1989 PLP 1354 (CLC)

Syed Muhammad Shah alias Mahmo and 3 others v. Messrs Karimji Ibrahimji & Sons and another 1986 M L D 1773 ref. B.M. Bangesh for Appellant. Sardar Maieed Khan for Respondent No.l. Nemo for Respondent No.

2. Date of hearing: 19th March, 1989. . This appeal has been filed against the order o#` the learned VI Rent Controller, South, Karachi, rejecting the appellant's application under section 12(2) read with section 151 C.P.C. and Order I, rule 10 C.P.C. The facts of the case are that the present respondent No.l had filed the Rent Case No.1183/1986 against the respondent No.2 for ejectment on the grounds of default, personal requirement, etc. The application was allowed ex parte and the ejectment of the respondent No.2 was ordered. The execution application was filed. However, subsequently, on an application moved by respondent No.2 under section 12(2) C.P.C., read with section 151, C.P.C., the said ex parte order of ejectment was set aside and the case was ordered to proceed according to law which is pending before the Court of the Rent Controller. The present appellant also, during the pendency of the execution application moved the above said application which was rejected by the learned Rent Controller on the ground that the co‑owner cannot be joined as opponent in the rent case and. it is this order which has been challenged in the present appeal.

2. I have heard the learned counsel for the appellant and respondent No.l, while none has appeared for respondent No.2. The first objection that was raised is with regard to the maintainability of the present appeal, as Mr. Sardar Abdul Majeed Khan, who is appearing for the respondent No.l, has contended that the impugned order being an interlocutory order, the first appeal could not be filed. Meeting the above objection, Mr. B.M. Bangesh, learned counsel for the appellant, has placed reliance on the case of Muhammad Mobin Siddiqui v. Mst. Shahzadi Begum and 2 others 1982 SCMR 233, wherein their Lordships have observed as under:‑ "

7. This argument has no force because after the decision of the preliminary issue holding that Mobin Siddiqui was not a tenant under Mst. Shahzadi Begum, he was no longer a party to the case. If he, at all, wished to contest the matter further, he should have filed an appeal against the aforementioned order of the Rent Controller dated 31‑5‑1978 because as far as he was concerned that was the final order in this case. Not having done so he was not entitled now to file an appeal against the order of ejectment before the Additional District Judge and the High Court, as he was not a party to the case in which that order was passed." From this, Mr. B.M. Bangesh, has contended that since for the purpose of the present appellant who was intervenor in the lower Court, the case has been finally closed, he can file an appeal. He has taken me through the various relevant dates which show that the rent case was filed on 31‑8‑1986 which was decreed on 19‑10 1987. This ex parte decree was set aside on the application of present respondent No.2 on 4‑4‑1988 during the pendency of the execution application, whereas, the present impugned order was passed on 5‑4‑1988 rejecting the application of the present appellant for joinder as opponent in the rent case. The effect of the impugned order, therefore, is that the present appellant is shut out from participating in the proceedings of the rent and, therefore, he is entitled to file the present appeal. In view of the above decision of the Hon'ble Supreme Court I am inclined to hold that the present appeal is maintainable.

3. The next contention of Mr. B.M. Bangesh is that the present appellants are owners of the premises in dispute i.e. Zainab Market and they claiming the interest in the property are the necessary party to the proceedings and the Rent Controller ought to have joined them in the proceedings. He has placed reliance on the case of Allah Bakhio v. Khushmir Khan and 4 others 1986 CLC 1828. No doubt it is an established law that any person who claims interest in the property whose presence in the proceedings is necessary for complete adjudication. of the matter is a necessary party but in the present case the facts are somewhat different. It would be necessary to point out that the present' appellant in his application had made a prayer to be joined as opponent, whereas they are claiming to be the owners/landlords of the demised premises. In the facts and grounds as mentioned by Sirajuddin the alleged Managing Director of the B appellant in his affidavit has not made any grievance or shown any cause of action against the present respondent No.2 who is the opponent in the rent case. If the appellant claims to be the co‑owner of the property or even exclusive owner of the property in dispute then he at the most could be joined as co‑applicant or substituted as applicant but not as an opponent as prayed for by him. I am therefore, in agreement with the order of the Rent Controller that the appellant could not have been joined as opponent in the rent case as prayed for by him. It would be necessary here to give a little background of the facts. It appears that the present appellant and respondent No.l are both partners in certain properties and commercial associations and that a civil suit has‑already been filed by the present respondent No.l and his wife against the present appellant and one Rafiuddin being Civil Suit No373/1985, wherein it is claimed by the present respondent No.l that he and other persons including the present appellant are associates of an association of persons known as "Sirajuddin Paracha and others" which fact has not been denied but in the counter‑affidavit filed in said suit by the present appellant, he has admitted that the present respondent No.l and his wife have certain shares in the properties held by them. From this it is obvious that the appellant and the present respondent No.l who appear to be brothers have estranged relations and have quarrel over properties and are fighting for their rights in the civil suit. However, as far as the present rent application is concerned, the same has been filed by the respondent No.l who appears to fall within the definition of the landlord as given in section 2(f) which reads as under:‑ "(f) `landlord' means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises."

4. Mr. Sardar Abdul Majeed Khan, learned counsel for the respondent No.l has referred to the rent receipt filed alongwith the rent application by the present respondent No.l. The heading of this application shows Mehboob Bakhsh Limited as owners of Zainab Market but the same is signed by the present respondent No.l on their behalf which shows that he was authorised to collect and receive the rent for the owners and, therefore, can certainly be termed as landlord and thus the present rent application having been filed by the landlord is competent. I am also of the view that this rent application filed by the present respondent No.l is, therefore, quite competent and maintainable. Lastly Mr. B.M. Bangesh has taken the objection that the rent case itself was not maintainable for the reason that the property was owned by a private limited company and no individual share‑holder could file the rent case. He has placed reliance on the case of ‑ Syed Muhammad Shah alias Mahmo and 3 others v. Messrs Karimji Ibrahimji & Sons and another 1986 MLD 1773. This objection can be taken before the Rent Controller and I would at this stage desist from dilating on the said issue.

5. The present appellants are at liberty to pursue any remedy available to them in law through the proper course. For the above reasons I find no merits in the present appeal which is dismissed with no order as to costs. H.B.T./M‑740/K Appeal dismissed.