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First Rent Appeal No. 70 of 1982, decided on 25th April, 1983.

‑‑ S. 15‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑Civil .Procedure Code (V of 1908), O. XXII, r. 4(3)‑Ejectment for default by tenant‑Notice under S.. 30‑Death of tenant‑Bringing legal representatives on record‑ Civil Procedure Code, 1908 being not applicable to proceedings under Sind Rented Premises Ordinance, 1979 there is no requirement of filing list of legal heirs of parties with pleadings and intimation to Court about death‑Court having been intimated about death, incumbent upon landlord to bring on record legal heirs of deceased tenant even if list of heirs was not on record‑Landlord failing to bring on record such legal heirs, High Court allowed appeal for tenant and remanded case to Rent Controller with direction to implead legal representatives of deceased tenant and to proceed from stage when Court was intimated about death of tenant.

Mohan Lal for Appellants.

Ellahi Bux M. Kehar for. Respondent.

Date of hearing : 25th April, 1983.

This appeal is directed against the order, dated 30tb March, 1982 passed by the learned Rent Controller, Larkana, in Rent Application No. 3/1975 ordering ejectment of the appellant on the ground of default.

The relevant facts leading to the filing of the above appeal are that the respondent filed. aforesaid rent case on the ground of default for the period of three years prior to the filing of the rent application at Rs. 50 per month. The above application was resisted by the appellant and inter alia it was pleaded that no notice under section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act was served and there was no latest assessment at the rate of Rs. 50 per month. The learned Rent Controller framed the following four issues :‑‑

(1) Whether the notice of demand of rent according to latest Municipal assessment was duly served upon the opponent

(2) What is the rate of rent

(3) Whether the opponent has committed wilful default in payment of rent

(4) What should the order be

and decided the above case in favour of the .respondent. The appellants who were legal heirs of deceased tenant Bibi Shafaat Khatoon filed the present appeal.

2. In support of the above appeal it has been inter alia contended by Mr. Mohan Lal that the learned counsel for the appellants made a statement in the trial Court, on 5th August, 1981, Exh. 85 that the tenant/opponent had expired and that in spite of the above statement the respondent did not bring the legal representatives on record and got the ejectment order and, there fore, it is liable to be set aside. On the other hand it has been contended by Mr. Kehar that in view of the amendment in Order XXII, rule 4 there was no legal requirement to bring the legal heirs on record. Apart from the fact that strictly speaking C. P. C. is not applicable to the rent proceedings and therefore, there is no requirement of filing a list of legal heirs of the parties alongwith the pleadings and also no requirement to state who would intimate to the Court about the death. Even if it is to be held that the A above provision is applicable, it will have to be seen whether in every case, there is no requirement of bringing legal heirs on record. It will, therefore, be advantageous to reproduce hereinbelow sub‑rule (3) of rule 4 of Order XXII as amended by Ordinance No. XII of 1972 which reads a follows :‑

"(3) When within the time limited by law no application is made or intimation is given under sub‑rule (I), the Court may proceed with the suit; and any order made or judgment pronounced in such suit sba11 notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place."

It may be noticed that the above‑quoted sub‑rule provides that if, within the time limited by law no application is made or intimation is given under sub‑rule (1) of rule 4 to the Court, the latter may proceed with the suit and any order made or judgment pronounced in such suit shall notwith standing the death of such defendant, have the same force and effect .as if it had been‑pronounced before the death took place. It is evident that once an application is filed for bringing legal heirs on record or if any intimation is given to the Court it is incumbent to bring legal heirs on record. The above sub‑rule will be attracted to when neither an application is filed nor an intimation is given to the Court within the. time allowed by law. In this B view of the matter as in the instant case intimation to the Court was given on 5th August; 1981 it was incumbent upon the respondent to bring on record the legal heirs as even the list of heirs was not on record. I would, therefore; allow the present appeal and remand the Ease to the learned Rent Controller with the direction to implead the present two appellants as legal representatives of deceased tenant and to proceed from the stage at which it was, on 5th August, 1981. In the circumstances of the case there wilt be n order as to costs.

M. Z. M. Appeal allowed.

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