P L D 1959 (W (PLP)

CONSTANTINE, J.‑The facts in brief as given to us by the appel lant are that one Gul Muhammad had been the tenant of the pre decessor‑in‑title of defendant No. 1 and that the appellant was living with him. In 1949, Gul Muhammad went to Hyderabad and diet and his sister came to Karachi and took away the belongings of Gul Muhammad. On 1‑4‑1951 the property was sold by the landlord to the present respondent Haji Ibrahim and it is alleged by Mr. Fonseca that his client used to pay rent direct to Haji Ibrahim and through the Court. In December 1952, a distress warrant was filed against Gul Muhammad and the appellant paid rent in discharge of that application for the period 1‑12‑1951 to 30‑11‑1952. Thereafter at the end of December 1955, an ejectment application 626 of 1955 was filed by Haji Ibrahim against Gul Muhammad who was already dead. On 2‑2‑1956, the appellant filed an application under Order 1, rule 10 praying that he should be joined as a party and alleging in that application that Gul Muhammad was already dead. The application was granted by consent and thereafter another consent order was passed directing that the arrears of rent should be paid in six equal instalments and that if any default was made the ejectment should take place.

2. Default did take place and ejectment was ordered. Thereupon, Mr. Fonseca's client filed a suit in the District Court under section 24 of the Karachi Small Causes Court Act in respect of compensation for notional trespass. This suit was dismissed and hence the present appeal. Mr. Fonseca's main and sole point is that the proceedings against Gul Muhammad in the ejectment application 626 of 1955 were a nullity and that any action taken by his client or any consent given by him could not give life to a proceeding which was already dead. He has cited rulings showing that where a plaintiff has instituted a suit against a dead person it is not open to him to amend the plain by substituting the names of the legal representatives, but that is a very different matter from this case where the plaintiff himself has sought to be brought on record. It is to be noted, that the plaintiff was under no misapprehension as to the death or continued life of Gul Muhammad. He expressly stated in his application that Gul Muhammad was dead. It therefore appears to us that the plaintiff wished the ejectment application to be treated as having been filed against himself, and we can see no bar to the jurisdiction of the Court to allow this course to be taken. Mr. Fonseca has not cited any case which is at all parallel with the present case. It would have been open to Haji Ibrahim to file another ejectment application against Mr. Fonseca's client, but the effect of the application of his client was to make this unnecessary by treating the application already made as laid against himself.

3. Since, therefore, in our opinion the ejectment pro ceedings were rightly continued against Mr. Fonseca's client on the basis of his own application and consent of the other side, the further order passed also by consent was passed within the jurisdiction of the Small Causes Court. The order of ejectment was in consonance with the consent order and hence the suit for trespass was bad. We therefore dismiss this appeal with costs. The stay order is discharged. K. M. A. Appeal dismissed.