ZUBAIDA BAI Versus KANIZ BANO

1. This is an appeal filed by Intervenor against the order of the Rent Controller passed in Execution proceeding being No.38/86 (R.C.2286/85) whereby the 2 applications moved by her under Order 1 R.10, C.P.C. and under Order 9, R.13, C.P.C. were dismissed and the order of ejectment passed earlier on 5‑10‑1986 directing the ejectment of Respondent No.2 were maintained. The said order of ejectment passed on 5‑10‑1986 is also challenged.

2. Briefly the facts are that the present Respondent No.l filed the Rent Case No.2286/85 against the Respondent No.2 on the ground of sub‑letting and default in payment of rent since very beginning which she claimed to be Rs.50 per month. The present respondent No.l in paragraph No.l of the application claimed to have been transferred the premises bearing No.(1/1) UP 1 No.O.T. 6/16, 1‑A 253 Rahim Manzil, Ganghadar Lane, Tank No.4 Bombay Bazar, Karachi which is also the address shown in the title of application as that of the Respondent No.2. The R & P of the case shows that the Respondent No.2 was not being served and as such the notice was affixed on the door of the above said premises which are admittedly in occupation of the present appellant and also the notice was published in the newspaper. Consequently the Rent Controller proceeded ex parte and the ejectment order was passed on 5‑10‑1986. Thereafter execution proceedings were filed by the Respondent No.l and it was at this stage that the present appellant filed the abovesaid 2 applications‑‑one to be joined as party and the other for setting aside of the ex parte decree. The case of the appellant is that she is in occupation of the first floor premises of Rahim Manzil on Plot No.O.T. 6/16 as tenant and that previously she paid rent to previous owner Sh. Muhammad Salim son of ShAllah Ditta. She further contended that the Recovery Officer of Income‑tax Department auctioned the said property on 31‑7‑1972 for recovery of Income‑tax dues and that one Zafar Ahmed s/o Nazir Hussain purchased the same. It is also the case of appellant that said Zafar Ahmed received Rs.2,100 from appellant as rent. The appellant has produced 3 rent receipts and copy of the order of Recovery Officer of Income‑tax Department. According to appellant the Respondent No.2 is a fictitious person who never lived in the said premises.

3. The present appeal was adjourned on 2 previous dates of hearing at the request of the learned counsel for appellant on health ground in spite of oral objection of the other side. On 30‑4‑1989 the learned counsel for appellant appeared in person and requested for adjournment to which the learned counsel for Respondent objected vehemently. I therefore declined to grant adjournment and proceeded to hear the appeal. The learned counsel for appellant has left his partner Miss Fareha who is holding brief for him.

4. Mr. S.M. Afzal the learned counsel for the Respondent No.l has raised two preliminary points. His first contention is that the appellant claims to be tenant of the premises other than the one in dispute and therefore her applications were misconceived and she has no locus standi in the matter. The learned counsel has referred to the copy of P.T.D. which is kept on record of the lower Court. This P.T.D. is signed on 24‑2‑1964 by the Deputy Settlement Commissioner Karachi and shows the property No.l A 253 O.T. 6/16 which in the description of property on top right hand side it is shown as premises No. (1/1) MPL No.O.T.6/16‑ (1/1), D.S.No. I A 563 Old Town, Karachi. From this the learned counsel has submitted that the appellant in her affidavit has claimed to be the occupant tenant of first floor of Property on Plot No.O.T. 6/16 Old Town Karachi. According to him the said 2 properties are different and distinct from each other.1 cannot agree to the said contention of the. learned counsel. The very notices (Annexures C & C‑1) which are brought on record of lower Court by the Respondent No.l and are the notices and envelope containing notice (returned unserved) show that the same were sent by Mr.S.M. Afzal Advocate on behalf of Respondent No.l to the Respondent No.2 on the address O.T. 6/16‑A‑1‑563. There is no mention of portion (1/1) on the said envelope. This No.(1/1) may mean Flat No.l on Ist Floor and the appellant in her affidavit has specifically stated that she is in occupation of 1st Floor of Building on Plot No.6/16. 1, therefore, hold that the appellant is in occupation of the same premises as claimed by the Respondent No.l.

5. Mr. S.M. Afzal the learned counsel then took up his second objection and submitted that the appellant being a stranger to the proceedings could not file the said applications before the lower Court nor she can maintain the present appeal. Mr. Afzal during course of arguments admitted that the appellant is in occupation of the said premises and submitted that he has taken the ground of sub‑letting also but according to him it was not necessary to join the appellant as party to the proceedings of the case. He‑has placed reliance on the case M/s. Haji Ahrnad Haji Essa v. The Rent Controller and 2 others 1983 CLC 840 wherein a D.B.of this Court has hcld:‑

6. "6. It may be noticed that under the late Ordinance an order passed by a Rent Controller under section 10 or section 13 or an appellate order passed under section 15 was to be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Since the ejectment order was deemed to be a decree for the purpose of execution, the executing Court could have entertained objections under section 47 or under Order XXI, C.P.C. Whereas, under the new Ordinance subsection (2) of section 19 prohibits a Rent Controller from recalling even ex parte order in case it is found that the notice of the application was served on the party."

7. Also it has been further observed in the same case as under:‑‑

8. "In our view, such an application will be competent before the learned Rent Controller because he has to execute the ejectment order in respect of the tenement which was the subject‑matter of the rent proceedings before him and, therefore, he would be entitled to go into that question but the question whether a stranger has become the tenant of the tenement which was the subject‑matter of the rent proceedings filed against the admitted tenant in our view is a question, which cannot be agitated in an execution proceedings."

9. The observations made in the above case show that in order to attract the same to the present case the Respondent No.l will have to show that in the first instance notice was served on the party and secondly that the appellant claims to have become tenant as against the admitted tenant.

10. Taking up the above 2 points, the order would show that the Rent Controller has relied on the endorsement of the Bailiff only which is not supported by the witnesses as required under Rules for service of summons. Of course the notice was published in the newspaper but the same was in the name of Respondent No.2 and moreover the appellant being a household lady is not supposed to have access to that particular newspaper. Therefore the reasons I advanced by appellant in her affidavit should have been considered sufficient for holding that she was unaware of the proceedings. On the second point Mr. Afzal argued that Respondent No.2 was the admitted tenant and the statutory `tenant under the provisions of Displaced Persons Act, 1958. He has placed reliance on the case of Beejal Mal v. Punaji 1987 CLC 1134. There can be no two opinions about the above legal position. But for that the learned counsel had to show that at the time of transfer of the said premises in favour of Respondent No.l, the Respondent No.2 was in occupation thereof. There is nothing on record to show this Mr. Afzal has drawn my attention to the notices sent to the Respondent No.2 in the year 1982 and from this he has argued that this is sufficient proof to support his contention. I am afraid, this on the contrary goes against his contention. The said notice was never served on the Respondent No.2 on the given address but the same was returned unserved with postal endorsement which shows that he did not reside there. In view of above discussion and with all due respects. I am of the view that above‑cited Division Bench case is not on all fours with the present case and will not be applicable.

11. On the question of maintainability, Hon'ble Supreme Court has held that an intervenor whose application for joinder as party in a rent case has been rejected can file an appeal as for his purposes the said order of rejection, shutting him out, is a final order. Reliance maybe placed on the case of Muhammad Mobin Siddiqui v. Mst.Shahzadi Begum and 2 others 1982 SCMR 233 wherein it has been held:‑

12. "7. This argument has no force because after the decision of the preliminary issue holding that Mobin Siddiqui was not a tenant under Mst. Shahzadi Begum he was no longer a party to the case. If he, at all, wished to contest the matter further, he should have filed an appeal against the aforementioned order of the Rent Controller dated 31‑5‑1978 because as far as he was concerned that was the final order in this case. Not having done so he was not entitled now to file an appeal against the order of ejectment before the Additional District Judge and the High Court, as he was not a party to the case in which that order was passed."

13. Also in the case of Messrs Bambino Ltd. v. Messrs Selmor International Ltd. and another PLD 1983 SC 155 wherein it has been held:‑‑

14. "As regards the second contention that no appeal lay from the order passed by the Rent Controller in execution of the order of ejectment it may be stated that a plain reading of section 21 of the Sind Rented Premises Ordinance, 1979 shows, that such an order not being an interim order, was appealable before the High Court. There is, therefore, no substance in this contention as well."

15. The third case to be referred in this context is the case of Allah Rakhio v. Khushmir Khan and others 1986 CLC 1828 wherein it has been held that the intervenor claiming interest in property is a necessary party.

16. The last list question requiring consideration .in the present appeal is whether the Rent Controller, in execution proceedings can investigate into the bona fides of the claim of a person resisting the order of eviction. It has been held in above‑cited case of Messrs Bambino Ltd. v. Messrs Selmor International Ltd. and another PLD 1983 SC 155 wherein it has been held:‑

17. Order XXI, rules 100 and 101 of the Code of Civil Procedure amply authorised an Executing Court for investigating and adjudicating upon the matter of dispossession from immovable property by the holder of a decree for possession of such property of a person other than the judgment‑debtor."

18. Similarly in the case of Kabiruddin v. Syed Sibtain Ahmad 1987 CLC 604 it has been held:‑‑

19. "In executing the order the Controller is not debarred to exercise any power under Order XXI with regard to investigation of the matter or determining the bona fide claim of a person who is resisting or obstructing the order of eviction claiming himself to be in possession of the disputed premises in his own right. Now section 2 has been substituted by Sind Rented Premises (Amendment) Act, 1986, Act 1 of 1986. Final orders passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit. This amendment was gazetted on 12‑5‑1986.

20. Learned counsel for the applicant has submitted that in view of this amendment it is quite clear that previously the Rent Controller had no jurisdiction to determine the questions arising between the parties and relating to the execution, discharge or satisfaction or the order and proper remedy by a third party was a regular civil suit. This contention has no force. After all Controller had to adopt some procedure in executing the order. If the third person obstructs the execution of order claiming himself to be in possession of the property in his own right the Controller could after enquiry decide this matter and would not stay the proceedings till the controversy was resolved by the civil Court:"

21. From the above discussion I am of the view that the appellant is a necessary party and that the Rent Controller should have allowed her the opportunity to join in the proceedings and to prove the bona fides of her claim. I, therefore, allow this appeal, set aside the orders of Rent Controller passed on 5 10‑1986 and 13‑3‑1988. The case is remanded to the IIIrd Rent Controller, South, Karachi with the directions that appellant be joined as party to the proceedings and to proceed with the case according to law. However, there will be no order as to costs.

22. H.B.T./Z‑98/K Case remanded.