The appellant has challenged the order of the II Additional District Judge, Karachi, upholding the order of the Controller striking off the defence of the appellant under section 13(6) of the Urban Rent Restriction Ordinance, 1959.
2. Nawabdin Ahmed was the tenant of Fazal Rehman the respondent. An application for ejectment of the tenant was filed --on 22nd April, 1969, On - 14-1_2-1971 the Controller passed a tentative order for deposit of rent. On 14-11-1973 Mr. Nawabdin died and on 17-2-1975 the legal heirs who are the appellants in the present appeal were brought on record. On 25-4-1974 the respondent filed an application under section 13(6) of Urban Restriction Ordinance stating that the appellants prove com--mitted default in payment of rent as ordered by the Controller, and therefore, their defence may be struck off. The appellants filed objections taking the plea that the application was not maintainable as it was not supported by affidavit, that the application did not disclose when default was made as the appellant had been depositing rent regularly, the application is misconceived and that the delay if any was beyond the control of the appellant.
3. The learned Controller called for the report and it transpired that the rent for the month of February, 1974 was deposited on 18-2-1974 instead of 15-2-1974. 'The Controller, holding that default was committed by the appellants struck off the defence on 15-11-1975 and passed an order of ejectment. The appellants filed an appeal which was allowed and the case was remanded to the Controller to allow to appellants to adduce evidence and then decide whether the default has been committed by the appellant. The parties led their evidence on limited point of default and after consider--ing the evidence the Controller by his order dated 28ih August, 1977 struck off the defence and granted ejectment application. In appeal this order of the Controller was upheld by the Additional District Judge.
4. Mr. Abdur Rauf Khan, the learned counsel for the appellant has challenged the impugned order on more than one ground. First he stated that the order passed by the Courts below particularly the order of the Controller was an order passed against a dead person and was, therefore, a nullity in law. This plea is completely misconceived and contrary to the facts on record. After the death of Nawabdin the legal heirs presently the appellants were brought on record on 17-2-1975 while the order for ejectmentwas passed on 28-8-1977. In these circumstances, the plea that the order was passed against a dead person is misconceived.
5. The next contention as raised in ground No. 4 of the memo of appeal was that as the order for deposit of rent was passed on 14-12-1971 after the death of Nawabdin and before the legal representatives were brought on record. The present appellants were not bound to comply with the said order till they were brought on record, and therefore, if there was a non-compliance the defence cannot be struck off. Before dealing with this aspect of the case it- may be convenient to mention that after the death of Nawabdin on 14-i 1-1973 the appellants deposited the rent for the month of December, 1973 and January, 1974 in terms of the order passed by the Controller. The default was only in respect of payment of rent for the month of February, 1974. The learned counsel for the appellants has merely stated that since the appellants were not brought on record upto 14- 2-1974 they were not bound to comply with the order. On the other hand Mr. Hafiz Abdul Baqi, the learned counsel for the respondent has contended that as after the death of Nawabdin by virtue of the provisions of Urban Rent Restriction Ordinance the appellants became the tenants, they inherited all the rights and liabilities including the liability to pay the rent in terms of the order passed by the Controller, and therefore, non-compliance-amounted to default within the meaning of section 13(6) of the Urban Restriction Ordi--nance, 1959.
6. The word `tenant' has been defined in section 2, sub-clause (i) of Urban Rent Restriction Ordinance, 1959 in the following manner :-
(l) "tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent of fees in a public market, cartstand, or slaughter-house or of rents for shops have been framed out or leased by a Municipal, Town or Notified Area Committee or by the Corporation of the City of Lahore or by the Lahore Improvement Trust or any other Improvement Trust ; and
7. The word "tenant" includes the wife. And children of a deceased tenant, Therefore, after the death of Nawabdin the appellants had automatically become the tenants of the respondent by operation of law. One of the liabilities of a tenant is payment of rent to the landlord. However, the point requires consideration is whether the legal representative of a tenant who have become tenants by operation of law could be penalized for non-compliance of order passed under section 13(6) after the death of the tenant and before they were brought on record. Section 13(6) is a penal provision which is .To be construed strictly. It provides that if the tenant makes default in compliance of such order then if he is a respondent his defence shall be struck off. The main ingredients of this provision are that an ejectment proceeding should be pending against a person who is a tenant and respondent in that proceedings. Therefore, it is necessary that a tenant required to be penalized should be a party to the proceeding. It has, therefore, to be determined when the legal heirs should be deemed to be party to the proceedings? The learned Courts below relying on the pr,--, visions of Order XXII, rule 4, sub-clause (3), C. P. C. Held that as no applica--tion to bring the legal heirs of the deceased was made within the tine limited by law the Court could proceed with the case and any order made in such proceeding shall notwithstanding the death of such defendant, have the same force and effect as if it had been passed before the death took place. Before applying the provisions of Order XXII it is to be seen whether this provision of C. P. C. Is applicable to the proceedings before the Controller.
8. It is now well settled that the provisions of C. P. C. Unless speci--fically made applicable do not apply in terms to the proceedings before the Controller. In the case of Abdul Raaak v. Abdul Hamid 1979 SCMR 534,where it was pleaded that as the ejectment application was premature it was liable to be rejected under Order VII, C. P. C., it was observed as follows :-- "Mr. Safdar Hussain, however, relied on Order VII of the Civil Procedure Code and submitted that the -effect of this order was that a suit had to be dismissed if it was filed prematurely, therefore, all applications under, the said Ordinance had also to be dismissed if they were prematre. Although the Legislature was aware of the provisions of Order VII of the Civil Procedure Code, it did not enact any similarly provision in the said Ordinance nor has the Civil Procedure Code been made applicable in terms to proceedings under the said Ordinance. Therefore, the submission of learned counsel is based on the fallacy that the technicalities of the Civil Procedure Code should be extended to proceedings under the said Ordinance even though the Legislature has in its wisdom enacted otherwise."
9. Again in a case reported in Ghulam Nabi v. Mushtak ,Ahmed PLD 1980SC206, it was held that the provisions of Code of Civil Procedure are not available in terms to proceedings before a Rent Controller: In a case reported in P L U 19'11 Kar. 778 it was held that "application for ejectment under Rent Restriction (Ordinance the provisions of Order XXII, C. P. C. Regarding the abatement much less the period of limitation prescribed thereunder for bringing legal representative on the record, do not have specific application to such proceedings yet the concept of abatement on an accepted norms and fundamental rules of judicial procedure will have applicability to such proceedings." The consensus of opinion is that C. P. C. Is not applicable in terms to the proceedings before the Controller. It is only applicable to the extent provided by the Ordinance itself. However, where no procedure has been provided it is just and convenient to apply the principles laid down by the Code of Civil Procedure for the conduct of the proceedings. I c applying these principles the penal provisions as provided by C. P. C., cannot be pressed in service. The principles of Order XXII can be applied for bringing the legal heirs on record. If the petitioner dies and his legal heirsare riot brought on record the proceedings have been held to have abated. In ejectment proceedings where the respondent dies and the legal heirs do not apply for joining the proceedings the landlord should make necessary applica--tion for bringing such legal heirs on record who become tenant by operation of law or otherwise are entitled to be joined as a respondent. The appli--cability of Order XXII, C. P. C., may entail serious consequences result--ing in penalty to the legal heir. In the circumstances as the pro--visions of C. P.C. Are not applicable in terms to the proceedings before the Controller, in the absence of the legal heirs, the Controller, in view of the fundamental rules of judicial procedure should not proceed with the matter without notice to the legal heirs of a deceased respondent. This being the position a tenant who is not a party to the proceedings cannot be subjected to any penal action nor any adverse order can be passed against him without notice. In the present case the appellants without being a party to the pro--ceedings were complying with the order dated 14-11-1973 but they were brought an record as respondents on 17- 2-1975 although Nawabdin had died on 14-11-1973. The default was committed in deposit of rent for the month on February, 1974 when the appellants were not a party to the proceedings. In the circumstances neither the appellants could be expected to comply with the tentative order for deposit of rent nor they could be penalised for its non--compliance. Section 13(6) contemplates that the Controller can direct the tenant to deposit the rent during the ejectment proceedings and "if the tenant makes! Default in compliance of such an order then if he is petitioner his application shall be dismissed and if he is the respondent his defence shall be struck off, It is, therefore, necessary that the tenant. Who has defaulted should be a respondent in the proceedings. It is only then that the Controller can pass an order for striking off the defence. In the present case when the default was committed the appellants were not a party to the proceedings. Consequently the appellants could not be penalised in respect of the default during the period when they were not party to the proceedings.
10. The learned counsel for the respondent has submitted that as default was committed by the appellants and there was no valid ground for condoning the delay the Controller was justified in striking off the defence. The learned counsel has relied on the case reported in 1981 SCMR 279 where a delay of 3 days was not condoned. If a default is committed the Controller has no option but to strike off the defence of the respondent. I have held that the appellant could not be penalised for default in deposit of; rent for the month of February, 1974, there--fore, the question of striking off the defence did not arise. In the circumstances. I allow the appeal and direct that the matter be expeditiously heard by the Controller and disposed off as early as possible.