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Civil Revision Application No. 377 of 1962, decided on 21^st January 1963.

Mixed question of law and fact‑Not allowed to be raised for first time in revision.

‑More landlords than one ‑Application for eject ment need not be made by all‑General Clauses Act (X of 1897), S. 13.

Proceedings before Rent Controller under Act‑Not to be judged strictly from point of view of mere technicalities observed in law Courts.

B. J. DeSa for Applicants.

Ghayasuddin for Respondents Nos. 1 and 2.

Dates of hearing : 14th and 21st January 1963.

This is a revision application to challenge the validity of the judgment and decree for ejectment dated the 30th of May, 1962 granted by Mr. Mehdi Ali Siddiqui, Additional District Judge, Karachi.

2. In support of this application Mr. DeSa has advanced two arguments: firstly, that the certificate for ejectment obtained from the Rent Controller on the basis of which the suit for ejectment was instituted was invalid because there were two landlords but only one of them had applied for and obtained it; secondly, that the certificate was invalid because the application for obtaining it, was made in 1952 on allegations of violation of the provisions of the law which was in force at that time but the certificate was granted on the 20th of July 1953 under the Karachi Rent Restriction Act, 1953 which was not retrospective. Counsel argued that the creation of sub‑tenancy which was alleged in the application must necessarily have taken place before the enforce ment of 1953 Act; therefore, it could not be the ground for granting a certificate for ejectment under the subsequent Act.

3. The facts briefly stated are that the present applicants are sought to be ejected from the residential flats. The landlords are Mst. Wazirabai and her son Fida Hussain. The tenants are Fazal Hussain and Khuda Bux ; who are alleged to have sublet the premises to Hidayatullah and Malik. The main ground on which the certificate for ejectment was asked for was that the tenants had sublet the premises and had thus disentitled them selves to continue as tenants.

4. Mr. DeSa has argued that the tenants were in occupa tion of the premises from 1942 and that there was no prohibition in law against sub‑letting the premises until 1947. The allegation made in 1952 that the tenants had illegally sub‑let the premises could not be helpful to the landlords unless the premises were sub‑let after the Karachi Rent Restriction Act, 1953 came into force or at least after 1947, but in this case, according to Mr. DeSa, they were sub‑let in 1942.

5. This argument is met by counsel for the landlords by pointing out: firstly, that the argument advanced by Mr. DeSa raises a mixed question of fact and law; therefore, it cannot be raised in this Court for the first time. This argument gains force because counsel for the landlords has pointed out that there is a mention in a judgment given in a review application (No. 419 J.S/1959) decided by the Rent Controller, Mr. Aftab Hussain, that there was an agreement in 1942 between the landlords and the tenants in which there was a provision prohibiting the tenants from sub‑letting the premises. If it was so, the entire argument of Mr. DeSa is without force, because the tenants have then violated the terms of tenancy. I cannot, however, conclusively state on the basis of the record as it is before me as to what precisely were the contents of that agreement, and what exact effect they have on these proceedings. This uncertainty, however, justifies that the above argument advanced in this Court for the first time should not be allowed. I, therefore, over‑rule it.

6. The other argument that both the landlords did not apply for the certificate of ejectment, is supported by Mr. DeSa by referring to the word landlord' which occurs in section 10 (2) (b) of the Karachi Rent Restriction Act, 1953, for it indicates that an application for obtaining such a certificate should be made by all those who may be the landlords for the time being and not by anyone of them. His argument is that the word landlord' should be read in the plural where there are more landlords than one, in terms of the General Clauses Act ; therefore, the singular word should be read in this case as referring to both the landlords who could only apply jointly for obtaining a certificate for ejectment. Counsel supplemented this argument by pointing out that a suit for ejectment cannot be instituted unless all the landlords are impleaded as parties.

7. I have, therefore, to consider whether on account of the analogy of a suit for ejectment or owing to the word "landlord" used in section 10, the legal situation is that a certificate obtained by a lesser number of landlords than all of them must be held to be invalid.

8. Before answering this question, I should mention that the tenants did not go in revision and did not raise this objection there. It is, however, a legal question and the relevant facts are on the record. It can be considered in these proceedings.

9. I enquired from Mr. DeSa as to whether the reason for his insistence that the defect should be noted had technical importance only or any other harm was caused by it to the tenants. He said that if one landlord applied for and obtained a certificate and the other landlord did not agree, then there could be harassment to the tenants by the institution of multifarious proceedings which the law aims to avoid. In this case the two landlords are a mother and her son. The certificate has been obtained by the son and the mother has never objected to it. She has actually joined him in the suit for ejectment. The grievance of harassment is not factual. Mr. DeSa, therefore, argued that the possibility of harassment is also to be eliminated, but this argument does not arise from the principle on which counsel relies that nobody should be vexed twice for the same cause. Moreover, the chances of such vexation are not substantial if one of the landlords obtains a certificate for ejectment against the will of the other landlords because they are not likely to join him when he brings a suit for ejectment.

10. As to the purely technical aspects I should state that the analogy of a suit for ejectment is not relevant. There are different considerations which apply to those suits. Those considerations are not applicable to the proceedings taken before the Rent Controller merely for obtaining a certificate for ejectment.

11. The only argument which has a substance, therefore, is that the use of the word "landlord" in section 10 which read with the General Clauses Act, should be understood to mean not one but all landlords. Granting, therefore, that under section 13 of the General Clauses Act a word used in the singular shall', according to the "subject and context" of the provision in which it is used include the plural, the question arises as to how was it necessary that for purposes of section 10 of the Karachi Rent Restriction Act all the landlords be impleaded. There is nothing in the latter Act as it was in May 1962 about the joinder of parties. Under the General Clauses Act the singular word "landlord" could be read as "landlords" and similarly its plural could be read as singular. Therefore, the argument merely that the word "landlord" can refer to all the landlords is not sufficient to clinch the argument with regard to the joinder of parties. Mr. DeSa conceded that the Civil Procedure Code is not applicable to the proceedings before the Rent Controller in this respect. There is, therefore, no technical basis for saying as to who is a necessary party, who is a proper B party, and whose exclusion will invalidate the proceedings for obtaining a certificate. The answer to the question should rest on other considerations than word "landlord" in the singular.

12. One aspect to be kept in mind, is that the proceedings were before a special tribunal. Such proceedings should not be judgedl strictly from the point of view of mere technicalities that are observed in law Courts. This has been pointed out repeatedly with reference to the exercise of writ jurisdiction and the principle is sound. Special tribunals are often appoined so that the C strictness of elaborate technicalities may not hamper their pro ceedings. If they are by circuitous arguments subjected to the same strictness, irrespective of the object of legislation or the ends of justice and without an express or implied but definite require ment of law, it may amount to indirectly frustrating the purpose of their creation. This objection, therefore, does not impress me as of a decisive consequence and I hereby reject it.

13. In conclusion, the revision application is dismissed with costs.

14. Mr. DeSa at this stage requests that in view of the undertaking given by him on 9‑8‑1962, he may be allowed time for vacating the premises. Mr. Ghyasuddin is agreeable to allow the tenants to stay in the premises up to the end of March 1963 provided they deposit within 4 days all their dues including mesne profit for the months of January, February and March 1963. In default of their so making payment they have to vacate the premises in view of their undertaking and, irrespective of any consequence arising from the order of the 9th of August, 1962, by the process of Court.

K.B. A.

Petition dismissed

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