ZAINOOR AHMED Versus NOOR JEHAN
1. This appeal has been preferred under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the '1979‑Ordinance') by the appellant who is a tenant in respect of residential premises No. 10, 5th Floor, Plot No.44, SB‑4, Dawood Pota Road, Karachi, challenging the order dated 4‑4‑1995, whereby the eviction of the appellant and his alleged sub‑tenant Muhammad Aslam was ordered and the order dated 26‑9‑1996, whereby application under Order IX, rule 13, C.P.C. for setting aside the earlier order has been dismissed. The appellant's case is that he was never served with notice of the Rent Case No.791/1992 and had never engaged by Advocate for such proceedings prior to 12‑9‑1995, when upon coming to know about the pendency of the execution proceedings, he filed application under Order JX, Rule 13, C.P.C. for setting aside the above‑referred order of eviction dated 4‑4‑1995.
2. For appreciating the respective contentions of the parties, ‑it is necessary to take account of the proceedings briefly. On 26‑5‑1992, the respondent landlady filed cent case under section 15 of the 1979 Ordinance being Rent Case No.791/92 in the Court of IInd Senior Civil Judge and Rent Controller, Karachi (South) against the appellant and one Muhammad Aslam on the grounds of default in payment of rent since March, 1992, subletting of the subject premises to the above‑referred Muhammad Aslam and unauthorised conversion of the use of the premises from residential to commercial. Notice of the case was issued for 6‑7‑1992 to the appellant and co‑opponent namely, Muhammad Aslam through bailiff as well as through registered A/D post. The notice sent through bailiff was returned with the endorsement that it was served on both the opponents at the given address upon pointation by the respondent whereas the copy sent through registered post returned with the endorsement of refusal. It has been noticed from perusal of the notice sent through the bail; ff that 'Muhammad Abid' and 'Aslam' had signed it in English on 30‑5‑1992. The record of the rent case does not show as to what happened on 6‑7‑1992, but the first order appearing in the Diary Sheet shows that on 6‑8‑1992 the following order was passed:
3. "Advocate for appellant present. None present from appellant's side. W.S. not filed. No intimation in spite of service. The side of appellants stands closed for filing of W. S. Put off to 11‑8‑1992 for A. E."
4. On 11‑8‑1992 one Mr. Anwar Ahmed, Advocate appearing and submitted an undertaking to file Vakalatnama on behalf of the appellant. The matter was accordingly adjourned to 20‑8‑1992 when the said Mr. Anwar Ahmed filed Vakalatnama signed by the appellant as well as co‑opponent Muhammad Aslam. On 8‑9‑1992 application was filed by the said Mr. Anwar Ahmed, Advocate for setting aside the order dated 6‑7‑1992 (correct date being 6‑8‑1992) on behalf of the appellant and co‑opponent. The application was supported by affidavits allegedly sworn by the appellant and Muhammad Aslam. A copy of National Identity Card of Muhammad Aslam was also annexed with his affidavit. In the affidavits, it was claimed that neither of the said deponents had received any notice nor had refused to receive any notice. It was further averred that Muhammad Aslam always signs in Urdu and the signature in English as was endorsed on the notice issued through bailiff had been forged. On 3‑10‑1992 yet another application under section 12(2) was filed by Mr. Anwar Ahmed, Advocate supported again by affidavits allegedly sworn by the appellant and Muhammad Aslam. On 19‑9‑1993, the application dated 8‑9‑1992 for setting aside Order dated 6‑7‑1992 was granted and the appellant and co‑opponent Muhammad Aslam were directed to file their written‑statement without any delay. In the order dated 19‑9‑1993, the date of the order which was set aside is mentioned as 22‑7‑1992 and it is further mentioned that the service of notice upon the appellant and the co‑opponent was held good, as per the Court Diary, on 22‑7‑1992. On 19‑10‑1993 written statement was filed allegedly signed by the appellant and Mr. Anwar Ahmed, Advocate, but in the title it is stated to be 'written statement on behalf of opponent No.2' (Muhammad Aslam). In the written statement it was averred that the appellant had not committed any default and after refusal by the respondent, the appellant was depositing rent in MRC No.762/1992. It was further averred that the co‑opponent Muhammad Aslam was working as 'Karigar/labourer' of the appellant who in any case had left the job due to harassment by the son of the respondent who happened to be a Police Officer in the C.I.A. Department. On 5‑5‑1994, application filed by Mr. Anwar Ahmed, Advocate under section 12(2), C.P.C. was dismissed. On the same day, the respondent was partly cross‑examined by Mr. Anwar Ahmed, Advocate wherein the respondent admitted that the appellant himself was running the business of goldsmith at the subject premises. Further cross‑examination was reserved for want of time. However, due to repeated failure on the part of the said Mr. Anwar Ahmed, Advocate to turn up for the proceedings, further cross--examination of the respondent was closed. Meanwhile, on 4‑9‑1994, the matter was ordered to proceed ex parte, against the appellant and on.7‑12‑1994, the side of co‑opponent Muhammad Aslam was closed. On 4‑4‑1995, the learned Rent Controller ordered ejectment of the appellant and the co‑opponent on all the three grounds stated in the application under section 15 of the 1979 Ordinance. On 17‑7‑1995, Execution Application No.26/1995 was filed by the respondent in the Court of IInd Senior Civil Judge and Rent Controller, Karachi (South), notice whereof was issued to both the appellant and the co‑opponent Muhammad Aslam at the same address as mentioned in the Rent Case, for 30‑7‑1995 and thereafter for 27‑8‑1995. On 31‑8‑1995 application was admittedly filed by the appellant in the execution proceedings, for grant of time. On 12‑9‑1995, another application under Order IX, Rule 13, C.P.C. was filed by Mr. Iqbal Qadir, Advocate on behalf of the appellant for setting aside the order dated 4‑4‑1995 whereby eviction of the appellant and the co‑opponent was ordered. Simultaneously, Vakalatnama of M/s. Iqbal Qadri and Amanullah Khan. Advocates was filed which, however, appears to have been signed 12 days earlier, on 31‑8‑1995. In the application, it was stated that the appellant had not received any notice of the proceedings in rent case and the orders dated 4‑9‑1994 and 4‑4‑1995 had been procured through misrepresentation and fraud played by the Advocate who had appeared on behalf of the appellant without any proper Vakalatnama. The appellant, in his affidavit, further averred' that the notice of execution application was served upon him on 19‑8‑1995 through registered post at the very address which had been mentioned in the title of the rent case. This application, under Order IX, Rule 13, C.P.C., after hearing was dismissed by the impugned order dated 26‑8‑1995. After filing this appeal on 14‑9‑1996, the proceedings before the Rent Controller were stayed.
5. This appeal has come up for Katcha Peshi repeatedly but appears to have been adjourned and mostly at the behest of the appellant who changed his counsel three times and was cautioned to proceed with the case without delay. On 14‑11‑1996, on account of the serious allegations made regarding conduct of Mr. Anwar Ahmed, Advocate, notice was ordered to be issued for his appearance in Court pursuant to such notice Mr. Anwar Ahmed, Advocate appeared in Court and made statement which is duly reflected in the order dated 8‑12‑1996 of this Court, relevant portion whereof is reproduced hereunder for convenience:
6. "Mr. Anwar Ahmed refutes the allegations. He states that he has acted as the Advocate of the appellant in several matters including Income Tax matters. According to him the appellant had informed him on telephone about the Rent Case No.791/92, whereupon he made inquiries in the office of the Rent Controller and also examined the Register when he came to know of the case. On instructions of the appellant he filed application for setting aside the ex parte order, which had been passed against the appellant on 6‑7‑1992 and for the same purpose,*he also filed an application under section 12(2), C.P.C. 'His application for setting aside was allowed and the order for ex parte proceedings was recalled. Thereafter, he filed written statement on behalf of the appellant as well as Muhammad Aslam and then cross examined‑the respondent on one date. However, he did not appear in Court on behalf of the appellant after 5‑5‑1994 as the appellant had informed him that he was going to compromise the matter and therefore there was no necessity of the counsel now acting on his behalf in the case."
7. With the above background, I have heard the learned counsel for the parties. On the date of hearing viz. 19‑1‑1997, the above‑referred co‑opponent Muhammad Aslam also appeared in Court. His original National Identity Card was seen by me and compared with the photostat copy available on the record of the lower Court which had been filed alongwith the affidavit of Muhammad Aslarn filed in support of application dated 8‑9‑1992. The photocopy of the National Identity Card tallies with the original and such note is duly recorded in the order dated 19‑1‑1997.
8. I have heard the learned counsel for the parties. The learned counsel for the respondent, at the outset, has urged that the appeal itself is incompetent and is liable to be dismissed. The argument of the learned counsel for the respondent is that the Rent Case No.791/1992 was filed by the respondent seeking eviction of the appellant and the co‑opponent Muhammad Aslam. The learned Rent Controller by his order dated 4‑4‑1995 was pleased to grant the prayer for ejectment of the two opponents. The present appeal however has been filed by the appellant without joining the co‑opponent. According to the learned counsel for the respondent, the non joinder of co‑opponent Muhammad Aslam is fatal to the proceedings and the order of eviction is to be treated as having attained finality and cannot be assailed in the present appeal. Consequently, the application under Order 1, Rule 10, C.P.C. being C.M.A. No.913/1996 filed on behalf of the appellant on 12‑11‑1996, is liable to be rejected. It is urged that such application under Order 1, Rule 10, C.P.C. has been filed beyond the period of limitation and therefore cannot cure the defect of non‑joinder. The learned counsel in this respect has placed reliance on judgment in the case of Muhammad Snleman v. Abdur Rasheed and 13 others reported in PLD 1987 ' Lahore 387.
9. On the other hand, Mr. Anwar Hussain, Advocate for the appellant has contended that the omission to join the co‑opponent Muhammad Aslam was merely accidental and the above‑referred application under Order 1, Rule 10, C.P.C. has been filed as a remedial measure. The learned counsel for the appellant further contended that the objection regarding non‑joinder or mis joinder of parties has to be raised at the earliest possible opportunity by virtue of Order 1, Rule 13, C.P.C. and such defect, in any case, is not fatal. Reliance was placed by the learned counsel for the respondent on the judgments in Sarshar Ali v. Roberts Cotton Association Limited and another reported in PLD 1963 SC 244, Muhammad Said and others v. M. Sardar and others reported in PLD 1989 SC 532 and Punjab Road Transport Board v. Abdul Ghafoor and 6 others reported in PLD 1989 SC 541.
10. In the Lahore case cited by the learned counsel for the respondent, suit for pre‑emption was dismissed and against such judgment appeals were preferred but the vendee was not joined as respondent. After dismissal of the first appeals, matter came up before a Bench of the High Court where the defect with regard to non joinder of vendee in the first appeals was pointed out. After referring to some case‑law the learned Judge was pleased to hold as follows:‑‑
11. "It cannot be accepted that litigant may, to his pleasure, leave out of his appeal a necessary party as arrayed in the suit and then rejoin him subsequently to his convenience."
12. The learned Judge for his above view also relied on the following passage from `the judgment of Shah Muhammad and others v. Muhammad Bux reported in PLD 1972 SC 321.
13. "The provisions of Order XLI, Rule 4 of the C.P.C. is merely an enabling provision which confers a privilege on one of the plaintiffs or defendants to prefer an appeal from a decree which proceeds on any ground common to all the plaintiffs or to all the defendants. It nowhere lays down that any person, who is a necessary party to the appeal, can be excluded and still the appeal will be properly constituted." (Emphasis supplied).
14. It will be found that the principle which has weighed with the learned Judge is that a necessary party to the proceedings cannot be left out. Although it is always desirable that all the parties to the original proceedings should always be joined as parties to the appeal arising therefrom but what is to be considered is as to whether in the event of non joinder of a person who is not a necessary party to the proceedings, the appeal would still be liable to be dismissed. The judgments referred by the learned counsel for the appellant are to the effect that non joinder of a person who is not a necessary party or his joinder to appeal after the period of limitation cannot be fatal to the appeal. The follbwing passage from the judgment of B.Z. Kaikaus, J., as he then was, in the case of Sarshar Ali v. Roberts Cotton Association (supra) may be reproduced with advantage:
15. "There only remains the objection raised by the plaintiff‑appellant that the appeal before the High Court was not properly constituted as defendant No.2 was not made a party within the period of limitation. It is true that if defendant No.2 was a necessary party to the appeal his addition as a party after period of limitation could not have cured the defect in the constitution of the appeal. Defendant No. 2 was, however, not a necessary party to the appeal. The plaintiff had secured decree against both defendants. Defendant No.1 when it filed the appeal was not asking for any relief against defendant No.2 and it only wanted to get rid of the decree passed against it in favour of the plaintiff."
16. In the present case, the co‑opponent Muhammad Aslam was omittd to be joined initially as party to the appeal, is stated by the respondent, in her application under section 15 of 1979 Ordinance, to have unauthorisedly been handed over possession of the subject premises by the appellant. Thus the co‑opponent Muhammad Aslam was treated merely an unauthorised occupant of the subject premises holding‑over under the appellant. In the written‑statement, purportedly filed under the signature of the appellant on 19‑10‑1993, the following averment has been made:‑‑
17. "That the contents of para. 7 are false and fabricated and as such vehemently denied. It is submitted that neither the opponent is defaulter nor he has handed over possession of the rented premises to Muhammad Aslam who is Karegar/labourer of opponent No. 1. It is further submitted that the son of the applicant is a Police Officer in C.I.A. Department who has threatened the opponent several times, as a result thereof opponent No.2, has left job whereas opponent No. 1, is also not working in his workshop/rented premises."
18. Even during appeal the appellant in his application under Order 1, Rule 10, C.P.C. has given the address of the co‑opponent Muhammad Aslam as tenant of another premises in the vicinity; and it is averred in the affidavit that the said co‑opponent Muhammad Aslam has nothing to do with the subject premises. Howeler, in para 10 of the affidavit filed in support of the application under Order 1, Rule 10, C.P.C., the appellant has pleaded as follows:‑‑
19. "That the said Muhammad Aslam is necessary and proper party in the matter before this Hon'ble Court and his presence is very much material for the full and proper determination of the real controversy in the matter. "
20. Despite the above averment contained in para. 10 of the affidavit of the appellant, in my view the co‑opponent Muhammad Aslam is not a necessary party since the present proceedings can be decided quite effectively in his absence. The rent proceedings are essentially .between the landlord and tenant. The co‑opponent Muhammad Aslam admittedly does not fall within the definition of either and even at the time of his appearance before me, had clearly stated that he had nothing to do with the subject premises. In such circumstances, the non joinder co‑opponent Muhammad Aslam to the present appeal cannot be fatal to the proceedings and his joinder as party, beyond the period of limitation is immaterial. I am also not inclined to grant the application under Order 1, Rule 10, C.P.C., at this stage, in view of the further findings contained hereinafter. the learned counsel for the respondent, while arguing the matter onerits, has urged that the appellant was not served at all with notice of the proceedings in Rent Case No.791/1992; Mr. Anwar Ahmed, Advocate was never authorized or appointed as advocate to represent the appellant; and, the learned Rent Controller had erroneously decided to proceed ex parte against the appellant without recording a finding regarding service of notice in terms of section 19 of the 1979 Ordinance. The learned counsel further urged that upon comparison of the admitted signatures of the appellant and those of the co opponent Muhammad Aslam with the disputed ones, it was apparent that their signatures had been forged. On such analogy, it was argued that the impugned orders passed by the learned Rent Controller were nulity in law and were liable to be set aside. The learned counsel in support of his submissions has referred to the following judgments:
(i) Mst. Rehmat Bail v. Manzoor Ali Khan (PLD 1975 Kar. 1066).
(ii) Muhammad Khan v. Mir Khan (PLD 1987 Kar. 363).
(iii) Mst. Bilquis Rehman v. Aqium Hameed and another (1988 MLD 1826).
(iv) Mashlakhuddin v. Syed Ali Haider (1982 SCMIt 5701. 1
21. In the first case on the date for which notice had been issued, the learned Rent Controller was absent but his Reader had made an entry in the diary that the opponent and his counsel though called, did not appear. On the subsequent date, no body appeared and the eviction application was granted ex parte. During the proceedings, one Mr. Syed Asghar Ali Wafa, Advocate filed a written statement but subsequently did not appear allegedly due to non‑payment of his fee. After commencement of execution application, the tenant filed an application under Order 9, Rule 13, C.P.C. on the ground that the eviction order was passed without notice. The application was dismissed by the Rent Controller but in appeal, such order was set aside. In second appeal filed by the landlord, the learned Judge held that the endorsement made by the Reader about service upon the tenant, ex facie, was dishonest and on account of failure on the part of the landlady to produce the above‑referred Mr. Syed Asghar Ali Wafa, Advocate for examination in Court had rendered the reliance on the written statement filed by him as uncalled for.
22. In the second case reported in PLD 1987 Kar. 363, it was held that an undertaking given by a counsel for appearance without filing any Vakalatnama was an unauthorised act and non‑service of summons and unauthorised appearance of the counsel, was held sufficient for setting aside ex parte order.
23. In the third case which had arisen out of proceedings under section 14 of the 1979 Ordinance, it was held that unless service of notice upon tenant for the proceedings before the Rent Controller was established, the ex parte,order of eviction was liable to be set aside.
24. In the fourth case, the counsel for defendant and another counsel on his behalf had appeared on more than one date and the defendant had filed written statement too. In such circumstances, it was held that the defendant had knowledge of the proceedings and subsequently appearance on his behalf, such course was held to be justified and the order passed in first appeal by the Additional District Judge, to the contrary, was set aside.
25. In the last‑mentioned case, the order of Rent Controller, refusing to set aside an ex pane order, was quashed on the ground that a Rent Controller is required by the provisions of section 19 of 1979 Ordinance to record a finding that notice is served and that the tenant has failed to file his reply without any reasonable excuse. It has been held in this judgment that it is only after such findings are made, that the Rent Controller is precluded from setting aside an ex parte order. There is yet another judgment in which the dictum laid down in the case of Mashlakhuddin v. Syed Ali Haider (supra) was followed. Such judgment is reported in 1985 CLC 316 in the case of Bashiruddin Qureshi v. Major (Recd.) Ameenullah Khawaja. In this case it was held that the bar contemplated under section 19 of the 1979 Ordinance operates only when the tenant is served and does not file written reply within the stipulated time. However, it was found by the learned Judge that the tenant against whom ex parte order was passed had not actually been served and had no knowledge about the proceedings.
26. In the present case, Mr. Anwar Ahmed, Advocate was summoned and upon appearance in pursuance of notice issued to him had made the statement which is reproduced in the earlier part of this judgment. Such statement remained unchallenged and no additional affidavit was filed nor was any offer made to rehut the said statement of the learned counsel Even otherwise, normally it is not conceivable that an advocate would appear in a case on 12 dates, such fact being determinable from the diary sheet, without having been authorised to so appear. Indeed, there is Vakalatnama on the record of the rent case which is purportedly signed by the appellant and the co‑opponent Muhammad Aslam, The signatures of the appellant and the co‑opponent Muhammad Aslam on Vakalatnama authorising Mr. Anwar Ahmed, Advocate to appear in Rent Case No.791/1992 and the various affidavits which have been filed in the case have been compared by me with their admitted signatures and 1 am of the view that the same appear to be resemble with each other. There is one more significant factor which substantiates my view that Mr. Anwar Ahmed had duly been engaged by the appellant and the co‑opponent Muhammad Aslam to represent them in the present case. Admittedly, Mr. Anwar Ahmed, Advocate had been authorised to file Miscellaneous Rent Case. No.762/1992 by the appellant for depositing rent in Court. He had never appeared nor had represented the co‑opponent Muhammad Aslam in any proceedings prior to the Rent Case No.791/1992. The filing of photostat copy of National Identity Card of the co‑opponent Muhammad Aslam alongwith the affidavit purportedly signed by him on 8‑9‑1992 is not without significance and unless such copy was provided to the said Mr. Anwar Ahmed, Advocate, it could not have come into his hands. The said advocate had filed application for setting aside the order dated 6‑7‑199?. for which date notice was initially sent to the appellant and the co‑opponent Muhammad Aslant through bailiff as well as through registered post A/D. The application was, eventually, granted by the learned Rent Controller after counter‑affidavit thereto was filed by the respondent. The written‑statement was thereafter filed which apparently bears signatures of the appellant. The above circumstances, lead me to inescapable conclusion that Mr. Anwar Ahmed, Advocate had duly been engaged by the appellant and the co opponent Muhammad Aslam to represent them in Rent Case No.791/1992.
27. As to the legal objection regarding finding by the learned Rent Controller about service of notice, it may be observed that no notice is required A to be issued if the opponent appears through a pleader duly instructed and able to answer all material questions relating to the proceedings. Such principle is deducible from the provisions of Order V, Rule 1, C.P.C. In the present case after the order dated 6‑8‑1992 was passed by the learned Rent Controller, although initially an undertaking was filed on 11‑8‑1992 by Mr. Anwar Ahmed, Advocate for appearance it was followed by a duly signed Vakalatnama which was filed on 20‑8‑1992. Besides, in the order dated 19‑9‑1993 by the learned Rent Controller, there is reference to the Court diary dated 22‑7‑1992 to the effect that the service of notice upon the appellant and the co‑opponent No.2 was held good. In any event, as has already been observed, the question of recording a finding in terms of section 19 of the 1979 Ordinance loses significance in view of the notional appearance of the appellant and the co‑opponent Muhammad Aslam through their duly authorised representative namely My Anwar Ahmed, Advocate in Court on 20‑8‑1992. The allegation against Mi Anwar Ahmed, Advocate regarding his having appeared in the matter unauthorisedly does no: inspire confidence and is belied by the circumstances and the record. However it is unfortunate that the learned counsel discontinued appearance in the matte, fter 5‑5‑1994 without seeking withdrawal of his power and leave of the Court in terms of Order 3, Rule 4, C.P‑C. However, such is a matter to be dealt with hetween the appellant and the co‑opponent Muhammad Aslam on one side Mr Anwar Ahmed, Advocate, on the other. In the circumstances the appeal does not merit consideration and is dismissed in limine with no order as to costs.
28. The appellant is directed to vacate subject premises within 30 days subject to deposit of rent.
29. H.B.T./Z‑17/KAppeal dismissed.