1989 PLP 4691 (MLD)

Tariq Ahmad for Appellant in F.R.A. No. 983 of 1988. Iftikhar Hussain in F.R.A. No. 995 of 1988. Date of hearing: 9th April, 1989. By this order the applications filed by the intervenors Nos. 1 to 13 for joining them as respondents in F.R.As. 963, 995, 983 and 984 of 1988 shall be disposed o Brief facts are that respondent No. 1 was the landlord and owner of Mehta Lodge on plot bearing No. 18 street. No. R-2, Abdullah Haroon Road, Karachi. It filed an application for ejectment under section 15 of the Sind Rented Premises Ordinance through its attorney Syed Riaz Ahmad against the appellant and respondents Nos. 1, 2, 3 and

4. It was alleged that respondents Nos. 2 to 4 became the tenant after the death of their predecessor-in-interest It was further alleged that respondent No. 2 has illegally sublet the premises to the appellant and respondents Nos. 5 to

8. The respondents denied the allegations that the premises was illegally sublet without the consent of respondent No.1. The factual position was explained at length and it is not necessary to dilate upon it for the purposes of this application. Suffice to say that during the pendency of the case respondent No. 1 sold the said property to the applicants through a registered sale decd dated 15-7-1988. After the sale deed was executed the applicants did not apply to be joined as party before the Controller and the ejectment application was continued by respondent No.

1. Respondent No. 1 compromised the matter with respondents Nos.2 to 4 who admitted that they have sublet the premises to appellant and respondents Nos. 5 to 8 without the permission of the landlord. In view of this statement they were ordered to be ejected, and consequently the sub tenants viz. respondents Nos. 5, 6 and 7 were also ordered to be ejected. Respondent No. 8 however had taken the plea that she acquired the right by adverse possession and in this regard she had filed a suit for declaration and injunction which is pending and therefore no ejectment order was passed against her. The appellants filed an appeal against the order of ejectment namely F.R-A. Nos. 963, 983, 984 and 995 of 1988. In all these appeals the appellants are different persons, but have been ejected on the ground that they are unauthorised sub-tenants of respondents Nos. 2 to

4. After the appeal had been tiled and admitted the applicants filed this application for being joined as patty in the appeal. This appellant and respondents Nos. 5 to 8 have vehemently opposed it and have filed their counter affidavits. I have heard Mr. S. Sharifuddin Pirzada for the applicants, Mr. Afsar Abidi in F.RA. No. 963 of 1988, Mr. Tariq Ahmad for appellant in F.R.A. 983 of 1988 and Mr. Iftikhar Hussain in F.R.A. 995 of 1988. Mr. S.Sharifuddin Pirzada, the learned counsel for the applicants, has contended that the applicants have purchased the property by a registered sale deed and have become lawful owner of the said property, therefore they are entitled to be joined as respondents in all these appeals. He has further contended that after sale the ejectment proceedings had not become infructous and they could be continued by the previous landlord for the benefit of the new purchasers who had acquired the right of the old landlord. Mr. Afsar Abidi the learned counsel for the appellant has contended that as application has not been made immediately after purchasing the property before the Controller, the application cannot be made now. Mr. Tariq Ahmed has contended that the applications should have been made within a period of 90 days or within a reasonable time and after sale of the disputed premises, the rent proceedings had abated. It was further contended that compromise was collusive and did not confer any right on the applicants to become a party in the proceedings. Mr. Iftikhar adopting these arguments further contended that no power of attorney was filed by applicants' attorney and they have no locus standi to be joined as respondents. So far the sale of the premises is concerned, there can be no dispute about it as a copy of the registered sale deed has been produced alongwith the rejoinder. The only question is whether the transferee has a right to continue with the ejectment proceeding. In this regard Mr. Pirzada has referred to 1984 C L C 1750 in which the following observation was made:-- "The question whether the default, if any, committed during the days of the previous landlord was available to the present appellant or not, has not been seriously pressed by the learned counsel for the respondent. Moreover Mr. Abdul Wahab has, in support of the argument that the default committed during the days of the previous landlord can be availed of by his successor i.e. the present appellant by virtue of section 8 of the Transfer of Property Act, 1882, relied on the case Adil Brothers Karachi v. Amin Art Press and others. In the above case, about the right of transferee to continue and prosecute an ejectment application riled byte the former landlord, the Court held as under:-- "Under section 8 of the Transfer of Property Act, 1882 transfer of property passes forthwith to the transferee all rights, title and interest which the transferor is then capable of passing in the property and the legal incidents thereof. In the sale-deed executed in the instant case, the landlord transferred all his rights, title, interest in the property to the appellant and also convenanted with the appellants-vendees that `henceforth the vendees shall be the rightful and absolute owners of the said property and shall peaceably and quietly hold, occupy and possess the same and enjoy all the rights, profits and benefits thereof without any let, claim, demand, denial, hindrance, interruption or eviction .... on the date of transfer, the order passed by the Rent Controller directing eviction of the tenants for the default committed by the latter existed in favour of the landlord which conferred rights, interest, benefit, and advantage on the latter to evict the respondent's tenants and obtain vacant possession of the premises. Default is committed in respect of premises and is not personal. Thus, when the landlord sold and transferred the building with all his rights, title, interest, benefits and advantages in respect thereof to the appellant, the benefit of the default conferring the right to elect also passed to the appellant under the sale deed as well as under the Transfer of Property Act as the Ordinance does not operate as a complete ouster of the principles underlying the Transfer of Property Act and is to be preferred only in case of inconsistency." In another case of Muhammad Ishaque v. Abdul Haq and 2 others it was clearly held by Ajmal Mian, J. of this Court that a person purchasing premises from the landlord during pendency, of an appeal succeeds to all the rights which have already accrued to the previous landlord and that the purchaser is entitled to prosecute rent application on the ground of the default which was available to the previous landlord. While coming to this conclusion, the learned Judge had also relied on the case of Adil Brothers referred to above. From the above observation it is clear that a transferee of the property can claim all rights, titles and interests in the property at the time of transfer which the transferor is capable of passing to the transferee and the transferee succeeds to the rights which had accrued on the transferor. The learned counsel for the applicants has also referred to 1987 S C M R 380 where similar question came up for consideration and it was observed as follows: "In support of this petition for leave to appeal from the judgment of the High Court we have heard Mr. Ali Akbar at some length. His main contention is that respondent No. 2 could have been impleaded as a party during the pendency of the proceedings before the Rent Controller and not in first appeal. As no application for joinder of respondent No. 2 was made before the passing of the final order by the Rent Controller, learned counsel contended that there was no power left in the Court to implead respondent No.2. The argument is without substance. Provisions of Order XXII, rule 10, C.P.C., are attracted when there is assignment, creation or devolution of any interest during the pendency of the suit, in which even such proceedings can be continued by or against the person to or upon whom such interest has come or devolved. To our mind the only important condition for attracting the aforesaid provisions is that such assignment, creation or devolution of interest should occur during the pendency of the suit. There is' no restriction in the aforesaid provisions that would prevent the appellate Court from invoking the aforesaid provisions. Indeed Order XXII, rule 11, C.P.C. makes the aforeasid provisions applicable to appeals. Even otherwise it appears that the provisions of Order XXII, rule 10, C.P.C., are permissible and enabling. Therefore, the person acquiring interest may be joined as a party with the leave of the Court. But he is under no such obligation to necessarily join the proceedings. The reason is that the mere devolution of interest of a party pending a suit or appeal, will not arrest the hearing of the suit which will continue between the original parties, and the person acquiring interest pendente lit will be bound by the decree. In any case under section 146, a person upon whom rights had devolved during the pendency of the proceedings m the original Court, can apply for permission to continue the appeal, even if, no application under Order XXII, rule 10, C.P.C., was made in the original Court." From the aforestated observation it is clear that by transfer of the property the pending proceedings are not affected or abated and if the transferee does not become a party to ejectment proceedings, then it is continued by the transferor for the benefit of the transferee unless it is shown clearly that contrary intention can be spelt out from the deed of transfer. In the present case the respondents have not been able to show from the transfer deed that the applicants are not entitled to the rights, claims, and privileges which the transferor was entitled to at the time of sale. Mr. Afsar Abidi has referred to a notice dated 31-7-1988 annexure R-2 to the rejoinder to show that the attorney of respondent No. 1 had issued notice to Nusrat Agencies to pay rent to the applicants but such notice was not issued to the appellant. In reply the learned counsel for the applicants has contended that the notices were issued to the tenants and not to the unauthorised sub-tenants. Mere issuance of notice to the tenants does not disentitle the applicants from filing this application. Having succeeded to the rights of the transferor they were entitled to claim rent from the tenants. Mr. Tariq has contended that immediately on registration of sale deed the applicants should have filed the application, but they have delayed it beyond 90 days from the date of sale and therefore, the application should be struck down. The learned counsel has not been able to show any provision of law under which the limitation of 90 days has been provided for an application filed under Order 22 rule 10 C.P.C. The limitation referred by the learned counsel is in respect of application under Order 22 rule

4. Order 22 rule 4 is completely different from Order 22 rule 10 C.P.C., which deals with situation where a party acquires right of ownership by assignment, creation or devolution of any interest during the pendency of a suit, for an application under Order 22 rule 10 C.P.C. period of limitation as contended by Mr. Tariq has not been provided. The case of assignment is completely different from the case where a person acquires right due to the death of his predecessor. So far as the objection regarding filing of the power-of-attorney is concerned, it has been pointed out that the power-of -attorney is a registered one and has been riled with application for ejectment. For these reasons the application is granted. The amended memo of appeal should be filed within two weeks. H.B.T,/M-948/K Application granted.