P L D 2006 Lahore 684 (PLP)

MUHAMMAD JEHANGIR ARSHAD, J.--Through this single order, I propose to decide the instant appeal along with F.A.O. Nos.18 of 2006 to F.A.O. No.27 of 2006, as similar question of law and fact is involved and also the cause of similarity of parties as well as the question involved in the matter.

2. The facts in brief are that Commander (R.) Ghulam Nabi claiming himself as the landlord of the property in question filed an ejectment petition against each appellant separately before the learned Rent Controller, Chaklala Cantonment, Rawalpindi. On submission of the written reply by each appellant in each F.A.O., the learned Rent Controller vide this order dated 11-2-2004 directed them to deposit the arrears of rent from July, 2003 to January, 2004 before 26-2-2004 and continued depositing rent of each month before the 5th of next month. It appears that the appellant in each F.A.O. failed to deposit the monthly rent before the 5th of next month, therefore, an application under section 17(9) of the Cantonment Rent Restriction Act, 1963, was filed by Commander (R.) Ghulam Nabi landlord with the prayer for striking off the defence of the appellant.

3. As Commander (R.) Ghulam Nabi died during the pendency of the ejectment petition, hence the learned Rent Controller vide his order dated 18-1-2005 directed filing of amended petition by impleading his legal heirs, which was accordingly filed on 19-4-2005 and the case was fixed for filing of written reply. Instead of filing reply to the amended petition, the appellant in each F.A.O. filed an application under Order VII, Rule 11, C.P.C. for rejection of the main ejectment petition on the ground that as the ejectment petition was filed by Commander (R.) Ghulam Nabi for his personal use, hence with his death, the cause of action also abated and did not survive to his heirs.

4. After receipt of the reply to the application under Order VII, rule 11, C.P.C., the learned Rent Controller without proceeding on the merits of the case any further accepted all the ejectment petitions in terms of section 17(9) of the Cantonment Rent Restriction Act, 1963, by striking off his defence for non-compliance of the earlier order dated 11-2-2004 regarding deposit of future monthly rent before 5th of each month, hence the aforesaid F.A.Os.

5. It has been argued by the learned counsel for the appellant that although the appellant did commit default in compliance with the order of deposit of monthly rent before 5th of each month, yet the same had lost its efficacy for the simple reason that the very cause of action with the death of Commander (R.) Ghulam Nabi abated and the right to sue did not survive, therefore, the learned Rent Controller had no jurisdiction to pass the impugned order and the only alternative available to him was to reject the application. The argument of the learned counsel for the appellant is based on the ground that since under the Cantonments Rent Restriction Act, the landlord can get the property vacated for his personal requirement and not for the requirement of his children, as envisaged under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, hence the very cause of action with the death of Commander (R.) Ghulam Nabi, the original landlord, also expired and his legal heirs had no right whatsoever to continue with the ejectment proceedings after his death. To support his contention, learned counsel for the appellant has placed reliance on the case of Taiyab A. Kapadia. v. Agha Zia-ud Din Barni 1981 CLC 1267.

6. On the other hand, learned counsel for the respondents/legal heirs has strenuously argued that as the appellant had admittedly committed default in the deposit of future monthly rent before 5th of each next month, as ordered by the learned Rent Controller on 11-2-2004, hence the Rent Controller had no option except to strike off defence and pass an ejectment order against the appellant in terms of section 17(9) of the Cantonments Rent Restriction Act 1963, therefore, the impugned order was correctly passed. He has further contended that the respondents being the legal heirs of Commander (R.) Ghulam Nabi, the original landlord, after his death stepped into his shoes with his personal requirement and the same shall now be deemed as the requirement of the present respondents and the principles "that personal action dies with the death of the person" is not applicable to the present case. In this respect, learned counsel has placed reliance on the case reported as Muhammad Latif. v. District Judge, Lahore and 3 others (1982 CLC (Lahore) 255) to support the contention that the ejectment petition filed by the original landlord on the ground of personal need does not abate and the personal requirement of the original landlord becomes available to his legal heirs after his death. Similarly, learned counsel for the respondents in support of the contention that the default committed by the appellant for non-compliance of the order dated 11-2-2004 is not condonable and in consequence whereof the learned Rent Controller was bound to strike off his defence and ordered his eviction. Placed reliance on the case of M.H. Mussadaq v. Muhammad Zafar Iqbal and another (2004 SCMR 1453), which is also a case under section 17(9) of the Cantonments Rent Restriction Act, 1963.

7. The above arguments of the learned counsel for the parties have been considered and the record has been perused. As regards default on the part of the appellant in non-compliance of the order dated 11-2-2004, learned counsel for the appellant has not only conceded the same before the Court but also did not opt to stress anymore except that the same was due to some misunderstanding. But in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case M.H. Mussadaq, referred to above, no different view can be taken and the order passed by the learned Rent Controller striking off the defence of the appellant and ordering his eviction is maintained. However, the contention of the learned counsel for the appellant that with the death of Commander (R.) Ghulam Nabi, the right to sue does neither survive nor extend to his legal heirs requires some consideration.

8. Although Commander (R.) Ghulam Nabi, the original landlord, filed the ejectment petition on the ground of his personal requirement yet to say with his death the cause of action neither survived nor transferred to his legal heirs is not correct because it is established principle of law that a contract is always enforceable against the legal heirs or the successor-in-interest of the original party and unless a contrary intention appears by the contract, the same does not abate with the death of the parties in terms of section 42 of the Contract Act. Even otherwise, contract of tenancy does not abate or expire with the death of a party and only effect of the death of landlord is that his legal heirs unless give notice to the tenant intimating the death of the deceased landlord, cannot seek eviction of the tenant on the ground of default if the tenant has committed default by not paying or tendering rent by showing ignorance about the death of the landlord. But in the instant case, the dispute is not with regard to lack of knowledge on the part of the tenant/appellant about the death of Commander (R.) Ghulam Nabi nor the ejectment petition was filed on the ground of default but the same was filed on the sole ground of personal requirement. This Court in the case of Muhammad Latif (supra) rightly held that the right of the parties to be determined on the date of institution of the lis and not on the basis of right accrued to them thereafter. Since Commander (R.) Ghulam Nabi, the original landlord, could file the ejectment petition for his personal B requirement as a landlord and such right was available to him at the time of institution of the petition as per section 17 of the Cantonments Rent Restriction Act, hence his death would not mean that his personal requirement had abated and his legal heirs were not entitled to continue with the proceedings as his heirs. The question of abatement on the death of Ghulam Nabi would have some force if the appellant had not defaulted in complying with the order of deposit of future monthly rent before 5th of each next month. Since the provisions of section 17(9) of the Cantonment Rent Restriction Act are at par with that of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, and the Hon'ble Supreme Court of Pakistan in an unequivocal terms while deciding the cases under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, held in Zafar Qureshi and others v. Khawaja Maqsoodul Hassan and others 1982 SCMR 392, Begum Capt. Mirza Ghulam Sarwar and another. v. District Judge, Jhelum, and others 1987 SCMR 25, Haji Muhammad Siddique v. District Judge, Peshawar and others 1990 SCMR 997 and Zikar Muhammad v. Mrs. Arifa Sabir and another 2000 SCMR 1328 that any default committed by the tenant in the payment of monthly rent within the stipulated period can neither be condoned nor ejectment for such default can be objected to, hence the question of abatement of cause of action on the death of Commander (R.) Ghulam Nabi in the present case looses its efficacy and this Court is bound by the law laid down by the Hon'ble Supreme Court of Pakistan in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.

9. Resultantly, for the foregoing reasons, all these appeals having no force are dismissed. However, keeping in view the inconvenience likely to be caused to the appellant in case of his immediate or forthwith ejectment, each appellant is allowed time till 30-6-2006 for handing over the vacant possession of the property under his tenancy, failing which the respondents shall be at liberty to initiate execution proceedings before the learned Rent Controller. F.B./N-53/L Appeals dismissed.