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Civil Petition No. K‑547 of 1984, decided on 17th February, 1985.

(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 2‑10‑1984 passed in Civil Revision No. 192 of 1976).

‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 & 15‑‑Ejectment‑‑Tenant dying during ejectment proceedings‑‑Counsel/legal representatives remaining silent about death of tenant‑‑Ejectment order upheld by appellate Court‑‑Objection raised in execution proceedings that eviction order was void having been passed against a dead person, overruled‑‑Court will not allow party to take advantage of its fraud, petitioners not allowed to take benefit of their own fraud‑‑Petition dismissed.

Ahmadullah Farooqi, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 17th February, 1985.

‑‑This petition arises out of an application filed by respondent in May, 1967 for eviction of Muhammad Yousuf (deceased), husband of petitioner herein. The Rent Controller, Karachi by the Order, dated 29‑7‑1970 allowed the eviction application and directed ejectment of Muhammad Yousuf tenant from the demised premises.

2. On 3‑10‑1970 respondent applied for execution of the order of the Rent Controller, dated 29‑7‑1970, but in the meantime on 21‑9‑1970, Abdul Matin and Abdul Naqvi, brothers of Muhammad Yousuf filed an application before the Rent Controller that the original ejectment proceedings may be dropped as having abated for the reason that Muhammad Yousuf had died during the proceedings of the case on 17‑2‑1970. This application was dismissed by the Rent Controller by the order, dated 25‑9‑1970 for the reason that "no proceedings were actually pending " and, therefore, the petition was not competent. Abdul Matin and Muhammad Naqvi also contested the execution application and filed Appeal No. 348 of 1970 against the orders of the Rent Controller, dated 29‑7‑1970. The appeal was dismissed by the Additional District Judge by the judgment, dated 23‑8‑1970 on the ground that the appellants were strangers to the proceedings.

3. Thereafter, respondent revived the execution application during which petitioner, the widow of the original tenant Muhammad Yousuf, filed objections on the ground that the order of the Rent Controller dated 29‑7‑1970 having been passed against a dead person was a nullity in law and was not, therefore, executable. Learned Judge of the Executing Court overruled the objections and directed petitioner's ejectment by the order, dated 27‑8‑1975, against which petitioner filed an appeal on the same grounds' a4 were urged in the objections filed to the execution application. Learned Additional District Judge dismissed the appeal, and petitioner's revision application, against these orders in the Court has also met the same fate. The learned Judge in the High Court, apart from considering the legality and the propriety of the impugned orders, took the following view:‑‑

"In this case legal representative and the Advocate of deceased remained silent about the death of the tenant and thus defrauded the respondent by allowing him to obtain ejectment order against a dead man, on the representation that the man was alive. If the ejectment order is now held to be null and void on the ground as pleaded by the learned counsel for the applicant, it will amount to giving advantage to the applicant of her own fraud. It is an established principle of law that the Court will not allow a party to take advantage of its fraud."

The following observations made by the learned Judge may also be usefully reproduced:‑‑

"In the ordinary course I would have issued notice to the Advocate, who appeared in the year 1970 for the deceased tenants to show cause as to why action should not be taken against him for contempt of the Court for having represented a dead man in the case and without having brought the fact of the death to the notice of the Court. However, it is not known as to who appeared for the deceased tenant at that stage. As the matter is 14 years old, hence no useful purpose will be served by issuing such notice to the counsel."

4. In support of this petition for leave to appeal learned counsel for the petitioner, Mr. Ahmadullah Faruqui, submits that the High Court has failed to notice that the order of the Rent Controller. Dated 29‑7‑1970 having been passed against a dead person was totally void in law, but we wholeheartedly agree with the view of the learned Single Judge in the High Court that the legal representatives and the Advocate of the deceased having remained silent about the death of the tenant cannot be permitted to take benefit of their own fraud, and, therefore, dismiss this petition in limine.

M. I. Petition dismissed.

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