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First Rent Appeal No.467 of 1986, decided on 2nd November, 1986.

‑‑‑S.15‑‑Civil Procedure Code (V of 1908), S.12(2) & 0.1, R.10‑ Ejectment proceedings‑ ‑Impleading of party‑‑Where intervenor failed to prima facie establish that he got any subsisting interest in rented property which was validly gifted in favour of landlord, such intervenor, held, could not be allowed to be impleaded in ejectment proceedings between landlord and tenant even if application of intervenor under S.12(2), C.P.C. was pending against landlord before civil Court.

Abdur Rauf for Appellant.

Muhammad Muzaffarul Haque for Respondent.

This appeal is directed against the order of the Rent Controller dated 16‑7‑1986 whereby he dismissed the application of the present appellant made under Order 1, rule 10, C . P. C . Mst. Amtul Kabir, the present appellant claimed to be the wife of one Muhammad Shamim who was the son of Mst. Hajra and that Mst. Hajra was in turn the owner of the disputed property, having been transferred by the Settlement Department. The respondent No.l, Mst. Safia Khatoon who is now dead and is represented by her legal heirs had claimed to be the donee of the disputed premises from her mother Mst. Hajra in 1971 and she had also claimed that she had filed Suit No.3109 of 1978 against her father and two brothers for declaration that she was the sole owner of the property and the said suit was disposed of on 2‑1‑1979 on an application which was allegedly made by Zainul Abideen and two sons of Muhammad Shamim and Muhammad Zahid to the effect that they had conceded to the claim of Mst. Safia Khatoon.

Mst. Safia Khatoon had filed an ejectment application against the tenant namely Intizamuddin being R.C.No.1330 of 1979 which is still pending before the Rent Controller and in that ejectment application the present appellant sought to be joined as an intervenor on the ground that she was the partial owner of the property and the gift allegedly made by Mst. Hajra in favour of Mst. Safia Khatoon was not valid. It had been pointed out to the Rent Controller on behalf of the present appellant that she had filed application under section 12 (2) of C.P.C. for setting aside the judgment and decree in Suit No.3109 of 1979 which is now Suit No.288 of 1985 and the same was pending for consideration before the learned Civil Judge who .passed the decree on 2‑1‑1979.

The Rent Controller dismissed the application of the appellant for being impleaded as a party on the ground that application under section 12 (2) of C.P.C. has no relevancy with rent proceedings particularly when the intervenor has failed to prima facie establish that she had got any personal interest in the property. He was further of the view that if the ejectment application succeeds then another tenant would be there and the applicant/appellant can ask for her share in the rent from the other tenant.

Mr. Abdur Rauf, for the appellant has contended that the appellant was interested in the property and, therefore, she should have been allowed to be impleaded. I do not find any justification in this submission in view of the fact that the application of the appellant under section 12 (2) of C.P.C. for setting aside the decree in Suit No.3109 of 1978, dated 2‑1‑1979 is still subsisting and has no: been decided as yet. It is only when that decree is set aside and also the alleged gift in favour of Mst. Safia Khatoon is held to be invalid, then alone Mst. Amtul Kabir, the present appellant or her legal heirs can claim to having a subsisting interest in the property and not otherwise. I am, therefore, of the view that the application under Order 1, rule A 10 of C.P.C. made by Mst. Amtul Kabir was premature and she should have first prosecuted her application under section 12 (2), C.P.C. before the Civil Judge and got the same disposed of in her favour and then she could have a justification for moving the Rent Controller for being impleaded as a party. At the moment she cannot be said to be having any subsisting interest in the property and, therefore, the application was not justified.

Mr. Abdur Rauf had submitted that the application under section 12 (2) of C.P.C. dated 2‑1‑1979, which was allegedly signed by Zainul Abideen, would not have been signed by him in view of the fact that he had died on 30‑11‑1978. He therefore, submitted that the Rent Controller should have allowed the application of Mst. Amtul Kabir.

However this submission should have been made and would be competently considered by the Civil Judge who had passed the decree on 2‑1‑1979 and the Rent Controller could not have allowed the impleading of Mst. Amtul Kabir as a party to rent proceedings unless the decree in her favour passed on 2‑1‑1979 had been set aside by the competent civil Court.

In view of above discussion, this appeal found to be incompetent on merits and is hereby dismissed in limine. I may, however, observe that if the decree in favour of Mst. Safia Khatoon dated 2‑1‑1979 is set aside on the application of the legal heirs of Mst. Amtul Kabir, then they can make an application for being impleaded as party at any stage of the proceedings before the Rent Controller and if that had already been decided, then of course before the appellate Court and in any case they can move for administration of the property in the civil Court and get their relief but the condition precedent would be that the decree dated 2‑1‑1979 should not be subsisting and further the alleged gift in favour of Mst. Safia Khatoon should also be at least in dispute. Dismissed in limine.

H.B.T/A‑10/K Appeal dismissed.

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