Mst. KHATIJA BAI Versus BEGUM ASHFAQ

1. One Mst.Nasreen Begum who was the owner of the premises in dispute filed an application for ejectment against Ashfaq Ahmed on 7‑8‑1975 on the ground of default in payment of rent. In response to the notice issued by the Controller one Bilquis Begum claiming to be the widow of Ashfaq Ahmed appeared and filed written statement. In the written statement it was not pleaded that the ejectment application has been filed against a dead person, and, therefore, is a nullity. Again one Tahir the respondent No.2 'fled application under Order I, Rule 10, C.P.C. to be joined as an opponent in these proceedings. His application was accordingly granted. He filed his written statement. In his application it was pleaded that the ejectment application had been filed against a dead person, and, therefore, it is a nullity in law, and should be dismissed. It so happened that the property was sold to the appellant by a registered sale‑deed and she was joined as an applicant. The plea taken by the appellant was that the ejectment application was filed against Mrs.Ashfaq Ahmed and not against Ashfaq Ahmed only and in response to that Bilquis Ahmed had, appeared. From the record .I find that in the ejectment application filed by Nasreen Begum, the opponent is shown as M.Ashfaq Ahmed. The alphabets 'rs' were added to 'M' to make it Mrs'. This interpolation is with a different ink and it seems teat it was made with a view to obviate the objection raised by the respondents. The first notice issued in this case was also entitled as Ashfaq Ahmed. However, the matter proceeded before the Controller and evidence of the parties was also recorded. The learned Controller framed several issues, but denied the application on the ground that as the ejectment application had been filed against a dead person, it was a nullity and dismissed it.

2. The same plea has been raised before me as well. The learned counsel for the appellant has also contended that the learned Controller should have decided the ejectment application on all the issues including this objection which was raised by the respondent at a late stage. The examination of the chequered record of this case will show that this matter is pending from the year 1975. The ejectment application was filed against Ashfaq Ahmed at a time when he was dead but the widow of Ashfaq Ahmed while appearing in Court filed written statement without raising such objection, and thereafter the respondent No.2 who is the son of Ashfaq Ahmad also joined the proceedings. There was a defect in the proceedings but in my view the appearance of the respondent has cured that defect and the initial objection that could have been raised is now procedurally wiped out. In these circumstances, the respondent No.1 having joined the proceedings has acquiesced and at a late stage cannot object on the ground that it was instituted against a dead person. In view of this, I set aside the order of the Controller, remand the case for decision on the remaining issues which should have been decided by the Controller while giving the impugned order. The learned Controller is directed to decide this matter within a period of two months.

3. M.Y.H./K‑82/K Case remanded.