1. ' One Akbar Ali filed ejectment application against Muneer Khan in respect of the disputed premises on the ground floor bearing No. 5 T.S.R. 9 Tayabjee Road, Karachi for committing default and subletting. Notice was issued to the said tenant. Before the Controller one Fazal Karim the Attorney of Muneer Khan appeared. The Advocate instructed by Fazal Karim filed power on 19-2- 1979 and the case was adjourned to 16-3-1979 for filing written statement. On that date the written statement was filed and the case was adjourned to 16-4-1979 for rent account. Thereafter, matter was adjourned from time to time and on 2-7-1979 rent order was passed and issues were framed.
2. It seems that while the learned Controller was writing rent order the Advocate for the appellant appeared. After framing the issues the hearing was adjourned to 20-9-1979 for evidence.
3. Thereafter, matter adjourned from time to time when on 15-2-1981 as appellant's Advocate was not present the respondents side was closed and hearing was adjourned to 1-4-1981 for filing affidavit of evidence by the appellant. The matter again adjourned to several dates and ultimately on 18-7- 1981 the appellant filed application for opening the respondents side. On 27-8-1981 an application was filed seeking permission to allow the appellant, the widow of Muneer Khan, to defend the matter. An affidavit of appellant was also filed in support of this application in which the following averment was made:-- "That I am the wife of the opponent and fully conversant with the facts of the case. That my husband Muneer Khan has died three months before at Hazara."
4. ' This affidavit was sworn on 19-9-1981. This application was granted on 11-4-1982 and the appellant's name was ordered to be inserted in the title of the application by red ink. It seems that thereafter, the appellant did not file any amended written statement. It may be stated that on 19- 9-1981 the appellant had filed her affidavit of evidence. On 11-11-1981 the Controller granted appellants application for reopening the appellants side but as the appellant did not appear to cross-examine the witness on several dates the respondents' side was again closed on 20-8-1982 and the matter was fixed for appellant's evidence. Although the appellant had filed her affidavit of evidence on 19-9-1981 she did not appear for cross-examination and the hearing kept on postponing. Finally on 8-9-1982 when the matter was fixed for cross-examination of the appellant she did not appear and an application was filed that as she cannot appear for cross-examination permission may be granted to file affidavit of additional witnesses on her behalf. This application was rejected and the appellant's side was closed. Finally the impugned order was passed on 3-11- 1982 and the ejectment was granted on the ground of default, but the plea of subletting was not upheld.
5. 'Mr. M.A. Qadri the learned counsel for the appellant has stated that Muneer Khan against whom the ejectment case was filed had died, as far back as on 24-11-1974. He has produced a photo copy of a certificate from a Union Council name of which does not clearly appear in the certificate. There is a faint stamp which is illegible. The Certificate was not produced earlier before the Controller. On the basis of this certificate the learned counsel has contended that the ejectment application was filed in the year 1978 when Muneer Khan was dead, and therefore, the entire proceeding filed against a dead man is a nullity and no order of ejectment could have been passed. In support of his contention, the learned counsel has relied on I L R 31 Mad. 86, AIR 1962 Maysore 293 and AIR 1962 SC 199. It was also contended that any order passed against a dead person is a nullity. There can be no cavil with the proposition of law advanced by the learned counsel for the appellant.
6. However, the question for determination is whether at the time when the ejectment application was filed Muneer Khan was dead. Mr. Halal the learned counsel for the respondents has objected to the production of the photo copy of the Certificate. A party is entitled to file additional evidence by making proper application and after it is granted by the Court, and opportunity is given to the other side to rebut that evidence. Mere filing of a photostat copy of a certificate by itself does not establish the fact stated therein unless such evidence has been admitted properly and document has been proved. This procedure has not been followed by the appellant, and therefore, merely on the basis of an inadmissible photo copy of the death certificate it cannot be presumed that Muneer Khan had died in the year 1974. In fact, this document cannot be looked into, at this stage as the mariner of production by the appellant is not proper and legal.
7. ' The second aspect of the case is that the appellant in her affidavit sworn on 19-9-1981, relevant part of which has been reproduced above, stated that her husband Muneer Khan had died three months before at Hazara. According to this statement he died some where in June, 1981. This statement completely contradicts the stand of the appellant before me. No explanation has been given about this averment in the affidavit. I am, therefore, not inclined to accept the photo copy of the death certificate produced by the appellant. Since it has not been established that Muneer Khan had died in 1974 the contention that the ejectment application was filed against a dead man is without any merits.
8. ' Mr. Qadri contended that Fazal Karim the attorney of Muneer Khan was in collusion with the respondent and allowed the matter to go by default, and that he has played fraud on the appellant. This contention does not seem to be correct. The first instance given by Mr. Qadri is that Fazal Karim had appeared before the Controller without notice having been served on Muneer Khan. The notice had been issued which was returned unserved with the remarks that Muneer Khan was not available. It is possible that Fazal Karim who admittedly was the attorney of Muneer Khan having come to know of the case appeared in Court, engaged a counsel and filed written statement. However, if all these allegations of fraud are correct, then this should have been alleged by the appellant in her application under Order I, rule 10, C.P.C. and for reopening her own side. It is strange that after being impleaded as party she did not choose to file any amended written statement. After the respondent's side was reopened, their witness was not cross-examined. In the affidavit of evidence filed by her the facts relating to fraud have not been alleged. The only averment made in the affidavit is that the respondent maliciously and knowing about the death of Muneer Khan failed to implead the appellant in the proceedings with the intention to obtain an ex parte order. It was pleaded that the rent was refused by the respondent, and the same has been deposited in Court. In fact the averments made in the written statement have been repeated in this affidavit. No allegation has been made that Fazal Karim has committed fraud in collusion with the respondent. Therefore, such contention at this stage is of no avail to the appellant.
9. ' The learned trial Court has examined the evidence of the respondents and even considered the plea raised in the written statement. After such assessment it was held that the appenant has committed default. In fact the learned counsel for the appellant has not challenged the finding of the Controller on this issue and confined on the contentions discussed above. From the facts brought on record, the default is clearly established.
10. ' Mr. Halai further contended that the finding of the learned Controller on the issue relating to subletting is erroneous. He has stated that the appellant had clearly alleged in her affidavit of evidence that the appellant or her husband are no longer in possession and some other persons are carrying on the hotel business. This averment has not been challenged nor any evidence to the contrary has been produced. In fact copy of the Miscellaneous Application No. 340/78 was produced before the Controller by the respondents in which Fazal Karim has claimed to be a tenant and in possession of the shop. This by itself proves that Fazal Karim is running the hotel. In that application he did not claim to be the attorney but has claimed independent right.' In these circumstances and in view of the fact that on this issue the) evidence of the respondents has not been challenged the subletting' seems to have been established.
11. ' The appeal is, therefore, dismissed Rent .