P L D 1961 (W (PLP)

(1) that the tenants had defaulted in the payment of rent for five months; (2) that they had sublet the premises in part; and (3) that the landlord required the shop for his own use.

3. In the written statement filed on the 27th May 1959, Syed Fazal Haq admitted the default, but only for three months. On the same day, the Rent Controller ordered under subsection (6) of section 13 that the respondents should deposit rent for six months by the 15th of June 1959, and that until the decision of the case they should deposit before the fifth day of each month the monthly rent due from them. In pursuance of this order, six month's rent was deposited, but the rest of the order was not complied with.

4. On the 10th of September 1959, the landlord applied for the tenants' defence to be struck off as they had not paid the rent for July and August in time. This application was pending when Syed Fazal Haq respondent died on the 26th of October 1959. Two days later, the landlord made an application for his legal representatives to be brought on the file. This was done on the 8th of June 1960. On the 28th of may 1960, another application had been made by the landlord for the defence to be struck off, not only for the previous default relating to July and August but also for non‑payment of rent for the month of September and late payment for the months of November and December 1959 and January 1960. On the 8th of June 1960, the defence of Syed Muhammad Salim, the surviving tenant, was struck off and, as already noticed, the legal representatives of Syed Fazal Haq deceased were brought on the file. From this latter order, an appeal was taken by the legal representatives to the District Judge but as no appeal lay to the District Judge, it was presented in the High Court, where a learned Single Judge decided that since the right to sue did not survive against the legal representatives, they could not be brought on the file. Against this order, the landlord has brought a Letters Patent Appeal.

5. The learned Single Judge has relied on Order XXII, rules 1 and 4, Civil Procedure Code. Rule 1."The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives." Rule 4.‑"(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representa tive of the deceased defendant to be made a party and shall proceed with the suit."

6. The learned Single Judge has argued that "the default was made by Fazal Haq and though his heirs may be liable for the rent that may be found due from Fazal Haq to the extent of the property inherited by them from him,, it is clear that the default committed by Fazal Haq could not be deemed to be the default of his legal representatives who, I may mention, would be deemed to be tenants by reason of the definition of that expression given in clause (i) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is hardly open to question that if the proceedings for ejectment had started after the death of Fazal Haq, his default could not have been availed of against his legal representatives who would have become tenants in his place. The legal representatives of Fazal Haq have committed no default and, therefore, they cannot be ejected on the ground that they had committed a default which entailed ejectment and the defaults of the original respondent, namely, Fazal Haq, cannot, in my view, be used against his legal representative.

7. In section 2, clause (i) of the Ordinance, the expression "tenant" has been defined so as to include "the wife and children of a deceased tenant." Upon the death of the original tenant, therefore, the children automatically became tenants for the purpose of eviction under section

13. If, therefore, section 13 A requires that a tenant may be ejected for non‑payment of rent then the fact that the original tenant has been succeeded by him children will not alter the fact that a default has been made by the original tenant. The death of the original tenant cannot obliterate the effect of the default which has conferred an advantage on the landlord. The default was not personal, for it was committed in respect of property, and since the children succeed to the tenancy, they succeed to the default also. We cannot accept the argument that a defaulter's death can efface the effect of the default. Take the case of a defendant against whom a suit for damages has been brought for damage done by him to a certain property and compare it with another case in which the suit for damages is based on some act which is personal to the defendant, malicious prosecution or defamation, for instance. In the former case, the death of the defendant will not make any difference to the plaintiff's claim against the property inherited by the defen dant's children. In the latter case, the plaintiff's right to sue abates with the defendant's death. We are clearly of the opinion that the present case is of the first kind.

8. We respectfully agree with the learned Single Judge that if the proceedings for ejectment had been started after the death of Syed Fazal Haq, his default could not have been availed of against his legal representatives, but that is so because the landlor4 took no notice of his default until he lived. It would, therefore, be assumed that he had condoned the default. In the present case, the landlord has taken notice of it and the children are succeeding to a tenancy which is encumbered with litigation under section 13.

9. Learned counsel for the legal representatives argued that the present position is comparable to that under section 114, Transfer of Property Act, under that section, where a lease of immovable property has determined by forfeiture for non‑payment of rent and, the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays the rent in arrear, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture. In similar circumstances, a tenant governed by the present Ordinance could also be relieved against forfeiture if he paid up the rent, as the children had paid or were prepared to do. This argument, however, loses sight of two factors. The first is that, except for section 114, Transfer of Property Act, it would not have been possible to relieve the lessee against a forfeiture clause in the agreement of' tenancy. The second is that section 114 deals with private agreements, while section 13 of the Ordinance provides for a statutory, for feiture.

10. For the appellant landlord it was also argued that the learned Single Judge had not taken notice of the fact that his application for eviction contained also another ground, namely, that the owner, required the shop for his personal use, and that this ground will be as effective against the original tenant as against his representatives. Further, there still remained another application dated the 28th of May 1960, for the defence to be struck off on the ground of default for the period succeeding the death of Syed Fazal Haq. We have no doubt that whether the legal representatives could be brought on the file or not for the purpose already discussed, the other reliefs are still open to the landlord and that the learned Single Judgo did not find it necessary. to point this out.

11. The learned counsel for the legal representatives also tried to support the order of the learned Single Judge on a ground which had been found against him. This related to an argument, that the Code of Civil Procedure did not apply to proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, and that consequently the provisions of Order XXII, in respect of legal representatives were not applicable. We respectfully agree with the learned Single Judge that the Code does apply by virtue of section 141, Civil Procedure Code, which provides that the B procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. If, however, the Code were not applicable, the death of a sole defendant would bring matters to a standstill and there would be an end of the pro ceedings. It would then be futile for the tenant's children to say) that by the definition of the word "tenant" they should be regarded as tenants, though their names should not be brought on the file.

12. We accept this appeal with costs and restore the order of the Rent Controller bringing the legal representatives of the deceased tenant on the file. A. H. Appeal accepted.