P L D 1971 Karachi 778 (PLP)

A. F. M. Mokharam for Respondent. Date of hearing : 12th April 1971. This is a tenant's 2nd appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (herein after referred to as the Ordinance). On or about the 14th of September 1966, the respondent, claiming to be the landlord of the disputed premises, filed an ejectment application before the Controller, Karachi against the present appellant seeking his ejectment on the ground that the appellant had made unauthorised constructions and that he was not ready and willing to pay the rent which was in arrears for a period of 68 months.

2. In the array of parties the tenant was described as "Messrs Imperial Dyeing and Printing Mills (Proprietary con cern through its Proprietor Mr. G. A. Karim)". In November 1967, the appellant filed their written statement in reply to the application and the sole proprietorship character of the tenant was not disputed. On 29th of January 1968, G. A. Karim who was described as proprietor of the appellant con cerned died. No action was taken by the landlord/respondent to bring on record the legal representatives of G. A. Karim. Eventually on the 2nd of February 1970, the Advocate for the appellant moved an application before the Controller informing him that the proprietor of the appellant concern had died on 29th of January 1968, and since the legal representatives had not been brought on record the ejectment application may be dis missed. The last mentioned application came up for hearing be fore the Controller on the 20th of March 1970, on which date the appellants' counsel was present while the respondent remained absent and unrepresented. The learned Controller passed the following order:- "Since the opponent has died more than two years back and the applicant has not made an application to join the legal representatives within time as required, I dismiss the main application as it abates." Before narrating the subsequent events I would consider it perti nent to state that even after gaining knowledge of G. A. Karim's death through the application filed on behalf of the appellants, the respondent did not move to bring his legal representatives on record although more than 1 month had passed since the applica tion was first filed.

3. Against the order of the learned Controller dated 20th of March 1970, dismissing the main application as having abated, the respondent preferred an appeal to the learned District Judge at Karachi. This appeal was heard and disposed of by the learned Additional District Judge on the 9th of December 1970. The learned Additional District Judge was of the view that no order of abatement as visualised under the provisions of Order XXII of the C. P. C. could have been passed by the Controller since the said provisions had no application to the proceedings under the Ordinance. Nonetheless the question, according to the learned Additional District Judge, was pre-emi nently within the discretion of the Rent Controller and in exercise of this discretion he found that the learned Controller in the case had acted unjustly by not allowing an opportunity to the landlord to join the legal representatives of G. A. Karim. In this view of the matter the appeal was allowed by the learned Additional District Judge with the direction that an opportunity be allowed by the Controller to the respondents to bring the regal representatives of the deceased on record and if he failed to do so on the first day of hearing the Controller was left to pass such appropriate order as he thought necessary. The present second appeal is directed against the above order of the learned Additional District Judge.

4. The questions which primarily arise for determination in this appeal are these: (1) Whether the proceedings before the Controller under the W. P. Urban Rent Restriction Ordinance, 1959 would abate by death of necessary parties? (2) Where a necessary party dies can the proceedings be continued by or against his legal representatives? If yes, is there a time limit within which such steps ought to be taken? Dealing with the first question I may at once state that the law of abatement does not owe its application wholly to the provisions of Order XXII of the C. P. C. To me it seems that the concept of abatement is founded in a recognition that a tribunal chargeo with the adjudication of any controversy could properly be seized of it only so long as the parties are before it and are able to prosecute or defend their respective cases. If any such party is removed by death it ceases to be a party before the tribunat and in its absence, the proceedings before it would become "coram non judice". Unless otherwise intended by law, the' death of a person arraigned before a Tribunal, kills the action personally against him and, if the cause of action survives the death, it is impossible to proceed a step further in the case without first joining his legal representatives and allowing them the opportunity to defend the action. Continuance of an action against a party who has died is as incomprehensible as bringing an action against a dead man. And even as the principles of natural justice exist independently of the statute law, the principle of abatement, to the extent that it is not overridden by law is inherent in every civilized system of judicial procedure. The provisions of Order XXII of the Civil Procedure Code are to be construed merely as giving recognition to this basic principle of procedure. The principle itself is based on accepted norms and on a fundamental rule of judicial procedure that no lis between parties may be decided without enabling them to prosecute or to defend the action as the case may be.

5. The necessity of legal representatives of a deceased tenant being before the Controller for the purpose of resisting the claim of the landlord cannot be denied. Had the tenant in the instant case died after conclusion of the matter before the Rent Controller, the position would have been very different. But G. A. Karim, the sole proprietor of the appellant concern actually died much before the conclusion of the case and it is impossible to conceive that the Rent Controller could none theless have proceeded with the case without the legal represen tatives of the deceased being given an opportunity to defence fit. The learned Additional District Judge was fully aware of this aspect when he remanded the case to the Rent Controller for allowing the landlord the opportunity to make an application to bring the legal representatives of deceased G. A. Karim on record. I would have been least prone to interfere with this order had the landlord after being informed of the death of G. A. Karim proceeded promptly to make an application to bring the legal representatives on record. This, however, was not done. On the date when the learned Rent Controller proceeded to hold the main application before him as having abated, there was no application for bringing the legal representatives on record nor was there any request before him that the landlord should be allowed time to do the needful. In these circumstances it appears to me that the Rent Controller had no option but to pass the order dismissing the application as having abated. T would agree that the provisions of Order XXII had no specific appli cation to the proceedings before the learned Controller, much less the period of limitation prescribed in relation to applications under Order XXII, being themselves penal provisions. Yet there could be little doubt that the case before the Controller could not proceed by reason of death of the tenant and had the landlord acted with reasonable promptness in endeavouring to bring the legal representatives on record the law of limitation could not have been pressed into service for debarring him from doing so. The tenant, however, in the case before the Controller had died nearly two years before the Controller was formally informed of the death. It was incumbent upon the landlord to have acted immediately and to have applied to bring the legal representatives on record. Instead of doing so the landlord mainly contended that the appellant concern was a firm and the law of abatement had no application to it. This view was ex facie erroneous since according to the landlord's own description in the array of parties Messrs Imperial Dyeing and Printing Mills were a proprietary concern of Mr. G. A. Karim.

6. On the facts as stated above and in the view I have taken of the concept of abatement of proceedings I find that no exception could have been taken to the order of the Controller dismissing the main application as having abated. In the result this second appeal is allowed and the order of the learned Additional District Judge dated 9th of December 1970, is set aside. I do not find it necessary to pass any order as to costs. K. B. A. Appeal accepted.