SYED MUHAMMAD FAROOQ SHAH, J.---Ejectment Application undefsection 15 of Sindh Rented Premises Ordinance, 1979, filed by the landlord/respondent No. 1 on the sole ground of wilful default in payment of rent was dismissed vide order dated 30-8-2005, recorded and pronounced in Rent Case No. 725 of 2004, by Ist Senior Civil Judge and Rent Controller Karachi-South. Being aggrieved by the said order, the landlord has filed F.R.A. No. 203 of 2005. Through appellate order dated 20-8- 2010, the ejectment order passed by the Rent Controller was reversed and Rent Application was allowed, consequently, the tenant was directed to hand over the vacant and peaceful possession of the shops within sixty days. The tenant being dissatisfied with the appellate judgment, invoked the constitutional jurisdiction of this court, praying therein to set aside the appellate order and restore the order passed by the Rent Controller in Rent Case No.725 of 2004.
2. Arguments advanced by learned counsel for the parties are considered and record has also been perused.
3. To elaborate the non-reading, misreading and mis-appreciation of evidence adduced by the parties, the learned counsel for the petitioners submitted that the appellate judgment dated 20-8- 2010 has been passed against a dead person (Late Sardar Muhammad) despite the intimation filed in shape of statement on dated 19-4-2010 and the appellate court has failed to appreciate the fact that the petitioner's deceased father has never failed or defaulted in payment of rent as is evident from the copies of the MRCs Nos. 1588 and 1589 of 2004 respectively, along with the duly paid bank challan. Learned counsel for the petitioners relied upon the original judgment of the trial court, wherein it was observed at page 4 that:- "Though it is stated in the ejectment. Application so also in the affidavit in evidence of the applicant that the opponent has committed default in payment of rent at the rate of Rs. 300 per month for each of the shop and collectively at Rs. 600 per month from December 1993, but the applicant has miserably failed to prove the alleged default, which is evident from the evidence brought on record."
4. The landlord in his cross-examination stated that there are 13 co-owners of the building in which the demised shops are situated, amongst them, respondent is one of owner of demised premises and further submitted that remaining twelve (12) co-owners have authorized him to file ejectment application, which authority he can produce on the next date. It is further stated that since last two years, he is collecting the rent from the tenants and prior to him his cousin Sikandar-e-Azam son of Saleh Muhammad used to collect the rent from the opponent and after his death he has started collecting the rent. It is further stated that his rent collector was Sabir, through him, he used to collect the rent from the tenants. Vide judgment dated 30-8-2005, the learned Rent Controller has reproduced the relevant portion of the cross-examination, perusal of which reveals that the landlord/respondent No. 1 stated that his paternal uncle namely Haji Saleh Muhammad, who was also one of the co-owner of the building in which the tenements in question are situated, died in 1992 and after the death of Saleh Muhammad his son Sikandar-e-Azam also died and after the death of Sikandar-e-Azam, respondent No. 1 started collecting the rent. The relevant parts of the cross-examination of tenant has also been reproduced in the said judgment which shows that the father of the petitioners admitted that he did not pay any rent to the present landlord Aijaz Ali, as previously Haji Saleh Muhammad was the landlord/owner of the demised shops and he used to pay rent to him of the demised shops and further stated that he does not remember if said Haji Saleh Muhammad expired since long. However, he has admitted that after death of said Haji Saleh Muhammad his son Sikandar used to collect the rent from him and the said Sikandar, was asking him to vacate the demised shop during his life time but later on that Sikandar also expired and after the death of Sikandar present applicant (respondent No.1) Aijaz Ali used to collect the rent from him. He has also admitted that since December 1993 he did not pay any rent to the present applicant/respondent No. 1 but started depositing the rent in court in two MRCs bearing Nos. 1588 and 1589 of 1994 in the name of Haji Saleh Muhammad (Deceased) and still the rent is being paid in the name of deceased Haji Saleh Muhammad. He has further admitted that he was paying the rent to Sikandar prior to December 1993 in the name of deceased Haji Saleh Muhammad. He has further admitted that he never sent the rent in the name of Sikandar nor deposited the rent in his name and that he do not know as to when the said Sikandar had expired. He has also admitted that the money order was not sent in the name of deceased Haji Saleh Muhammad. Such is the admitted position that inspite of the fact that on death of landlord Haji Saleh Muhammad, one Sikandar Azam used to receive the rent, who also expired in the year 2002 and the tenants/petitioners used to deposit the rent in the court in the name of deceased landlord. A perusal of judgment delivered by learned Rent Controller reveals that the notice under section 18 of the SRPO, 1979 of change of ownership has not been served upon the tenants, therefore, the learned Rent Controller dismissed the ejectment application.
5. On the point of non-issuance of notice under section 18 of SRPO, 1979, learned counsel for the petitioners placed reliance on judgment of Supreme Court. In the case of Mst. Bismillah Begum v.
Fazal Muhammad (1987 CLC 1113), dealing with change of ownership of premises from previous landlord to present one, it was held that the effect of not serving the legal notice under section 18 could not be charged penal consequences of default in payment of rent. Reliance in this respect has also been placed on Masjid-e-Rizwan through Haji.Abdul Salam v. Niazuddin (1991 MLD 3151). In the case of Abdul Kadir and another v. Muhammad Yaqoob (1991 SCMR 1029) the Hon'ble Supreme Court observed that the respondent before the receipt of notice under section 18 of SRPO, 1979, had paid the rent to the previous owner and thereafter started depositing the rent with the Rent Controller upon making a Misc. Application, it is held that the tenant has not defaulted in terms of section 18 of the Ordinance. Service of notice for change of ownership of premises contemplated under section 18 of the ordinance was held necessary in Messrs General Services Corporation v.
Messrs Pakistan National Shipping Corporation (1987 MLD 2149).
6. Conversely, learned counsel for the respondent placed reliance on the following citations:--
(i) HAFIZ SHAFATULLAH V. MST. SHAMIM JAHAN AND ANOTHER (PLD 2004 KARACHI 502)
(ii) MUHAMMAD IKRAN AND ANOTHER V. RENT CONTROLLER (2004 CLC 1326)
(iii) ALI MUZAFFAR V. SYED MUHAMMAD ALI ABEDI (2006 CLC 379)
(iv) ANIS ABBAS JALALI V. ABDUL WAHID (1993 CLC 1970)
(v) WAQAS V. IST ADDITIONAL DISTRICT JUDGE AND ANOTHER (2004 YLR 3278)
7. Learned counsel for respondent submits that the order passed by the appellate court is speaking one and submits that the petitioners have willfully and deliberately committed default in payment of rent, in this respect reliance is being placed on the case of Waqas v. 1st Additional District Judge and another (2004 YLR 3278). The concluding paragraph of the mentioned citation is reproduced as under:-- "It may be added that Article 199 of the Constitution is not substitute of another appeal. Unless the order impugned is found to be wholly perverse, arbitrary, based on misreading of evidence and has resulted in absolute miscarriage of justice, it cannot be interfered with by this Court merely on the ground that on the basis of evidence adduced before the Rent Controller another view of the matter, contrary to the one taken by the courts below was also possible."
Reliance in this respect has also been placed on the case of Hafiz Shafatullah v. Mst. Shamim Jahan and another (PLD 2004 Karachi 502).
8. Without dilating upon the merits or demerits of the case in hand, it shall advantageous to mention here that the statement dated 19-4-2008, filed by the Advocate for the opponent/petitioner, before the appellate court shows that about two years and four months prior to the judgment delivered by the appellate court, the respondent/tenant Sardar Muhammad son of Abdul Karim passed away on 15-3-2008 leaving behind the seven petitioners being his sons/daughters named in the statement but surprisingly their names have not been included in the arrays of the appeal. Death certificate of Sardar Muhammad, the original tenant, is available at page 309 of the file. Such facts reveals that the judgment has been passed against a dead person after two years and four months of receiving the intimation of his death. Learned counsel for petitioner submits that the judgment against a dead person namely Sardar Muhammad passed by the learned appellate court in F.R.A. 203 of 2005 is not sustainable in law.
9. All contractual obligations with regard to tenancy relationship becomes to an end with the death of either side, reference in this respect may be made to the cases reported as Merri Khan v. Faqeer Muhammad (PLD 1980 Lahore 110), Imamuddin and 4 others v. Bashir Ahmed and others (PLD 2005 SC 208), and the case of Messrs A.M Industrial v. Ejaz Mehmood (2006 SCMR 437).
10. Perusal of the material available on record reveals that the appellate court recorded and pronounced the judgment against dead person, without impleading or hearing the legal representatives (petitioners) of the deceased tenant is a nullity, which cannot be rectified, more particularly, when right to sue survives and such intimation in shape of statement showing the death of tenant/respondent was placed before the appellate court in that behalf and the court shall cause the legal heirs to be made them party. Suffice is to say that no legal sanctity is attached to such judgment, as the court cannot continue with the adjudication of rent proceedings in appeal without joining and notice to them/petitioners/legal heirs of the deceased. Consequently, the impugned appellate judgment is set aside; the matter is remanded back to the appellate court with the directions to provide fair opportunity of hearing to both the parties, after joining legal heirs of deceased tenant as party/respondents and pass a fresh speaking judgment on merits, at an earliest, but not with undu haste.
11. The petition along with pending listed application/matters is decided in the manner indicated above.