Sind Rented Premises Ordinance (XVII of 1979)‑‑
S. 21‑‑Civil Procedure Code (V of 1908), O. I, R.10 Appeal against order of Rent Controller dismissing application of appellant filed under 0. 1, R.10, C. P. C. is not competent ‑Appellant /intervenor praying to be impleaded as a party to rent case claiming that he purchased property in question alongwith another who sold his share to appellant and he, therefore, had become owner of property in question and as such was a proper party to be joined in rent proceedings‑‑ Landlord objecting to appellant intervenor's application under 0. 1, R.10, C.P.C. on plea that saidprovisions of C.P.C. were not applicable to proceedings under Rented Premises Ordinance‑ - Rent Controller, held, was competent to decide relationship between appellant and landlord on basis of their pleadings and in case absence of a co‑owner was found by Rent Controller to be fatal to proceedings he could pass such order as demanded by law‑‑ Orders of Rent Controller rejecting application of appellant under 0. I, R .10, C. P. C. were not open to any exception in circumstances.
Mohammad Mobin Siddiqi v. Shahzadi Begum and others 1982 SCMR 233; Haji Syed Ain Ahmed v. Abdul Rashid 1985 S C M R 1991 and Aizaz Ahmed Zaidi v. IXth Civil Judge 1984 C L C 3445 rel.
Aziz Ahmad Zaidi v. IXth Civil Judge 1986 C L C 1534 and Haji Syed Ain Ahmad v. Abdul Rashid P L D 1985 SC 438ref.
Muhammad Ali Jan for Appellant.
Amir Malik for Respondent No. 1.
M. Sadiq for Respondent No. 2.
VAQARUDDIN VS ABDUL HASEEB ALVIP L D 1988 Karachi 116Before Muhanmad Mazhar Ali, JVAQARUDDIN‑‑AppellantversusABDUL HASEEB ALVI and another‑ ‑RespondentsFirst Rent Appeal No. 528 and Civil Miscellaneous No. 1258 of 1987,decided on 03/12/1987.
ORDER
This appeal is directed against the order of the learned IVth Senior civil Judge/ASJ and Rent Controller, Karachi whereby he has dismissed the application under Order 1, rule 10 read with section 151, CPC made by the appellant above-named for being impleaded as a party to the Rent Case No.5115/83 entitled Abdul Hasib v. Haji Islamuddin,
2. The appellant in his application under Order 1, rule 10, CPC prayed for being impleaded as applicant No.1 on the grounds which are enumerated in the affidavit of Attaur Rehman son of Hafiz Mohammad, the attorney of the appellant above named wherein it is averred that the intervenor and deceased Raqib purchased the property in case through a sale‑deed registered with the Sub‑Registrar, Karachi, dated 10‑5‑1978. It is further averred in this affidavit that Abdul Raqib, the deceased, had sold his share to the intervenor vide Agreement of Sale dated 15‑10‑1980 executed between him and the deceased Abdul Raqib. It was, therefore, claimed that the intervenor is the owner of the property in question and as such he is a proper party to be joined in the proceedings.
3. The respondent had filed objections to the above application under Order 1, rule 10, CPC through a counter‑affidavit stating, inter alia, that the application was mala. fide and fraudulent; that the provisions of Order 1. rule 10, CPC were not applicable to the proceedings under the provisions of Sind Rented Premises Ordinance, 1979, (hereinafter called the Ordinance); that the plea of co‑ownership raised by the appellant was false and that his name appeared in the sale‑deed as a benamidar that the High Court had granted the Letter of Administration in his favour and that the alleged Agreement of Sale entered into between the deceased Abdul Raqib and the appellant was a forged document. The learned Rent Controller vide his impugned order has dismissed the application under Order 1, rule 10, CPC. He has, inter alia, observed that the respondent No 1 having been granted Letter of Administration by the High Court is entitled to collect rent in respect of the said property and that the agreement of sale produced by the intervenor is not a conveyance deed. Hence the intervenor, according to him, claims himself to be the owner of the property in question". He further observed that "if there is any dispute between the co‑owners it can be decided only by the civil Court".
4. When this appeal came up for summary hearing on 15‑11‑87 before my learned brother Tanzilur Rahman, J. he passed the following order:
"15‑11‑87. Mr. Mohammad Ali Jan, Adv.
Mr. Amir Malik, Adv.
Mr. Mohammad Sadiq, Adv.
Learned counsel seeks time to produce case‑law on the point that an appeal against an order passed by the learned Rent Controller dismissing appellant's application under Order 1, rule 10, CPC is maintainable under the provision of section 21 of the Sind Rented Premises Ordinance, 1979. Adjourned as requested. "
Earlier than that, it may be noted, on 23‑8‑1987 pre‑admission notice was ordered to be issued to the respondent. The respondent No.1 has filed objections as on 29‑1‑1987 to the appeal whereas respondent No.2 has not filed any objections. Both the respondents Nos.1 and 2 are represented by the learned counsel.
5. Mr. Mohammad Ali Jan, learned counsel for the appellant, candidly admitted that there was no specific provision in the Ordinance providing for an appeal against an order made under Order 1, rule 10, CPC. He, however, placed reliance on certain decisions wherefrom it could be inferred that an appeal could lie against an order made under Order 1, rule 10,, CPC. In this connection he drew may attention to the following authorities.
(1)1982 SCMR 233 Mohammad Mobin Siddiqi v. Shahzadi Begum and others.
In this case an ejectment application was filed by Mst. Shahzadi Begum against Alam Khan on the ground, inter alia, of subletting, the disputed premises to some other person without her permission and consent. The tenant died and consequently his legal heirs were brought on record, but they did not file any written statement. Ex parte proceedings were thus ordered against them. One Mohammad Mobin Siddiqi (the petitioner before the Supreme Court) filed an application under Order 1I rule 10, CPC for being impleaded as a respondent in the ejectment proceedings, The Rent Controller allowed the application and, consequently, the name of Mohammad Mobin Siddiqi was entered as respondent No. 3. The landlady, however, denied having rented out the disputed shop to him. A preliminary issue was, therefore, framed with regard to the existence of relationship of landlord and tenant between them. The Rent Controller vide order dated 31‑5‑1978 answered the above issue in the negative thereby holding that no relationship of landlord and tenant existed between, Mst. Shahzadi Begunt and Mohammad Mobin Siddiqi. Mohammad Mobit. Siddiqi did not file an appeal against this order. The case was decided ex parte against Alant Khan on 19‑9‑1978. Mohammad Mobin Siddiqj filed an appeal against the last mentioned order before the learned District Judge who dismissed the same. The second appeal carried 'to the High Court also met the same fate. It was contended on behalf of the petitioner Mohammad Mobin Siddiqi before the Supreme Court that he did not file an appeal against the order dated 31‑5‑78 as it was an interlocutory order and waited till the final disposal of ejectment application. Their Lordships of the Supreme Court repelled this contention and held that he should have filed an appeal against the order of the Rent Controller dated 31‑5‑78 because as far as he was concerned that was the final order in that case. Having failed to do so their Lordships held that he was not entitled to file the appeal against the order of ejectment.
(2)1985 SCMR 1991 (Haji Syed Ain Ahmed v. Abdul Rashid).
In this case an application for being impleaded as a party was made by Abdul Rashid nephew of the original tenant upon his demise. The Rent Controller rejected the application by an order dated 2‑3‑72 on the ground that the nephew of the tenant was not tenant within that meaning of section 2 (1) of the West Pakistan Urban Rent Restrictions Ordinance, 1959 and hence they were lot necessary parties. No appeal was filed against that order by the intervenor, He ultimately disposed of the case on 28‑2‑83 finally allowing the ejectment application, Abdul Rashid filed two separate appeals in the High Court with success. Before the Supreme Court it was contended behalf of the landlord that Abdul Rashid, respondent, had no locus stand to file appeal against the order of Rent Controller dated 28‑2‑83 as his application for being impleaded as a party had been earlier rejected on the ground that he was not necessary party to the proceedings not being tenant within the meaning of section 2 (i) of the Ordinance. Relying upon the decision in the first above noted
case the Supreme Court held that Abdul Rashid had no locus standi to file an appeal before the High Court.
(3) 1984 CLC 3445 (Aizaz Ahmed Zaidi v. IXth Civil Judge)
It was also a case under the West Pakistan Urban Rent Restrictions Ordinance, 1959. The appellant Aizaz Ahmed Zaidi filed an, application for ejectment against the tenant, respondent No.3 could not defend the case_hence the ex parte order was passed on '16‑5‑1979 directing him to vacate the premises. At, application under 'Order IX, rule 13i CPC and also an application under order 1, rule 10, CPC was made by respondent No.5 on the ground that he was inducted as sub‑tenant by the tenant. The Rent Controller dismissed the said application on 30‑4‑80. The respondent No. 5 did not challenge the dismissal order. The petitioner adopted execution proceedings wherein again the respondent No.5 put in appearance on 16‑7‑80 and repeated application under Order 1, rule 10, CPC. The Rent Controller allowed him to file objections. The Rent Controller, however, dismissed this application on the ground that the respondent No.5 was not a tenant and hence could not be made a party to the proceedings. Respondent No.5 thereupon filed an application under Order XXI, rule 99, CPC read with section 22 of the Ordinance. The Rent Controller allowed this application and made respondent No.5 as a party to the ejectment proceedings. Thereupon, the landlord filed an appeal before the High Court contending that the order dated 22‑10‑81 was without jurisdiction. A Division Bench of this Court held that the respondent No.5 having failed to file an appeal against the order of the Rent Controller dated 10‑9‑80 whereby it was held that she was not a tenant of the petitioner under either respondent No.3 or respondent No.4 was not entitled to make an application under Order XXI, rule 99, CPC.
Reliance has also been placed on an order of this Court passed in F.R.A.No.140/86. The facts of the case are not narrated in the order but it appears from the order of dismissal of the application under Order 1, rule 10, CPC moved by the intervenor before this Court that he had failed to file an appeal against the order passed on his application under Order I, rule 10, CPC by the Rent Controller and hence he was not entitled to file the application under Order 1, rule 10, CPC in this Court in appeal. Learned counsel has also cited two other decisions reported in 1986 CLC 1534, PLD 1985 SCMR 438.
6. 1 have given my earnest consideration to the submission made by the learned counsel for the appellant. In the three above‑noted cases the applicants who had made the applications under Order 1, rule 10, CPC had claimed the status of either a tenant or sub‑tenant of the disputed premises whereas in the instant case the applicant wanted to be impleaded as a party as co‑owner of the disputed premises for the reasons recorded above.
7. The learned Rent Controller has observed that respondent No.1 has filed the application for ejectment against respondent No. 2 treating him to be his tenant by virtue of the Letter of Administration granted to him by this Court in Misc. Application No.133/81. He has further observed that, and in my opinion rightly too, that the dispute with regard to the ownership of the property between him and the respondent No.1 can be thrashed out before some appropriate forum and that he (Rent Controller) had no jurisdiction to decide such a dispute between the parties. The contention of the learned counsel for the appellant that the ejectment application could not proceed unless the co‑owner was made a party to the proceeding, in my opinion, is not well‑placed inasmuch as the relationship of landlord and tenant between the applicant and the opponent, namely, the respondents Nos.1 and 2 above named, would be decided by the Rent Controller. I am informed that the respondent No.2 has filed his written statement denying the relationship of landlord and tenant and also pleading that he was no more in possession of the disputed property and had' delivered its possession to the appellant above named. The learned counsel for the appellant further strongly contended that if the ejectment application is allowed by the Rent Controller then the order of eviction will be executed against him inasmuch as he is actually in possession of the disputed premises and in that way he would be adversely affected. I do not find any merit in this contention as well for the obvious reason that if the application is allowed by the Rent Controller and the ejectment order is sought to be executed against him he would have the right to adopt requisite legal proceeding for safeguarding his interest. The learned counsel during the hearing further submitted that he had made an application for revocation of Letter of Administration issued in favour of respondent No. 1. One does not know what would be the fate of his application in that behalf. At any rate in so far as the impugned order is concerned I do not find R.C. to have fallen into any error in rejecting the application under Order 1, rule 10, CPC inasmuch as the relationship between the respondents Nos.1 and 2 can be decided on the basis of the pleadings of the parties before the Rent Controller. If the absence of a co‑owner would be found by the Rent Controller to be fatal to the proceedings he would definitely pass the requisite order as the law demand.
8.For the foregoing reasons I do not find any merit in this appeal and dismiss it summarily.
M. Y. H. /W‑14/ K.Appeal dismissed.
Sind Rented Premises Ordinance (XVII of 1979)‑‑
S. 21‑‑Civil Procedure Code (V of 1908), O. I, R.10 Appeal against order of Rent Controller dismissing application of appellant filed under 0. 1, R.10, C. P. C. is not competent ‑Appellant /intervenor praying to be impleaded as a party to rent case claiming that he purchased property in question alongwith another who sold his share to appellant and he, therefore, had become owner of property in question and as such was a proper party to be joined in rent proceedings‑‑ Landlord objecting to appellant intervenor's application under 0. 1, R.10, C.P.C. on plea that saidprovisions of C.P.C. were not applicable to proceedings under Rented Premises Ordinance‑ - Rent Controller, held, was competent to decide relationship between appellant and landlord on basis of their pleadings and in case absence of a co‑owner was found by Rent Controller to be fatal to proceedings he could pass such order as demanded by law‑‑ Orders of Rent Controller rejecting application of appellant under 0. I, R .10, C. P. C. were not open to any exception in circumstances.
Mohammad Mobin Siddiqi v. Shahzadi Begum and others 1982 SCMR 233; Haji Syed Ain Ahmed v. Abdul Rashid 1985 S C M R 1991 and Aizaz Ahmed Zaidi v. IXth Civil Judge 1984 C L C 3445 rel.
Aziz Ahmad Zaidi v. IXth Civil Judge 1986 C L C 1534 and Haji Syed Ain Ahmad v. Abdul Rashid P L D 1985 SC 438ref.
Muhammad Ali Jan for Appellant.
Amir Malik for Respondent No. 1.
M. Sadiq for Respondent No. 2.
ORDER
This appeal is directed against the order of the learned IVth Senior civil Judge/ASJ and Rent Controller, Karachi whereby he has dismissed the application under Order 1, rule 10 read with section 151, CPC made by the appellant above-named for being impleaded as a party to the Rent Case No.5115/83 entitled Abdul Hasib v. Haji Islamuddin,
2. The appellant in his application under Order 1, rule 10, CPC prayed for being impleaded as applicant No.1 on the grounds which are enumerated in the affidavit of Attaur Rehman son of Hafiz Mohammad, the attorney of the appellant above named wherein it is averred that the intervenor and deceased Raqib purchased the property in case through a sale‑deed registered with the Sub‑Registrar, Karachi, dated 10‑5‑1978. It is further averred in this affidavit that Abdul Raqib, the deceased, had sold his share to the intervenor vide Agreement of Sale dated 15‑10‑1980 executed between him and the deceased Abdul Raqib. It was, therefore, claimed that the intervenor is the owner of the property in question and as such he is a proper party to be joined in the proceedings.
3. The respondent had filed objections to the above application under Order 1, rule 10, CPC through a counter‑affidavit stating, inter alia, that the application was mala. fide and fraudulent; that the provisions of Order 1. rule 10, CPC were not applicable to the proceedings under the provisions of Sind Rented Premises Ordinance, 1979, (hereinafter called the Ordinance); that the plea of co‑ownership raised by the appellant was false and that his name appeared in the sale‑deed as a benamidar that the High Court had granted the Letter of Administration in his favour and that the alleged Agreement of Sale entered into between the deceased Abdul Raqib and the appellant was a forged document. The learned Rent Controller vide his impugned order has dismissed the application under Order 1, rule 10, CPC. He has, inter alia, observed that the respondent No 1 having been granted Letter of Administration by the High Court is entitled to collect rent in respect of the said property and that the agreement of sale produced by the intervenor is not a conveyance deed. Hence the intervenor, according to him, claims himself to be the owner of the property in question". He further observed that "if there is any dispute between the co‑owners it can be decided only by the civil Court".
4. When this appeal came up for summary hearing on 15‑11‑87 before my learned brother Tanzilur Rahman, J. he passed the following order:
"15‑11‑87. Mr. Mohammad Ali Jan, Adv.
Mr. Amir Malik, Adv.
Mr. Mohammad Sadiq, Adv.
Learned counsel seeks time to produce case‑law on the point that an appeal against an order passed by the learned Rent Controller dismissing appellant's application under Order 1, rule 10, CPC is maintainable under the provision of section 21 of the Sind Rented Premises Ordinance, 1979. Adjourned as requested. "
Earlier than that, it may be noted, on 23‑8‑1987 pre‑admission notice was ordered to be issued to the respondent. The respondent No.1 has filed objections as on 29‑1‑1987 to the appeal whereas respondent No.2 has not filed any objections. Both the respondents Nos.1 and 2 are represented by the learned counsel.
5. Mr. Mohammad Ali Jan, learned counsel for the appellant, candidly admitted that there was no specific provision in the Ordinance providing for an appeal against an order made under Order 1, rule 10, CPC. He, however, placed reliance on certain decisions wherefrom it could be inferred that an appeal could lie against an order made under Order 1, rule 10,, CPC. In this connection he drew may attention to the following authorities.
(1)1982 SCMR 233 Mohammad Mobin Siddiqi v. Shahzadi Begum and others.
In this case an ejectment application was filed by Mst. Shahzadi Begum against Alam Khan on the ground, inter alia, of subletting, the disputed premises to some other person without her permission and consent. The tenant died and consequently his legal heirs were brought on record, but they did not file any written statement. Ex parte proceedings were thus ordered against them. One Mohammad Mobin Siddiqi (the petitioner before the Supreme Court) filed an application under Order 1I rule 10, CPC for being impleaded as a respondent in the ejectment proceedings, The Rent Controller allowed the application and, consequently, the name of Mohammad Mobin Siddiqi was entered as respondent No. 3. The landlady, however, denied having rented out the disputed shop to him. A preliminary issue was, therefore, framed with regard to the existence of relationship of landlord and tenant between them. The Rent Controller vide order dated 31‑5‑1978 answered the above issue in the negative thereby holding that no relationship of landlord and tenant existed between, Mst. Shahzadi Begunt and Mohammad Mobin Siddiqi. Mohammad Mobit. Siddiqi did not file an appeal against this order. The case was decided ex parte against Alant Khan on 19‑9‑1978. Mohammad Mobin Siddiqj filed an appeal against the last mentioned order before the learned District Judge who dismissed the same. The second appeal carried 'to the High Court also met the same fate. It was contended on behalf of the petitioner Mohammad Mobin Siddiqi before the Supreme Court that he did not file an appeal against the order dated 31‑5‑78 as it was an interlocutory order and waited till the final disposal of ejectment application. Their Lordships of the Supreme Court repelled this contention and held that he should have filed an appeal against the order of the Rent Controller dated 31‑5‑78 because as far as he was concerned that was the final order in that case. Having failed to do so their Lordships held that he was not entitled to file the appeal against the order of ejectment.
(2)1985 SCMR 1991 (Haji Syed Ain Ahmed v. Abdul Rashid).
In this case an application for being impleaded as a party was made by Abdul Rashid nephew of the original tenant upon his demise. The Rent Controller rejected the application by an order dated 2‑3‑72 on the ground that the nephew of the tenant was not tenant within that meaning of section 2 (1) of the West Pakistan Urban Rent Restrictions Ordinance, 1959 and hence they were lot necessary parties. No appeal was filed against that order by the intervenor, He ultimately disposed of the case on 28‑2‑83 finally allowing the ejectment application, Abdul Rashid filed two separate appeals in the High Court with success. Before the Supreme Court it was contended behalf of the landlord that Abdul Rashid, respondent, had no locus stand to file appeal against the order of Rent Controller dated 28‑2‑83 as his application for being impleaded as a party had been earlier rejected on the ground that he was not necessary party to the proceedings not being tenant within the meaning of section 2 (i) of the Ordinance. Relying upon the decision in the first above noted
case the Supreme Court held that Abdul Rashid had no locus standi to file an appeal before the High Court.
(3) 1984 CLC 3445 (Aizaz Ahmed Zaidi v. IXth Civil Judge)
It was also a case under the West Pakistan Urban Rent Restrictions Ordinance, 1959. The appellant Aizaz Ahmed Zaidi filed an, application for ejectment against the tenant, respondent No.3 could not defend the case_hence the ex parte order was passed on '16‑5‑1979 directing him to vacate the premises. At, application under 'Order IX, rule 13i CPC and also an application under order 1, rule 10, CPC was made by respondent No.5 on the ground that he was inducted as sub‑tenant by the tenant. The Rent Controller dismissed the said application on 30‑4‑80. The respondent No. 5 did not challenge the dismissal order. The petitioner adopted execution proceedings wherein again the respondent No.5 put in appearance on 16‑7‑80 and repeated application under Order 1, rule 10, CPC. The Rent Controller allowed him to file objections. The Rent Controller, however, dismissed this application on the ground that the respondent No.5 was not a tenant and hence could not be made a party to the proceedings. Respondent No.5 thereupon filed an application under Order XXI, rule 99, CPC read with section 22 of the Ordinance. The Rent Controller allowed this application and made respondent No.5 as a party to the ejectment proceedings. Thereupon, the landlord filed an appeal before the High Court contending that the order dated 22‑10‑81 was without jurisdiction. A Division Bench of this Court held that the respondent No.5 having failed to file an appeal against the order of the Rent Controller dated 10‑9‑80 whereby it was held that she was not a tenant of the petitioner under either respondent No.3 or respondent No.4 was not entitled to make an application under Order XXI, rule 99, CPC.
Reliance has also been placed on an order of this Court passed in F.R.A.No.140/86. The facts of the case are not narrated in the order but it appears from the order of dismissal of the application under Order 1, rule 10, CPC moved by the intervenor before this Court that he had failed to file an appeal against the order passed on his application under Order I, rule 10, CPC by the Rent Controller and hence he was not entitled to file the application under Order 1, rule 10, CPC in this Court in appeal. Learned counsel has also cited two other decisions reported in 1986 CLC 1534, PLD 1985 SCMR 438.
6. 1 have given my earnest consideration to the submission made by the learned counsel for the appellant. In the three above‑noted cases the applicants who had made the applications under Order 1, rule 10, CPC had claimed the status of either a tenant or sub‑tenant of the disputed premises whereas in the instant case the applicant wanted to be impleaded as a party as co‑owner of the disputed premises for the reasons recorded above.
7. The learned Rent Controller has observed that respondent No.1 has filed the application for ejectment against respondent No. 2 treating him to be his tenant by virtue of the Letter of Administration granted to him by this Court in Misc. Application No.133/81. He has further observed that, and in my opinion rightly too, that the dispute with regard to the ownership of the property between him and the respondent No.1 can be thrashed out before some appropriate forum and that he (Rent Controller) had no jurisdiction to decide such a dispute between the parties. The contention of the learned counsel for the appellant that the ejectment application could not proceed unless the co‑owner was made a party to the proceeding, in my opinion, is not well‑placed inasmuch as the relationship of landlord and tenant between the applicant and the opponent, namely, the respondents Nos.1 and 2 above named, would be decided by the Rent Controller. I am informed that the respondent No.2 has filed his written statement denying the relationship of landlord and tenant and also pleading that he was no more in possession of the disputed property and had' delivered its possession to the appellant above named. The learned counsel for the appellant further strongly contended that if the ejectment application is allowed by the Rent Controller then the order of eviction will be executed against him inasmuch as he is actually in possession of the disputed premises and in that way he would be adversely affected. I do not find any merit in this contention as well for the obvious reason that if the application is allowed by the Rent Controller and the ejectment order is sought to be executed against him he would have the right to adopt requisite legal proceeding for safeguarding his interest. The learned counsel during the hearing further submitted that he had made an application for revocation of Letter of Administration issued in favour of respondent No. 1. One does not know what would be the fate of his application in that behalf. At any rate in so far as the impugned order is concerned I do not find R.C. to have fallen into any error in rejecting the application under Order 1, rule 10, CPC inasmuch as the relationship between the respondents Nos.1 and 2 can be decided on the basis of the pleadings of the parties before the Rent Controller. If the absence of a co‑owner would be found by the Rent Controller to be fatal to the proceedings he would definitely pass the requisite order as the law demand.
8.For the foregoing reasons I do not find any merit in this appeal and dismiss it summarily.
M. Y. H. /W‑14/ K.Appeal dismissed.
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