RABIA BEGUIN Versus MUHAMMAD YOUSUF QURAISHI
The respondent filed application against the appellants under section 15 of the Sindh Rented Premises Ordinance, 1979 for their eviction on the grounds of default in payment of rent and personal bona fide requirement of the premises in question for use of the respondent's son. The learned Rent Controller ordered the eviction of the appellants on the ground of personal requirement of the premises in question for the use of the son of the respondent.
2. I have heard Mr. Khursheed Alam Khan, learned Advocate for the appellants and Mr. Abdul Ghani Khan, learned Advocate for the respondent.
3. The learned Advocate for the appellants has contended that the personal requirement as projected by the respondent is not bona fide as according to him, the respondent in his earlier Rent Application No.319 of 1983 had not urged the ground of personal requirement and this ground has been concocted with mala fide intention in the second round of litigation commenced in December, 1984 after disposal of the first application on 2t1‑11‑1984. The other ground urged by him was that the appellants Nos. 2 and 3 are minors but no orders were passed appointing appellant No.1, their mother, as guardian ad‑litem of the said minors, and, therefore, the order of eviction passed against them is illegal and cannot be enforced.
4. So far as the first submission is concerned, it is without any substance. The earlier rent application was filed by the respondent against appellant No.4 alone who had claimed to be the tenant after the death of his brother Abdul Ghani, the husband of appellant No.1, Rabia Begum and father of appellants Nos.2 and 3. The respondent in para. 3 of the said application had specifically pleaded that the premises in question was required for his own personal bona fide need and of his son Jawed Hussain who was going to be married and the respondent had no accommodation of his own to accommodate the said son after his marriage. The Rent case was dismissed by the Rent Controller as he reached the conclusion that appellant No.4. Wali Muhammad, was not the tenant of the premises in question. It was because of such order passed in the earlier eviction application that the respondent had to file fresh rent case joining the legal representatives of deceased Abdul Ghani. In this application again he took up the ground of personal requirement and the learned Rent Controller has found that it is due to the shortage of accommodation that the marriage of his son could not be held. Under such circumstances requirement of the premises in question, for personal use was found to be bona fide. The appellants did not bring any material on record to rebut the aforesaid personal requirement. The only plea taken was that the said son of the appellant was in jail. The respondent denied the above allegation. No exception, therefore, can] be taken with regard to the above finding of the learned Rent Controller.
5. With regard to the second submission of the learned counsel for the appellants, it was contended that the provisions of Order XXXII, C.P.C. are applicable to the proceedings before the Rent Controller. Since the guardian ad‑litem of minor appellants Nos.2 and 3 was not appointed, the proceedings were vitiated. It is not the case of the appellants that the interest of appellant No.1, the mother of respondents Nos.2 and 3 was adverse to the said minors.
It is not the case of the appellants that cause of action against the aforesaid minors was separate and independent of the cause of action that accrued against appellant No.1 or that the cause of action was not the same or that it was divisible. It was also not alleged that in absence of appointment of guardian ad‑litem for the said minor appellants, any prejudice was caused to their defence. In the written statement the only sentence mentioned was that the appellants Nos.2 and 3 were minor. Nothing more was .said. The proceedings were allowed to continue. Written statement was filed by the respondent No.4 for self and as attorney of appellant No.1. The eviction order passed by the learned Controller also does not show that any objection was taken with regard to absence of order of appointment of guardian ad‑litem o the minors. The appeal has been filed on behalf of the minors through their mother and next fired Mst. Rabia. No exception has been taken in the memo of appeal, nor any prejudice has been alleged to have been caused because of absence of any such order. Even during the course of arguments the learned Advocate for the appellants did not point out any factor that might have adversely affected the minors. It has been respectedly held that the' Code of Civil Procedure is not applicable to the proceedings before the Rent Controller. But principles underlying some of its provisions can be applied thereto, the learned counsel for the respondent has relied on PLD 1968 Lah. 373 in which it was held that irregularity if any, as to omission to pass formal order for the appointment of guardian ad‑litem, would stand cured by section 99, C.P.C. if the merits of the case or the jurisdiction of the Court is not affected. To remand the appeal at this stage only for the purpose of passing o, formal order for appointment of appellant No.1 as guardian ad‑litem, would not make any material difference, inasmuch as no factor has been pointed out which would mitigate the bona fides of the personal requirement. The above submission is therefore overruled. The appeal is dismissed with no order as to costs. The appellants are given two months time to hand over the premises in question to the respondent subject to payment of rent.
A.A./R‑201/K Appeal dismissed.