1. ' BHAJANDAS TEJWANI, J.---This Constitution Petition has been filed, challenging the order dated 6- 7-2009, passed by the learned VII Rent Controller, Karachi South, in Rent Case No, 543 of 2007, whereby the ejectment of petitioners was ordered from Flat No,4, 4th Floor, Soha Mansion, Haris Road, Kharadar, Karachi, and the Judgment dated 29-1-2010, passed in FRA No,205 of 2009, passed by the learned District Judge Karachi South, maintaining the findings of learned Rent Controller for ejectment of the petitioners/tenants. The said Flat is hereinafter called as "the demised premises".
2. ' The fact in brief of the case are that the respondent No,1 being owner and landlord of the demised premises filed application under section 15 of the Sindh Rented Premises, 1979, Ordinance against late Haji Wali Muhammad, the predecessor-in-interest of the petitioners on the ground of default in payment of monthly rent from the month of April 2000 to March 2007 at the agreed rate of Rs,190 (Rupees One Hundred Ninety). The landlord alleged in his application that inspite of notice in terms of section 18 of the Sindh Rented Premises Ordinance, 1979 late Haji Wali Muhammad failed to pay or tender the monthly rent to him and that the demised premises was required by him for his personal bona fide need fcr his own occupation.
3. ' The Rent Case was admitted and notice was issued to the Opponent late Haji Wali Muhammad, which was received by the Petitioners being his legal heirs as the opponent Haji Wali Muhammad had already expired. The petitioners on receipt of notices appeared before the learned Rent Controller, got themselves joined as opponents being legal heirs of the original tenant to contest the proceedings and filed their written statement, in which they denied the case of the respondent No,1 that any default was committed by their predecessor or by them and according to petitioners, even after death of Haji Wali Muhammad they have been depositing monthly rent in M.R.C. No,2367 of 2000 filed by the original tenant Haji. Wali Muhammad. The petitioners also denied the personal and bona fide need of the landlord. They also pleaded in para 7 of the written statement that the Rent Case was filed against their predecessor-in-interest, who had expired much prior to the filing of the said case, therefore, the applicant should have filed fresh case instead filing the amended title.
4. ' The respondent No,1 filed his affidavit-in-evidence and was tested in cross by the learned counsel for the petitioners, while the petitioner Muhammad Farooque also filed his affidavit-in-evidence and he was also subjected to cross- examination. The learned trial Court after hearing the learned counsel for the parties allowed the Ejectment case on both the points of default in payment of monthly rent and so also of personal bona fide need of the respondent No, 1.
5. ' The petitioners being aggrieved by the findings of the learned Rent Controller preferred F.R.A.
6. No,205 of 2009, which was also decided by the impugned Judgment dated 29-1-2010 by the learned District Judge, Karachi South, whereby the findings of learned Rent Controller were maintained on the point of personal need of landlord but same were reversed on the point of default in payment of monthly rent. The petitioners being dissatisfied with concurrent findings of two Courts below on the ground of personal bona fide requirement and need of landlord have instituted this Constitution Petition.
7. ' I have heard Mr. Rashid Yousuf Zai, learned Counsel for the petitioners and Mr. Muhammad Yasin Azad, learned counsel for the respondents and perused the available record.
8. ' The learned counsel for the petitioner with force has argued that the Rent Case was filed against Haji Wali Muhammad, who had already expired, therefore, the case filed against a dead person was a nullity in law and the Ejectment Case was liable to be dismissed on only this legal ground, as according to the learned counsel for the petitioner the Judgment, Decree or Order passed against dead person has always been held as not only illegal but nullity in law and has not given any effect or implemented. In support of his contention he has relied on the provisions of Order XXII, Rule 4, C.P.C., the case of Mst. Afshan v. III Additional District Judge, reported in 2006 CLC Page 71[A] and
[B] and case of Rashida Khatoon v. Syed Hamid Ali Naqvi, reported in 1986 SCMR 256. The learned counsel also urged that learned Rent Controller as well as the First Appellate Forum did not even consult the record that the respondent No,1 has not proved his ownership over the property and that no title document showing the ownership over the demised premises was filed before both the Courts below. The learned counsel in view of the above legal pleas did not attempt to challenge the findings of both the Courts on the point of personal bona fide required of the landlord, directing petitioners to vacate the demised premises.
9. ' Mr. Muhammad Yasin Azad, learned counsel for the respondent in reply to the above submissions has contended that the petitioners on receipt of notice on behalf of their deceased father have themselves joined the proceedings before the learned Rent Controller by filing the written statement and fully contested the case and during which they did not take such plea in their evidence or during the course of final arguments, before the learned Rent Controller, while such objection was raised at the Appellate stage, which has been discussed and properly dealt with by the learned District Judge.
10. ' With regard to the objections raised by the learned counsel for the petitioners in respect of ownership of the respondent No,1 over the demised premises, the learned counsel for the respondent has taken me to first para of the written statement of the petitioners, in which they have admitted the ownership of the respondent No,1 in a clear terms and as per learned counsel such objection or plea was never raised by the petitioners upto the level of Appellate Forum, therefore, the same cannot be allowed to be raised in Constitutional jurisdiction of this Court.
11. ' I have considered the arguments of the learned counsel of the parties and have gone through the case law referred during the course of arguments.
12. The first contention of the learned counsel for the petitioners that the proceedings in Rent Case were filed against a dead person, therefore the same should have been buried on its inception as according to the learned counsel it is settled proposition of law that judgment, order or decree passed against a dead person is nullity in the eye of law, is not tenable and attracted in the instant case as in this case no judgment or order has been passed against the dead person. No doubt, the proceedings were filed against the predecessor-in-interest of the petitioners, namely, Haji Wali Muhammad, who was not alive at the time of filing of the proceedings but on receipt of notice the petitioners themselves appeared, and have chosen to be joined in the proceedings to contest the same. They filed their written statement, attempted to controvert the grounds of Ejectment raised in the Rent Case and fully contested the matter till its adjudication, therefore, the order or judgment passed by both the Courts below cannot be termed as illegal, as the same have not been passed against the dead person. The provisions of Order XXII Rule 4, C.P.C. Referred by the learned counsel are not applicable in the present case as the same can be pressed into service when one of the several defendants or sole defendant dies during the pendency of suit, the Court on application made in that behalf, shall cause the legal representative of the deceased defendant to be made as a party and shall proceed with the suit but in the case in hand the position is different. In this case the petitioners being legal representatives of original tenant appeared themselves and have chosen to contest the proceedings and resisted the same uptill its adjudication, therefore, the said provisions of the Code of Civil Procedure have no relevancy in the instant case and the learned Rent Controller has rightly adopted the procedure by proceeding with the matter in presence of L.Rs, of original tenant, which was appropriate one in the circumstances of the case.
13. ' The Rent Controller has discretion to follow any reasonable procedure as he deems fit and appropriate in the circumstances to secure and achieve the ends of justice and during such course even Section 20 of the Sindh Rented Premises Ordinance XVII of 1979 does not restrict his powers with regard to adoption of any procedure but at the same time he is not bound to invoke every provisions of Code of Civil Procedure.
14. ' In case of Rashida Khatoon v. Syed Hamid Ali Naqvi (supra), the tenant died during ejectment proceedings and his counsel and legal representatives remained silent about his death and the ejectment order passed against the tenant was upheld upto the level of the Appellate Forum but later on, an objection, which was taken at the time of execution that eviction order was void, having been passed against the dead person, was overruled and honourable Supreme Court refused the leave, holding that the Court will not allow party to take advantage of its own fraud and on such score the ejectment order passed, even against the dead person was maintained, while in case of Mst. Afshan v. III Additional District Judge, Karachi South, the appellant died during the pendency of the Appeal and subsequently application for joining the L.Rs, under Order XXIII, Rule 3, C.P.C. Was filed, which was rejected and appeal was dismissed on the ground that the L.Rs, were not brought on the record at earlier stage. The Division Bench of this Court allowed such appeal on the ground that after amendment in Order XXII, C.P.C. No suit, appeal or other proceedings could be abated merely on the ground that the legal representative of the parties to the suit, appeal, or proceedings were not brought on the record and in view of such position the matter was remanded to the learned trial Court.
15. The above case law is not helpful to the petitioners as no such point involved in the instant case was discussed or resolved in both the cited cases and facts and law points resolved in these cases have no nexus with the plea taken and point raised by the learned counsel for the petitioners in this matter.
16. ' Reverting to the next ground urged by the learned counsel for the petitioners, challenging the ownership of the respondent No,1, over the demised premises, it may be clarified that the petitioners themselves have not disputed and rather have admitted the ownership of the respondent No,1 over the demised premises in clear terms in para 1 of their written statement and did not raise such objection or dispute till conclusion of the proceedings before the learned Rent Controller nor before the Appellate Forum, therefore, the petitioners are estopped from their own conduct to raise any plea, which is contrary to the earlier stand and their own admission.
17. ' No illegality, non-appreciation or misreading of evidence nor any jurisdictional error was pointed out, warranting interference in extraordinary Constitutional Jurisdiction of this Court.
18. ' For the foregoing reasons, the Constitution Petition No,S-213 of 2010, being without any substance was dismissed in limine by short order on 15-4-2010.