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(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

Ss. 2 (i), 13 & 15-Ejectment proceedings-Death of tenant and his legal heirs-Appeal against order of Rent Controller-Appellant neither a tenant nor sub-tenant as contemplated by definition of tenant' but appeared as attorney of legal heirs of original ten-Ant Rent Controller while making order against tenant also making a direction that appellant (attorney of legal heirs) should hand over vacant possession of premises to landlord-Occupation of premises by appellant not disputed-Held, appellant, though was a stranger to proceedings, but he had been adversely affected by order of Rent Controller, as order of eviction was passed against dead persons as well as against appellant, as such appellant being an aggrieved person had locus standi to file appeal against order of Rent Controller in circumstances. [Locus standi].

H. M. Sayal & Co. Karachi v. Wazir All Industries Ltd., Karachi and another P L D 1969 S C 65 and Mr. Manzur Qadir v. Mst. Amtul Hussain and 2 others P L D 1971 Lab. 537 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

-- Ss. 13, 15 & 2 (0-Ejectment proceedings-Death of tenant as well as his legal heirs during pendency of action--Decree against a dead person having no legal sanctity is to be set aside and legal representative has to be brought on record and only in presence of such legal representatives further proceedings be commenced.

Anjuman lmdad Bahmi Qarza, Chak No. 120-R. B. District Lyallpur, through Ataullah, Liquidator v. Nasrullah Khan and others P L D 1952 Lab. 636 ; Tota Rum and others v. Kundan and others A I R 1928 Lab. 784 ; Sikandar Khan v. Muhammad Aber and others P L D 1962 Pesh. 105 and Allah Rakha and others v. Nur Hussain and others P L D 1966 Lab. 960 ref:

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

--- Ss. 2 (i), 13 & 15-Ejectment proceedings-Death of tenant during pendency of action-Held, on death of parties, proceedings do not abate but legal representative of deceased must be brought on record.[Abatement].

Abdullah v. Mistry Shamsuddin 1982 C L C 787 ; Agha Muhammad v. Haji Mould Dad P L D 1977 Quetta 10 ; Mehra/ Din and another v. Muhammad Yasin and 2 others P L D 1968 Lab. 20 ; Rikhi Ram and others v. Durga Das and others A I R 1926 Lab. 216 ; Muhammad Aslam v. Member Board of Revenue (Settlement & Rehabilitation Wing C. S. C.) and 6 others P L D 1980 S C 45 and Mehdi Hassan v. Ghulam Muhammad P L D 1964 Lab. 648 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

-- Ss. 2 (i), 13 & 15-Ejectment proceedings-Death of tenant and his legal heirs during pendency of action-Proper course for Rent Controller was to allow legal representative of deceased tenant and his heirs to be brought on record and then proceed with matter.

Rashid Ahmad and 8 others v. Muhammad Arshad P L D 1975 Lab. 1195 and Imperial Dyeing and Printing Mills, Karachi v. Safdar Ali P L D 1971 Kar. 778 ref:

Munawar Ahmad and Raja Rab Nawaz for Appellant.

Basharatullah for Respondent.

Date of hearing : 12th August, 1984.

The respondent Haji Syed Ainullah (hereinafter referred to as landlord) filed two applications for the eviction of htst. Wafa Begum and Mst. Abida Begum the widows of late Musa Jan son of Haji Gul Muhammad Kakar. One application was moved for the possession of the shop and the other for the occupation of the house. It was stated that Musa Jan had expired on 10th March, 1969, who was the tenant in the disputed premises. The rent w.e.f. September 1968 upto February, 1969 at the rate of Rs. 45 per month was outstanding against the tenant in respect of the shop and the rent of the house was Rs. 24 per month and the rent to the -extent of Rs. 145 for the house was outstanding against the respondents (hereinafter referred to as the ladies). In the application for eviction it has been stated by the landlord that the predecessor-in-interest of the ladies had been in occupation of the premises as a tenant. The ladies being the wives and the only legal heirs of the deceased Musa Jan continued in possession of the premises on the same terms and conditions. As the ladies have committed the default in payment of rent, therefore, they may be directed to put the landlord in vacant possession of the premises. The application was contested by the ladies. A legal objection was that all the legal representatives of the deceased have not been impleaded, therefore, the application is bad for non-joinder of necessary parties. It is further stated that the premises in question belong to the deceased husband of the ladies who was in its possession alongwith the ladies as owner. They did not know that the deceased had sold the premises to the landlord. The ladies were neither aware of any relationship between landlord and the deceased husband of the ladies nor after the death of the deceased any notice was given by the landlord to the ladies. It is also not admitted that the ladies are the only heirs of the deceased and in fact two nephews of the deceased are also his heirs. A replication was filed by the landlord in which it was stated that the two ladies are the only legal representatives of the deceased in possession of the property in question. The ladies should have named the legal representatives so as an application for their joinder ; if necessary under the law could have been submitted. The ladies through their counsel on 22-10-1969, submitted an application giving the names of the legal heirs of deceased Musa Jan, and they are Abdul Rashid son of Sher Muhammad and Jan Muhammad son of Sher Muhammad. On 30-3-1971 Abdul Rashid and Jan Muhammad submitted an application under Order I, rule 10, C. P. C., stating therein that they are also heirs of late Musa Jan being his nephews (brother's sons). Deceased Musa Jan had left no children. Applicant Abdul Rashid is living in the house alongwith the widows of the deceased since 1961. The applicants (Abdul Rashid and Jan Muhammad) would be affected by the decision made in the case and are, therefore, necessary party in this case. This application was disposed of by the learned Rent Controller on 2-3-1972, holding they are not necessary party to the proceedings. They have not shown that in what capacity they are in occupation of the premises. The applicants are the nephews of the deceased. They cannot come under the definition of tenant as defined in the Ordinance. The are not necessary party to the proceedings. The application was accordingly dismissed. The following issues were framed by the learned Rent Controller :-.--

(i) Whether the application is bad for non-joinder of necessary parties

(ii) Whether respondent No. 1 has correctly been named if not to what effect O. P.

(iii) Whether relationship of landlord and tenant existed between the petitioner and Musa Jan deceased, and with what effect O. P.

(iv) Whether there has been a default in payment of rent on the part of the respondents O. P.

(v) Whether the petition has been amended without notice to respondents and without permission of the Court and with what effect O. R.

(vi) Whether the respondents Nos. 1 and 2 have sublet the premises to the respondent No. 3 without obtaining consent of the landlord applicant O. P.

(vi) Relief

2. During the pendency of the proceeding, Mst, Wafa Begum expired in the year 1975 and Mst. Abida Begum died in the year 1978. The appellant Abdul Rashid had appeared as attorney of the ladies during the proceedings. After the death of the ladies, he submitted an application that cause of action against the said, respondents has abated as such the application is liable to be dismissed and no relief can be granted against the dead persons ; and if the applicant wants to prosecute the case he should file a suit against the present appellant Abdul Rashid. This application was contested by the landlord. It was stated that Abdul Rashid had no locus standi ; because the order dated 2-3-1972, has already been passed against him. The possession of Abdul Rashid is for and on behalf of the tenants since dead. It is also disputed that the cause of action has abated and now no relief can be granted. -The fact is that the relief in respect of premises and the cause of action for the relief. claimed still subsists and what has happened is that the tenants in possession have expired leaving behind no legal representative who can be lawfully brought on record. No order was passed by the Rent Controller on the objection taken by the appellant that the proceedings bad abated after the death of the ladies. The applications for the eviction were allowed, by means of order dated 28-2-1983.

3. I have heard learned counsel for the parties. The learned counsel for the respondent has urged that the present appeal is not competent as the appellant was not a party before the Rent Controller, he was not respondent and as such he is nobody to file the present appeal. No doubt the appellant is neither a tenant nor a sub-tenant, as contemplated by the definition of "tenant" but he had appeared as attorney of the ladies. He had submitted application that he was one of the legal heirs of deceased Musa Jan and in occupation of the premises since 1961. After the death of the ladies he again submitted application that the applications had abated. The occupation of the appellant in the premises in dispute is not disputed by the landlord. The learned Rent Controller while making order against the tenants also made a direction that the appellant (attorney of ladies) should hand-over the vacant possession of both the premises to the applicant (vide order dated 30-4-1983). The appellant was a stranger to the proceedings under Urban Rent Restriction Ordinance, but he has been adversely affected by A the order of the Controller. The order of eviction has been passed against the dead persons as well as against the appellant. An appeal cannot be filed on behalf of a dead person. The direction has been made against the appellant, as such he is competent to file the appeal against the order oft Rent Controller. It is held in H. M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi arid another (1) that if the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made party to the original suit or proceeding. It has been observed in Mr. Manzur Qadir v. Mst. Amtul Hussain and 2 others (2) that ordinarily, no person, unless he is a party to the proceedings in the Court below is entitled to appeal. But in exceptional cases, may prefer an appeal with leave of the appellate Court, and such should be granted, if he would be prejudicially affected by the judgment appealed against. In these circumstances the appellant being an aggrieved is person against the order of Rent Controller has the locus standi to file appeal.

4. The learned counsel for the appellant has stated that the application had abated after the death of the ladies and no decree could be passed against a dead person. When the attention of the learned Rent Controller was invited to the fact that the ladies had expired, landlord has stated

(1) P L D 1969 S C 65 (2) P L D 1971 Lah. 537

that the proceedings would continue and it had not abated. Even after the death of the ladies the Rent controller proceeded with the matter and thus passed the impugned order.

5. The learned counsel for the respondent has stated that West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as Ordinance) is a special statute and the parties to the proceedings under the Ordinance are the landlord and tenant, therefore, we cannot fall on the general law. The respondent is the landlord as defined in the Ordinance and the tenant means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour and the wife and children of a deceased tenant. It is thus contended that the appellant who is not a child of the deceased tenant is not a tenant and his case is not covered by the definition of tenant as contained in the Ordinance. His application under Order I, rule 10 had been dismissed by the Rent Controller ; against which he did not file any appeal and that order bad become final. The point for our consideration is whether after the death of a tenant the proceeding terminated in case the tenant is not survived by any child or wife which could be brought on record It is an accepted principle that a decree passed against a dead person is a nullity in law. In Anjuman Imdad Bahmi Qarza. Chak No. 130-R, District Lyallpur, through Ataullah, Liquidator v. Nasrullah Khan and others (1), it has been held that it could be argued that a civil Court could pass a valid decree against a defendant in case where it had the jurisdiction to the suit initially even though the defendant may die during the pendency of the action. It is however, settled law that decree passed aga4ist a dead man would be a nullity. The learned counsel for the respondent has referred to Tota Ram and others v. Kundan and others (2), which holds that a decree passed after the death of a party to suit is not an absolute nullity. Such a decree is not void. It is erroneous and liable to be set aside. The mistake can be rectified if the Court set aside the proceedings taken after the death of deceased party and direct that the case be retried in the presence of his legal representative. This authority has been followed in Sikandar Khan v. Muhammad Zuber and others (3) and Allah Rakha and others v. Nur Hussain and others (4). Thus, there is no cavil with this proposition that decree against a dead person has no legal sanctity. It is to be set aside and the c legal representative has to be brought on record and only in the presence of the legal representative further proceedings can be commenced.

6. The learned counsel for the respondent has stated that when the application for the eviction was filed, there was a cause of action ; and in respect of determination of that cause of action right persons were sued on the date of filing of application. The application was filed against proper persons and the cause of action subsisted after the death of the tenants. The cause of action is not dependent on the life and death of a person. It is further contended that if cause of action did not come to end then Rent Controller is competent to decide such a cause of action after the death of the tenant. The order of eviction has to be made by the Rent Controller after the death of the tenant and direction for possession of the demised premises to be made. No doubt the cause of action still subsisted when the ladies had expired. The respondent being the landlord had a cause of action ; but the question for decision is whether such

(1) P L D 1952. Lah. 636 (2) A I R 1928 Lah. 784

(3) P L D 1962 Pesh. 105

(4) P L D 1966 Lah. 960

cause of action gives jurisdiction to the Controller to pass an order against a dead person Under section 13 of the Ordinance an application for eviction is to be made on various grounds against a tenant and the Controller after the conclusion of the trial has to make an order directing the tenant to put the landlord in possession of the building or rented land. So a direction is to be made to the tenant and such direction cannot be -made to a dead person. In case the tenant is survived by the children or the wife they would be brought on record as "tenant" in place of the deceased tenant and they will contest the matter. Where the tenant is not survived by the children or the wife the question would arise to whom the direction would be made by the Controller for handing over possession of the premises No doubt an order passed against the tenant is binding against sub-tenants and unauthorised persons and a decree for eviction against the tenant is executable against all such persons. But in case the tenant is not survived by the persons mentioned in the definition of the tenant, the cause of action of the. landlord may subsist, but the proceedings cannot continue against a dead person. The position would not be difficult where the eviction of the tenant is sought on the ground of subletting and the sub-tenant is a party to the proceeding ; then without impleading the legal representative of the deceased tenant an effective order can be made in case the. subletting is established. It is contended by the learned counsel for the respondent that as the appellant is not tenant he cannot be joined as a party. There is force in the contention. On the death of the original tenant, a person who is not covered by the definition of tenant cannot be joined as a party to the proceedings.. However, what procedure should have been adopted after the death of the ladies The learned counsel for the respondent has referred to Abdutlah v. Mistry Shamsuddin (1), in which it has been observed that definition of tenant, does not embrace legal representative of deceased tenant. This legal proposition is not disputed. In the above cited case the facts are as under :

"An application under section,13 of the Ordinance was filed by the landlord against lady who was the tenant in respect of the said house. During the pendency of -this application the lady died so that Abdullah the father of the appellants made an application for being joined as a party in the rent case. This application was dismissed by the Rent Controller and final order was passed directing the tenant to put the respondent/landlord in possession. Abdullah filed a rent appeal which was allowed on the ground that ejectment order had been passed after the death of the lady, who having died the order was directed against a dead person, therefore, is nullity in law."

It was in these circumstances that 'respondent filed a Regular Civil Suit. This suit was decreed and the appeal was dismissed and it was observed that the appellants are not tenants nor were they inducted in the premises by the respondent for such reasons tbey are unauthorised occupants. The provisions of. Urban Rent Restriction Ordin4nce would not be applicable to the present suit between the parties. In fact the observation made in this authority goes against the respondent. It is the contention of the present appellant that after the death of the ladies the application should have been dismissed having been abated and a civil case for that purpose should have been filed, which has not been done in the present case. In Agha Muhammad v. Haji Maula Dad (2), it has been held that the impleading of a sub-tenant who is not even a proper party, the landlord is

(1) 1982 C L C 787 (2) P L D 1971 Quetta 10

entitled to eject the sub-tenant though the order of eviction obtained against tenant. In Mehraj Din and another v. Muhammad Yasin and 2 others (1), it has been observed that a sub-lessee or an under-tenant is a person bound by the decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sub-lease also. The impleading of a sub-tenant may not be necessary in eviction proceedings ; but an order of eviction cannot be passed after the death of the tenant. In Rikhi Ram and others v. Durga Das and others (2), it has been held that the appeal abates if legal representatives are not brought on record.

7. The learned counsel for the respondent has stated that the provisions of C. P. C. are not applicable to the proceedings under Rent Restriction Ordinance. It is true that all the provisions of C. P. C. are not applicable to the proceedings under Rent Restriction Ordinance. The proceedings under the Ordinance are of civil nature and where the provisions of Ordinance are silent, the Code of Civil Procedure may be pressed into service to meet the ends of justice. In Muhammad Aslam v. Member Board of Revenue (Settlement and Rehabilitation Wing C. S. C.) and 6 others (3), it has been observed that writ jurisdiction being of a civil nature, the application of the rules of procedure which advance the cause of justice unless expressly prohibited can safely be adopted. In Mehdi Hassan v. Ghulam Muhammad (4) it is held that the provisions of C. P. C. can be pressed into service under Ordinance VI of 1959. The Rent Controller on assuming jurisdiction, can order deposit of rent only when it is proved or admitted that respondent is tenant of petitioner. In Rashid Ahmad and 8 others v. Muhammad Arshad (5), it is observed that proceedings under section 13 do not abate on the death of petitioner or respondent. The provisions of Order XXII of the Code of Civil Procedure are not applicable and that being so the proceedings pending before the Rent Controller do not abate on the death of either the petitioner or respondent. There is no provision in the Rent Restriction Ordinance to say that in the event of the death of the petitioner the petition shall abate or that it is liable to be dismissed. In the above cited case the application was dismissed on the death of the applicant/landlord. I entirely agree that on the death of the parties, the 1 proceedings do not abate but with the qualification that the legal represents live of the deceased must be brought on record.

8. In my view, after the death of the ladies the Controller had two options ; either the legal representative of the deceased tenant should have been brought on record, or the application should have been dismissed. In the first option the legal representative would have defended the case pending against the tenant and an order passed by the Rent Controller on the dispute between the landlord and the tenant was binding on the legal heirs of the deceased tenant like a sub-tenant or an unauthorised person. In case the second option was adopted the landlord could file a civil suit for the ejectment of an unauthorised person as has been done in the case of Abdullah v. Mistry Shamsuddin. In Imperial Dyeing and Printing Mills, Karachi v. Safdar 41i (6), it has been held that the necessity of legal representatives of a deceased tenant being before the Controller for the purpose of resisting the claim of the landlord cannot be denied. Had the

(1) P L D 1968 Lab. 20 (2) A I R 1926 Lab. 216

(3) P L D 1980 S C 45 (4) P L D 1964 Lab. 648

(5) P L D 1975 Lab. 1195 (6) P L D 1971 Kar. 778

tenant in the instant case died after conclusion of the matter before the Controller, the position would have been different. But the sole proprietor died much before the conclusion of the case and it is impossible to conceive that the Rent Controller could nonetheless have proceeded with the case without the legal representative of the deceased being, given an opportunity to defend it. This judgment fully applies to the facts of the present case. The trial had not been concluded when the ladies died.

The Rent Controller bad taken proceeding even after the death of the ladies. After the death of- the ladies it was pointed out to the learned Rent Controller by the appellant that he is in occupation of the premises and he be allowed to contest the application. But the respondent contested the application and the Controller proceeded with the matter without impleading the appellant as a party and passed the order against a dead person. The proper course for the Controller was to have allowed the legal representative of the deceased ladies to be brought on record and then proceeded with the matter. In Imperial Dyeing and Printing Mills, Karachi v. Safdar Ali, cited above, the Controller dismissed' the main application as having been abated which was upheld by the High Court observing that it was incumbent upon the landlord to have acted immediately and to have applied to bring the legal representatives on record. Instead of doing so the landlord mainly contended that the appellant concern was a firm and the law of abatement had no application to it.

9. The overall conclusion is that the order of the Rent Controller was. passed against a dead person which is a nullity in law and is not capable of execution. One of the ladies had expired in 1975 and the another in F 1978, but the landlord instead of moving the Court for bringing the legal representatives of the respondents in the eviction application allowed the matter to proceed against a dead person.

I would allow these appeals, set aside the order of eviction passed against the appellant. The respondent may seek his remedy available under law. In view of the circumstances of the case there would be no order as to costs. .

M. z. M. Appeal accepted.

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