1989 PLP 2375 (MLD)

The facts are that appellants filed rent case under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 against Muhammad Bashir and Rizvi in the year 1965. Before Rent Controller Syed Ali Imam Rizvi filed written statement. The rent application was decided in favour of the appellant/landlord by the Rent Controller on 20-8-1973. Respondent Syed Ali Imam Rizvi filed First. Rent Appeal before the District Judge, Karachi and the same was disposed of by Vth Additional District Judge by an order, dated 15th March, 1975. It was observed that Bashir has died his L.Rs. be impleaded as party. The case has remanded. Once again VIIIth Sr. Civil Judge and Rent Controller by an order, dated 20th February, 1983 struck of the defence of the respondents under section 16(2) of the Sind Rented Premises Ordinance, 1979 to which First Rent Appeal No. 267/83 was filed by respondent Syed Ali Imam Rizvi and this Court by an order dated 18-3-1984 remanded the case. The Rent Controller proceeded with the case and allowed the ejectment application of the appellant by an order, dated 21st May, 1984. Respondent Syed Ali Imam Rizvi once again filed First Rent Appeal No.641/84 in this Court, the same was dismissed in hmine by an order dated 12-9-1984. The appellant filed execution proceedings. In the meanwhile Mohammad Rouf filed an application under Order 22, rule 4, CPC Order 21, rule 100 read with section 151, CPC on 7-8-1985 before the, Rent Controller, the same was allowed and against that order this appeal has been filed. I have heard Mr. Shafaat Hussain for the appellant. It is contended that during last 20 years the legal heirs of Bashir did not appear and all the proceedings from time to time have been declared ex parte. It is submitted that Muhammad Rouf has filed the application impleading him as a party in only just to protect the proceedings in collusion with Syed Ali Imam Rizvi. He has referred to the cases reported in 1986 CLC 2858 submitted that legal heirs of Bashir are not in physical possession of the premises therefore they cannot be party in the proceedings. Respondent Mohammad Rouf is present. He has submitted that Syed Ali Imam Rizvi was friend of his father and rent case has been filed by the appellant/landlord in collusion with Syed Ali Imam Rizvi. He submitted that Syed Ali Imam Rizvi was paying rent and occupying the premises by way of fraud. Mohammad Rouf also presented an application on behalf of S. Ali Imam Rizvi for adjournment. However, Anwar Kamal s/o Syed Ali Imam Rizvi is also present and requested for adjournment. His request was declined on the simple ground that order passed by the Rent Controller is against Mohammad Rouf who was present and on the last date of hearing, the adjounment was granted to the legal heirs and following order was passed on 22-11-1988:- "Mohammad Shamim, Mohammad Naseem and cousin of Mohammad Rouf have appeared in person, and requested for time. By consent the matter is adjourned to n date in office. It has been made clear to the respondents that since the matter is old one they will not be allowed further adjournment. If they want to engage a counsel they should do it quite in time." This is an old case of 1965. The. Rent Controller from time to time by three orders allowed the rent applications to which appeals were filed in the Court of District Judge and twice in this Court and order has reached to the finality in the year 1984 when First Rent Appeal No. 641/84 of Syed Ali Imam Rizvi was dismissed in limine by this Court. It is an admitted position that Bashir died in 1972. Considering all these points it was observed by my brother Mr. Justice Nasir Aslam Zahid in IRA No. 267/83 as under:- It is further obvious that neither Mohammad Bashir, and in case he has died, nor any of his legal representatives has any interest in the premises in question. The dispute is now between the appellant and the respondent only. It is, therefore, not necessary to join the legal representatives of Mohammad Bashir as parties to the rent case:' It is therefore not necessary to join the legal representatives of Mohammad Bashir as party to the rent case. In the same order it was made clear that not more than one or two adjournments will be granted by the concerned Rent Controller and the case will be finalised before 31-5-1984". The Rent Controller concluded the rent case and announced the judgment on 21st May. 1984 and during the entire period no one appeared from the legal heirs of Basher who died in 1972. In FRA No. 641/84 while dismissing the appeal it was observed as under:- "If any event as the appellant is sub-tenant without the permission of the respondents Nos.1 to 3 and further as Mohammad Bashir has been held to have defaulted the appeal is dismissed in limine." It is regretted to note that in spite of these observations from this Court the Rent Controller was not able to conclude the execution proceeding and by ignoring the observation made in FRA No. 267/83 and allowing the application of the LRs. of Mohammad Bashir after about 14 years after the death of Bashir when legal heirs neither did appear as it is stated by Mohammad Rouf. For the reasons stated above the order of the Rent Controller dated 28-7-1986 is set aside and he is directed to decide the execution application within two months and should not grant adjournment to the parties. M.Y.H./K-105/K Case remanded.