1988 PLP 2348 (CLC)

First Rent Appeal No.947 of 1986, decided on 31st May, 1988 ‑‑Ss. 15 & 21(1)‑‑Ejectment proceedings‑‑Landlord clearly describing himself as co‑owner of disputed premises in ejectment application died during pendency of case and his legal heirs filed application before Rent Controller for joining them in place of deceased landlord‑‑One of co‑owners of premises who was not joined as applicant also filed his affidavit of evidence stating that he was co‑owner of premises‑‑Rent Controller. without deciding application of legal heirs of deceased for joining them as party, dismissed ejectment application wrongly holding that it was filed by deceased without joining co‑owner‑‑Held, it was duty of Rent Controller to have first joined legal heirs off`‑deceased applicant before proceeding with matter particularly when application in that regard was pending before him‑‑Appellate Court set aside order of Rent Controller and remanded case for re‑trial according to law. Shafaat Hussain for Appellants. Date of hearing: 31st May, 1988 During the pendency of the ejectment application Ghulam Abbas Monpuri died. The appellants filed an application on 16‑4‑1986 stating that the appellants Nos. 1, 2 and 3 are the co‑owner of the disputed premises and the appellants Nos. 4 to 7 are the legal heirs of Ghulam Abbas Monpuri and therefore they may be joined in place of Ghulam Abbas Monpuri. Notice of this application was issued by the Controller for hearing on 23‑4‑1986 but as the respondent remained unserved the appellant filed an application on 7‑7‑1986 for serving the respondent through substituted service by publication. The order was passed on the same day which is on the reverse side of the application whereby it was granted and notice was ordered to be published for hearing on 28‑7‑1986. This application is at page 39 of part 2 of the file of the Controller. After the publication was received on 28‑7‑1986 service was held good. As the respondents were not present the Controller ordered for proceeding with the case ex parte and fixed it on 12‑8‑1986 for filing affidavit of the appellant. It may be pointed out that the publication made in the newspaper was in respect of ejectment application filed under section 15 of the Sind Rented Premises Ordinance and not the application under Section 151, C.P.C. filed for joining the appellants as party. This mistake cropped up in the proceedings from 28‑7‑1986 and continued without being noticed either by the appellants' Advocate or the Controller. The appellant No.1 without being joined as an applicant filed his affidavit of evidence stating that he is a co‑owner of the property.. The learned Controller dismissed the ejectment application holding that it was filed by Ghulam Abbas Monpuri as the owner of the premises but Karim Bhai who had filed the affidavit of evidence also claims to be the co‑owner therefore in view of the contradiction the application for ejectment was not maintainable‑ It is pertinent to mention that no order had been passed on application under section 151, C.P. C . and the appellants had not been joined as party till the final disposal of the ejectment application. The learned Controller therefore fell in error by superfluously examining affidavit of evidence without even realising that it was filed by a person who was claiming to be a co‑owner and had already filed an application for being joined as an applicant. Even in the title of the application Ghulam Abbas Monpuri had described himself, as a co‑owner. However, in para 1 of the application he had described himself as owner/landlord of the tenement) therefore the misdiscretion and careless pleading created further, confusion. From the above facts it is clear that the Controller was! not justified in dismissing ejectment application because if they application under section 151, C.P.C. had been decided perhaps the confusion would have been cleared. It was the duty of the Controller to have first joined the legal heirs of the applicant and then proceeded with the matter particularly as an application in that regard ‑was pending before him. I, therefore, set aside the order of the Controllers and remand the case for re‑trial according to law. H.B.T/K‑107/K?????????????????????????????????????????????????????????????????????????????????? Case remanded.