' A suit was filed by the respondent against Azhar Mirza for the recovery of Rs, 5,889 on account of alleged arrears of rent, electric and water charges. It is admitted that ejectment petition seeking eviction of aforesaid Azhar Mirza was also filed in the Court of Rent Controller, Lahore. In the said proceedings, Rs, 5,000 was deposited by Azhar Mirza and the same has been admittedly withdrawn by the respondent. This deposit was made under an order passed by the learned Additional District Judge, with the consent of the parties. Azhar Mirza died and the present petitioners were impleaded as his legal representatives on an application submitted by the respondent. The petitioners filed written statement and then another application under Order VII, rule 11, C. P. C. Was submitted for rejection of the plaint on the ground that after the death of aforeid Azhar Mirza they having not inherited anything from him could not be held liable for the alleged amount due and that they are not legal representatives of the aforesaid Azhar Mirza. This application was dismissed by the learned trial Court and revision filed also met the same fate and was dismissed vide judgment, dated 21st May, 1981. The learned Additional District Judge, was of the view that as the petitioners are continuing in possession of the premises and are paying rent, the relationship between the parties is that of landlord and tenants, and keeping in view the definition of the expression "tenant" given in the Punjab Urban Rent Restriction Ordinance, 1959, the petitioners were rightly brought on record as the legal representatives of the aforesaid Azhar Mirza and the suit, as such, was maintainable against them. This order has been assailed in this constitutional petition.
2. The main argument of the learned counsel for the petitioners is that civil suit is to be tried in accordance with the provisions of Civil Procedure Code and according to section 2(11), C. P. C. Legal representative means as under :- "Legal representative means a person who in law represents the estate of a deceased person and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
' He states that the deceased having not left anything the petitioners can be treated as legal representatives and in this connection the definition of the term "tenant" given in the Punjab Urban Rent Restriction Ordinance, 1959, cannot be imported. He added that the ejectment petition was admittedly filed by the respondent and only to those proceedings the definition of "tenant" as contained in the Punjab Urban Rent Restriction Ordinance could be applied.
3. Learned counsel for the respondent does not dispute the legal proposition argued by the other side. He has fairly conceded that definition of the expression "tenant" cannot be pressed into service for the ' purposes of civil suit and that in case the petitioners have not inherited anything from the deceased, they could not be made legal representatives. He, however, adds that the objection which was sought to be raised by moving an application under Order VII, rule 11, C. P. C.
Should have been raised at the time that the petitioners were impleaded as a party and that as they have failed to raise the said objection at the time, they are estopped thereafter to raise the said plea. He has stated that otherwise there is no legal bar for raising the said question within any specified time.
4. I have considered the respective submissions of the parties and have also gone through the order of the learned trial Court and the judgment passed in revision by the learned Additional District Judge. The trial Court did not pass a speaking order while rejecting the aforesaid application. The learned Additional District Judge failed to consider the question raised in its true legal perspective. His entire judgment is based on the definition of the expression "tenant" given in the Punjab Urban Rent Restriction Ordinance, 1959. This approach is not on the face of it fallacious.
The question to be determined by the two Court below was whether any estate was inherited by the present petitioners or not and in case it is established that nothing whatsoever was left by the deceased, whether the petitioners can be considered to be legal representatives. The other question to be considered was as to what was t effect of the order passed in the rent proceedings.
It is conceded that if the finding of fact to be recorded is that the deceased had not left any estate, then the petitioners could not be -impleaded. The questions hay not been gone into at all by any of the leaned Courts below and, as such, the jurisdiction was exercised by them illegally and with material irregularity. In these circumstances, there is no alternative but to quash the impugned orders and to remand the matter to the trial Court for consideration afresh in accordance with law.
Order accordingly. The petition is accepted in the terms noted above without any order as to costs.