' SHAHID ANWAR BAJWA, J.---Ejectment application was filed by Dewan Metharam Dharmdas Trust (hereinafter referred to as the applicant trust) in 1980. In the title of ejectment application after citing Trust it was stated that it was being filed through Mr. P.K. Shahani duly constituted attorney of sole trustee of the applicant trust. Ejectment application was in respect of a shop bearing No,4 in Ekanek Building, Zaibun Nisa Street, Saddar, Karachi, Shop was let out to one Muhammad Mustageem by the applicant trust. It was stated in the application that legal heirs of said Muhammad Mustaqeem had sublet the shop and handed its possession to opponent No,13 a private limited company. Written statement was filed and it was stated in the written statement that after death of Muhammad Mustaqeem one of the legal heirs filed suit in High Court and in that suit compromise application was filed according to which opponent No,1 (present respondent No,2) relinquished his right on 2-10-1967 and award was given by Arbitrator and in the award amongst other it was decided that all movable properties "should be pooled together to form a private limited liability company in which all the heirs of Muhammad Mustaqeem shall be shareholders holding shares in proportion to their shares in the inheritance." Affidavit-inevidence of P.K. Shahani was filed, despite repeated opportunities he was not cross-examined and consequently cross-examined was closed. Application for re-opening was filed. It was dismissed.
Application for recalling of such orderwas filed. K.D. Shahani died on 16-1-1986. This application was also dismissed. Eventually, vide judgment dated 31-3-1988 ejectment application was allowed.
After allowing ejectment application, execution application was filed by P.K. Shahani claiming himself to be trustee of the applicant trust. Objection to the application were filed and vide impugned order execution application was allowed and it was ordered vide order dated 24-3-2010 that writ of possession be issued. This order has been challenged in this constitution petition.
2. Learned counsel for petitioners made the following submissions:-
(i) Ejectment application was filed by the applicant trust through P.K. Shahani claiming himself to be attorney of K.D. Shahani. After death of K.D. Shahani power of attorney came to an end and the proceedings in rent case should have abated. Learned counsel relied upon Muhammad Ibrahim through Legal Heirs and others v. Mst. Basri through Legal Heirs and others (1998 SCMR 96), A.M.
Industrial Corporation Ltd. v. Aijaz Mahmood and others (2006 SCMR 437), M. Imamuddin v. Sh.
Bashir Ahmed and 7 others (1989 CLC 2309), Muhammad Haleem and another v. .General Manager (Operation) Pakistan Railways Headquarter, Lahore and others) (2009 SCMR 339), Mehdi Khan v.
Faqir Muhammad and 4 others (PLD 1980 Lahore 110) and Mahr Muhammad Iqbal v. Subedar Muhammad Zaman Khan and others (2003 SCMR 783). Learned counsel submitted that no power of attorney has been enclosed with the ejectment application.
(ft) In respect of availability of remedy of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, learned counsel submitted that firstly word used in section 21 is may in and it was not necessary to file appeal and therefore writ petition is maintainable.
(iii) Learned Counsel submitted that in view of the fact that K.D. Shahani died in 1986 order of Rent Controller is nullity in the eye of law and every Court, even the executing Court is to deal with the order dated 31-3-1988 is to be dealt with on that basis. Learned counsel relied upon Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (PLD 64 SC 97), Syed Jahangir All and others v. District Coordination Officer and others (PLD 2011 Karachi 293), Nagina Silk Mills, Lyallpur v. The Income Tax Officer, A-Ward Lyallpur and others (PLD 1963 SC 322), Mansab All v. Amir and 3 others (PLD 1971 SC, 124) and Haji Ahmed Haji Essa v. Rent Controller, etc (1983 CLC 840).
(iv) Learned counsel submitted that ejectment application was decided on 31-3-1988, execution application was filed on 3-7-1988, objections to execution application were filed on 5-9-1988 and it was decided on 24-3-2010. He submitted that delay in decision is violation of dicta of the Supreme Court laid down in the case of Muhammad Ovais and another v. Federation of Pakistan (2007 SCMR 1587).
(v) Learned counsel next submitted that all the trustees should have been joined, in proceedings and suit instituted by only one of the trustees is nullity in the eye of law. He relied upon Norendra Nath Kumar and another v. Atul Chandra Bandopadhya and others (AIR. 1918 Calcutta 810) and Vavuttu Naicken v. Venkata Sesha Aiyar and another (AIR 1914 Madras 119111).
(vi) Learned counsel stated that private limited company is owned by the same persons who are legal heirs of said Muhammad Mustaqeem and there was no parting of the possession. Therefore, there was not subletting. He relied upon Muhammad Yousuf and 5 others v. Adam All and 4 others (1981 CLC 596), Sh. Zubair Ahmed v. All Ahmed (1983 CLC 3254) Habibullah v. Rent Controller, Peshawar and 11 others (1998 SCMR 2656).
(vii) Lastly, learned counsel argued that applicant trust all along knew that a private limited company has been formed and they did not raise any objection and such conduct constituted of waiver. He relied upon Adam Limited v. General and Rubber Trading Co., Karachi (1998 MLD 579) and Mrs. Freni A. Cavina v. Mrs. Dhunmai Phiroze Dalal (PLD 1991 SC 265).
3. Mr. Abrar Hassan learned counsel for the applicant trust submitted that executing Court cannot go beyond the decree and if a decree has not been challenged in appeal it is not available to party to raise such objection in execution proceedings. Learned counsel relied upon Muhammad Sharif and another v. Muhammad Afzal Sohail etc. (PLD 1981 SC 246) and Muhammad Latif v. District Judge Karachi (South) and others (2009 YLR 2234). Learned counsel submitted that order of Rent Controller is within jurisdiction' and no objection to jurisdiction has been raised. Learned counsel referred to Order XXI, Rules 11, C.P.C. And submitted the execution application may be made even on oral statement of a party.
4. Learned counsel for petitioners stated that respondents Nos.2.
3. 4 and 6 be deleted from the array of respondents. Order accordingly.
5. Mr. Mustafa" Lakhani learned counsel for respondent No,5 submitted that one who filed execution application had no authority to file such application.
6. I have considered submissions of the learned counsel for the parties and have gone through the record as well as cited at the bar.
7. First contention of the learned counsel for petitioners was that ejectment application was filed, as stated above, by Dewan Metharam Dharmadas Trust through P.M. Shahani son of Kevalram Dayaram Shahani (K.D.Shahani) being attorney of sole trustee of the applicant trust. Second contention of the learned counsel was that since Mr. K.D. Shahani sole trustee died on 16-1-1986 power of attorney given to P.K. Shahani by K.D. Shahani came to an end and, therefore, ejectment application stood abated. There are two parts of arguments of learned counsel. First part is that with death of K.D. Shahani power of attorney issued by M.D. Shahani in favour of P.K. Shahani came to an end. Second part of arguments was that with expiry of power of attorney ejectment application has been abated. Learned counsel relied upon Muhammad Ibrahim's case (supra).
Facts of the case were that certain land was said to have been sold on the basis of power of attorney executed by one Mst. Basri. Legal representatives of Mst. Basri on coming to know of the sale deed dated 27-1-1967 filed suit on 3-2-1967 seeking declaration of the sale as unauthorized, void, collusive and without consideration. It was contended that power was given only for the purpose of management of land and authority was revoked by registered notice published on the date when sale took place. Facts are clearly distinguishable and have no relevance to the contention of learned counsel.
8. In Aijaz Mahmood's case (supra) the question was relating to authority given by Board of Directors to a particular person and non-existence of such authority was held to make ejectment application liable to be dismissed. In lmamuddin's case (supra) it was observed that if a person is compelled to produce original power of attorney, and he does not produce it, inference could be drawn against him that no such power existed. In Mehdi Khan's case (supra) it was observed that relationship of principal and agent is contractual relationship and it comes to an end with death of either side. In Muhammad Iqbal's case (supra) agreement executed by an attorney two years after death of one of the owners/principals was held to be without any lawful authority and nullity in the eye of law.
9. There is no cavil with the proposition that with the death of a principal power of attorney comes to an end. Therefore, first aspect of argument of learned counsel is unexceptionable. However, second aspect of arguments of learned counsel is without substance. His arguments is that with the death of principal ejectment application also comes to an end. Now when person himself files a particular proceedings even after his death if right to sue survives the proceedings to continue.
Provisions in this regard have been made in Order XXII, C.P.C. Thus if principal dies, if right to sue continues, suit can be continued by legal heirs.' Thus situation where principal continues in existence and only person who executed power of attorney in favour of another person expires is on much better footing. Therefore, notwithstanding death of K.D. Shahani ejectment application continued. Therefore, this aspect of arguments of learned counsel is repelled.
10. Learned counsel next argued that notwithstanding availability of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 he could maintain this petition because order by the learned Rent Controller was without jurisdiction. Learned counsel firstly argued that word used in section 21 is "may" and, therefore, he contended that it is not necessary that appeal be filed.
Argument is novel to say the least. The word "may" used in section 21 indicates that party who is aggrieved by order passed by the Rent Controller has the option of either accepting the order or challenging that order in appeal. It is in that sense the word "may" has been used and not in the sense of conferring right either to file appeal or come in constitutional jurisdiction. Reliance made B by learned counsel on Muhammad Swaleh's case (supra) is not at all relevant because this was case where matter arose from a civil revision application and went to the Supreme Court. Besides no observation of the nature canvassed by the learned counsel for petitioner have been made in that order. Nagina Silk Mills' case (supra) is a case where it was held that in the case of absence excess of jurisdiction or where impugned order suffers from illegality, certiorari may be granted even though right of statutory appeal had not been availed of. Order of assessment challenged was passed beyond the period of specified in law and it was for that reason it was held to be order without jurisdiction. In Mansab Ali's case (supra) it was held that all the proceedings which follow without observing mandatory condition for exercise of jurisdiction of a Court become illegal and without jurisdiction. It was case in which question was relating to reference to the Tribunal and it was held that since under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 accused was entitled to be heard before reference could be made order without affording such particular hearing would be void, ab initio and such proceedings would be illegal. In Haji Ahmed Haji Essa's case (supra) ex parte eviction was passed by the Rent Controller on 30-10-1979 and execution proceedings were filed. Notice was served on tenant and he came forward with objection on 11-11-1980 alleging that petitioner had accepted him as tenant since April, 1977.
Landlord questioned that such question could not be determined in execution proceedings. Rent Controller held that this question would be decided after recording evidence. Such order was challenged in the constitution petition. A Division Bench of this Court held that section 20 of the Sindh Rented Premises Ordinance, 1979 clearly indicated that the legislature did not intend to place Rent Controller at par with civil Court and, therefore, section 47 or Order XXI, C.P.C. Could not be pressed into S.R.P.O., 1979 by stranger to rent proceedings. Constitution petition was allowed. Facts are clearly distinguishable. Syed Jahangir Ali's case (supra). Is a matter relating to Sindh Local .Government Ordinance.
11. It is not contended by the learned counsel that Rent Controller did not have jurisdiction in respect of ejectment application filed before it. Therefore, it cannot be said that order passed by the Rent Controller was without jurisdiction.
' His contention was that since donor of power of attorney expired during pendency of ejectment application and since power of attorney came to an end ejectment application abated. I have already held above that the application did not abate. Another fact to be noticed is that ejectment application was passed as long as on 31-3-1988, execution application remained pending for long 22 years and this constitution petition was filed in 2010 when writ of possession was ordered to be issued. For almost long period of 22 years petitioner has not challenged ejectment order. He did not come against it in appeal; he did not come against it in constitution jurisdiction (though in my opinion person who has remedy of appeal, cannot invoke constitutional jurisdiction except in certain limited circumstances). Therefore, this contention of the learned counsel is without substance.
12. Third contention of the learned counsel was that execution application remained pending for 22 years and he submitted that it .Was in violation of decision of Supreme Court in Muhammad Ovais's case (supra). Dicta on Muhammad Ovais's case is that once arguments have concluded, judgment should be announced within 2 months. Learned counsel has failed to place on record anything to suggest that impugned order dated 24-3-2010 was passed after any long delay after hearing the arguments. Even otherwise, order should be scrutinized on the basis of what is stated in the order and not merely on the ground that order was passed after a certain delay.
13. Fourth contention of the learned counsel was that all the trustees should has been joined and proceedings instituted by one of the trustees is nullity in the eye of law. He relied upon Norendra Nath Kumar's case (supra). It was held in that reported case by Division Bench of Kalcutta High Court as under:-- 'The true position of a co-shebait was explained by this Court in the case of Kokilasari Dasi v.
Mohunt Rudranand Goswami (1). Where property belonging to an endowment is sought to be recovered, from a third party who asserts that he is the owner thereof all the parties to the suit.
Ordinarily all the trustees should be co-plaintiffs and only such of them should be made defendants as are unwilling to be joined as co-plaintiffs or have done some act precluding them from being plaintiffs. Where the administration of the trust is vested in several trustees, they all form as it were, but one collective trustee, and they must exercise the powers of their office in their joint capacity. Their interest and authority being equal and undivided they cannot act separately, but all must join."
1.4. In Vavuttu Naicken's case (supra) a Division Bench of Madras High Court observed that some of trustees are not entitled to sue without making other trustees party.
15. There is no cavil with the above propositions but the point to be noted is that in the ejectment application it was clearly stated that K.D. Shahani was sole trustee and that ejectment proceedings were decided as long as on 31-3-1988. K.D. Shahani was described as sole trustee. In his written statement this position was not disputed. Thus, the position of sole trustee appeared to have continued. When this was the position was at least as far as record shows the trustee there could not have been any question of joining of other trustees in the proceedings because petitioner has not been placed anything on record to substantiate that there was any other trustee.
16. Now I will turn to the key question whether there has been any case of ejectment on merits.
Relevant clause that can be attracted in the circumstances is Clause 15(2)(iii)(a) and (b) which as under:-- Application to Controller.-- (1) -----
(2) The Controller shall, make an order directing the tenant to the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that
(iii) the tenant has, without the written consent of the landlord--
(a) handed over the possession of the premises to some other person;
(b) used the premises for the purpose other than that for which it was let out;
17. Factual context is pleaded in the written statement in the following words:-- - - - It is further submitted that after the death of Muhammad Mustaqeem, the opponents have put up the sign board of "Tahir Stores Ltd."
It is further submitted that since the legal heirs of late Muhammad Mustaqeem were doing the business at the shop in question in the name of Tahir Stores Ltd."
18. It is claimed that this was done on the basis of award which, inter alia, settled the family dispute among heirs of Muhammad Mustaqeem and it provided as under:- "We divide the deceased's estate in two categories. Movable and Immovable. For Movable Property we decide with the consent of all the parties that all the movable estate should be pooled together to form a Private Limited Liability Company in which all the heirs shall be share holders holding shares in proportion to their shares in the inheritance as fixed by the Shariat which will be as under:- For each son.........................
8.75% For each daughter................
4.375% For Mst. Slamat Jan ...........
12.5% For Waqf...............................
8.75% 19 From the above, it is clear that signboard on building is of "Tahir Stores Ltd." It is also admitted that all the legal heirs constituted a private limited company. Contention was that this did not constitute handing over of the possession. Learned counsel relied upon Muhammad Yousuf s case (supra). Muhammad Yousuf was tenant and carried on business in the name and style "Muhammad Yousuf and Sons." Eviction application was filed for eviction of Muhammad Yousuf and sons on the ground of subletting. It was contended by the tenant that Muhammad Yousuf and sons was in fact a proprietary concern owned by Muhammad Yousuf. A partnership was started between Muhammad Yousuf and Ahmed Noor and business of this partnership was conducted at the same premises but the premises remained in care of tenants. It was held not to be case of subletting. This firm was dissolved in 1966. It was in this context to the effect that it was held that ,it was not case of subletting.
20. In Sh. Zubair Ahmed's case (supra) appellant was tenant and premises were rented out in 1969 for his residence. Ejectment application on the ground of default was filed. It was withdrawn in 1977.
Thereafter ejectment application under Martial Law. Order was filed in the Summary Military Court and the Summary Military Court passed order against which constitution petition was filed. During pendency of proceedings Military Court (Validation of Order) Ordinance, 1980 was passed and the constitution petition was converted into an appeal. It was observed that mere fact of allowing other persons into possession by tenant to permit use by Such members is not handing over the possession as long ads tenant retains legal possession.
21. Last case relied upon by learned counsel was Habibullah's case (sipra). It was observed as under:-- "This brings up the second aspect of the controversy, namely, whether the entering into a partnership, by one of the successors and legal representatives of the deceased tenant could ipso facto have established a case of subletting. The law on the point is that mere conclusion of a partnership by a sitting tenant and induction of ,outsiders as partners in a business carried out from a tenant hold does not in itself constitute subletting. In order that such emerging partnership be construed as an act of subletting, it is essential that there should be a surrender of the tenancy by the sitting tenant in favour of the partnership which, thereupon, would emerge as the sub- tenant, having, at some point of time, by acquiring rights in rem or a privity of estate, either wholly or partially, displaced the original tenancy, To put it differently, there should be a clear surrender or devolution of what technically is termed as legal possession of the estate by or from the erstwhile tenant in favour of the partnership which, then, should step into the shoes of the tenant.
A considerable case-law on the point has emerged and relevantly may be noted: Motal Bai v.
Abdul Aziz, (PLD 1968 Karachi 635) (Noorul Arfin, J.), Khuda Bux v. Badrul Hasan PLD 1968 Karachi 657) (Noorul Arfin, J.), Attaur Rahman v. Adam Ali, 1981 CLC 1747 (Abdul Hayee Qureshi, J.), where, inter alia, reliance was placed on some of the observations of Dorab Patel, J. In Malik Muhammad Ishaq v.' Messrs Erose Theatre, PLD 1973 Karachi 522; Najumddin v. Zamir Ahmed, PLD 1982 Karachi 1988 (Naimuddin, J), dissenting from Tansukhdas Chhaganlal v. Smt. Shambai and another, AIR 1954 Nagpur 160, distinguishing Manek J. Mobed v. Shah Behram, PLD 1974 SC 351 and relying upon, inter alia Motal Bai v. Abdul Aziz, PLD 1968 Karachi 635; Nasir Mahmood v. Mustajabi Begum, 1983 CLC 2872 (Lahore); G.B. Ltd. v. Alliance Commercial Corporation 1984 CLC 2336 (Muhammad Zahoorul Haq, J.), and Mehro Mal v. Habibur Rahman Khan, PLD 1988 Karachi 240 (Tanzilur Rehman, J.)."
22. All the cases relied upon by learned counsel are in respect of partnership, entering into partnership or changing the partners. A, partnership firm is not a legal person whereas a company incorporated under the Companies Ordinance 1984 is a legal person. Moment a company is registered a new legal personality emerges and from the date of registration persons subscribing to the Memorandum of Association or other persons joining as members are regarded as a body corporate or corporation aggregate and begin to function as an entity distinct and separate from its shareholders, Directors, Promoters and employees. The members or Directors retain their separate status and personalities. If all of them are citizens of Pakistan, the company does not become citizen of Pakistan and personality of the members has nothing to do with person of the incorporated company. If authority is needed one may refer to State Trading Corporation of India, Ltd. v. The Commercial Tax Officer and others (AIR 1963 SC 1811), Mrs. Hacha F. Guzdar, Bombay v.
Commissioner of Income Tax, Bombay (AIR 1955 SC 74) and Bankers Equity Ltd. Through Attorney and 5 others v. Sunflow CIT-RUSS Ltd. (PLD 1999 Lahore 450).
23. Tahir Sons Pvt. Ltd. Is a separate company notwithstanding the reasons for which it was created.
Evidence has now been that the business belongs to Tahir Sons Pvt. Ltd. And it is owned by it.
Nothing has been produced on record that at the premises any other business by any legal heirs of Muhammad Mustaqeem is being conducted. Therefore, business at the premises is now owned by Tahir Sons Ltd. And consequently mischief sought to be remedied by section 15 of the Sindh Rented Premises Ordinance, 1979 is attracted. Mr. Abrar Hassan is perfectly correct in arguing that in execution it is not available to the executing Court to go beyond the decree.
24. Result of the above discussion is that I have come to the conclusion that after incorporation of Tahir Sons Ltd. Business was being run and owned by Tahir Sons Ltd. And the mere fact that legal heirs of Muhammad Mustaqeem were sole shareholders of Tahir Sons does not detract in anyway from legal personality and consequence of that legal person of Tahir Sons Ltd.
25. Consequently, this petition is dismissed.