JAN BIBI Versus AZAM KHAN
The facts which constitute the background of this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, are that the commercial premises bearing C.S. No.B‑3361/2, situated at Miani Road Sukkur, was transferred to Muhammad Bashir, Mst. Zahooran Begum, and Muhammad Rafique under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, and such transfer documents were issued to them. Abdul Rasool, the predecessor‑in‑interest of the appellants was in occupation of the said premises at the time of its transfer to above transferees, who served him with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, calling upon him to pay rent to them on the basis of latest assessment of Municipal Committee. The failure of the statutory tenant to meet the demand of transferee resulted into litigation, which was started by the said transferees who filed an application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on 25‑5‑1965, against the said Abdul Rasool. Abdul Rasool admitted the tenancy, but disputed the quantum of rent. The case proceeded before Mr. Ali Nawaz Budhani (now Mr. Justice (Retd.) Ali Nawaz Budhani), Rent Controller Sukkur, who was of the view that the transferees were entitled to recover rent at the rate of Rs.30 P.M. and that no default was committed by the tenant, namely, Abdul Rasool. Consequently he dismissed the application for eviction vide order dated 28‑1 1967, but directed the payment of arrears of rent to the transferees. Muhammad Bashir and others, the original transferees challenged this order in C.M. Appeal No. 133 of 1967 filed under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, which was heard by Mr. Mir Amir Ali Talpur, Additional District Judge Sukkur, who dismissed it vide judgment dated 1‑6‑1967. Muhammad Bashir and others went in second appeal before the High Court of Sindh and Balochistan, Karachi (II‑Appeal No. 522 of 1967), which was heard by Dorab Patel, J. (as he then was), who remanded the case to Rent Controller, Sukkur, vide judgment dated 2‑2‑1972. On 6‑5‑1974 the Rent Controller passed a consent order directing the said Abdul Rasool to deposit arrears of rent and monthly rent due, which too was challenged by him in C.M. Appeal No.24 of 1974, which was heard by Mr. Muhammad Ishtiaq Hussain, District Judge, Sukkur, who vide judgment dated 16‑11‑1974, dismissed it. During the pendency of these proceedings Muhammad Bashir and others the original transferees sold this premises to respondents Azam Khan and Wasim Khan and they were substituted in place of the transferees. In the meanwhile Abdul Rasool died leaving behind appellants Mst. Jan Bibi, Mst. Shirin Bibi, Mst. Sahira Bibi, Abdul Ghaffar and Abdul Rahman as legal heirs. The tenants failed to deposit the rent and consequently the Rent Controller, Sukkur, struck off their defence vide order dated 10‑6‑1976. The appellants challenged this order in C.M. Appeal No.43 of 1976, which was heard by Mr. Shabbir Ahmed, IIIrd Additional District Judge Sukkur, who dismissed it vide judgment dated 6‑2‑1979. The appellants assailed this judgment before this Court in 11‑Appeal No.19 of 1979, which was disposed of by Ajmal Mian, J (as he then was) on 5‑4‑1983, with the following order:‑
"It is an admitted position that the tentative rent order dated 6‑5‑1974 as well as the order dated 10‑6‑1976 for striking off defence for non compliance of the above order were passed by Joint Civil Judge and Rent Controller, Sukkur. Inter alia in the case of Ghulam Sarwar v. Muhammad Mithal reported in 1983 C L C 480, a learned Single Judge of this Court has held that Joint Civil Judge having powers of Third Class Civil Judge was not competent to act as a Rent Controller. The above case has been followed in the subsequent cases. Mr. Sadik Khan, learned counsel for the respondent does not contest the above legal position. I would, therefore, allow the appeal and set aside the order under appeal and remand the case to the learned Rent Controller concerned with the direction to pass a fresh tentative rent order and thereafter to proceed with the matter on merits and to decide the same within three months from the date of the receipt of copy of this order. In the circumstances of the case there will be no order as to costs."
2. After remand an application under Order 32, rule 3, C.P.C. was moved on behalf of respondents for appointing Mst. Jan Bibi, appellant No.1, as guardian ad‑litem of rest of the appellants who were minors. This application was allowed and thereafter the case proceeded. On 4‑2‑1984 the Rent Controller passed an order directing the appellants to deposit arrears of rent and monthly rent due. The order was complied with and thereafter the case proceeded. The parties adduced evidence and on the assessment thereof the learned Rent Controller (Mr. Pirbhulal Uttamchand) allowed the application by directing the ejectment of appellants from the disputed premises within 60 days. This order dated 31‑5‑1984, is the subject‑matter of this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979.
3. I have heard Mr. Abdur Rehman Shaikh, learned counsel for the appellants and Mr. Sadik Khan, learned counsel for the respondents. I have also perused the record of this case carefully. The learned counsel for the appellants has referred to several points but eventually confined his arguments on the main to the following contentions:‑
(i) That the Rent Controller having proceeded against the minor appellants without complying with the provisions of Order 32, C.P.C. in the matter of appointment of guardian ad‑litem, has acted with material irregularity, thereby vitiating the whole proceedings.
(ii) That the premises in dispute is non‑existent and consequently there existed no relationship of landlord and tenant between the parties.
(iii) That no proper opportunity was afforded to appellants and their application for summoning the witnesses was dismissed without any cogent reason.
(iv) That the appellants having (been) called upon to deposit the arrears of rent twice were seriously prejudiced.
4. Order 32, C.P.C. is attracted in respect of suits by or against minors and persons of unsound mind. The application made on behalf of respondents for appointing Mst. Jan Bibi as guardian ad‑litem of minor appellants is on record. The imnuened order shows that this application was allowed before the case proceeded. In such a situation the rule laid down in Mashal Khan v. Fazal Karim and another, reported in P L D 1963 Peshawar 93, and Allah Ditta and 4 others v. Malik Ahmad Bakhsh and 5 others, reported in P L D 1975 Lahore 403, cited on behalf of appellants is not attracted to the facts of this case. Even otherwise in the former authority it was held that any irregularity in the appointment of guardian ad‑litem was curable if no prejudice was caused to the minors. I can do no better than quoting the observations made by Anwar‑ul‑Haque, J (as he then was), which are as follows:‑
"It will be seen that the consensus of judicial authorities appears to be that the provisions of Order XXXII, R.3, C.P.C. regarding the representation of minor litigants, should normally be applied strictly, but any failure to comply with them is an irregularity which is curable, provided no prejudice has been caused to the minor, and his interests were duly represented by the irregularly appointed guardian ad‑litem or by some other defendants who had identical interest with the minor in the matters in controversy in the suit. But if it is found that the minor has been prejudiced, then it must be held that he was not duly represented in the proceedings, and accordingly he cannot be regarded as a party to them, with the result that any order or decree passed therein would not be binding on him. Such a decree or order would be a nullity in the eye of law, as having been passed without jurisdiction against a person who was not a party before the Court."
The record shows that appellant Mst. Jan Bibi was all along contesting the matter and the interest of minors was safe in the hands of (heir mother.
5. I now address myself to the question, whether the appellants in the circumstances of the present case can question the relationship of landlord and tenant between the parties. Admittedly Abdul Rasool, predecessor‑in‑interest of the appellants, was a statutory tenant. Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which regulated such tenancy was examined by the Supreme Court in well‑known case of EA. Evans v. Muhammad Ashraf, reported in P L D 1964 S.C. 536, in which the following principles were laid down:
(i) Express notice in writing must be given by the transferee to the tenant.
(ii) The tenancy is to be continued on the same terms and conditions as to payment of rent or otherwise on which he held immediately before transfer.
(iii) Two notices (1) giving information of transfer and (2) making demand of rent, may be combined into one.
(iv) It shall be lawful for the transferee to charge a rent on the basis of latest assessment carried out by the Municipality or local authority.
(v) The tenant cannot contract out of protection provided by section 30.
(vi) Notice of demand is necessary to deprive a tenant of the protection provided by section 30.
6. The service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, upon Abdul Rasool predecessor in‑interest of the appellants a not disputed. Abdul Rasool has also admitted the tenancrin unambiguous terms in his written statement. He had simply questioned the quantum of rent. The respondents had stepped into the shoes of Muhammad Bashir, Mst. Zahooran Begum and Muhammad Rafique, the original transferees applicants, and were impleaded as party. The case of Messrs Adil Brothers Karachi Ltd. v. Messrs Amin Art Press and another, reported in P L D 1976 Karachi 53 is a direct authority on this subject. Therefore, the appellants could not question their tenancy after Abdul Rasool had admitted so in clear terms nor they could file any fresh written statement taking a different stand. I am fortified in ‑ my view by a case reported as Lal Hussain v. Amir Muhammad Khan and another (P L D 1972 Lahore 256), in which this question was answered in the following words.
"In Order XXII, rule 3, the deceased plaintiff's legal representatives are to be impleaded as a party and then it is provided that the Court shall proceed with the suit. Order XXII, rule 4 provides for the impleading of the legal representatives of a deceased defendant and sub‑rule (1) of rule 4 says that the Court shall proceed with the suit. In sub‑rule (2), however, it is provided that any person made a party as a legal representative may make any defence appropriate to his character as legal representative of the deceased defendant. The argument of the learned counsel for the petitioner was that sub‑rule (2) gives a right to the legal representatives to file a written statement even though the suit may have been defended by the deceased defendant although it may amount to re‑opening of the whole case. I think that such a construction of sub‑rule (2) of rule 4 will create numerous complications and anomalies. Sub‑rule (2) itself is not couched in such wide language. In my opinion, the comparative reading of the two rules 3 and 4 will show that the principle that the legal representatives of the deceased are bound by what the deceased had done is not departed from nor is there any justification for holding that in case of death of the defendant, it is open to his legal representatives to nullify all the proceedings already taken and to start the suit de novo from the stage of defence. Rule 3 of Order XXII which relates to the impleading of legal representatives of a deceased plaintiff provides that once the legal representatives of the deceased plaintiff are made a party, the Court shall proceed with the suit proceeded. In such a situation the rule laid down in Mashal Khan v. Fazal Karim and another, reported in P L D 1963 Peshawar 93, and Allah Ditta and 4 others v. Malik Ahmad Bakhsh and 5 others, reported in P L D 1975 Lahore 403, cited on behalf of appellants is not attracted to the facts of this case. Even otherwise in the former authority it was held that any irregularity in the appointment of guardian ad‑litem was curable if no prejudice was caused to the minors. I can do no better than quoting the observations made by Anwar‑ul‑Haque, J (as he then was), which are as follows:‑
"It will be seen that the consensus of judicial authorities appears to be that the provisions of Order XXXII, R.3, C.P.C. regarding the representation of minor litigants, should normally be applied strictly, but any failure to comply with them is an irregularity which is curable, provided no prejudice has been caused to the minor, and his interests were duly represented by the irregularly appointed guardian ad‑litem or by some other defendants who had identical interest with the minor in the matters in controversy in the suit. But if it is found that the minor has been prejudiced, then it must be held that he was not duly represented in the proceedings, and accordingly he cannot be regarded as a party to them, with the result that any order or decree passed therein would not be binding on him. Such a decree or order would be a nullity in the eye of law, as having been passed without jurisdiction against a person who was not a party before the Court."
The record shows that appellant Mst. Jan Bibi was all along contesting the matter and the interest of minors was safe in the hands of (heir mother.
5. I now address myself to the question, whether the appellants in the circumstances of the present case can question the relationship of landlord and tenant between the parties. Admittedly Abdul Rasool, predecessor‑in‑interest of the appellants, was a statutory tenant. Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which regulated such tenancy was examined by the Supreme Court in well‑known case of EA: Evans v. Muhammad Ashraf, reported in P L D 1964 S.C. 536, in which the following principles were laid down:
(i) Express notice in writing must be given by the transferee to the tenant.
(ii) The tenancy is to be continued on the same terms and conditions as to payment of rent or otherwise on which he held immediately before transfer.
(iii) Two notices (1) giving information of transfer and (2) making demand of rent, may be combined into one.
(iv) It shall be lawful for the transferee to charge a rent on the basis of latest assessment carried out by the Municipality or local authority.
(v) The tenant cannot contract out of protection provided by section 30.
(vi) Notice of demand is necessary to deprive a tenant of the protection provided by section 30.
6. The service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, upon Abdul Rasool predecessor in‑interest of the appellants, not disputed. Abdul Rasool has also admitted the tenancy‑in unambiguous terms in his written statement. He had simply questioned the quantum of rent. The respondents had stepped into the shoes of Muhammad Bashir, Mst. Zahooran Begum and Muhammad Rafique, the original transferees applicants, and were impleaded as party. The case of Messrs Adil Brothers Karachi Ltd. v. Messrs Amin Art Press and another, reported in P L D 1976 Karachi 53 is a direct authority on this subject. Therefore, the appellants could not question their tenancy after Abdul Rasool had admitted so in clear terms nor they could file any fresh written statement taking a different stand. I am fortified in ‑ my view by a case reported as Lai Hussain v. Amir Muhammad Khan and another (P L D 1972 Lahore 250), in which this question was answered in the following words.
"In Order XXII, rule 3, the deceased plaintiffs legal representatives are to be impleaded as a party and then it is provided that the Court shall proceed with the suit. Order XXII, rule 4 provides for the impleading of the legal representatives of a deceased defendant and sub‑rule (1) of rule 4 says that the Court shall proceed with the suit. In sub‑rule (2), however, it is provided that any person made a party as a legal representative may make any defence appropriate to his character as legal representative of the deceased defendant. The argument of the learned counsel for the petitioner was that sub‑rule (2) gives a right to the legal representatives to file a written statement even though the suit may have been defended by the deceased defendant although it may amount to re‑opening of the whole case. I think that such a construction of sub‑rule (2) of rule 4 will create numerous complications and anomalies. Sub‑rule (2) itself is not couched in such wide language. In my opinion, the comparative reading of the two rules 3 and 4 will show that the principle that the legal representatives of the deceased are bound by what the deceased had done is not departed from nor is there any justification for holding that in case of death of the defendant, it is open to his legal representatives to nullify all the proceedings already taken and to start the suit de novo from the stage of defence. Rule 3 of Order XXII which relates to the impleading of legal representatives of a deceased plaintiff provides that once the legal representatives of the deceased plaintiff are made a party, the Court shall proceed with the suit proceeded. In such a situation the rule laid down in Mashal Khan v. Fazal Karim and another, reported in P L D 1963 Peshawar 93, and Allah Ditta and 4 others v. Malik Ahmad Bakhsh and 5 others, reported in P L D 1975 Lahore 403, cited on behalf of appellants is not attracted to the facts of this case. Even otherwise in the former authority it was held that any irregularity in the appointment of guardian ad‑litem was curable if no prejudice was caused to the minors. I can do no better than quoting the observations made by Anwar‑ul‑Haque, J (as he then was), which are as follows:‑
"It will be seen that the consensus of judicial authorities appears to be that the provisions of Order XXXII, R.3, C.P.C. regarding the representation of minor litigants, should normally be applied strictly, but any failure to comply with them is an irregularity which is curable, provided no prejudice has been caused to the minor, and his interests were duly represented by the irregularly appointed guardian ad‑litem or by some other defendants who had identical interest with the minor in the matters in controversy in the suit. But if it is found that the minor has been prejudiced, then it must be held that he was not duly represented in the proceedings, and accordingly he cannot be regarded as a party to them, with the result that any order or decree passed therein would not be binding on him. Such a decree or order would be a nullity in the eye of law, as having been passed without jurisdiction against a person who was not a party before the Court."
The record shows that appellant Mst. Jan Bibi was all along contesting the matter and the interest of minors was safe in the hands of (heir mother.
5. I now address myself to the question, whether the appellants in the circumstances of the present case can question the relationship of landlord and tenant between the parties. Admittedly Abdul Rasool, predecessor‑in‑interest of the appellants, was a statutory tenant. Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which regulated such tenancy was examined by the Supreme Court in well‑known case of EA: Evans v. Muhammad Ashraf, reported in P L D 1964 S.C. 536, in which the following principles were laid down:
(i) Express notice in writing must be given by the transferee to the tenant.
(ii) The tenancy is to be continued on the same terms and conditions as to payment of rent or otherwise on which he held immediately before transfer.
(iii) Two notices (1) giving information of transfer and (2) making demand of rent, may be combined into one.
(iv) It shall be lawful for the transferee to charge a rent on the basis of latest assessment carried out by the Municipality or local authority.
(v) The tenant cannot contract out of protection provided by section 30.
(vi) Notice of demand is necessary to deprive a tenant of the protection provided by section 30.
6. The service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, upon Abdul Rasool predecessor in‑interest of the appellants, i;. not disputed. Abdul Rasool has also admitted the tenancy‑in unambiguous terms in his written statement. He had simply questioned the quantum of rent. The respondents had stepped into the shoes of Muhammad Bashir, Mst. Zahooran Begum and Muhammad Rafique, the original transferees applicants, and were impleaded as party. The case of Messrs Adil Brothers Karachi Ltd. v. Messrs Amin Art Press and another, reported in P L D 1976 Karachi 53 is a direct authority on this subject. Therefore, the appellants could not question their tenancy after Abdul Rasool had admitted so in clear terms nor they could file any fresh written statement taking a different stand. I am fortified in ‑ my view by a case reported as Lai Hussain v. Amir Muhammad Khan and another (P L D 1972 Lahore 250), in which this question was answered in the following words.
"In Order XXII, rule 3, the deceased plaintiffs legal representatives are to be impleaded as a party and then it is provided that the Court shall proceed with the suit. Order XXII, rule 4 provides for the impleading of the legal representatives of a deceased defendant and sub‑rule (1) of rule 4 says that the Court shall proceed with the suit. In sub‑rule (2), however, it is provided that any person made a party as a legal representative may make any defence appropriate to his character as legal representative of the deceased defendant. The argument of the learned counsel for the petitioner was that sub‑rule (2) gives a right to the legal representatives to file a written statement even though the suit may have been defended by the deceased defendant although it may amount to re‑opening of the whole case. I think that such a construction of sub‑rule (2) of rule 4 will create numerous complications and anomalies. Sub‑rule (2) itself is not couched in such wide language. In my opinion, the comparative reading of the two rules 3 and 4 will show that the principle that the legal representatives of the deceased are bound by what the deceased had done is not departed from nor is there any justification for holding that in case of death of the defendant, it is open to his legal representatives to nullify all the proceedings already taken and to start the suit de novo from the stage of defence. Rule 3 of Order XXII which relates to the impleading of legal representatives of a deceased plaintiff provides that once the legal representatives of the deceased plaintiff are made a party, the Court shall proceed with the suit which means that it is to proceed from the stage at which the suit was at the time of death of the deceased plaintiff and whatever proceedings were taken by the deceased plaintiff would be deemed to be binding upon the legal representatives. Sub‑rule (1) of rule 4 also makes a similar provision that after legal representatives of a deceased defendant have been impleaded, the Court shall proceed with the suit. This provision is also susceptible of only one interpretation that the proceedings already taken will not be disturbed and suit will proceed only from the stage on which it was when the deceased defendant died. Similarity of language used in sub‑rule (1) of rule 3 and sub‑rule (1) of rule 4 excludes the possibility of these two rules being interpreted differently. Rule 3 becomes effective after the suit has already been instituted by filing a plaint and the plaint already being on record no further right of filing a pleading was necessary to be given to the legal representatives of the deceased plaintiff. In case of defendant, however, it is possible that the deceased defendant may not have filed a written statement in which case it would certainly be open to the legal representatives to file one. But there may be cases where some defence may not be open to the deceased defendant but it may be open to the legal representative independently as an individual as distinguished from his capacity as legal representative. It is to meet such contingency that provision has been made in sub‑rule (2) of rule 4 that any person made a party as legal representative may make any defence provided it is appropriate to his character as legal representative of the deceased defendant. This provision is not to give a legal representative a right independent of the right of the deceased defendant or higher than that of the deceased defendant. On the other hand, it is a provision of limitation confining the legal representative to raise defence which could be raised by the deceased defendant. Sub‑rule (2) does not authorise a legal representative to make any defence he likes, but only to make a defence appropriate to his character as legal representative.'
7. It, therefore, follows that the appellants are bound by the admissions made by their predecessor‑in‑interest. Article 115 of the Qanun‑e‑Shahadat, 1984, speaks. of estoppel of tenant and he accepting the title of his landlord in an ejectment proceedings cannot subsequently challenge it. Even otherwise legal C heirs of the original tenant cannot be allowed to raise a new plea after 20 years of litigation that there exists discrepancy in S.No. of the premises purchased by the respondents from the original transferees. This contention is frivolous and notwithstanding the energy shown by learned counsel for appellants was really a deliberate attempt to confuse the issue, if he will forgive me saying it.
8. A grievance was also made by learned counsel for appellants about the rejection of application made for summoning of the witnesses by the Rent Controller. The chequered history of this litigation which I have given in the narrative part of this judgment provides a complete answer to this argument. The appellants have pushed the technicalities to extreme. They have consumed their entire energy in protracting the proceedings which had taken 25 years to reach this Court in third round of litigation. Delay and expenses are two ugly features of our judicial system and this case demonstrates in no uncertain terms for any one to see that how the delay defeats justice. I hasten to add that such a procedure is bound to seriously impair and undermine the confidence of litigants in Courts.
9. Lastly it was half‑heartedly suggested that the Rent Controller directed the appellants to deposit a part of arrears of rent which was already deposited by them. No prejudice appears to have been caused by this order. The amount deposited, in excess was to be returned to appellants. The concluding portion of the impugned order is self‑explanatory.
10. The default in payment of rent is proved from the record. Where the default is committed by a deceased tenant, the children succeeding to tbnancy also succeed to default of deceased tenant. The case of Sh. Muhammad Nawaz v. Muhammad Azeem and others, reported in P L D 1961 Lahore 788, is relevant on this point. At page 790, it was observed by a Division Bench that:‑‑
"In Section 2, clause (i) of the Ordinance the expression "tenant" has been defined so as to include "the wife and children of a deceased tenant." Upon the death of the original tenant, therefore, the children automatically became tenants for the purpose of eviction under section 13. If, therefore, section 13 requires that a tenant may be ejected for non payment of rent, then the fact that the original tenant has been succeeded by his children will not alter the fact that a default has been made by the original tenant. The death of the original tenant cannot obliterate the effect of the default which has conferred an advantage on the landlord. The default was not personal, for it was committed in respect of property, and since the children succeed to the tenancy, they succeed to the default also. We cannot accept the argument that a defaulter's death can efface the effect of the default."
11. The case reported as Muhammad Siddique v. Muhammad Siddique (1986 C L C 896), is also relevant in a situation like the one under consideration. There is admitted default and in such a situation the impugned order is not open to exception.
12. The appeal has got no merits and is dismissed with costs. The appellants are, however, allowed two months time to vacate the demised premises.
H.B.T./J‑90/K Appeal dismissed.