' This is a First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 against the order dated 19-5-1982 passed by the learned XVth Senior Civil Judge/A.S.J. and Rent Controller, Karachi in Rent Case No.3208 of 1981 ordering the ejectment of the appellant from the premises in question.
2. The facts leading to the present appeal are that the respondents who are the owners and landlords of four-storeyed residential-cum commercial premises filed ejectment case bearing No.3208 of 1981 against one of his tenants Ali Muhammad for eviction on the grounds of default in payment of rent and reconstruction of the building. During the proceedings the ground of default was given up by the respondents and the case proceeded only on the ground of reconstruction of the building in question.
3. At the outset it may be mentioned that the notice of he application filed against Ali Muhammad was received by his son Haji Abdul Karim who filed written statement and also an affidavit in evidence in the name of All Muhammad without disclosing either in the Written Statement or the affidavit in evidence that Ali Muhammad had already died before the institution of ejectment proceedings. This fact for the first time came to the notice of the respondents and the learned Controller during the cross-examination of Haji Abdul Karim son of Ali Muhammad. Notwith - standing the same an ejectment order dated 25-5-1982 was passed by the learned Rent Controller against Ali Muhammad.
4. Mr. M.S.Nizamani, learned counsel for the appellant has contended before me that the ejectment proceedings resulting in the passing of the impugned order are illegal, incompetent and nullity in the eye of law as the said ejectment case was filed by the respondents against a dead person namely late All Muhammad, the original tenant. He relied on a case reported as Mehr Muhammad v. Deputy Settlement Commissioner and others 1979 SCMR 182.
Mr.Saeed A. Qureshi, learned counsel for the respondents did not dispute the factual position as to the death of Ali Muhammad, the original tenant of the respondents before the institution of the ejectment case. He, however, contended that his son Haji Abdul Karim who is the present appellant had participated in the proceedings in the Lower Court and as such the said plea is not available to him in this appeal. He further contended that the proceedings before the Rent Controller are not judicial in nature and as such this could be said merely an irregularity and not illegality vitiating the proceedings. He relied on a case reported as Khadim Mohy-ud-Din and another v. Ch.Rehmat All Nagra and another PLD 1965 SC 459. He also relied on a case reported as Fatima Bibi etc. v.
Jamilur Rehman PLD 1982 Quetta 7. Lastly he contended that the appeal itself is not maintainable as the appellant Haji Abdul Karim was not a party to the proceedings in the Lower Court.
6. There can be no cavil on the proposition as held by the Honourable Supreme Court that the Rent Controller is not a court in the accepted connotation of the term but he definitely acts in a quasi- judicial capacity. He is, therefore, bound to observe the recognized judicial principles while deciding an ejectment case. Admittedly All Muhammad had died before the institution of application for ejectment against him under section 15 of the Sind Rented Premises Ordinance, 1979. It is well-established that any order passed against a dead person is a nullity in the eye of law, specially when four or five years before the institution of the ejectment proceedings against him he had already expired as confirmed and stated by his son Haji Abdul Karim before the Rent Controller during his cross-examination. In this view of the matter the ejectment order passed by the learned Rent Controller cannot be allowed to stand as it was passed against a dead person.
7. The case relied on by Mr.Saeed A. Qureshi PLD 1982 Quetta has no application to the facts of the present case. In the said case the point was that the minors, though sued through their mother, had not been represented by guardian ad litem properly, as there was no order to that effect passed by the learned Rent Controller. It was, thus, held that the non-compliance of Order XXXII, C.P.C. was merely an irregularity.
8. The other contention of Mr.Qureshi about the incompetency of the appeal as the appellant was not a party in the Lower Court has also no force. Admittedly the application for ejectment was filed against a dead person and the order passed thereon against the dead person is a nullity in the eye of law. The appeal as such cannot be preferred by the said dead person. Admittedly the present appellant is a tenant as defined under clause (j) of section 2 of the Ordinance. He, being in possession of the premises in question, is one of the legal heirs of the deceased who was the original tenant of the respondents, and he is the person, as heir of the deceased tenant Ali Muhammad who will be affected by the impugned order. It was held in the case reported as Mr.Manzur Qadir v. Mst.Amtul Hussain and 2 others PLD 1971 Lah. 537 as under:- ordinarily, no person, unless he is a party to the proceedings in the Court below, is entitled to appeal. But in exceptional cases, a person who is not a party to the proceedings in the lower Court, may prefer an appeal with the leave of the appellate Court, and such should be granted, if he would be prejudicially affected by the judgment appealed against."
9. I, therefore, in the fair administration of justice allow Haji Abdul Karim to prefer this appeal. For this view I am also strengthened by a decision of the Honourable Supreme Court reported as S.M.Saya & Co. ,Karachi v. Wazir Ali Industries Ltd.,Karachi and another PLD 1969 SC 65 wherein it was observed that-- "If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding."
10. For the reasons discussed above I set aside the impugned order and allow this appeal but in the circumstances there will be no order as to costs.
11. Before parting with the case I would like to observe that since I have allowed this appeal on the ground that the impugned order having been passed against a dead person is a nullity in the eye of law, I have not considered it proper to decide this appeal on merits as the judgment passed by the learned Rent Controller in so far as the merits of the case are concerned will have no significance as they were recorded against a dead person. The respondents will however, be at liberty to file fresh application for ejectment against the heirs of the deceased tenant.