' This appeal under section 21 of Sind Rented Premises Ordinance, 1979, has been filed by the appellant against the ex parte order of ejectment, dated 25th November, 1982, passed by the learned Rent Controller, Karachi, in Rent Case No, 996 of 1981 filed by the respondent. The appellant claims to be tenant of the respondent in respect of the shop in question located in Liaquatabad, Karachi. It is the case of the appellant that in 1980, the respondent refused to accept the rent and demanded increase in the rent and the money orders sent by the appellant were refused by the respondent and in the circumstances the appellant started depositing rent with the Rent Controller from October, 1980 in Miscellaneous Rent Case No, 661 of 1980. It is further averred by the appellant that the respondent continued her tactics of harassing the appellant and even attempted to dispossess the appellant through unlawful means/force which forced the appellant to file a civil suit for permanent injunction in the Court of Civil Judge, Karachi, and the said suit was numbered as 4074 of 1980. On 30th November, 1980, Mr. Mukhtar A. Mughal, who was then appearing as the Advocate for the respondent/defendant in the said suit, filed the following signed statement before the learned Civil Judge :- "Statement at Bar.-I, the undersigned counsel of the defendants have been instructed by them to state before this Court that the defendants do not intend to dispossess/eject the plaintiff by using any unlawful force or without adopting due course of law. The defendants have further instructed me to file rent case for ejectment against the plaintiff. Hence this statement, Karachi dated : 30th November, 1980.
(Sd.)
Mukhtar A. Moghal, Advocate for Defendant"
' On this statement the Advocate, who was appearing for the appellant in that suit, endorsed his no objection and the learned Civil Judge, by order -passed on _the same day i,e, 30th November, 1980, disposed off the suit in the following words : - "In view of statement of defendants, plaintiff's suit stands disposed off."
3. After the aforesaid suit was disposed of pursuant to the statement made by the counsel then appearing for respondent, on 26th February, 1981 instant Rent Case No, 996 of 1981 was filed by respondent Mst, Kishwar Jehan against one Muhammad Piaray Khan as the opponent.- In para. 3 of the rent application it was mentioned that Muhammad Piaray Khan/ opponent had sublet the shop in question to the appellant Sharafuddin without the consent of the respondent. However, the present appellant was not made a party to the rent case and an ex parte order of ejectment was obtained and thereafter Execution Application No, 33 of 1983 was filed by the respondent on 6th January, 1983, on which the Rent Controller passed the order dated 9th January, 1983 admitting the execution application and ordered for issuance of writ of possession and the date was fixed as 18th January, 1983. The endorsement of the office at the back of the execution application shows that writ of possession was issued, on 16th January, 1983. On 18th January, 1983 an application for police aid was made on behalf of the applicant, which was granted on the same day by the learned Rent Controller. It is the case of the appellant that on 22nd January, 1983 at about 3-30 p.m. a bailiff alongwith police party came to the shop and forcefully ejected the appellant from the shop in question and removed/threw out all the articles which were lying in the shop in question causing damage to the articles as well as to the reputation of the appellant. The next day the appellant went to the Rent Controller's office and came to know about the passing of the ex parte orders.
After obtaining necessary copies the appeal has been filed. I have heard Mr. Rashid A. Razvi, learned counsel for the appellant and Mr. Dewan Bashir Ahmad Khan, who has appeared on behalf of the respondent.
4. Mr. Dewan Bashir Ahmad has not denied the statement, dated 30th November, 1980 made in writing by the counsel for the respondent in Civil Suit No, 4074 of 1980 on the instructions of the respondent. In my view in the presence of that statement on the basis of which the aforesaid suit was disposed off by the learned Civil Judge, Karachi, it was incumbent upon the respondent to have made the appellant a party to the rent proceedings. There were two parts of the statement made on behalf of the respondent in that suit. First was that the respondent will not take any action for dispossession/ejectment of the appellant except in due course of law and the second part of statement was that the respondent had instructed Mr. Mukhtar A. Mughal,. Advocate, to file a rent case for ejectment against the appellant. In these circumstances it is not clear how the ejectment case was filed by the respondent without making appellant a party to the same. It is unfortunate that the same counsel i,e, Mr. Mukhtar A. Mughal had appeared in the Civil Suit No, 4074 of 1980 and in the ejectment case for the respondent. Being aware of the statement made by him earlier, if the respondent had approached Mr. Mukhtar A. Mughal for filing a rent case, it should have been seen by Mr. Mukhtar A. Mughal that appellant was made a party, although shown as a sublettee.
5. Mr. Dewan Bashir Ahmad has raised the following contentions pleading that the appeal be dismissed :-
(a) The appeal is not maintainable inasmuch as the appellant was not a party to the ejectment case. Firstly, in view of the statement, dated 30th November, 1980, it was absolutely necessary for the respondent to make appellant a party even though as a sublettee. Secondly the appellant is, on the face of the record, an aggrieved party and entitled to file the present appeal.
(b) It was then contended that the appeal was time-barred inasmuch as the impugned order had been passed on 25th November, 1982 by'the Rent Controller, whereas the present appeal was filed on 24th January, 1983. In my view, the question of limitation does not come in the way of the appellant. It is apparent that the appellant has deliberately not made a party to the ejectment case and the object was that an ex parte order be obtained and the appellant be ejected without any prior notice of any proceedings. A fraud has been played upon the appellant and he has filed the appeal within two days of his being ejected from the shop in question and from the record it is apparent that he was not aware of any ejectment proceedings having been taken against him and the fact that any ex parte ejectment order had been passed against him.
(c) It was then submitted that the appellant was only a sub-letter and it was not necessary for the respondent to make the appellant a party to the rent proceedings.
In view of the statement, dated 30th November, 1980 of the Advocate of the respondent in the civil suit filed by the appellant, as observed earlier, it was absolutely essential for the respondent to make the appellant a party to the rent proceedings, although shown as a sub-letter. Contention of learned counsel for the respondent is misconceived.
In my view, ex parte order of ejectment and the consequential ejectment of the appellant from the shop in question has been obtained by playing a fraud on the appellant. The impugned order of ejectment, dated 25th November, 1982 is set aside and F.R.A. No, 69 of 1983 is allowed with costs.
The case is remanded to the Rent Controller for decision on merits. The appellant will be made a party to the proceeding for which an application will be filed by the respondent before the Rent Controller. After making the appellant a party to the rent proceedings, notice will be issued to the appellant and the case will be decided on merits according to law by the Rent Controller.
'C.M.A. No, 241 of 1983 is an application filed under section 144, C.P.C. Read with section 151, C.P.C. On behalf of the appellant with the prayer to direct the respondent to restore/hand over the possession of the shop in question to the appellant. Learned counsel for the respondent has opposed this application firstly on the ground that as the possession has been delivered and the case is being remanded to the Rent Controller, the possession may remain with the respondent and if the ejectment application is dismissed, possession can be restored. Secondly, it was contended that this Court is not empowered to pass any order for restoration. I find no substance in either of these two contentions. In the circumstances of the case where apparently a fraud has been played upon the appellant and he has been ejected summarily in the manner noted above, it is a fit case where possession should be restored to the appellant immediately. Further, under section 22 of the 1979 Sind Rented Premises Ordinance an order made by Appellate Authority can also be executed by the Appellate Authority.
' It is directed that the possession of the shop in question will be restored to the appellant on or before 15th March, 1983 and compliance will be reported by the respondent to this Court on or before 16th March, 1983.