MINOCHAR N. KHARAS Versus ALI HASSAN MANGHI

This judgment will dispose of the following revision applications:‑‑

(i) R. A. No. 205/82 filed by Minocher N. Kharas;

(ii) R. A. No. 206/82 filed by Iftikhar Ali Khan;

(iii) R. A. No. 207/82 filed by Taj Muhammad;

(iv) R. A. No. 208/82 filed by A. Mammi;

(v) R. A. No. 209/82 filed by Shamsher Qadir;

(vi) R. A. No. 227/82 filed by Mst. Anita Pervez; and

(vii) R. A. No. 258/82 filed by Muhammad Yousuf.

The respondents in all these revision applications are A.H. Manghi and others. The tenements involved in all these revision applications are located in property bearing No. 28/F.T. 2, McLean Road, Karachi. Different persons have been in occupation of the various tenements in this building. The owners/ landlords, who are respondents in these revision applications filed Ejectment Case No. 1179/68 under 1959 Rent Ordinance against the tenant Mrs. Khurshid F. Minwala on the ground of default, subletting and illegal construction. All the applicants in these revision applications claim to be sub‑lessees of the tenant Mrs. Khurshid F. Minwala. The respondents did not join the applicants (the sub‑lessees) in the said ejectment case filed against the tenant. By order, dated 19‑8‑1974, the ejectment application filed by the respondents was granted and ejectment of the tenant was ordered. It may be mentioned here that the tenant Mrs. Khurshid F. Minwala had filed written statement contesting the ejectment application, pleading that there'was no default and that it was the landlords, who had refused to accept the rent though tendered by cheques, that she had paid huge amounts of taxes to K.M.C. In the written statement, the tenant admitted that there were sub‑lessees in the premises but submitted that they were for years and were there even prior to the purchase of the property by the respondents from the previous owners and that the tenancy of the tenant was with the right to sublet without the permission of the landlords and, therefore, the sub‑tenants were authorised occupants. However, she did not appear at the evidence stage and the evidence of the respondents remained unchallenged. However, against ejectment order, dated 19‑8‑1974, the tenant filed an appeal being First Appeal No. 449/74 but the same was dismissed for non‑prosecution by the learned Second Additional District Judge, Karachi, by order, dated 30‑10‑1975. No further proceedings were taken up by the tenant. The respondents filed execution application being No. 1 of 1976 and writ was issued and it was in fact executed against the tenant Mrs. Khurshid F. Minwala, who was residing in one of the flats in the said building of the respondents and possession of that flat was taken over by the respondents. Writ could not be executed in respect of other premises in the said building, as the present applicants filed applications under Order XXI, rules 99, 101 and 103 read with section 151 C.P.C. The learned Civil Judge who was dealing with the aforesaid execution application, recorded evidence of such intervenors, who came forward, and by order, dated 20‑5‑1979, he dismissed all the applications filed by the present applicants/ intervenors holding that the intervenors were bound by the decree passed against the judgment debtor i.e. the tenant as the intervenors were claiming their rights of tenancy through judgment debtor/tenant. Being aggrieved, civil miscellaneous appeals were filed by the applicants but by order, dated 2‑8‑1982, the learned Vth Additional District Judge, Karachi, dismissed all the appeals. The intervenors, therefore, have approached this Court through the present revision applications. I have heard Messrs Nooruddin N. Ramzan, Khalid Habibullah and Salahuddin Malik, learned counsel for the applicants and Mr. Muhammad Sharif, advocate, who appeared for respondents in all these revision applications.

2. The main arguments on behalf of the applicants were addressed by Mr. Nooruddin N. Ramzan, learned counsel for the applicants. He raised the following contentions in support of the present revision applicants:‑‑

(a) The applicants/ intervenors were necessary parties to the ejectment application and as the applicants were not made parties, the ejectment order cannot be executed against the applicants. It was submitted that the landlords were aware of the fact that various premises in the building were occupied by sub‑tenants namely the applicants. According to the learned counsel, the respondents had purchased the property in 1963 from the previous owners and had filed ejectment case against the tenant in 1968. It was further submitted that the applicants have been in occupation of the various premises in the building for 20 or 30 years or even more and in any case before the purchase of the property by the respondents in 1963, and from 1963 to 1968, when the ejectment application was filed by the respondents, they must have become aware of the various premises being occupied by the applicants. Learned counsel cited the case of Mehraj Din v. Muhammad Yasin P L D 1968 Lah. 20 for the proposition that sub‑lessees are proper parties in an ejectment case filed by the landlord, wherein he alleges subletting of the premises by the tenant. Reliance was placed on the following observations of the Lahore High Court made in the cited judgment after referring to section 13(2)(ii)(a) of the 1959

Ordinance:‑‑ perusal of the above provision of law shows that a decision has to be recorded by the Rent Controller before passing an order for putting the landlord in possession that the tenant has sublet the building or the rented land. Since this issue directly concerns the sub‑tenant, in our opinion, it is just, fair and proper that he should be impleaded as a party by the landlord in the ejectment. application. The reasons are manifold. Firstly, if he is not impleaded then complications are likely to arise subsequently, whereas if he is impleaded the matter will remain simple and convenient for all concerned. Secondly, if he is not impleaded in the main case, then during the course of execution proceedings, a difficulty will arise if he pleads that he is bound by the decree, because he was not a party in the main case. Thirdly, in that sitution, the executing Court will have still to determine as to whether he is bound by the decree or not within the meaning of Order XXI, rule 35, C.P.C. It means that when this issue will have to be decided and there can be no escape from it, it is better to get it adjudicated through a better procedure of the trial of the main case rather than the more summary proceedings of the execution. Fourthly, if the aim of the Ordinance is to provide a speedy and expedient remedy to the landlords then that purpose will better be achieved by impleading the alleged sub‑tenant in the main case rather than leave over this issue till a late stage of the execution of the decree. Fifthly, according to the provisions of the Ordinance, where eviction is claimed on ground of illegal sub‑tenancy then a finding about the same will have to be recorded by the Rent Controller. If once this finding is recorded though in the absence of the sub‑tenant and the executing Court is again asked to go into the same, that will simply mean duplication of work, time and labour and at the same time embarrass the position of the executing Court as well in urging it to go beyond the finding of the trial Court and record a different note‑ a task which even otherwise will be very difficult rather well‑nigh impossible to be achieved from the executing Court. For all these reasons and looked at from whatever point of view, the conclusion is inescapable that a sub‑lessee in such a situation is a proper party to be impleaded in an ejectment application. When he is so ousted simply because the sub‑tenancy is unauthorized. Rather the unauthorized sub‑tenancy will give jurisdiction to the Rent Controller to pass an order directing the landlord to be put in possession of the building or the rented land. Nor the argument that such an illegal sub‑lessee is not a tenant under the Ordinance, can affect on the jurisdiction of the Rent Controller; because though not a tenant, but still being a person bound or to be bound by the order of eviction against the main lessee the jurisdiction does not undergo any impairment. The fact that a sub‑lessee is not a tenant within the meaning of the Ordinance, instead of helping such a sub‑lessee will go against him and he will not be eligible to claim such amenities which other tenants may have. This is but logical. The intention of the Ordinance could not be to bestow on unauthorized under‑lessee greater rights than available to the main lessee through whom he is engrafted on the main building. The main lessee under the Ordinance cannot be evicted except under the strict conditions laid down therein. Once those conditions are fulfilled and the main lease is statutorily forfieted then the under‑tenures also lapse with the same."

(b) The second condition of Mr. Nooruddin N. Ramzan, the learned counsel for the applicants, was that on account of the applicants remaining in occupation in the various premises in the building in question, certain rights were acquired by them in the property and the decree passed against the tenant cannot be executed against them, as they were neither made parties nor given any opportunity of placing their case before the Rent Controller. It was contended that if they had been granted opportunity in the ejectment case, there was a distinct possibility that the ejectment order would not have been passed. In support of this proposition, learned counsel relied upon the following reported judgments:‑‑

(i) Haji Dawood v. Rahima Bai P L D 1980 Kar. 126.

(ii) Ghulam Bahauddin Qureshi v. Hawa Bai P L D 1979 Kar. 597.

(iii) Najmuddin v. Zamir Ahmad P L D 1982 Kar. 188.

(iv) Agha Muhammad v. Maula Dad P L D 1971 Quetta 10.

(c) The next contention of the learned counsel for the applicants was that the sub‑tenancies were admittedly created prior to the enforcement of 1959 Rent Ordinance and under the Rent Restriction Laws applicable in Karachi, prior to the enforcemnt of the 1959 Rent Ordinance, creation of a sub‑tenancy by the tenant without the permission of the landlord was not a ground for ejectment and in this connection learned counsel referred to the decision in the case of Zahida Begum v. Nadri Bakery P L D 1983 Kar. 618.

(d) The last contention of Mr. Nooruddin N. Ramzan was that evidence of the intervenors/ applicants before the executing Court has gone unchallenged, as no evidence was led before the executing Court by the respondents /landlord.

3. Mr. Khalid Habibullah, advocate, who appeared for the applicant in Revision Application No. 227/82, adopted the arguments of Mr. Nooruddin N. Ramzan and raised the additional point that in the definition of tenant given in the Rent Ordinance, 1959 tenant is defined to include a sub‑tenant, whose sub‑tenancy has been created with the consent in writing of the landlord and although the word "writing" has been used in the definition, it should be interpreted to mean "implied" also. According to the learned counsel in the cases of the various applicants/intervenors, on account of the fact that they have been in occupation as sub‑tenants for a very long period, it has to be assumed that the landlords gave their consent to the creation of such sub‑tenancies.

4. Mr. Salahuddin Malik, learned counsel, who appeared for the applicant in R.A. No. 258/82, adopted the arguments of Mr. Nooruddin N. Ramzan.

5. Mr. Muhammad Sharif, learned counsel for the respondents in all these revision applications, submitted that a perusal of the Order, dated 19‑8‑1974 of the Rent Controller shows that all the sub‑lettings in favour of the inter venors were unauthorized and that although the tenant had filed an appeal against the ejectment order, the same was dismissed and the finding of the Rent Controller that the intervenors are unauthorised sub‑lessees attained finality and such finding cannot be set aside in proceedings in execution. Learned counsel submitted that there was a distinction between subletting and assignment but under the 1959 Rent Restrictions Ordinance, subletting included assignment. It was further contended that the sub‑lessees were not necessary parties to the ejectment cases filed by the landlord against the tenant on account of unauthorised subletting. It was submitted that the sublessees had no independent right and they are bound by the decree passed against the tenant. It was also argued that the scope in an appeal is much wider and these are revision applications against an order passed in execution and the scope of these revisions is narrower. It was also argued that there is no direct relationship between the respondents and intervenors, who were inducted unauthorizedly by the previous owners. In support of his contention, Mr. Muhammad Sharif, learned counsel for the respondents, referred to the following reported authorities:‑‑

(i) Timmappa Kuppaya v. Venkanna Naik I L R 21 Bom. 311. In this judgment it was pointed out that a sub‑lease differs from an assignment of lease, in that it creates no privity of contract between the sub‑tenant and the landlord and the landlord has to deal with his lessee and not with the sub‑tenants of the latter.

(ii) Jafferji lbrahimji v . Miyadin Mangal A I R 1922 Bom. 273.

It was observed in this case that an owner of premises suing for possession may find it advantageous to join all the persons in possession of the suit premises, to avoid difficulties, which may otherwise arise when he attempts to execute his decree, but the non‑joinder will not enable a sub‑tenant to resist delivery of possession to the owner in execution of his decree for ejectment against his lessee.

(iii) Sheikh Yousaf v. Jyotish Chandra A I R 1932 Cal. 241.

It was held in this case that a decree in ejectment passed against a lessee at the instance of a lessee is not only binding upon the lessee, but also upon his sub‑tenants provided they have no right independent of the right of their lessor in the demised premises.

(iv) Ramkissendas v. Binjraj A I R 1923 Cal. 691.

It was held in this case that in a suit by landlord against the tenant for ejectment, the sub‑tenants are not necessary parties and, therefore, they cannot object to the delivery of possession on the ground that the decree is not binding on them. It was further observed that A suit by sub‑tenants claiming that the decree is not binding on them, as. they were not made parties to it, is wholly unjustifiable.

(v) Egerton v. Jones (1939) 2 K B 702.

It was held in this case that when a lessor brings an action against a lessee involving forfeiture of the lease he need not make the mortgagees of the leasehold premises parties to the action or inform them of the proceedings.

(vi) Church Commissioners for England v. Ve‑ri‑Best‑Manufacturing Co. Ltd. (1957) 1 Q B 238.

It was held in this case that a mortgagee of lease‑hold rights was not entitled to be a party to the action taken by the landlord against the lessee.

(vii) Kshiroda Sundari v. Bhupendra Mohan A I R 1961 Asam 70.

In this case it was held that a mortgagee of his leasehold rights could not take up the plea that after forfeiture of the lease by the landlord he was still entitled to remain in possession.

(viii) Gulzar Muhammad v. Moazzam Ali P L D 1959 Kar. 340.

It was held in this case that a person who was in the premises through a tenant was bound by decree of ejectment against the tenant.

(ix) Qutubuddin Ahmad Khan v. Zohra Mussarrat Amin 1981 C L C 212.

In this case a company was a tenant of the respondent and the appellant was an employee of the company. In the ejectment case filed by the landlord against tenant company, an application under Order I, rule 10, C.P.C. had been filed by the employee that he may be joined as a party. That application was rejected and the defence of the tenant was struck off and ejectment ordered by the Rent Controller. The employee, intervenor filed an appeal but the same was dismissed and the employee then filed a second appeal before the High Court, which was also dismissed by a learned Single Judge of this Court. It was observed in this judgment that the landlord was justified in refusing the rent directly from the intervenor as she did not recognize the intervenor as a tenant because he was in occupation of the premises through the tenant company. It was also observed that ejectment of the tenant company automatically includes ejectment of the intervenor who was not direct tenant of the landlord.

6. I may first refer to the argument of Mr. Khalid Habibullah, learned counsel for the applicant in R.A. No. 227/82. He had made reference to the definition of tenant given in section 2(i) of 1959 Rent Ordinance. In this definition it is provided that tenant "does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord". The words "consent in writing" cannot be deemed to mean or include consent which is not in writing. The argument of the learned counsel that implied consent is included in the words "consent in writing" cannot, therefore, be accepted.

7. The argument of Mr. Noorduddin N. Ramzan that prior to the enforcement of 1959 Rent Ordinance, under the Karachi Rent Restriction Act, 1953 creation of sub‑tenancy without the permission of the landlord was not a ground for ejectment of a tenant has no substance. A plain reading of the grounds, on which tenant could be ejected under the Karachi Rent Restrictions Act, 1953, shows that a creation of sub‑tenancy without consent of the landlord was a specific ground available to a B landlord. Reliance on P L D 1983 Kar. 618 is also misconceived. In the Head Notes of this reported judgment it is incorrectly stated that in the judgment it was observed that prior to the enforcement of 1959 Rent Ordinance subletting was not a ground of eviction. A reading of the judgment reported in P L D 1983 Kar. 618 shows that this was not observed by the learned Judge, who decided that case.

8. In my view, the decision of the revision application depends on the question whether the applicants /intervenors were necessary parties to the ejectment application and whether the applicants have any independent rights to remain in occupation of their respective premises i.e. independent of the tenant's rights. If the applicants were necessary parties and they were not impleaded as such by the respondents in their ejectment application, they can resist the execution of the decree in respect of the premises in their occupation. Answer to this question depends on whether the applicants had acquired any right to remain in occupation of their respective premises independent of the right of the tenant, Mrs. Khurshid F. Minwala. If they have no independent right and if whatever right they have is through the tenant, their applications under Order XXI, rules 99, 100. and 103, C.P.C. were rightly rejected by the executing Court. The judgments cited by Mr. Muhammad Sharif, learned counsel for the respondents, support the proposition advanced by the learned counsel that a sub‑tenant must have some independent right that is independent of the tenant to continue in occupation of the premises after the termination of the right of the tenant to remain in occupation or there must be some privity of contract between the landlord and the sub‑tenant.

9. Mr. Nooruddin N. Ramzan had relied upon P L D 1968 Lah. 20 for the proposition that the sub‑tenant is a necessary party to the ejectment application. A perusal of the judgment shows that this was not the principle laid down in this Lahore case. What was observed was that the sub‑tenants were proper parties for convenience and for avoidance of complication at the stage of execution. The decision of Lahore case does not hold that sub‑tenants, who have been inducted by the tenant without the consent of the landlord are necessary parties to an ejectment case filed by the landlord. On the contrary, the decision goes against the case of the applicants. In this Lahore case it was observed that the intention of the 1959 Rent Ordinance could not be to bestow on unauthorised under‑lessee greater rights than available to the main lessee, through whom he is engrafted on the building.

10. The other authorities relied upon by Mr. Nooruddin N. Ramzan namely P L D 1980 Kar. 126; P L D 1979 Kar. 597; P L D 1982 Kar. 188 and P L D 1971 Quetta 10 are all judgments, in which the controversy was between the landlord and the tenant and the question, inter alla, was whether the tenant was liable to be ejected on the ground of subletting. Mr. Muhammad Sharif, learned counsel for the respondents, has correctly pointed out that none of these four authorities ‑relied upon by Mr. Nooruddin N. Ramzan, holds that sub‑tenants in those cases had become tenants or that any of the sub‑tenants in those cases had acquired any right independent of the tenant. In the aforesaid four cases what was decided was that on the facts and circumstances of those cases the tenant was not liable to be ejected on the ground of creation of sub‑tenancies. The question whether sub‑tenants were necessary parties or not in eject rent cases was neither in issue nor was decided in any of these four cases. The aforesaid four judgments relied upon by Mr. Nooruddin N. Ramzan, therefore, do not support the proposition advanced by him that the applicants were necessary parties to the ejectment application filed by the respondents or that the applicants have acquired any right independent of the tenant or they have any privity of contract with the respondents.

11. The other point raised by Mr. Nooruddin N. Ramzan was that the evidence of the applicants before the executing Court has gone unchallenged. It had been pointed that none of the respondents appeared in the witness‑box during the enquiry in the execution proceedings nor any other evidence led by them. The evidence of such applicants, who chose to give evidence in execution proceedings, however, shows that no attempt was made to make out a case that any of the applicants had any right independent of the tenant or that there was any privity of contract between the respondent and the applicants. The consistent stand of all the applicants/ their witnesses in the execution proceedings was that they had been inducted by the tenant. In the circumstances, the fact that none of the respondents gave evidence, does not help the case of the applicants.

12. The main thrust of the argument of Mr. Nooruddin N. Ramzan appears to be that the applicants had been in the premises for a very long period and this fact by itself created rights in them independent of the judgment debtor/tenant. The proceedings in execution taken up by the executing Court on the applications filed by the various applicants /intervenors was an enquiry into their rights to remain on the property. As observed earlier, the applicants were not able to establish any independent right to remain on the property after the termination of the interest of the tenant by the ejectment order passed by the Rent Controller. It was not shown that under the law they were necessary parties to the ejectment application. No privity of contract between the landlord and the applicants was established. In fact this was not even attempted by the applicants in the proceedings before the executing Court. The applications under Order XXI, rules 99, 100 and 103, C.P.C., of the applicants were, therefore, rightly rejected and no case in law had been made out for setting aside the orders passed in execution. I am conscious of the fact that the applicants have remained in the premises for very long periods but this by itself is not sufficient to make out a case that the applicants have any independent right in the property or there is any privity of contract between them and the landlord.

13. These, revision applications are accordingly dismissed but with no order as to costs. The applicants have remained in the premises for a very long period and accordingly the applicants are granted time til1 31‑8‑1986 to vacate the premises.

A. A . Revision dismissed