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Second Appeal No.17 of 1983, decided on 15th October, 1985.

---Ss.14, 15 & 21--Civil Procedure Code (V of 1908), O. I, Rr.10 & 22---Ejectment proceedings on ground of default and unauthorised construction--Landlady, during pendency of proceedings selling property in dispute to a third person by registered sale-deed--One of the conditions of sale being that she was to hand over possession of premises to buyer after ejectment of the tenant--Tenant filing application for dismissal of ejectment application before Rent Controller on ground that on account of sale of property by landlady to another person such application had become infructuous--Application of tenant allowed by Rent Controller on ground that relationship of landlord and. tenant had ceased to exist between the parties--Landlady filing appeal against said order and during its p0ndency buyer of the property filing application under O. I. , R. 10, C .P. C . for being impleaded as a party--District Judge dismissing both appeal and application--Application of buyer, held, should have been allowed as she was clearly entitled to all the -rights and privileges of landlady from the date of transfer of property in her favour--Delay in moving application under O. I, R. 10, C.P.C. was attributable to a clause in sale-deed whereby buyer landlady had undertaken responsibility of handing over possession of property in occupation of tenant to the buyer after securing ejectment- -Delay of eight years in making said application not having caused any prejudice to tenant and in fact tenant had gained by such delay and since there was no limitation for making such application, same should have been allowed--Appeal allowed and after impleading buyer as landlady in original ejectment proceedings, case remanded back to Rent Controller for decision in accordance with law.

---S.13 read with S.2(c), (i)--"Landlord" and "tenant"--Definitions- Landlord, during pendency of ejectment proceedings, selling property in dispute but retaining no right of recovery of rent and relationship of landlord and tenant coming to an end--Basic qualification of landlord, in view of definition, held, was the entitlement to recover the rent.

P L D 1967 Lah. 1020 cited.

Hussain Adil Khatri for Appellant.

Aziz Urfi for Respondent.

Date of hearing: 9th October, 1985.

This appeal is directed against the orders passed by Rent Controller on 7-8-79 and the order passed by the Additional District Judge on 10-3-83.

2. The appellant No. 1 was the landlord of the disputed premises and the respondent was the tenant of the same. The appellant No. 1 had filed ejectment proceedings against the respondent on the ground of default and unauthorised construction in 1972.

The written statement was filed and issues had been framed. However, during pendency of the proceedings the appellant No. 1 sold the property in question to appellant No. 2 by registered sale-deed dated 30-8-74. One of the conditions of the lease was that the appellant No. 1 was to had over the possession of the premises.

The respondent filed an application for dismissal of the ejectment application before the Rent Controller on the ground that on account of the sale of the property by appellant No. 1 to appellant No. 2 the application has become infructuous. After notice to the parties the application was allowed on the ground that the relationship of landlord and tenant had ceased to exist between the parties. The appellant No. 1 filed an appeal against the same during pendency of the appeal before the A.D.J. The appellant No. 2 filed an application under Order I, rule 10, CPC for being impleaded as a party. Both the appeals and the application for being impleaded as a party by appellant No. 2 were disposed of by the same order dated 10-3-83.

In respect of the application of. appellant No. 2, the learned A.D.J. held that since the appeal is the offshoot of the case by the previous landlady, therefore, intervenor had no locus standi in this case and that she could file a fresh case but she could not take any benefit from the old case under any law. In respect of the main appeal it was held that appellant No. 1 had ceased to be the landlady of the respondent after sale of the property to Mst. Zubeda and therefore appeal was dismissed.

3. Mr. Hussain Adil Khatri has submitted that in P L D 1967 Lahore 1020 it was held that the relationship of landlord and tenant is not extinguished in a case where the transferor landlord retains the right of recovering the rent from the tenant in respect of the premises and undertakes the liability of handing over possession of the premises to the transferee after securing ejectment from the Rent Controller. He argues, therefore, that in the present case since the appellant No.1 had continued to take the responsibility of handing over possession of the premises in occupation of respondent to the transferee after securing ejectment, therefore, the relationship of landlord and tenant had continued to subsist.

Appellant's counsel had drawn my attention to section 8 of the Transfer of Property Act which provides for transfer of all rights of the transferor to the transferee when the transfer of property takes place.

4. Mr. Aziz Urfi, on the other hand, submitted that the Lahore case is distinguishable because in that case previous landlord had retained the right of securing the rent from the tenant and therefore the relationship was held to continue. While in the present case no right of recovery of rent had been retained by appellant No. 1 and hence according to the definition of landlord as contained in section 2 of West Pakistan Urban Rent Restriction Ordinance, 1959, the relationship of the appellant No. 1 with the respondent had come to an end. It appears to me that the position adopted by Mr. Urfi is more weighty in view of the definition of 'landlord' where the basic qualification is the entitlement to recover the rent.

However, since the first appeal of the present appellant had been admitted by the A.D.J. and the same was continuing and during the pendency of the same the appellant No. 2 had moved an application for being impleaded as a party and since there, was no time limit prescribed for moving an application under Order , rule 22 or under Order I, rule 10, CPC, therefore, I am of the view that the said application should have been allowed as the appellant No. 2 was clearly entitled to all the rights and privileges of appellant No. 1 from the date of the transfer of the property in her favour. Delay, if any, in moving the application under Order I, rule 10 was clearly attributable to the clause in the sale-deed whereby the appellant No. 1 had undertaken the responsibility of handing over possession of the property in occupation of the respondent to the appellant No.2 after securing the ejectment.

5. I am clearly of the view that after the transfer of the property in August 1974 the appellant No. 2 could have easily moved an application for being impleaded as a party and - the same would have been certainly allowed because the appellant No. 2 was clearly a necessary party to the proceedings because she had become entitled to pursue the remedies which the appellant No. 1 was pursuing since 1972. Moreover, the appellant No. 1 would have also been allowed to continue as a party to the proceedings because he had filed the original proceedings of ejectment and in that view of the matter both appellants No. 1 and 2 were necessary parties to the proceedings of ejectment before the Rent Controller and they should have been so allowed to continue with the proceedings.

6. The only question that has bothered me is that the appellant No. 2 took 8 years from 1974 to 1982 in making an application under Order I, rule 10, C.P.C. But the delay in making the said application has not caused any prejudice to the respondent and in fact the C respondent has gained by such delay and since there is no limitation for making such application, therefore, the application should have been allowed. It was for these reasons that I had allowed this appeal on 9-10-1985 and after impleading the appellant No. 2 as appellant No. 1 in the original ejectment proceedings I had remanded the case back to the Rent Controller for decision in accordance with law.

S.Q./S-94/K Case remanded.

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