' The respondent had filed an ejectment application in the year, 1967 against Muhammad Yousuf Allahwala, late husband of the present applicant, in respect of premises known as 'Atmaram Building' situated in Arambagh, Karachi. The said Muhammad Yousuf was represented by an Advocate. The case proceeded before the learned Rent Controller and in the meanwhile on 13-2- 1970 Muhammad Yousuf Allahwala died. In spite of this fact his advocate continued to represent him without bringing the fact of death of the tenant to the notice of the Court. Ultimately the ejectment application was allowed by the learned Rent Controller by his order dated 29-7-1970. On this date also the counsel for the deceased tenant was present.
2. After the decision of the case the respondent filed execution application praying that the ejectment order may be executed. At this stage the applicant filed objection under section 47, C.P.C. praying that the ejectment order was null and void because it was passed against a dead man. The learned Rent Controller dismissed the objection by his order dated 27-8-1975. Against this order the applicant filed an appeal which was heard by IIIrd Additional Sessions Judge, Karachi who upheld the order of the Rent Controller and dismissed the appeal by his order dated 26-5- 1976.
3. The applicant has now challenged the above orders of the appellate Court and the trial Court by this revision application mainly on the ground that the ejectment order was null and void as having been passed against a dead man.
4. Mr. Abdul Sattar Lakhani, learned counsel for the applicant, has relied on the case of Imperial Dyeing and Printing Mills, Karachi v. Safdar Ali PLD 1971 Kar.
778. In this case the tenant had died during the ejectment proceedings and the fact of his death was brought to the notice of the landlord, but in spite of this, the landlord did not take any step to bring on record L.Rs, of the deceased tenant. In the above context it was held by a learned single Judge while deciding the above case as under:- "The law of abatement does not owe its application wholly to the provisions of Order XXII of the C.P.C. The concept of abatement is founded in a recognition that a tribunal charged with the adjudication of any controversy could properly be ceased of it only so long as the parties are before it and are able to prosecute or defend their respective cases. If any such party is removed by death it ceases to be a party before the tribunal and in its absence, the proceedings before it would become 'coram non judice'. Unless otherwise intended by law, the death of a person arraigned before a tribunal, kills the action personally against him and, if the cause of action survives the death, it is impossible to proceed a step further in the case without first joining his legal representatives and allowing them the opportunity to defend the action. Continuance of an action against a party who has died is an incomprehensible as bringing an action against a dead man.
And even as the principles of natural justice exist independently of the statute law, the principle of abatement, to the extent that it is not overridden by law, is inherent in every civilized system of judicial procedure. The provisions of Order XXXII of the Civil Procedure Code are to be construed merely as giving recognition to this basic principle of procedure. The principle itself is based on accepted norms and on a fundamental rule of judicial procedure that no lis between parties may be decided without enabling them to prosecute or to defend the action as the case may be."
5. On the other hand Mr. S.S. Akbar learned counsel for the respondent has relied on the case of Rashid Ahmed v. Muhammad Arshad PLD 1975 Lah.
1195. In this case a learned Judge of the Lahore High Court had, with reference to the Supreme Court decision in Khadim Mohyuddin v. Rehmat Ali PLD 1965 SC 459 while discussing the question of applicability of Order XXII, C.P.C. to rent proceedings, observed as under:- "The Rent Controller is an administrative tribunal and not a Court. The provisions of Order XXII of the C.P.C. are thus not applicable and that being so the proceedings pending before the Rent Controller do not abate on the death of either the petitioner or the respondent. There is no provision in the Rent Restriction Ordinance to say that in the event of the death of the petitioner the petition shall abate or that it is liable to be dismissed. The order of the Rent Controller dismissing the petition on the ground that the petitioner had died was, therefore, not warranted by law."
6. Rule 4 of Order XXII, C.P.C. as it stood before the Law Reforms Ordinance, 1972, was against the principle of equity, that is why, it was thought fit to amend the same along with rule 13 of Order VIII by the said Ordinance, so that now it is the responsibility of the L.Rs, of deceased defendant themselves (under amended Order VIII, rule 13 to apply to be substituted for their deceased predecessor. The provisions of unlamented rule 4 were misused by unscrupulous L.Rs, of defendants who would often not disclose the fact of death of the defendant, so that they may get advantage later of the fact by pleading that the decree against the dead man was nullity. This was exactly what has happened in this case. The tenant/respondent died on 13th February 1970 during pendency of the ejectment proceedings. The Advocate of the tenant continued to represent the dead man up to July, 1970. The ejectment order was passed on 29-7-1970. Till then neither the Advocate of the tenant nor the L.Rs, brought the fact of death of the tenant to the notice of the Court.
7. Under these circumstances the principle underlying Order XXII, C.P.C., if at all attracted will be the one which is embodied in its amended form, notwithstanding the fact that the event of death tool( place before or after the amendment. In any case, it would be the duty of L.Rs, of the deceased defendant to intimate the Court of the death and apply for their substitution as L.Rs, of the deceased.
8. In this case the L.Rs, and the Advocate of deceased remained silent about the death of the tenant and thus defrauded the respondent by allowing him to obtain ejectment order against a dead man, on the representation that the man was alive. If the ejectment order is now held to be null and void on the ground as pleaded by the learned counsel for the applicant, it will amount to giving advantage to the applicant of her own fraud. It is an established principle of law that the Court will not allow a party to take advantage of its own fraud.
9. I am, therefore, in agreement with the law laid in Rashid Ahmed v. Muhammad Arshad PLD 1975 Lei. 1195 which is based on the dictum laid down by Supreme Court in the case of Khadim Mohyudin v. Rehmat Ali PLD 1965 SC 459.
10. The facts of the case Imperial Dyeing and Printing Mills Karachi v. Safdar Ali PLD 1971 Kar. 778 were different. The landlord in this case was immediately informed of the death of the tenant. In spite of this he continued with the proceedings and did not choose to bring the L.Rs, of deceased tenant on record. Under these circumstances it was held that ejectment order passed against the dead man was null and void. No fraud or misrepresentation on the part of the deceased tenant, was involved in that case. In the present case the L.R. of the tenant was guilty of patent fraud inasmuch as she kept silent about the death of her husband, the tenant and allowed her Advocate to continue to appear in Court to represent the dead man till the end of the proceedings on 29-7- 1970. The diary of the trial Court's record shows that even on 29-7-1970 the Advocate of the dead tenant was present. In his presence the judgment was announced but he did not tell the Court that the tenant had already died five months earlier.
' For the above reasons I hold that there is no substance in this revision application which is dismissed. In the ordinary course I would have issued notice to the advocate, who appeared in the year, 1970 for the deceased tenants to show cause as to why action should not be taken against him for contempt of the Court for having represented a dead man in the case and without having I brought the fact of the death to the notice of the Court. However, it is nu' known as to who appeared for the deceased tenant at that stage. As the matter is 14 years old, hence no useful purpose will be served by issuing such notice to the counsel.