FAZAL ELAHI MALIS through Legal Heirss vs Miss ABIDA REASAT RIZVI
This review petition arises from an order of the Supreme Court dismissing a petition for leave to appeal against a High Court judgment in a rent matter. The petitioners, legal heirs of a deceased tenant, contended that the High Court erred by deciding the First Rent Appeal (F.R.A.) on its merits despite the appellant's death, arguing the appeal should have abated for failure to substitute legal representatives. The core legal question was whether an appeal abates automatically upon the death of an appellant in rent proceedings, rendering a subsequent judgment on merits illegal. The Supreme Court dismissed the review petition, holding that the petitioners, as successors to the tenancy, were aware of the pending litigation and failed to inform the High Court of the death or seek substitution. The Court ruled that the High Court committed no illegality in deciding the appeal on merits, as the petitioners could not benefit from their own default. The key principle established is that where the right to sue survives, an appeal does not automatically abate upon death, and equitable principles allow courts to proceed on merits when legal heirs fail to timely substitute themselves.
- Does an appeal automatically abate upon the death of an appellant in proceedings under the Sindh Rented Premises Ordinance 1979?
- Can legal heirs claim an appeal should have abated due to their own failure to inform the court of the appellant's death?
- Are the equitable principles of the Code of Civil Procedure 1908 applicable to proceedings before a Rent Controller or Appellate Authority?
- Ordinance XII of 1972, Code of Civil Procedure 1908
- Sindh Rented Premises Ordinance 1979
1. ' SAEEDUZZAMAN SIDDIQUI, J.---The petitioners are seeking review of the order of this Court dated 7- 6-1992, whereby, their petition for leave to appeal against the judgment of High Court of Sindh, Karachi, dated 6-2-1992 was rejected.
2. ' Mr. Z.U. Ahmed, the learned counsel for the petitioners, in support of the review petition contended that this Court while dismissing the petition for leave to appeal failed to decide the question of law raised in the leave petition, namely, that F.RA. No,417/89, filed by the deceased tenant stood abated on his death and as such, the same could not be decided by the High Court, on merit, without joining his L.Rs, (the petitioners) on record. After hearing the learned counsel at length we find no merit in the contention.
3. There is nothing in the order of this Court, dated 7-6-1992, to indicate that the above contention was pressed by the petitioners at the hearing of the I above petition but it was not decided. Even otherwise, the contention has no merit in the circumstances of the case.
4. ' F.R.A. 417/89, against the order of Rent Controller dated 26-4-1989, was filed by the predecessor- in-interest of the petitioners, who was the tenant of the rented premises, to challenge the order of eviction passed against him by the Rent Controller. The petitioners who are the widow and sons of the deceased tenant and claimed to be in possession of demised premises, succeeded to the tenancy rights subject to the pending litigation. It was, therefore, for the petitioners to have approached the Court to seek their substitution in the case in place of the deceased appellant. The deceased appellant was duly represented through a counsel in the F.R.A. Before the High Court and when the appeal came up for hearing it was argued by the learned counsel on 24-11-1991, 26-1- 1992 and 27-1-1992 but at no stage the High Court was informed by the counsel that the appellant was dead and that the authority of counsel had ceased to be valid in the case. The petitioners who succeeded to the rights of the deceased tenant/appellant, subject to the pending litigation, shall be deemed to be aware of the pending F.RA. Filed by their predecessor. The petitioners kept quiet from 27-8-1991 (the date of death of the deceased appellant) till the disposal of appeal by the High Court on 6-2-1992. Even after disposal of appeal by the High Court the petitioners did not file any application before the learned Judge in Chamber for rehearing of the appeal and substitution of their name in place of the deceased appellant. In these circumstances, the petitioners could not take advantage of their own default to argue that the disposal of the F.RA. On merits after the death of deceased appellant was not in accordance with the law. The procedure adopted by the High Court in the circumstances of the case, disposing of the F.RA. On merits' after hearing the counsel appearing in the case was neither opposed to any known canon of justice nor against the principle of audi alteram partem.
5. ' We also find that no prejudice whatsoever, was caused to the petitioners by decision of the F.RA.
6. On merit by the High Court. It cannot be disputed that the petitioners having succeeded to the tenancy rights during the pendency of the appeal of the deceased tenant, they could only raise those defences which were available to the deceased. There is no grievance that the case of the deceased tenant was not fully considered on merits by the High Court while disposing of the F.R.A.
7. After disposal of the F.RA. By the High Court the petitioners filed petition for leave to appeal to this Court and their contentions on the merits of the case were fully considered and disposed of. The petitioners, therefore, cannot possibly have any grievance in so far the disposal of the case on merits is concerned.
8. ' There is yet another aspect of the case which fully justified the disposal of F.RA. Filed by the predecessor-in-interest of petitioners on merit in the circumstances of the case. After the introduction of amendments in the Code of Civil Procedure by Ordinance XII of 1972, a suit or an appeal could not abate on account of death of a plaintiff or appellant where right to sue survived.
9. Although, provisions of C.P.C. Do not strictly apply to proceedings before the Rent Controller or the Appellate Authority acting under the provisions of Sindh Rented Premises Ordinance, 1979, but as held by this Court in the case of Messrs Bambino Ltd. v. Messrs Selmor International Ltd. And another PLD 1983 SC 155 the equitable principles contained in the Code of Civil Procedure could be followed by the Rent Controller in proceedings under the Ordinance. The High Court, therefore, committed no illegallity in deciding the pending F.RA. On merit instead of dismissing it as abated, in the absence of intimation by the petitioners about the death of the appellant.
10. ' There is absolutely, no merit in this review petition, which is accordingly dismissed.
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- Messrs PAK JUNAID FLOUR MILLS (PVT.) LTD. vs DARA FEROZ MIRZA and 2 2009 YLR 945