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Civil Petition for Special Leave to Appeal No. K‑121 of 1980, decided on 17th September, 1980.

(On appeal against the judgment and order dated 2‑3‑1980 of the Sind High Court in Second Appeal No. 279 of 1979).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

--Ss. 13 & 15‑Eviction of tenant‑Appeal‑Petitioner stating to be a tenant of respondent but landlord holding him not to be a tenant of respondent‑Petitioner admitting to have not filed appeal against such order for reason of order being interlocutory and as such non. appealable‑Held: Petitioner having been held to be not a tenant of respondent he no longer remained a party to case after decision of preliminary issue on point and if he at all wished to contest matter further he should have gone in appeal since as far as it concerned him such order remained a final order‑Not having done so, petitioner not entitled to file appeal against order of ejectment.

S. Ansar Husain, Advocate Supreme Court and Faizanul Haq, Advocate- on‑Record for Petitioner.

Nemo for Respondents

Date of hearing: 17th September 1980.

J‑This petition is directed against the order dated 2‑3‑1980 of a learned Single Judge of the High Court whereby the petitioner's second appeal in a rent case was dismissed. Facts giving rise to petition are as follows

2. Mst. Shahzadi Begum the owner of Shop No. 90/C situated in Liaqat Market, Malir Mohajir Colony, Karachi, let it out to Muhammad Abdul Alam Khan on a rent of Rs. 125 per month. On 5‑10‑1975 the landlady filed an ejectment application against Alam Khan on the ground, inter alia of default in payment of rent, and subletting the disputed premises to some other person without her (landlady's) permission and consent. Alam Khan, however, died before filing his written statement. His legal representa tives i.e. Mst. Bashiran and Afzal were brought on the record, but they did not file any written statement. Therefore, ex parte proceedings were ordered against them.

3. One Muhammad Mobin Siddiqui (the present petitioner), however, filed an application under Order I, rule 10, C. P. C. for being impleaded as a respondent in the ejectment proceedings. The application was allowed by the learned Rent Controller and the name of Mobin Siddiqui was entered as respondent No. 3. But the landlady denied having rented out the shop to him. Therefore, a preliminary issue was framed with regard to the existence of relationship of landlord and tenant between them. By his order dated 31‑5‑1978 the learned Rent Controller decided this issue in the negative holding that no relationship of landlord and tenant existed between Mst. Shahzadi and Mobin Siddiqui.

4. The case then proceeded against Alam Khan, applicant, but since his legal heirs had neither filed any written statement, nor contested the case and only the applicant, i.e. the landlady had led her evidence, the learned Rent Controller passed an ex parte order of ejectment on the basis of the evidence on record, holding, inter alia, that Alam Khan had sublet the premises to Mobin Siddiqui.

5. Mobin Siddiqui did not files an appeal against the order of the learned Rent Controller dated 31‑5‑1978 holding that he was not a tenant under Mst. Shahzadi Begum. But he filed an appeal against the above mentioned order of ejectment dated 19‑9‑1978. The appeal was dismissed by the learned Additional District Judge, Karachi on 15‑5‑1979. Mobin Siddiqui then filed a second appeal before the High Court which too was dismissed vide the impugned order dated 2‑3‑1980. Hence, the present petition for special leave to appeal.

6. The learned counsel strenuously urged on behalf of Mobin Siddiqui, petitioner, that he was in fact the tenant of Mst. Shahzadi Begum with respect to the shop in question. He, however, admitted that he had not filed an appeal against the order of the Rent Controller dated 31‑5‑1978 holding that he was not her tenant. He explained that the petitioner did not file an appeal against it since it was interlocutory order, and waited till the final' decision of the ejectment application by the learned Rent Controller which was given vide his order dated 19‑9‑1978.

7. This argument has no force because after the decision of the preliminary issue holding that Mobin Siddiqui was not a tenant under Mst. Shahzadi Begum, he was no longer a party to the case. If he, at all, wished to contest the matter further, he should have filed an appeal against the aforementioned order of the Rent Controller dated 31‑5‑1978 because a far as he was concerned that was the final order in this case. Not having done so he was not entitled now to file an appeal against the order of ejectment before the Additional District Judge and the High Court, as he was not a party to the case in which that order was passed.

8. Moreover, in view of the fact that the only evidence recorded was that of the landlady Mst. Shahzadi Begum, we asked the learned counsel for the petitioner as to what proof Mobin Siddiqui (petitioner) would have to offer if the case is remanded. The learned counsel admitted that the rent deed executed by Mst. Shahzadi Begum in respect of the shop in question was indeed in favour of Alam Khan and that there was no rent deed in favour of Mobin Siddiqui. But he said that he could produce the proof of payment of rent to the landlady. When asked to produce the proof in that respect, he produced only one receipt, a copy of which is placed at page 75 of the paper book. It is surprising that during the entire period of tenancy from 6‑3‑1974 till the date of filing the ejectment application Mobin Siddiqui paid the rent to the landlady only once. It appears to us that even on that occasion he had probably paid the rent on behalf of Alam Khan.

9. In view of what has been observed above, we feel that there is no force in this petition, which is accordingly dismissed. However, we allow one month's time to Mobin Siddiqui petitioner to vacate the premises in dispute subject to the payment of rent.

Petition dismissed.

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