'SHAHID ANWAR BAJWA, J.---The petitioner in this petition is tenant in respect of Shop No,5 situated on Plot No . SB-7, Block-12, K. D. A . Scheme No,16, Gulberg, F.B. Area, Karachi. Respondent No,1 was landlord and tenancy commenced in 1979. Ejectment application bearing No,421/2004 was filed on 7-8-2004 on ground of default starting from May, 2003 to date of filing of ejectment application and on the grounds of unapproved and illegal addition and alteration without permission, subletting and as personal bona fide need of the landlord. Written statement was filed by the tenant. All the factual averments made regarding four grounds were denied in written statement.
Rent Controller vide order dated November 10 . 2006 dismissed ejectment application.
2. Being aggrieved by order of the Rent Controller First Rent Appeal No,261/2006 was filed. Appeal was allowed by the Appellate Court vide its order dated 31-7-2007. During pendency of appeal present landlord, died on 3-4-2007. On 10-4-2007 an application was filed by the present petitioner. In the application he stated that he had come to know through reliable sources that landlord Muhammad Shafi had died and his attorney who had signed ejectment application and who had appeared as witness and who had also preferred the appeal had not communicated this fact to the Court. It was stated in the application that since landlord had died and since ejectment application had been dismissed, therefore, no benefit had devolved on to the alleged attorney and other legal heirs. It was submitted that alleged plea of personal need had been extinguished with death of the landlord. It was further stated that alleged power of attorney had not been signed by Muhammad Shafi. Consequently it was prayed that appeal may be dismissed. Notice of this application was given to the Advocate for landlord but no objection or counter-affidavit was filed.
List of legal heirs was filed on 22-5-2007. Learned counsel for petitioner submitted that it was not filed but it was inserted because it has not been mentioned in the diary of the Court below. Learned counsel raised the following questions:
(i) Whether after death of appellant Vakalatnama stood totally discharged?
(ii) Whether upon death the power of attorney came to an end?
(iii) Whether in absence of proper representation order passed by the Appellate Court, has any legal validity?
(iv) What is legal effect of not bringing legal representative on record?
3. Learned counsel for petitioner referred to a number of case-law to which I will refer in due course.
4. Learned counsel for respondent No,1 made the following submissions:- (i). Case has been decided by the Appellate Court on merits and in accordance with evidence available on record.
(ii) Tenant has enjoyed property for 27 years and it is high time that it be handed over to landlord.
(iii) Attorney was also real son of the landlord. Therefore, he could continue with case in his personal capacity as legal representative of the landlord. Learned counsel also relied upon number of case-law to which I will refer in due course.
5. Before I turn to the submissions of learned counsel for the parties it would be appropriate to refer to the cases cited by the parties. Learned counsel for petitioner firstly relied upon Usman Pirzada v.
The Additional District and Sessions Judge Lahore and 7 others 1985 M LD 549. In this case one Mian Abdul Aziz sought ejectment of the petitioner from house on ground of default and personal bona fide need. During pendency of ejectment application landlord died and his legal heirs were impleaded as parties. Ground of personal need was not pressed and ejectment application was rejected on ground that default had not been established. Appellate Court reversed findings. In this case Mian Abdul Aziz was father-in-law of the owner was appointed as attorney. Since he died during pendency of the proceedings, it was held that with his death power of attorney stood terminated and since legal heirs of attorney not being a party were not competent to prosecute ejectment application.
6. Mst. Iffat Masood and 2 others v. Rehmat Ali PLD 1990 Lah.
359. In this case a suit for recovery was filed and trial Court vide order under Order VIII Rule 10 C.P.C.
Struck of defence and without recording evidence decreed the suit. An appeal was preferred. It was admitted for hearing. During pendency of appeal Advocate informed the Court that appellant had expired and upon his request appeal was adjourned. Couple of adjournments were granted and thereafter, appeal was dismissed for non-prosecution. Thereafter, widow and daughter of appellant filed application for restoration of appeal. This application was declined by the Court below and matter ended up in the High Court. High Court held that on death of a party contract between counsel and client in such a case came to end and unless fresh power is given by the legal representative of deceased party, counsel engaged by the deceased cannot appeal and plead on their behalf.
7. F.B. Davis v. Mrs. Shakar Khano Bai represented by Legal heirs 1986 M LD 1342. It was held that where ejectment application is filed on ground of personal bona fide need and landlord died during pendency of case new landlords were required to file amended application spelling out their own bona fide requirement and if such amended application is net filed ejectment could not be passed on such application under the circumstances.
8. Mst. Surraya and 7 others v. Additional District Judge, Lahore and 8 others 1990 ALD 585. It was a suit for partition. Two defendants filed written statement jointly through their counsel. During pendency of suit one defendant died and after his death co-defendant along with his counsel made statement that they offered to purchase or sell respective shares of the parties in property sought to be partitioned. That offer was accepted by the plaintiff who communicated his willingness to purchase shares of both the defendants. It was held that after death of defendant power of attorney of his counsel had stood terminated and therefore, counsel had no authority to make any statement on behalf of deceased client so as to bind his legal heirs.
9. Nasir Ahmed Sheikh v. The State Life Insurance Corporation of Pakistan and another 1990 M LD 1261. It was held that authority of pleader or Advocate comes to an end with the death of a party.
Same was findings in Ravi Dutt Kapur v. Deputy Commissioner/Collector, Jhang and 9 others 1999 CLC 500.
10. Muhammad Aslam (through his L.R.) v. Wazir Muhammad, PLD 1985 Supreme Court 46. In this case very weighty and material observations were made in the following words: "It is clear, therefore, that personal actions connected with the individuality of a person do not survive him (action personalis moritur cum persona). There is, however, an important exception to it i.e, where personal actions have matured into a decree or become part of the estate of the deceased. As Salmond has put it "A right vests when all the facts have occurred which by law occur in order for the person in question to have the right". In the words of Patron 'Every right arises from title, when all the investitive facts which are necessary to create the right have occurred, the right is vested." By a judgment, decree or order, as the case may be, a personal action gets perfected and becomes a part of the estate of the deceased. The right to immediately possess a property subject to its being tested in appeal, is a tangible, valuable property right which comes to vest in the owner of the property and on his death passes on to his heirs. The heirs inherit his estate along with the vested right to obtain actual physical possession of the demised premises with the attaching limitation of law in the form of conditions attaching to such an order of possession. The legal representatives can execute the order of the ejectment and take the property on the same terms on which their deceased predecessorin-interest was entitled to it.
'A fairly detailed discussion of the subject is found in Shah Muhammad v. Noor Din (I). This decision is of assistance for the purposes of present proceedings to which strict provisions of the Civil Procedure Code do not apply, for understanding the general principles of law of survival of fights even where the cause of action is personal to a litigant. The conclusion which was reached with regard to the practice and procedure on such a plea being raised finds mention at page 470 of the following words:-- "I now pass on to the third question. I have held that neither the suit nor the appeal abates. But a plaintiff who had secured a decree has died and the appellant claims that the decree being based on a personal right, the benefit of this decree does not pass to, the heirs. What should the appellate Court do? As regards the merits of the appeal I have already said that the appeal does not abate and the Court should hear the appeal on the merits if the decree of a kind that may, affect the interests of the" appellants. But if the 'appeal', does not succeed on merits, should the appellate Court go into the question as to whether the interest in the decree passes to the heirs? The ordinary rule in such cases is that a Court is only concerned with the rights of the original party. The legal representative of a deceased party cannot take pleas which were not open to the original party, and it may well be said that the pleas which were not open against the original party, should not be allowed to be raised. However, there is no bar to the appellate Court taking notice of the plea and deciding it. The powers of an appellate Court were very wide as held in Maharaja Sris Chandra Nandy v. Rakhalanand Thakur wherein a decree which was valued on the date it was passed was set aside on the ground that after the decree law had been enacted with retrospective effect. Of course, ordinarily the Court will leave this question to be decided by the executing Court. It is to be observed that the question which arises on this plea will be altogether new and would ordinarily have to be decided after taking of evidence. While, therefore, I would not hold there is any bar to the jurisdiction of the Court to take notice of this plea, the matter will be gone into by the appellate Court only in exceptional circumstances."
'The legal effect is the same even in rent control proceedings where ejectment of tenant has been obtained. On the. Ground of personal need before the death Of the person whose need accounted for the eviction order against the tenant. There are a few very illustrative decisions which recognize and give effect to this general principle of law.--- 'A survey of decisions of this Court on the specific question involved is necessary to ascertain how these principle have influenced the decisions. The landlord's need for residential premises has always been considered to be the need of the family. Hence his death pending proceedings makes no difference. Those cases will not, therefore, be relevant and are Altogether excluded from consideration."
11. Mst. Said Begum and others v. Nur Ahmed PLD 1978 SC 133. It was held that test to see whether the suit or appeal abates as a whole or only in part is to find out if the suit, in the first instance, could have been instituted and prosecuted if the deceased plaintiff was left out. It was a matter relating to preemption.
12. Mst. Anar Begum v. The Settlement and Rehabilitation Commissioner (Land), Multan Division, Multan and 3 others PLD 1973 Note 85. It was noted that holder of power of attorney has no locus standi to prosecute the case on behalf of executant of power of attorney after his death.
13. Muhammad Shafi and others v. Muhammad Ilyas 1986 SCM R 451. It was held in this case that legal representative of a deceased on devolution of interest of deceased could not in same proceedings prosecute claim for ejectment on ground of personal use of landlord as such case of action of personal nature would not survive to legal representatives of the deceased landlord.
14. Haji Ibrahim v. S. Rehmatullah, (Represented by legal Heirs) 1985 SCM R 241. This judgment is by a 5 Members Bench of the Honourable Supreme Court and law has been lucidly stated in the same in following words: "It is clear, therefore, that personal actions connected with the individuality of a person do not survive him (action personalis moritur cum persona). There is, however, an important exception to it i.e, where personal actions have matured into a decree or become part of the estate of the deceased.
As Salmond has put it. A right vests when all the facts have occurred which by law occur in order for the person in question to have the right." In the words of Paton "Every right arises from title, when all the investitive facts which are necessary to create the right have occurred, the right is vested."
By a judgment, decree or order, as the case may be, a personal action gets perfected and becomes a part of the estate of the deceased. The right to immediately possess a property subject to its being tested in appeal, is a tangible, valuable property right which comes to vest in the owner of the property and on his death passes on to his heirs. The heirs inherit his estate along with the vested right to obtain actual physical possession of the demised premises with the attaching limitation of law in the form of conditions attaching to such an order of possession. The legal representatives can execute the order of the ejectment and take the property on the same terms on which their deceased predecessorin-interest was entitled to it."
15. On the other learned counsel for respondent No,1 relied upon Rashid Ahmed and 8 others v.
Muhammad Arshad, PLD 1975 Lahore 1195. In this case ejectment application was filed and during pendency of ejectment application the applicant died. His legal heirs applied for impleading them as party. The Rent Controller rejected the application by observing that Civil Procedure Code was not applicable to rent proceedings. Appeal was dismissed by the District Judge and IInd Appeal was filed in the High Court. The High Court held as under:- "2. The Rent Controller is an administrative Tribunal and not a Court as held in Khadim Mohyuddin v.
Rehmat Ali (1). The Code of Civil Procedure is not applicable to the proceedings under the Rent Restriction Ordinance except those under sections 15(4) and 16 where certain provisions of the Code of Civil Procedure have been expressly made applicable. The provisions of Order XXII of the Code of Civil Procedure are thus not applicable and that being so the proceedings pending before the Rent Controller do not abate on the death of either the petitioner or the respondent. There is no provision in the Rent Restriction Ordinance to say that in the event of the death of the petitioner the petition shall abate or that it is liable to be dismissed. The order of the Rent Controller dismissing the petition on the ground that the petitioner had died was, therefore, not warranted by law."
16. Ramzan Ali Shah v. Mst. Razia Sultana and others, PLD 1968 Baghdad-ul-Jadid 1. Facts of this case were that Mst. Anwar Sultana was daughter of one Jawahar Singh. She was married to one Abdul Aziz. On his death, some where in 1930 she married plaintiff Ramzan Ali Shah. Defendant before the Court below was son of brother of Anwar Sultana and defendant No,1 was daughter of Anwar Sultana from her first husband. Anwar Sultana filed a suit against her step-sons for recovery of her dower. She got a sum of Rs,3,360-4-0 in satisfaction of decree for Rs,4,000.00. She entered into an agreement with one Ghulam Muhammad for the purchase of 25 acres of land and paid Rs,300.00 as part consideration. The land being Government land could not be sold without permission of the Deputy Commissioner who refused to grant such permission on the ground that one of the conditions was that the grantee should' be available to cultivate and live on the land and Mst. Anwar Sultana being a woman could not fulfil this condition. Therefore, an application was made to allow transfer in favour of Muhammad Salim, who was minor at that time. Permission was granted and land was mutated. Said Muhammad Salim on attaining majority stated that he had made a gift in favour of Mst. Anwar Sultana. Mst. Anwar Sultana sold a part of land to Ghulam Rasool and then gifted 10-1/2 acres to her daughter Razia Sultana by registered deed and remaining 10 and half acres to the said Muhammad Salim. However, the gift deed was not completed and then Mst. Anwar Sultana sold these 101/2 acres to her daughter. Second husband of Mst. Anwar Sultana married again. He gave notice that he was real owner of land and filed a-suit.
Legal representatives were already on record when a litigant died. However, the Court had not passed formal order. It was held that failure of Court to pass formal order on application praying to bring legal representative on record was a mere irregularity and did not affect merits of the case.
17. Haji Muhammad Siddique v. District Judge, Peshawar and 11 others 1989. CLC 1296. In this case during pendency of ejectment application the applicant died. It was pleaded that cause of action died with death of the applicant. Bona fide need expressed by the applicant was use of his son. It was held that the principle that the personal action dies with the person is not attracted to cases in which requirement is for the use of legal representatives and in such cases legal representatives acquired right to be impleaded as legal representatives.
18. Syeda Tahira Begum and others v. Syed Akram Ali and others, 2003 SCM R 29. Facts of the case were that the respondent filed a suit against the petitioner, Syeda Tahira Begum seeking declaration to the effect that they had purchased a share in the suit-land. The suit was decreed.
However, his prayer for possession of disputed land was rejected. Execution application was filed. It was contested on the ground that decree being a declaratory one was not capable of execution and the petitioner being a Parda Nashin lady had not interfered with the possession of the respondents. Execution Application was rejected. Appeal was accepted and matter was remanded to -the Executing Court. Upon remand the Eiecuting Court rejected the objection. Appeal was filed which was rejected. Civil Revision was accepted by the High Court. The matter went to the Supreme Court. The Supreme Court noted that contention that Syed Taimoor Shah was not impleaded as a party and was not afforded an opportunity of hearing is devoid of any force in the circumstances. It further held that purpose of impleading a person as a party in a case is that he shall be provided with an opportunity of hearing in the matter.
19. In Muhammad Sidiq v. Muhammad Sakhi through Fateh Muhammad, PLD 1989 SC 755, it was a suit relating to land. Effect of the amendment brought by the Law Reforms Ordinance, 1972 was noticed and it was held that the death of a plaintiff during pendency of his appeal would not cause his appeal to abate, after the amendment in Rule 3 of Order XXII C.P.C. Brought about by Law Reforms Ordinance, if no application for impleading his legal representatives was brought within period of limitation. It was further held that in the absence of such application for impleading legal representatives of a deceased party, Court would continue with adjudication of suit and the decree so passed would be valid.
20. In Haji Ibrahim v. S. Rehmatullah (Represented by Legal Heirs) 1985 SCM R 241, is a judgment by a six member Bench of Supreme Court Judges and is authored by Mr. Justice Shafiur Rehman in his usual clear and clearly understandable style. On the point in this issue in this case it was observed as under:- 'It is clear, therefore, that personal actions connected with the individuality of a person do not survive him (action personals muritur cum persona). There however, an important exception to it. i.e, where personal actions have matured into a decree or become part of the estate of the deceased. As Salmond has put it. A right vests when all the facts have occurred which by law occur in order for the person in question to have the right. "In the words of Paton "Every right arises from title, when all the investitive facts which are necessary to create the right have occurred, the right is vested." By a judgment, decree or order, as the case may be, a personal action gets perfected and becomes a part of the estate of the deceased. The right to immediately possess a property; subject to its being tested in appeal, is a tangible, valuable property right which comes to vest in the owner of the property and on his death passes on to his heirs. The heirs inherit his estate along with the vested right to obtain actual physical possession of the demised premises with the attaching limitation of law in the form of conditions attaching to such an order of possession. The legal representatives can execute the order of the ejectment and take the property on the same terms on which their deceased predecessor-in-interest was entitled to it."
21. With the above survey of the case law now we come to the submission made by the learned counsel.
(1) With death, of a litigant Vakalatnama issued by, him in favour of any Advocate comes to an end. The Advocate, "should. Not appeal any more in that cage unless a separate Vakalatnama is executed in his favour by the legal heirs. If the Advocate without such Vakalatnama pleads and acts in the case his pleadings and his acts would be without any authority whatsoever and if on the basis of such pleadings or such an act any order is passed that order would be liable to be set aside in any proceedings taken against such an order.
(2) If there are more than one applications (or more than one defendants) and one or more plaintiffs died leaving behind one or more plaintiffs then while the Advocate continues to be Advocate for the living plaintiffs he cannot plead or act on behalf of the dead plaintiff and any such act by him would be without any authority.
(3) With death of the donor or the donee, power of Attorney comes to an end.
(4) Any personal action does not survive death of the party. However, since question relevant over here is bona fide personal need. It will have to be seen in each and every case whether the bona fide personal need would devolve upon legal heirs or not. If landlord states in his application that he needs the premises for his use and for use of his family then such need survive amongst his children and therefore, ejectment application would be continued to be maintainable.
22: On the other hand, if landlord being a doctor claims that .He needs, the premises to set up his Clinic and none of his children is a doctor, such need would stand extinguished on death of the landlord. Yet there may be situations where even if landlord is still alive cause of action would extinguishes with a death in the family. For example if the landlord claims that he needs the premises for use of his son and during pendency of the application his son expires or if landlord claims that he needs the ground floor for use of his wife because she is disabled person and during pendency of proceedings she expires. In such situation cause of action would stand extinguished.
Therefore, it will have to be seen as to what was the need stated by the landlord and then decided whether the need survives to the legal heirs or it dies with landlord.
23. When the order was passed by the Appellate Court below admittedly the applicant had expired.
Learned counsel for the respondent stated that the order has considered all aspects. That may be so, I do not think learned counsel would make the same statement if the order had gone against him. In that case, probably, any counsel would, using hoariest possible pitch, would argue that it is an order against a dead person and therefore, not valid.
24. Learned counsel argued that attorney was real son of landlord and with death of landlord the attorney himself stepped into shoes of the landlord. That would have been absolutely valid if there had been some material on record to establish that the attorney was the only legal heir of the deceased. Now there may be other legal heirs also. Therefore, to the extent of other legal heirs the order has been passed by the Court without hearing them. List of legal heirs is claimed to have been filed on 22-5-2007. Therefore, when appeal was filed it appears Muhammad Shafi was alive.
What is the legal effect of not bringing the legal heirs on record within three months of death of a party. This question has been extensively dealt with and answered by the Supreme Court in Muhammad Sadiq's case. Amendment in sub-rule (2) of Rule 3 of Order XXII, Cr.P.C. Was produced as under:- "Previous sub-rule (2).---Where within the time limited by law no application is made under sub- rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
Present sub-rule (2).---Where within the time allowed by law no application is made or intimation given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place."
'And law was finally laid down in the following words:- "A look at the unamended sub- rule (2) will show that if no application is made under sub- rule (1) the suit shall abate so far as the deceased plaintiff is concerned. But this condition is not enunciated in the amending sub- rule (2). Now as the appeal in the present case was pending in the High Court When Order XXII, C.P.C, was amended and as the plaintiff had already died, it cannot be argued that the appeal of the plaintiff abated in view of the fact that no application was made under sub-rule (1) for the impleadment of his heirs within the period of limitation. Thus in view of the amending sub-rule (2) of rule 3 of the Order XXII, C.P.C, the question is whether the appeal of the deceased plaintiff in the present case was rendered infructuous because his legal heirs failed to apply for their impleadment in place of the plaintiff.
'We have given our earnest consideration to this question, but we have not been able to subscribe the contention of the learned counsel for the petitioner that the proceedings in the case were rendered void and of no legal force as the legal heirs of the plaintiff did not apply for their impleadment within the period of limitation after the death of the plaintiff. Correct that according to die amending sub- rule (2) of Rule 3 of Order XXII, C.P.C., an application for the impleadment of the heirs of the deceased is to be made within the period of limitation, but unless the legal heirs are aware that their deceased predecessor has brought action in a particular Court, we do not understand as to how they should be made to suffer and the Court straightway give decision against them. Now when the L.Rs, of the plaintiff were not impleaded within time allowed by the law i.e, 90 days, the suit will not be dismissed as abated and the Court may proceed with the suit notwithstanding the failure to implead the Legal Representatives of the plaintiff. To similar effect is the case of death of defendant as laid down in Order XXII, Rule 4, sub-rule (2). The amending rule provides that even in the absence of application having been made for impleading the L.Rs, within the prescribed time, order or judgment in the case may be pronounced in the suit or appeal and it will have the same force and effect as it has been pronounced before the death. "
24. Therefore, order of the Appellate Court is not non west for lack of bringing legal heirs on record.
25. This is a Constitutional Petition and Court in exercise of constitutional jurisdiction cannot go into factual controversies between the parties and would refrain from doing that.
26. In view of the above discussion, I do not think any interference is called for in the order passed by the learned Appellate Court on 31-7-2007. Constitutional petition is consequently dismissed.