The facts giving rise to this second appeal against an order of ejectment are that certain premises were transferred to the respondent, Muhammad Abdullah Khan, under the Displaced Persons (Compensation & Rehabilita--petition) Act, 1958, hereinafter referred to as the said Act. At the time of their transfer, the premises were occupied by one Muhammad Husain. Thus he became a statutory tenant under the respondent qua the premises in question. After the death of Muhammad Husain, the respondent filed an application, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, against six persons, namely, Muhammad Ashraf, Mst. Mumtaz Begum. Mst. Mebraj Bibi, Mst. Musarat Bibi, Mst.
Perveen and Mst. Kokab. It was alleged by the respondent that Muhammad Ashraf was the son and Mst. Mumtaz Begum was the widow of Muhammad Husain deceased. As for the other four ladies mentioned above, it was stated that they were daughters of the deceased tenant. The respondent sought their eviction on the ground of default, personal need and damage to the disputed property. In his reply to the ejectment application, the aforesaid allegations of the respondent were controverted by Muhammad Ashraf. It was also pointed out by him that Mst. Mehraj Bibi, Mst.
Perveen and Mst, Kokab did not occupy the disputed premises and, therefore, the application against them was not competent. As regards the other respondents in the ejectment application, namely, Mst. Mumtaz Begum and Mst. Musarat Sultana they did not file separate replies thereto nor there was any thing in the reply of Muhammad Ashraf indicating that it was on their behalf as well.
Also no fard pata was filed in respect of the said two ladies. However, Syed Shabbir-ul-Hasan Gilani, Advocate, who was representing Muhammad Ashraf, defended the ejectment application as counsel for Mst. Mumtaz Begum and Mst. Musarat Sultana also although his vakalatnama did not mention their names nor it had been signed by them.
2. In view of the pleadings of the parties, referred to above, the learned Rent Controller, before whom the ejectment application was pending, framed the following issues for determination:-
(1) Have the respondents failed to pay or tender the rent to the petitioner and are thus defaulters?
(1-A) Whether the petition is bad for misjoinder of parties? O. P. P.
(2) What is the proper monthly rent of the property in dispute?
(3) Have the respondents damaged the property in dispute?
(4) Does the petitioner bona fide require the property in dispute for his personal use?
(5) Relief.
3. Before deciding the other issues, the learned Rent Controller disposed of Issue No. I-A holding that Mst. Mehraj Bibi, Mst. Perveen Akhtar and Mst. Kokab had been wrongly impleaded in the ejectment proceedings. Their names were, therefore, struck off from the list of respondents. Issue No. 1 was decided in the affirmative. As regards issue No. 2 the finding recorded by the learned Rent Controller was that with effect from Ist July, 1963, the rate of rent was Rs. 25, and as from Ist July, 1968, it was Rs. 35 per mensem in view of the assessment of the disputed premises. Issues Nos. 3 and 4 were also decided in favour of the landlord. Resultantly, he made an order of ejectment against appellants Nos. 1, 2 and 5, namely, Muhammad Ashraf, Mst. Mumtaz Begum and Mst.
Musarat Sultana.
4. Feeling aggrieved by the order of the learned Rent Controller a joint appeal was filed before an Additional District Judge by Muhammad Ashraf, Mst. Mumtaz Begum and Mst. Musarat Sultana, who were respondents in the ejectment application and Mst. Munawar Sultana, Mst. Shahida Sarfraz, Mst. Riffat Ara and Mst. Farhat Ara. It was alleged in the memorandum of appeal that the last mentioned four ladies were sisters of Muhammad Ashraf who bad been left out and instead Mst. Mehraj Bibi, Mst. Kokab and Mst. Perveen Akktar were impleaded in the ejectment application as respondents although the latter had nothing to do with the premises in dispute. In regard to rate of rent, it was found by the learned Additional District Judge that according to the assessment of the property in dispute the monthly rent payable by the appellants from 1962, was Rs. 25 and Rs. 45 for the year 1967 and 68. As they had not paid or tendered the rent accordingly he uphold the finding of the learned Rent Controller on issue No. 1: which related to the plea of default. He also affirmed his finding on issue No. 4 but reversed his finding on issue No. 3. In result, he dismissed the appeal upholding the order of ejectment made by the learned Rent Controller. Being dissatisfied with the order of the learned appellate authority, the appellants before that authority have come up in second appeal to this Court.
5. It was contended by the learned counsel for the appellants that the ejectment application was decided without hearing appellants Nos. 2 and 5, namely, Mst. Mumtaz Begum and Mst. Musarat Sultana and, therefore, the order of ejectment passed by the learned Rent Controller was not sustainable. He maintained that the said two appellants were not served in the application and, therefore, the learned Rent Controller had erred in passing the ejectment order against them also.
As for the remaining appellants other than Muhammad Ashraf, who is the first appellant herein, it was submitted by the learned counsel that as they were not impleaded in the ejectment proceedings the order of ejectment could not operate against them. In regard to Syed Shabbir--- ul-Hasan Gilani, Advocate, who contested the ejectment application on behalf of all the respondents in that application, it was pointed out by the learned counsel for the appellants that the power of attorney in his favour was given by appellant No. 1 (Muhammad Ashraf) only and, therefore, he had no authority to act on behalf of the other respondents. He relied on 0ffcial Receiver, Aligarh and others v. Hira Lal (AIR 193.5 All. 727to support his plea.
6. On the other hand, it was urged by the learned counsel for the respondent that since Mst.
Mumtaz Begum and Mst. Musarat Sultana had never objected to their being represented by Syed Shabbir-ul-Hasan Gilani, Advocate, the contention raised by the learned counsel for the appellants in this behalf could not be entertained at this late stage of second appeal. It was also maintained by him that Mst. Mumtaz Begum and Mst. Musarat Sultana as also Muhammad Ashraf were estopped by their own conduct from taking exception to the role played by the said Advocate in connection with the ejectment application. In this connection he relied on Zafarul Haq v. Waris Iqbal and another PLD 1979 Lah. 793
7. In the case of Official Receiver Aligarh and another, an application for execution of decree was made on 23rd July, 1930. It had become infructuous because the decree-holder was murdered. On 18th June, 1930, an application was made on behalf of his three sons for substitution of their names and for the execution of the decree. The application was signed by the pleader and was accompanied by a vakalatnama in which, however, the place. Meant for the name of the pleader was left blank, and the vakalat nama did not bear any signature of the pleader showing that he had accepted it. These facts were overlooked by the office and the Court ordered the issue of notice. 'they did not appear to show cause or raise objection. The Court accordingly ordered that the names of the sons of the deceased decree-holder should be brought on the record in his place and that execution should proceed. The proceedings, however, did not fructify and the execution case was ultimately struck off. On 14th November, 1930, a fresh application for the execution of the same decree was made and notices ordered to be issued. The judgment-debtors on this occasion appeared and objected that the present application was barred by time inasmuch as the previous application made on 18th June, 1930, was not an application in accordance with law. The Courts below disallowed the objection on the ground that it. Was no longer open to the judgment-debtor to raise any such plea. When the matter was taken before the High Court of Allahabad it was held that the application as filed had not been filed by a duly authorised person and it was, therefore, not in accordance with law. In taking this view their Lordships of the High Court followed two earlier decisions delivered by the said Court in Muhammad A.I Khan and others v. Sukhu 19 1 C 674), and Kodai Misir and others v. Reyazul Haq and others AIR 1931 All. 766). As for the question whether it was open to the judgment-debtors to raise objection when they had failed to appear on the previous occasion, it was observed that since the application on which the order directing the substitution of names was made was not in accordance with law, it did not save limitation. It was, therefore, ruled that the judgment-debtors were not debarred from raising objection relating to the validity of the application made by the counsel.
8. In the case of Zarfarul Haq, which was a revision petitiqn, relied upon by the learned counsel for the respondent, an application was filed against the petitioner and his four brothers, namely, laved,u1 Haq, Ihsanul Haq, Naeemul Haq and Abrarul Haq and his sister, Mst. Salma Parveen, and one Muhammad Ramzan for their ejectment from certain premises on the ground of default, reconstruction, sub-letting and bona fide personal need. No notice of the application was served on the petitioner nor did he sign any vakalatnama in favour of the counsel. Nevertheless the written statement was filed before the learned Rent Controller on behalf of the tenants-respondents which did not give any indication that the petitioner was not a party thereto. Even a fard pats embodying the address of the petitioner not signed by any one was annexed to the written statement. The file showed that in the ejectment application throughout the proceedings the presence of the learned counsel was noted by the learned Rent Controller on behalf of all the respondents including the petitioner. Ultimately, the learned Rent Controller passed an order under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and struck off the defence of the respondents due to their failure of deposit of rent in compliance with his direction relating to the deposit of rent. Resultantly, their ejectment was ordered. An appeal was preferred against the order of ejectment and in the memorandum of appeal the petitioner was also cited as appellant No. 1.
Although at the appellate stage, too, the petitioner did not sign any vakalat nama in favour of the learned counsel yet the appellant was shown to have preferred appeal on his behalf as well. The proceedings recorded by the first appellate Court portrayed that the learned counsel represented all the appellants. The first appeal was dismissed and its dismissal was challenged through a second appeal to this Court. Here, too, in the list of the names of the parties, appended with the memorandum of appeal, the petitioner was mentioned as appellant No. 1. This second appeal could not succeed, and with its dismissal the first round of litigation was completed. Both the appeals were filed by the same counsel who had conducted the case before the learned Rent Controller also. After the dismissal of the second appeal, the petitioner filed a suit for declaration that the ejectment order was void, illegal and not binding on him. A permanent injunction was also prayed for. It was alleged by the petitioner that he had gone abroad and was, therefore, not aware of the ejectment application. According to him, he came to know of the same on return to Pakistan.
It was pleaded that neither any notice was served on him nor at any stage he was posted with the knowledge of the ejectment proceedings. The application was rejected under Order VII, rule 11 of the Code of Civil Procedure as the learned Civil Judge before whom the suit was filed was of the view that the petitioner was a party to the ejectment proceedings and that the ejectment order bad attained finality. The order passed by the learned Civil Judge was upheld by my learned brother Muhammad Afzal Lone, J., with the following observations :- There is no denial of the --- fact . That. The petitioner was not served with any notice throughout the proceedings under the Ordinance. The circumstances of the case, however, fully betray that in the written statement and the two appeals filed by his brothers and sister, the petitioner was a willing name lender and conceivably could not have been ignorant of the ejectment proceedings.
It is evident from the record that actually the petitioner's father held the house as a tenant under the present respondents or for that matter their predecessor- in-title, and on his death the tenancy devolved on his children including the petitioner. In the memorandum of revision, it has been pleaded that the petitioner held a joint tenancy alongwith his brothers and sisters, under the respondents. As an essential incident of joint tenancy the petitioner could not claim an exclusive right in the demised premises.
(10) It is not the petitioner's case that his brothers and sisters who sternly resisted the ejectment petition had any interest adverse to him. It is clear from the record that in the first round of litigation the petitioner's brother Javid-ul-Haq, who himself was party to the ejectment petition, persued the case on behalf of others. Significantly this revision petition has also been instituted by the petitioner through Javaid-ul-Haq. It is well established that the conduct of a defendant and admission made by him of his character as a person jointly interested with other parties, in the subject matter of suit, is binding on the co-defendant.
(11)
Defendant's knowledge of the institution of proceedings 'aliunde' . Is now a relevant factor for sustenance of the ex parte decree passed against him. In order to establish the petitioner's interest in the property in dispute, even during his stay abroad, it was argued by his learned counsel that his family resided in the house. In a case like the one in hand a defendant having common interest with the other co-defendants in the subject matter of the suit and not objecting to the array of his name in the written statement and the memoranda of appeals, can be legitimately presumed to be well informed of the litigation pending against him. Indeed it will be a gross abuse of the process of Court, after an adverse finding is given against such a litigant to permit him to turn round and thwart the entire proceedings on the plea that he was not served. The petitioner's contention is not bona fide and the principle of estoppel by conduct will actively be attracted."
(12) It has already been held.That the petitioner was in the knowledge of the ejectment petition and the filing of the written statement and the appeals by the counsel could not have without his consent. The non--signing of the written statement by the petitioner is also not material. In Mohini Mohun Das v. Bungs Buddan Das I L R 17 Cal. 580 three joint creditors were the co-plaintiffs but the plaint was neither signed nor verified by one of the plaintiffs, who was named on the face of the plaint. Both the Courts below held that the suit was defective with which the Judicial Committee did not agree and Lord Macnaghtan observed `There is no rule providing that a person named as co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint'."
9. The facts of the two cases are different from those of the instant case and, therefore, the matter will have to be decided in the light of the facts of the case in hand. The record of the present case shows that Mst. Mumtaz Begum and Mst. Musarat Sultana 1Bibi) were personally served for 22nd April 1970 when Syed Shabbir-ul-Hasan Gilani, Advocate, appeared before the learned Rent Controller on behalf of all the respondents including the said two ladies. He continued representing them throughout the proceedings before the learned Rent Controller without any objection having been taken by any one to his so doing. Even before the first appellate Court it was not urged that he was not authorised to act on behalf of Mst. Mumtaz Begum and Mst. Musarat Sultana. Instead, in the memorandum of appeal filed before the Additional District Judge it was stated, more than once, by the appellants, including Mst. Mumtaz Begum and Mst. Musarat Sultana, that they had contested the ejectment application before the Rent Controller. This implies that they contested the application through Muhammad Ashraf appellant or Syed Shabbir-ul-Hasan Gilani, Advocate.
In the grounds of appeal filed in this Court it was not contended that the said learned Advocate had no authority to represent Mst. Mumtaz Begum and Mst. Musarat Sultana before the learned Rent Controller. This objection was advanced, for the first time, during the course of arguments before me. Even at that stage there was no applica--petition or affidavit by the two ladies that Syed Shabir-ul-Hasan Gilani, Advocate, was not appointed by them as their counsel. It was only their learned counsel in this Court who had while addressing arguments, urged that there was no proper representation of the two ladies. I am, therefore, not inclined to agree with the learned counsel for the appellants that the learned Rent Controller decided the case against appellants Nos. 2 and 5 without affording them an opportunity of being heard.
10. Even if the view taken is that the said Advocate could not act on behalf of Mst. Mumtaz Begum and Mst. Musarat Sultana, it will not make much difference. They were personally served for 22nd April 197 but they did not enter appearance on that date. Thus, they deliberately opted to be proceeded against ex parte. The mere fact the Rent Controller did hot make a formal order proceeding ex parte against them is an omission of no consequence. Having secured personal service of the said two ladies, the Rent Controller had given "a reasonable opportunity" to them to show-cause against the ejectment application. In this manner, the requirements of subsection (2) of section 13 of the Ordinance were fulfilled. The order of ejectment made in this case cannot, therefore, be set aside on the ground that Mst. Mumtaz Begum and Mst. Musarat Sultana were not allowed to show cause against the ejectment proceedings.
11. The next point canvassed by the learned counsel for the appellants was that the tenancy in the instant case was a joint tenancy in favour of all the legal heirs of Muhammad Hussain deceased and since Mst. Munawar Sultana, Mst. Shahida Sarfraz. Mst. Riffat Ara and Mst. Farhat Ara, who were also daughters of Muhammad Hussain, were not impleaded in the ejectment application, the application was not competent. He cited Haji Sultan Muhammad etc. v. Barkat Bibi, etc. (PLJ 1975 Lah. 269to support his arguments.
12. In reply, it was submitted by the learned counsel for the respondent that the said four ladies were not in possession of the disputed premises and, therefore, even if they had any right in those premises they had abandoned the same and, therefore, the ejectment application could proceed even in their absence.
13. In this case there is no evidence to the effect that the four ladies named above were in possession of the disputed premises. In other words, even if they had a right to possess the premises as legal heirs of the deceased--tenant there is nothing to show that they had not abandoned the same. It has also not been demonstrated that, as in the cited case of Haji Sultan Muhammad etc., the tenancy involved in the present case was indivisible. Therefore, the appellants cannot make use of the said authority. Besides, no explanation whatsoever has been offered as to why the four ladies did not make an application for being imp leaded as respondents in the ejectment application when they could join hands with some of the respondents in that application infilling the first appeal and the second one. Further, even if they are occupying the disputed premises in their own right they' would not be bound by the order of ejectment made by the learned Rent Controller because they were not parties to the ejectment application! Fazal Ahmad v. Mst. Ramzan Bibi (PLD 1975 Lab. 790is an authority in point. I am, therefore, of the view that the non-imp leading of the four ladies named above as respondents in the ejectment application was not fatal to the said application. Similar opinion was expressed by me earlier in Khalid Saeed v.
Alla-ud-Din Pehlwan and others (1980 CLC 133).
14. One more objection raised by the learned counsel for the appellants was that since the tenancy involved in the present case was a statutory one, all the legal heirs of Muhammad Hussain deceased were entitled to notice under section 30 of the said Act. It was further submitted by him that, in fact, the aforesaid notice was served on only one of the legal heirs of the deceased tenant, namely, Muhammad Ashraf and, therefore, the other appellants could not be thrown out of the disputed premises.
15. On the contrary, it was urged by the Darned counsel for the respondent that Muhammad Ashraf appellant had admitted the receipt of notice under section 30 and the other appellants had not denied its service although it Was alleged in the ejectment application that all those against whom the application had been made were served with such notices. It was also pointed out by him that the objection relating to the service of notice was not raised by the appellants either before the learned Additional District Judge or in the memorandum of appeal filed in this Court, and, therefore, their plea in this behalf was an afterthought and of no consequence.
16. In this case there is no issue regarding the service of notice. It seems that an issue in this behalf was not framed because it was admitted by Muhammad Ashraf appellant, in his reply to the ejectment application, that notice under section 30 of the said Act was served on him. It is also available on the record as Exh. P.
1. With regard to the other respondents in the ejectment application it was asserted by the landlord (applicant) that he had served them too with notices under section 30 of the said Act and they did not come forward to refute his averment. Appearing as his own witness, the landlord also deposed to the above effect and there is no rebuttal of his statement. I am, therefore, unable to agree with the learned counsel for the appellants that notices under section 30 were not served on the respondents in the ejectment application other than Muhammad Ashraf.
17. As regards the plea of personal need raised by the respondent (landlord), it was submitted by the learned counsel for the appellants that the appellants could not be evicted from the disputed premises within six years of the service of notice under section 30 and since the ejectment proceedings had been launched within that period the respondent could not succeed on that ground. It was not denied by the learned counsel for the respondent that the ejectment proceedings were initiated within six years of the service of the notice but he contended that the said period has since expired. Thus, according to him, the appellants having already enjoyed the protection of six years they could be obliged to make room for the respondent.
18. It is not disputed that the period of six years for which a statutory tenant could not be ejected under section 30 of the said Act on the ground of personal need has since expired. Therefore, the appellants cannot make capital out of the fact that the said period had not run out by the time the ejectment proceedings were launched. Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106), Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220.), Manzoor Ahmad Khan v. Syed Maqsood A.I (PLD 1975 Lah. 1521) and Messrs M. Wahab-ud-Din & Sons v. The Controller of Rents and 11 others (PLD 1971 Pesh. 236are authorities for the proposition that if the cause of action for any legal' proceeding is not available at the time of initiation of the proceedings but becomes available during the pendency of the proceedings, the proceedings cannot be thrown out simply for the reason that there was no cause of action) at the time when they were commenced.
19. In result, I find no force in this appeal. It is, therefore, dismissed with costs. The order of ejectment shall, however, not be executed for three months.