' This Constitutional petition seeks order, dated 16-6-2004 passed by the learned Rent Controller Cantonment, Sargodha, to be declared illegal, void and of no legal consequence, whereby petitioners were refused their impleadment.
2. Precisely, relevant facts are that Zulfiqar Ali respondent No,2 filed an ejectment petition against respondent No,3, regarding Shop No,5, Chak No,49-Tail, Sargodha in the Court of Rent Controller, Cantonment Board, on the grounds of default in payment of rent personal need and damage/impairment of the utility of the property. Respondent No,3 being respondent in the petition contested it, denying default in payment of rent with the averment that rent was being paid to Muhammad Hussain son of Siraj Din, who rented him this shop on 1-1-2001 on a monthly rent of Rs,900. He also pleaded that he is tenant under Muhammad Hussain and not under respondent No,2.
3. Writ petitioners being third parties filed an application before the learned Rent Controller seeking their impleadment on the ground that they are also co-owners and co-landlords of the shop in question, thus, they are necessary/proper parties to the proceedings initiated against respondent No,3. The petitioners asserted in their application that respondent No,3 being their tenant had regularly been paying rent to them, but the ejectment petition had been filed out of concealment of facts. It is not disputed by any of the parties that the shop in question besides other property was owned by Muhammad Hussain son of Siraj Din, who gifted it in favour of his daughter Mst. Naseem.
On death of Mst. Naseem Bibi her estate was inherited by her parents Muhammad Hussain (father)
Mst. Amina Bibi (mother) and her husband along with five sons vide Mutation No,2816 dated 28-2- 2000. Thereafter, Muhammad Hussain also died and 1/6 share inherited by him from the estate of his daughter Mst. Naseem Bibi went to share of his heirs. Respondent No,2, who filed the ejectment petition is purchaser from Muhammad Nawaz husband of late Mst. Naseem Bibi through a registered sale-deed dated 3-3-2001, whereby he purchased share in the shop and other property owned by his vendor. In this manner respondent No,2 stepped into the shoes of his vendor Muhammad Nawaz.
4. The tenant respondent No,3 from the first day of his appearance had pleaded that he had been paying rent to Muhammad Hussain, but in spite of transfer of property in the name of his daughter Mst. Naseem Bibi continued collecting rent and after death of Mst. Naseem Bibi, he himself became co-owners/co-landlord of the shop in question. In response to notice, respondent No,2 has appeared and is represented through counsel, whereas respondent No,3 has not appeared in spite of service and is proceeded against ex parte.
5. Learned counsel for the petitioners submitted that the order impugned whereby impleadment of the petitioners was refused is not only bad at law but is final qua the petitioners as they have been disallowed to be impleaded to ejectment petition, filed out of ill-motive of depriving them of their property. According to him, that though petitioners are necessary parties to the proceedings, yet in case they are held to be not necessary parties, they are proper parties because they have a vested right to watch their title/interest in the property which can be mal-handled out of connivance between respondents Nos.2 and 3. A reference in this behalf was made to statement of A.W.1 (respondent No,2) admitting that he only purchased a fractional share in the shop in question, which fell to the share of Muhammad Nawaz out of inheritance. Learned counsel for the petitioner in support of his arguments relied on the judgment in the case of Mst. Zubaida Bai v. Mst. Kaniz Bano and another 1989 CLC 1929.
6. Learned counsel appearing on behalf of respondent No,2 opposed the arguments of the petitioners, supported the impugned order of the Rent Controller and argued that one of the co- owners is competent under law, to initiate ejectment proceedings against the tenant without impleading the other co-owners. According to him, since presence/impleadment of the petitioners is not necessary in view of the law laid down by the Honourable Supreme Court in the case of Anwar Khan v. Abdul Manaf 2004 SCM R 126, petitioners are neither necessary nor proper parties to the ejectment petition filed by respondent No,2. He also relied on the judgment in the case of Manzoor Ahmed v. The Rent Controller 2004 YLR 558 to contend that the co-owners who seek impleadment must move for partition of the property instead of seeking their impleadment to the ejectment proceedings. Learned counsel for the respondent also submitted that order impugned passed by the Rent Controller being of interlocutory/interim nature, Constitutional petition there against is not tenable. In support of his stance, he referred to the judgment in the case of Mian Sher Bahadar and 2, others v. Civil Judge, Takht Bhai and another 2003 YLR 1722.
7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, respondent No,2 holds only a fractional share in the shop subject to ejectment petition, which was inherited by Muhammad Nawaz husband of the deceased owner Mst. Naseem Bibi. No doubt, he is a co-owner of this shop but he initiated ejectment proceedings without permission/concurrence of the others i,e, the writ petitioners. In the background of devolution of property to the petitioners and respondent No,2, it is obvious that these parties also inherited landlordship of the tenancy held by respondent No,3 who had taken defence that he regularly paid the rent to one of the landlords. There is no cavil about the proposition that one of the co-owners can initiate ejectment proceedings against the tenant but the cases in which tenancy/landlordship under one of the co-owners, left out from the proceedings was apparent and the tenant denied default in payment of rent with the assertion of its payment to such left out co-owners, and apprehension of collusion between the parties to the ejectment proceedings, are of different nature to those in which a co-owner initiates ejectment proceedings for the benefit of all the co-sharers. Respondent No,2 by purchase of a fractional share, cannot be permitted to take over a joint property by keeping the other co-owners away from the proceedings, by misusing law which was originally promulgated for protection of tenants, without resort to suit for partition. Apprehension of the petitioners that respondents Nos.2 and 3 may not collude ultimately to their disadvantage is also not misplaced, because in that event they will only be left to sue for partition of property with their deprivation to enjoy usufruct of it, which is being used by them, at the present as landlords. The cases relied by learned counsel for respondent No,2, proceed on altogether different facts as in those cases exclusion of the co- owners was not in the manner the one in the case in hand. Respondent No,2 who suggested that petitioners should seek partition of the property through a regular suit, himself should have opted to these proceedings instead of choosing shortcuts of filing ejectment proceedings wherein the entire history of property was not disclosed and it was not narrated that how much share he holds therein. On the face of the record, petitioners are the landlords as per averments of respondent No,3 and thus, they are necessary parties to the ejectment petition for protection of their rights, nonetheless they having interest in the property as owners/landlords, are, at least, proper parties especially in view of their apprehension of collusion between respondents Nos.2 and 3. It is also obvious that dispute of landlordship and default in payment of monthly rent, cannot be effectively decided in absence of the petitioners, thus, the impleadment prayed should not have been refused. Above all, petitioners have only prayed their impleadment to the ejectment proceedings as respondents and if their prayer is accepted that would not amount to dismissal of ejectment petition of respondent No,2, who in spite of their impleadment can prove his entitlement to the order prayed and can get it at the conclusion of trial, thus, impleadment would not, in itself, work against the interest of respondent No,2. Another aspect which has not been considered by the Rent Controller is that in case of success of the respondent No,2 in the ejectment petition, petitioners would be coerced to resist the execution thereof and to file partition suit etc. Which would result in multiplicity of proceedings but law does not favour such course to be adopted. Taking care of objection of the respondent No,2 regarding maintainability of instant petition against the impugned order which was said to be interlocutory in nature, I find that this order qua the petitioners is final. Case-law developed by this time, on this aspect, in rent disputes, is mostly regarding orders under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, which being of tentative nature and being subject to final determination by the Rent Controller at the time of decision of main case, has no applicability to the case in hand. All the acts/orders, incidental or collateral and not appealable, passed by the statutory functionaries discharging judicial/quasi-judicial functions within jurisdiction of this Court, are subject to judicial review/scrutiny of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, hence the objection is overruled being devoid of any substance.
8. For the reasons noted above, I am constrained to hold that the order dated 16-6-2004 passed by respondent No,1 is illegal, void and of no legal consequence, thus, instant Constitutional petition is allowed and writ as prayed is issued with no order as to costs.