passing the impugned order. Under these circumstances, finding no force in this writ petition, the same stands dismissed with costs. AA./545/H.CA. Petition dismissed.