' ZIA PERWEZ, J.---Petitioner is aggrieved by the impugned judgment of the 1st Additional Sessions Judge, Karachi South in F.R.A. No, 296/2004, dated 6-12-2005, dismissing the appeal and upholding the order of ejectment passed by the 1st Senior Civil Judge & Rent Controller, Karachi South in Rent.
Case No,1080/2001 dated 31-8-2002.
2. The ejectment application was filed against Haji Ahmed Ali Muhammad tenant. After Service of notice, it transpired that the tenant had expired on 25-10-1995. The Court directed his L.Rs, the present petitioners to be joined as party to the proceedings at the initial stage. The L.Rs joined the proceedings and contested the case. Thereafter appeal filed by the petitioners was also dismissed, hence the present petition has been preferred.
3. Only contention of Mr. Muhammad Ali Lari, learned Counsel for the petitioner, is that the entire proceedings were initiated illegally as the ejectment application was filed against a deceased person Haji Ahmed AU Muhammad, who at the time of institution of ejectment application was not alive. That all the legal representatives of the deceased were not made party to the ejectment proceedings. He has placed reliance on the cases of Ghulam Hussain v. Syed Khalil Hussain Shah (PLD 2004 Azad J&K 12), Fazal Ahmad v. Mst. Ramzan Bibi (PLD 1975 Lahore 790), Mst. Fatima Noor v.
Shabir 1985 CLC 2632, Abdul. Rashid v. Haji Syed Ainullah PLD 1985 Quetta 56.
4. Mr. Khaleeq Ahmed, learned counsel for the respondents, has contended that deceased tenant expired several years ago but the fact was not brought to the knowledge of the landlord as the rent was tendered on his behalf and receipts were being issued in the name of the tenant till the time of filing ejectment application. That no prejudice has been caused. The proceeding before the Rent Controller do not call for stick adherence to Civil Procedure Code so as to defeat the just case on technicalities. In support of his contention he has relied upon the case of Sattar and others v. Senior Civil Judge & Rent Controller-III, 2002 CLC 548.
5. The record shows that the fact of death of the deceased tenant was not brought to the notice of the landlord. Rent was tendered on his behalf and the receipts were also issued in his name till the time of filing of ejectment application. The heirs were brought on record at the very initial stage of the proceedings. In a similar case of Sattar (supra) the view taken was that when such matters are taken up and arc finally decided at the initial stage, they do not invalidate the order of Rent Controller and there was no necessity for institution of a fresh case against the tenant.
6. As to the second contention that all the heirs of the deceased tenant were not joined as a party to the eviction application and therefore the impugned order was illegal. Admittedly, the petitioners are in occupation of the rented premises. Particulars of heirs of the deceased tenant were provided in the Court of Rent Controller by the petitioners themselves. .
7. In order to examine the question of joining all the heirs of a deceased tenant in Rent proceedings, whether it is necessary that all surviving heirs of the deceased tenant should be impleaded as .a party to the ejectment proceedings, or only those heirs of a deceased who continue to occupy the rented premises fall under the definition of tenant, as defined under section 2(j)(ii) of the Sindh Rented Premises Ordinance, 1979 requires consideration which reads as under: - (2)
(j)
(i)
(ii) Heirs of the tenant in possession or occupation of the premises after the death of the tenant;
8. Petitioners are in possession of the premises, they themselves provided details of the heirs of the deceased. They contested C the proceeding throughout. They are estopped from raising any such objection. Section 2(j) clearly defines 'tenant'. It means "any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy and (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant". A perusal of clause (ii) of section 2(j) thus shows that only those legal heirs, who are actually in possession or occupation of the premises after the death of the tenant, become statutory tenants. In the present case, it is admitted position that the petitioners are alone in possession and occupation of the premises in question, after the death of original tenant as the relationship of landlord and tenant is based on the right to rent of the premises by the landlord and that of enjoyment of property by a tenant.
Since the only heirs occupying the premises enjoy the premises and are therefore liable to make payment of rent, only they are included in the definition of tenant.
' Therefore, the eviction application was maintainable against the petitioners. It was not necessary for the respondents to join all the legal heirs of dedeased tenant, as opponents in the said application as they neither occupy or enjoy the premises nor are liable to pay rent that may result in the relationship of landlord and tenant. The finding of the learned Controller is in consonance with law, as held in the case of Nooruddin & 3 others v. Mrs. Kaityun B. Khambatta (1993 MLD 2217).
' In the case of Mst. Fatima Noor (supra) it was held that since it was not established that deceased tenant had died before filing eviction application, the objection that the eviction application was filed against dead man was without any merits. Even the death certificate produced before the trial Court was not accepted as proof of death in the absence of evidence to prove the same and therefore the contention that ejectment was filed against a dead man did not find favour with the Bench.
' In the case of Abdul Rashid (supra) while observing that the provisions of C.P.C can be pressed into service to meet ends of justice where provisions. Of Ordinance are silent. It was further held that the legal representative of the deceased tenant should have been brought on record, however, at the same in rent case where special law is applicable the specific provisions contained in the special law shall override the provisions of C.P.C. As the definition of tenant is provided by law discussed above the same is to prevail over the general law. She was not made party to the ejectment proceedings. In the present case wife of the deceased tenant in occupation of the premises was made a party to the proceeding at the initial stage. Therefore, the case laws cited by the learned counsel are not attracted to the facts of the present petition and are distinguishable.
Order passed by the Rent Controller and confirming appeal does not suffer from any illegality.
9. Under the circumstances, no illegality or infirmity is found in the order of two Courts below.
Accordingly petition is dismissed in limine.
' Before parting with this order, learned counsel for the appellant filed a statement requesting for six months time to vacate the demised flat, learned counsel for the respondent has no objection to the request. Accordingly, the request of learned counsel for the petitioners for a period of six months to vacate the demised flat is allowed, in case of failure to vacate the premises, the ejectment of petitioners shall follow without any further notice.