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First Rent Appeal No 246 of 1986, decided on 12th May 1986.

‑‑‑Ss. 21 a 22‑‑Civil‑,Procedure Code (V of 1908), .0.11,R. 10 Ejectment of tenant‑‑Execution proceedings‑‑ Impleading of parties, justification for‑‑Person who was not in possession of property in dispute nor was party in earlier ejectment proceedings against his brother up to High Court, held, could not be allowed to be impleaded as party at execution stage when eviction order had become final‑‑Application under 0.1, R.10, Civil Procedure Code (V of 1908) was rightly dismissed by Rent Controller in circumstances.

Hassan Imam Rizvi for Appellant.

A. Majid Khan for Respondent.

Date of hearing: 12th May 1985.

Being aggrieved with the order, dated 20‑4‑1986 of the VIth Senior Civil Judge and Rent Controller, Karachi (East), the appellant has filed this 1st Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979.

Appellant Shahid Hussain made an application under Order I, Rule 10, C . P. C . at the stage of the execution proceeding of the R . C . No. 2380/1976. The Rent Controller dismissed his application and observed in his order that application appears to be with mala fide and will defeat the ends of justice.

I have heard Mr. Hassan Imam Rizvi for the appellant and Mr. Abdul Majeed Khan for the respondent who is present on pre‑admission notice.

It is contended by the learned counsel for the appellant that Rent Controller without providing an opportunity to the counsel dismissed his application. He has argued that in Constitutional Petition No. 971/1980 his application under Order I, Rule 10, C‑p‑C was allowed and he contested the Constitutional petition as intervener.

Mr. Abdul Majeed, learned counsel for the respondent argued that appellant was not party in the rent proceedings instituted in the year 1976 against his brother Sajid Hussain and matter was finally decided by this Court and eviction order has become final. He has submitted that now execution proceedings are pending and application under Order I, Rule‑10, C. P. C. has been filed with mala fide.

The Rent Case No. 2380/76 was filed by respondent Abdul Hafeez Khan against Syed Sajid Hussain and Rent Controller allowed the application by an order, dated 15‑12‑1984 and directed Sajid Hussain to hand over the vacant possession of the premises to the respondent. First Rent Appeal No. 65/82 was filed in this Court the same was dismissed on 29‑5‑1984 due to non‑prosecution. The restoration was also dismissed by this Court by an order, dated 10‑12‑1984. This position has not been denied by the learned counsel appearing for the appellant. Now the execution proceedings are pending and at this stage who was not party in the earlier proceedings has come with request to join him as intervenor. It is relevant to mention that appellant is brother of Sajid Hussain who was respondent in the rent case. Since last 9 years adjudication of the rent case continued unto High Court in spite of that the appellant did not approach the Courts for joining as intervenor. While deciding the F.R.A. No, 65/82 it has been observed. in the judgment that Syed Sajid Hussain is enjoying the property in dispute without paying any rent for the last 8 years. Therefore, at this stage it cannot be said that appellant is in possession of they premises and he has any cause of action. Not only this appellant was impleaded as intervenor in the Constitutional Petition by an order, dated 11‑5‑1981. Inspite of that he did not approach the Rent Controlle for joining him as party, upto September 1984. Appellant must be known of the entire situation. Litigation was between the respondent and his brother. From the above circumstances his it is clear that Rent Controller has rightly dismissed his application and his order i proper one. For the reasons stated above the appeal is dismissed in limine.

H.B.T Appeal dismissed.

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