AMENA BANO Versus MUHAMMAD RAHEEM

This is an Appeal against the ejectment order of VIth Senior Civil Judge and Rent Controller, Karachi East dated 3‑3‑1993.

1. The respondent filed application under section 15 of the Sindh Rented Premises Ordinance against one Muhammad Ghous stating therein that he is landlord of the House No. 225, Sector 37/11, Landhi, Karachi which was rented out to father of opponent Muhammad Ghous about 16 years back Rs.30 per month, subsequently raised to Rs.300 per month. After the death of Muhammad Umer his son Muhammad Ghous, opponent in the rent proceedings, continued tenancy on same terms and conditions. It is alleged that opponent Muhammad Ghous committed default compelling the respondent to file a complaint before Punchayat Committee for payment of rental arrears amounting to Rs.1,600. Muhammad Ghous paid Rs.900 and promised to pay the balance amount till 12‑8‑1990 but later on could only manage to pay Rs.500 and Rs.200 were still outstanding against him. It was further alleged that opponent Muhammad Ghous stopped payment of rent since 1st May, 1990 and on 10‑9‑1991 the respondent filed ejectment application against such default.

2. Muhammad Ghous filed written statement denying the relationship of landlord and tenant and averred that the demised premises actually belonged to late Abdul Hakeem who died in India and the respondent started forcibly collecting the rent from his father Muhammad Umer. According to Muhammad Ghous he was paying rent regularly and no default was committed by him.

3. Muhammad Yasin father of the respondent was examined on behalf of the applicant who produced power of attorney, sale‑deed in respect of the disputed property between Abdul Hakeem and Muhammad Raheem the respondent, a transfer deed in favour of Muhammad Raheem and also some documents attested by the Conciliation Court shown arrears of Rs.900 against Muhammad Ghous. Another witness Muhammad Ibrahim was also examined by the respondent.

4. Muhammad Ghous, opponent examined himself only.

5. The learned Rent Controller set the following four points for determination and his findings in respect of points 1, 2, 3 and 4 was in affirmative, as such, he directed that the possession of the demised premises be handed over to the respondent within sixty days of the passing of the Order:‑‑

"(1) Whether there exists relationship of landlord and tenant between the applicant and the opponent?

(2) Whether the opponent committed default in payment of rent since 1‑5‑1990 for a period of 4 months?

(3) Whether the applicant requires the rented premises for his personal bona fide use?

(4) What should the order be?"

6. The main thrust of the appellants is that they are the legal heirs of original tenant Muhammad Umer and are occupying the house after his death, as such, they were necessary party in proceedings and due to non joinder of the necessary party this order be set aside. It is also alleged that opponent Muhammad Ghous has patched up with the respondent and therefore, has not filed any appeal against the ejectment order of the Rent Controller. According to them being residents of the house as well as legal heirs of deceased tenant Muhammad Umer, order passed, adversely affects their rights and therefore, they have a right to file appeal against the ejectment order.

7. Provisions of section 21, Sindh Rented Premises Ordinance allow only the aggrieved party to file an appeal against the order; not being an interim order made by the Controller. Term "aggrieved party" does not mean, only a party to a proceeding but any person aggrieved by the order, claiming that the order complained against was prejudicial to him and affects his interest adversely as held in case of Muhammad Azeem Qureshi v. Hakim Syed Akhtar Irshad and 4 others (1990 CLC 122). In case of H.M. Saya & Co. v. Wazir Ali industries Ltd. (PLD 1969 SC 65) it is clearly laid down that if the decree or order appealed from adversely affects a person, he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings same has been followed in case of Ghulam Haider v. Muhammad Haneef and others (PLD 1979 Kar. 167).

8. Whether a party is aggrieved or not by the impugned order, can be spelt out from the pleadings at the first instance and if the same is not indicated by the pleadings as to how party appealed against the order is aggrieved, duty is cast on that party so claiming to place before the Court such evidence to establish the impugned order adversely affects his rights. In the instant case the appellants were not party to the proceedings before the Rent Controller. For all practical purposes the rent proceedings have been initiated against Muhammad Ghous son of original tenant Muhammad Umer, the respondent No.2 herein only. It was not averred in written statement filed by respondent No.2 or any evidence was led to the effect that apart from respondent No.2 present appellants were residing in the rented premises after the death of his father Muhammad Umer, original tenant.

9. Para. II of subsection (j) of section 2 of Sindh Rented Premises Ordinance, 1979, defines that the heirs of the tenants in possession or occupation of the premises after his death are the statutory tenant. If any heir of the deceased tenant is not in possession or occupation of the premises he will not be termed as tenant, as such, he cannot be aggrieved party.

10. Appellants are of course legal heirs of deceased tenant Muhammad Umer but they neither led any evidence nor produced anything in the trial Court or made any application of leading such additional evidence at appellate stage or even filed any affidavit alongwith the appeal to indicate that they are in possession of occupation of the premises after the death of original tenant Muhammad Umer. All the legal heirs of the deceased tenant are not necessary parties in the proceedings but only those who are in actual possession or occupation of the house can become statutory .tenant and necessary parties as held in case of Kamal Arfeen v. Mansoor Muhammad Qureshi (PLD 1983 Kar. 598).

11. In case of Muhammad Idrees and another v. Mahboob Alam Qureshi and others (NLR 1983 SCJ 144) an ejectment order passed by the Rent Controller was upheld though one of the sons of the deceased tenant was not joined as party as there was no evidence on the record that the son who was not joined as party was in possession or occupation of the house. In case of Muhammad Hussain Fatavi and another v. Fakhrunnisa Begum and 5 others (1991 CLC 1930) an appeal was preferred on the ground that all the legal heirs of deceased tenant were not impleaded in the ejectment application, as such, the impugned order was defective. This appeal was dismissed on the ground that there was no evidence that all the legal heirs of deceased tenant succeed him in joint business and were co‑tenants of demised premises.

12. In view of the above discussion and upon failure of the appellants to file/lead any evidence on their being in possession or occupation of the demised premises alongwith respondent No.2, they cannot be deemed as aggrieved party and that their rights are adversely affected. Consequently their appeal is dismissed with no order as to cost. However, the appellants can pursue any other legal remedy available to them according to law.

H.B.T./A‑44/K Appeal dismissed.