SADIQ HUSSAIN BHATTI, J.---By this common judgment I intend to dispose of the above two connected petitions as they relate to same subject-matter between the same parties.
2. In C.P. No, S-491 of 2009, the petitioner has assailed the judgment dated 21.04.2009, passed in F.R.A. No, 36 of 2008, filed by respondent No, 4 herein, whereby the order of the Rent Controller dated 05.05.2008 was set aside and the application under Order I, Rule 10, C.P.C. Filed by the said respondent in the rent case, was allowed while in C.P. No, S-292 of 2010, the same petitioner has impugned order dated 25.9.2009 whereby the application seeking writ of possession in respect of the demised premises was refused.
3. The facts of the case are that petitioner was tenant of respondents Nos.1-3 in respect of second floor of Plot No, 89/H, Block 2, PECHS, Karachi ("demised premises"). Respondents Nos.1-3 filed rent case No, 20 of 2000 in the Court of Vth Rent Controller, Karachi East, .Seeking ejectment of the petitioner from the demised premises which was allowed vide order dated 09.05.2000 and possession of the said tenement was taken over by the said respondents through police aid. The petitioner assailed the order date 09.05.2000 by filing an application under section 12(2), C.P.C.
Read with section 19 of the Sindh Rented Premises Ordinance, 1979. This application was allowed vide order dated 19.7.2005 and the ex-parte order dated 09,05.2000 was set aside and the petitioner/tenant was directed to file wkitten statement. The petitioner filed written statement and the respondents Nos.1-3 were directed to file their affidavit-in-evidence but they failed to do so and vide order dated 08.10.2005, their side was closed. Thereafter, the rent case was dismissed vide order dated 27.2.2006 and writ of possession was issued in favour of the petitioner. When the petitioner reached the said building for taking possession of the demised premises, she found that the second floor of the building, which was under her tenancy, was already demolished and the property was purchased by respondent No,4. Respondent No, 4, after coming to know about the rent case and the writ of possession in respect of the second floor of the building in favour of the petitioner, filed an application under Order I, Rule 10, C.P.C. Read with section 151, C.P.C., to become a party in the case and another application under Order IX, Rule 13, read with section 12(2), C.P.C. For seeking stay of the execution proceedings and setting aside orders dated 23.12.2006 and 19.7.2005.
Both these applications were dismissed by the Rent Controller vide separate orders, both dated 05.05.2008. The respondent No, 4 assailed the order dated 05.05.2008, dismissing his application under Order 1, Rule 10, C. P. C .By filing F.R.A. No, 36 of 2008, which was allowed by the learned 1st Additional District Judge, Karachi East vide judgment dated 21.4.2009 and the order dated 5.5.2008, dismissing application under Order 1, Rule 10, C.P.C. Was set aside, which has been impugned in C.P.No, S-491 of 2009.
4. After dismissal of the rent case, the petitioner filed an application for issuance of writ of possession which was dismissed by the Rent Controller vide order dated 25.9.2009. The petitioner assailed the said order by filing F.R.A. No, 267 of 2009, which was also dismissed vide judgment dated 20.1.2010. This judgment has been assailed by filing C.P. No, S-292 of 2010.
5. Learned counsel for the petitioner argued at some length in support of these petitions. His arguments may be summed up as under:-- a) That respondent No, 4 purchased the demised property on 18.4.2005 when rent case No, 20 of 2000 was still pending, but he did not join the proceedings in the rent case and allowed respondents Nos. 1-3 to contest the same, therefore, as per provisions of Order XXII, Rule 10, C.P.C., all the orders passed in the rent case would be binding on respondent No,4. Reliance in this regard was placed on (i) 2009 SCMR 385, (ii) 1992 SCMR 652 and 1987 SCMR 380. b) That provisions of Order I, Rule 10, C.P.C. Are not applicable to execution proceedings, as the rent case No, 20 of 2000, filed by the respondents 1-3, was already dismissed vide order 27.02.2006 and there was no pending proceedings in which the respondent No,4 could be joined, therefore, the order dated 27.02.2006 attained finality as it was not challenged by any of the respondents. In support of this contention learned counsel relied on 2005 CLD 1554. Thus, as per learned counsel, the application under Order I, Rule 10, C.P.C. Was wrongly allowed by the Appellate Court. c) That the petitioner was entitled to restitution of possession of the demised premises after the ex- parte ejectment order dated 09.05.2000 was set aside by order dated 19.07.2005 and finally the rent case filed by the respondents 1-3 was dismissed vide order dated 27.02.2006 and vide order dated 23.12.2006 possession of the demised premises was ordered to be restored to the petitioner.
Per learned counsel, even if the demised premises was purchased by respondent No,4, the restoration of possession order is to be passed. In this regard, the learned counsel referred to provisions of section 144 of the C.P.C. And to the inherent powers of this Court. Reliance was placed on (i) PLD 1981 Kar. 82 (ii) 2003 CLC 1321, 2009 CLC 513 and PLD 1999 Quetta 56.
6. Mr. Suhail H.K. Rana, advocate appeared on behalf of respondent No,1 and submitted that C.P. No, S-292 of 2010 was filed on 25.3.2010 and C.P. No, S-491 of 2009 was filed on 03.08.2009 while respondents Nos. 2 and 3 were not alive at that time, therefore, this was a mala fide act on behalf of the petitioner that names of dead persons were shown as respondents in these two petitions.
Learned counsel submitted that these petitions are liable to be dismissed as the petitioner has not approached this Court with clean hands as these petitions have been filed against dead persons.
He next referred to the order dated 19.07.2005 passed in Rent Case No, 20 of 2000 and stated that though the Opponent/ tenant was directed to file written statement within 30 days but the tenant was not directed to pay the rent or arrear of rent. Learned counsel submitted that Karachi Building Control Authority issued notice to the respondents 1-3 for removal of the illegal construction i,e, second floor of the building within 24 hours, however, an application was made to KBCA for two days' time for removal of construction and during the stipulated time the unauthorized construction was removed. Therefore, the tenement in possession of the petitioner does not exist and, consequently, it is not possible to restore the possession of the demised premises to the petitioner. He also submitted that only Miss Irshad Begum was dealing with the ejectment case and her affidavit in evidence was discarded on 12.08.2004 while the ex parte order passed in Rent Case No, 20 of 2000 was recalled vide order dated 19.07.2005 while the ejectment application was dismissed on 27.02.2006 but much prior to the passing of all these orders, Miss Irshad Begum had died on 07.07.2004. Therefore, per learned counsel, all these orders were passed against dead person as no notice was issued to respondent No,1 who, by that time, was living in Malir Cantt. With her husband who was working in Pakistan Air Force. It was also submitted that the order dated 23.12.2006 speaks of handing over vacant and peaceful possession of second floor of the building situated on Plot No,89/H, Block 2, PECHS, Karachi to the petitioner within 60 days, however, in fact, no second floor exists which can be handed over to the petitioner. It was also emphatically argued that since nowhere it has been mentioned that the petitioner is paying any rent to the respondents, therefore, she does not fall within the definition of a tenant as defined in the Sindh Rented Premises Ordinance.
7. Mr. Muhammad Haleem Siddiqui, learned counsel for respondent No,4, submitted that since the petitions were filed against dead persons, therefore, the same are not maintainable and are liable to be dismissed. Learned counsel also submitted that even the order dated 19.7.2005 was passed against dead persons and has no legal sanctity. Per learned counsel, since factual controversies are involved in these petitions, therefore, the same are not maintainable as factual controversies cannot be decided through a petition. Learned counsel for respondent No, 4 also submitted that since respondent No,4 has purchased the demised premises for valuable consideration vide registered Sale Deed dated 19 April, 2005, and the ejectment application was dismissed vide judgment dated 27 February, 2006, when respondents Nos. 2 and 3 were already dead, therefore, it was necessary that respondent No,4 should have been impleaded as a party to the ejectment application being the new landlord. Learned counsel referred to the above %ale deed to show that the description of the property only shows that it consists of ground plus one floor only, therefore, the respondent No,4 was not aware of any litigation in respect of the second floor of the property, which was not existing at the time when the said property was purchased by respondent No,4.
However, without issuing any notice to respondent No,4, the ejectment application was dismissed.
Even when the application under section 12(2), C.P.C. Filed by the petitioner was allowed vide order dated 19 July, 2005, the said respondents were not alive nor their legal-heirs were brought on record. Learned counsel submits that when writ of possession was issued in favour of the petitioner she accompanied the bailiff to the demised premises but found that second floor does not exist, therefore, she was given possession of open space which she left at her own will. Learned counsel further submitted that as soon as the respondent No,4 came to know about the orders dated 19 July, 2005 and 23 December, 2006, he filed an application under Order I, Rule 10, C.P.C. Read with section 151, C.P.C. And under Order IX, Rule 13, C.P.C. Read with section 12(2), C.P.C. The main ground taken in these applications was that the said two orders were obtained by fraud and misrepresentation as the respondents 1-3 have no concern with the demised premises as the same was purchased by the respondent No,4 through sale deed dated 18 April, 2005 after complying with requisite formalities and is in lawful actual physical possession of the same. Per learned counsel, the FRA filed by the respondent No, 4 was rightly allowed by the Appellate Court vide judgment dated 21 April, 2009 as no person should be condemned unheard. Learned counsel relied on the cases reported as PLD 2000 Kar. 238, PLD 1978 SC 185, PLD 1981 Kar. 82, PLD 1999 Quetta 56, PLD 1970 Kar.220, 1980 CLC 44, 1986 SCMR 261, 1982 SCMR 233, 1991 SCMR 1656, 1996 CLC 1036, 1986 CLC 1828, PLD 1995 Kar. 197, 2000 MLD 1809, 2008 SCMR 236, 2002 CLC 166, 1992 CLC 980, 2008 CLC 75, 2006 CLC 1018, 2000 CLC 1119, 1993 SCMR 1171, 1997 CLC 1260, 1992 SCMR 1284, 1993 SCMR 618, 2006 SCMR 219, PLD 1991 SC 476, 2006 SCMR 276, 1997 SCMR 484, 1968 SCMR 729, 1989 SCMR 918, 1993 SCMR 618, 2003 SCMR 549 and 1996 CLC 1034.
8. In rebuttal, learned counsel for the petitioner submitted that the demised premises was rented out to the petitioner in 1969 and since then she was living therein. The Sindh Building Control Ordinance, 1979 was promulgated on 03.03.1979. As per learned counsel, since the tenement in possession of the .Petitioner was constructed well before the promulgation of the said Ordinance, therefore, the same was not applicable to the tenement in possession of the petitioner. Thus, the contention that the second floor of the said building, being illegal construction, was demolished by KBCA is not tenable. Learned counsel submits that it was collusion between the respondents Nos.1- 3 and KBCA which resulted in such demolition of the second floor of the said building just to deprive the petitioner of her rights as a tenant.
9. I have heard the learned counsel for the parties, perused the record and the case law cited before me.
10. In C.P. No, S-491 of 2009, the petitioner has, impugned judgment dated 21.04.2009 passed by First Additional District Judge, Karachi East in F.R.A. No,36 of 2008, whereby the respondent No,4 called into question the Orders dated 5-5-2008 passed by Vth Rent Controller, Karachi East in Execution No, 26 of 2000 in Rent Case No, 20 of 2000, whereby the applications filed by the respondent No, 4, one under Order I, Rule 10, C.P.C. And the other under Order IX, Rule 13 read with section 12(2), C.P.C.
Were dismissed. The Appellate Court allowed the First Rent Appeal and set aside the order dated 5.5.2008 and remanded the case to the Rent Controller for deciding the same afresh. The only point for consideration before this Court is whether the impugned judgment is a valid judgment based on sound reasoning or is perverse and suffers from some illegality, calling for interference by this Court under its constitutional jurisdiction.
11. Although prolix arguments were advanced by learned counsel for the parties on the point of demolition of the second floor, the ex- parte order dismissing the ejectment application filed by respondents 1-3 being obtained by fraud and misrepresentation, etc. But, in fact, the only question to be considered by this Court is whether the learned appellate Court was justified in allowing the application under Order I, Rule 10, C.P.C. Or not. In this regard the learned counsel for the petitioner vehemently argued that an application under Order I, Rule 10, C.P.C. Is not maintainable in execution proceedings as it can only be filed in a pending suit and relied on the case of Chaudhry Athar Mansoor v. Judge, Banking Court No,2, Lahore and others (2005 CLD 1544). In this regard learned counsel referred to the provisions of Order I, Rule 10, C.P.C., which are reproduced hereunder:-- "Order I.
10(2). Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, add on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectively and completely, to adjudicate upon and settle all the questions involved in the suit, be added ."
12. So far as proceedings in a suit are concerned, the law is very clear that an application under Order I, Rule 10, C.P.C. Can only be filed in a pending suit and not in execution proceedings.
However, it has been held by the superior Courts that provisions of C.P.C., except those mentioned in section 20 of the Sindh Rented Premises Ordinance, 1979, are not invested in Rent Controller while dealing with an ejectment application. Reference in this regard may be made to 1992 SCMR 1152. It has also been held that Rent Controller has wide discretion to follow any reasonable procedure he deems appropriate in the circumstances of the case to achieve the ends of justice which includes the use of provisions of C.P.C. As the same is tested and tried procedure followed in civil proceedings. Kindly see PLD 2001 Kar. 60.
13. In the present case, respondents Nos. 1-3 filed rent case for ejectment of the petitioner from the demised premises (second floor) on 17.1.2000 in which exparte ejectment order was passed against the tenant/petitioner and physical possession of the demised premises was handed over to the said respondents on 7.11.2000. The second floor of the property, which was rented out to the petitioner, was demolished by KBCA. Respondent No, 2 died on 7.7.2004 and respondent No, 3 died on 12.4.2001. Petitioner filed an application under section 12(2), C.P.C. Seeking setting aside of the ex parte order of eviction, which was allowed and the ex-parte order was set aside vide order dated 19.7.2005 and the petitioner/tenant was directed to file her written statement within 30 days which was filed within the stipulated time. Thereafter, vide judgment dated 27.2.2006, the ejectment application was dismissed. However, prior to passing of the above order/judgment, the property was purchased by respondent No, 4 on 18.4.2005 and the sale deed states that the property purchased by the respondent No,4 consisted of ground + one floor. The petitioner/tenant filed an application for possession of the demised premises, which was allowed vide order dated 23.12.2006, in the following terms:- " the applicant/DH is directed to hand over vacant and peaceful possession of the demised premises viz. 2nd floor of the building situated on plot No, 89/H, Block 2, P.E.C.H.S., Karachi, to the Opponent/JD within 60 days from passing of this order. Office is directed to issue order of Restoration of Possession of house mentioned above...."
14. In case the second floor of the property, which was rented out to the petitioner, was intact, respondent No,4 would have been ordered to hand over possession of the same to the petitioner and, if so advised, he (respondent No,4) may file a fresh ejectment application in case he needed the same for his personal bona fide use. However, the admitted fact is that the second floor is not available any more, thus no such order can be passed at this stage.
15. Learned counsel for the petitioner has argued, and in my opinion, rightly so, that provisions of Sindh Building Control Ordinance 1979, by virtue of section 6 thereof, are not applicable to buildings which were constructed before the promulgation of the said Ordinance. Per learned counsel, the second floor of the property was demolished by KBCA in connivance with the respondents Nos.1-3.
On the other hand, the case of respondents Nos.1-3, as mentioned in the order dated 19.7.2005 (at page 39), is that when, after taking over possession of the demised premises, they started renovation Work, some person complained to KBCA, who issued notice dated 30.11.2000 for removing the unauthorized construction within 24 houRs, Thus, this is a disputed question of fact which cannot be decided in a petition filed under Article 199 of the Constitution. However, the question for consideration would be whether now the respondent No, 4 can be directed to construct the second floor and put the petitioner in possession thereof as the KBCA Act would now be applicable to any construction being raised.
16. Learned counsel for the petitioner argued that respondent No, 4 should have invoked the provisions of Order XXII, Rule 10, C.P.C. As he purchased the said property during pendency of the ejectment proceedings which he failed to do and allowed respondents Nos. 1-3 to continue to pursue the ejectment application. The factual position is that respondent No, 4 purchased Ground + one floor building and the second floor of the building, which was rented out to the petitioner, was demolished before the building was purchased by respondent No,
4. Whether the respondent No, 4 was aware of the pendency of the ejectment application, is a disputed question of fact, which cannot be decided by this Court in a petition under Article 199 of the Constitution. In the case of Saifullah v. Muhammad Bux and others (2003 MLD 480), it was held as under:-- " A writ petition is not substitute either for revision or the second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provision of law has been violated. No Constitutional petition in rent matters and in all such cases in which no second appeal or revision is provided in law, shall be entertained, until and unless there is a jurisdictional error committed by the Courts below. The exercise of jurisdiction in a perverse or arbitrary manner or ignoring the material available on record or violation of any provision of law, substantive, or procedural, causing miscarriage of justice or violation of established principles of administration of justice shall bring the case within the purview of jurisdictional error."
17. So far as filing of petition against dead persons is concerned, it may be pointed out that in the instant petitions the contest is only between the petitioner and respondent No, 4 as once the said property was purchased by him, neither respondents Nos.1-3, or legal heirs of the dead respondents, are no more in the picture nor any relief can be sought against them. C.P. No, S-491 of 2009 has been filed against an order passed by the learned Appellate Court in the FRA filed by respondent No,4 while C.P. No, S-292 of 2010 has been filed for writ of possession in respect of the demised premises, which was part and parcel of the property which is now owned by respondent No,4. As regards passing of order against dead person is concerned, suffice it to say that Order XX, Rule 3, C.P.C. Deals with the situation and a duty was cast upon the co-applicants to have informed the Court about the death of respondents 2 and 3 for bringing on record the legal heirs of such applicant who has expired during pendency of the ejectment application. Thus, it was the duty of respondent No,1 to have informed the Court and to make efforts to bring LRs of the deceased respondents Nos. 2 and 3 on record. Even otherwise as the cause of action of the respondents 1-3 was joint cause of action, therefore, even if one of the applicants/respondents 1-3, was alive, the ejectment application could have been proceeded. Therefore, the objection that since the orders passed were against dead persons, therefore, the same are liable to be set aside, is not sustainable. _Even otherwise those orders were not challenged before the proper forum. Although it has been argued that the petitioner has the knowledge that respondents Nos. 2 and 3 have expired but she suppressed this fact from the Rent Controller, but the responsibility was on the surviving respondent/applicant to have informed the Rent Controller about the death of any of the co-applicant.
18. It was also argued that since petitioner is not paying any rent, therefore, she cannot be termed as a tenant. Once respondents Nos. 1-3 filed an ejectment application against the petitioner, terming her as tenant in respect of second floor of the said building, it cannot be denied that she was a tenant in respect of the demised premises. Whether she was paying rent or was in default, should have been decided in the rent case but the same was allowed to be dismissed ex- parte.
19. I am also mindful of the fact that respondent No,4 has not filed an application under section 12(2), C.P.C. In the rent case itself for recalling of the order 27 .2.2006 , whereby the ejectment application was dismissed. Therefore, unless such order is impugned by filing appropriate proceedings, the same cannot be disturbed.
20. Learned counsel for the respondents also argued that the petitioner also filed her application under section 12(2), C.P.C. In the execution and not in the rent case itself. A perusal of the application under section 12(2), C.P.C. Filed by the petitioner reveals that the submission of the counsel for the respondents is correct as this application was filed in the execution and not in the rent case itself. However, since the same has not been challenged by the respondents before the proper forum, therefore, no purpose will be served by dilating upon this aspect of the case.
21. The Appellate Court has allowed the first rent appeal filed by the respondent No, 4 in the following terms:- " In this circumstance I am of the view that fair opportunity should be provided to the appellant to intervene in the rent case bearing No, 20 of 2000, pending before the trial Court which indeed
[is] a vital point to be considered by the learned trial Court, therefore, at this stage I hereby allow the instant appeal and set aside the order dated 05.05.2008 and allow the application under Order I, Rule 10, C.P.C. Further this case [is] hereby remanded to the learned rent controller with the direction to implead the appellant as applicant in rent case No,20 of 2000 and provide fair opportunity to him to defence his case and decide the matter on merits as fresh. So also record the evidence as required under the law. "
'22. Since the ejectment application was filed by respondents Nos. 1- 3 and the same was allowed by ex-parte order and possession of the demises premises was also handed over to them and the property, after demolition of the demises premises, was purchased by respondent No,4, and, thereafter, the ex-parte order allowing the ejectment application was set aside and the ejectment application was dismissed and writ of possession was issued in favour of the petitioner, the question arises as to how and in what manner this writ of possession could be executed against respondent No,4, unless he joined as a party as respondents Nos. 1-3 are no more in the picture. It is well settled that a Court of Law has to do justice between the parties and is not supposed to discharge its functions in an arithmetical or technical manner. It is also well settled that justice should not only be done but should manifestly and undoubtedly be seen to be done. Reliance may be placed on 1993 CLC 1158 and 1995 CLC 78.
23. Learned counsel for the petitioner has' relied on a number of cases but since all those cases pertain to suits only, therefore, the same are not relevant for the purpose of a rent case as it has been held that provisions of C.P.C. Are not applicable to rent cases, except those mentioned in the SRPO itself and that the Rent Controller has wide discretion to follow any reasonable procedure he deems appropriate in the circumstances of the case to achieve the ends of justice.
24. In my opinion, once respondent No, 4 purchased the said building, he became a necessary party to be joined in place of the applicants/DHs. Therefore, in the peculiar circumstances of this case, and keeping in view the fact that provisions of C.P.C. Are not applicable to a rent case, the impugned order does not call for any interference by this Court.
25. In view of the above discussion, I dismiss the above petitions and maintain the impugned judgments as stated above.