1. ' The appellant purchased jointly with his brother Jamil Ahmed property bearing No, C.S. No, 541 situated at Khisakpara, Mirpurkhas. This property was purchased from Naraindas who had inherited it from his predecessor Ramchand Manimal. One Mughal Abdul Shakoor the predecessor-in-interest of the respondent was a tenant of Naraindas in respect of the above property. The appellant, therefore, served upon him a notice, dated 17th June, 1973 asking him to attorn and to pay rent to the new owner. After a private partition between the appellant and his brother the disputed shop fell in appellant's share and, therefore, notice, dated 1-7-1974 was again served asking him to attorney to the appellant as its full owner and to pay rent to him. As the said tenant failed to pay the rent the appellant filed ejectment application against him alleging default in payment of rent (i) Rs,30 per month from 15-6-1977 to 31-1-1975. He further alleged that he being homoeopathic doctor requires the shop bona fide for his dispensary. The respondent's predecessor filed written statement denying all the allegations and pleaded that he was occupying shop bearing Custodian No, B-417 corresponding No, 1-CS-541 for the last 20 yeaRs, He further denied that relationship of landlord and tenant, either statutory or contractual, exists between the parties.
2. It was further alleged that the said partition between the brothers is forged, false and fictitious and that the property forms part of compensation pool and it cannot be transferred to the appellant.
3. The learned Controller framed the following preliminary issues:-
(1) Whether appellant is owner of premises and there is relationship of landlord and tenant between him and opponent?
(2) Whether the application is barred under the law?
(3) Whether the application is not maintainable in law?
(4) What should the order be?
4. ' The parties produced evidence before the learned Controller who came to the conclusion that as the title of the appellant was considered defective by the Deputy Settlement Commissioner he should first get it clear and then institute the ejectment proceedings and further held that Court has no jurisdiction in the matter. It was further held that application is not maintainable. The appellant filed an appeal before first appellate Court which was allowed and the case was remanded to the Rent Controller for decision on the following issues:
(1) Whether property in question was or was not treated evacuee before 1-1-1957. If yes, whether the same was excluded from the compensation pool by competent authority?
5. ' During pendency of the first appeal Mughul Abdul Shakoor died and the application for bringing his legal heirs on the record was granted on 22-2-1979 and the following order was passed:- "Let the names of the legal heirs of the respondent be substituted in place of Mughul Abdul Shakoor with red ink, put off to 19-4-1979 for final arguments.'
6. ' It seems that the names of legal heirs was not substituted by the red ink and the matter proceeded and the legal representatives were represented by an Advocate who had filed power on their behalf. The learned first appellate Court allowed the appeal and remanded the case. The appellant after obtaining the certified copy of the order filed the present appeal against Mughul Abdul Shakoor. After admission, notice was issued in his name when it was reported that Abdul Shakoor was dead. The appellant filed an application under Order 1, rule 10, C.P.C. For bringing his legal heirs on record which was granted subject to all just exception.
7. ' Mr. Alvi the learned counsel for the appellant has raised preliminary objection that appeal is neither competent nor maintainable. It is further contended that the appeal against the respondent is barred by time. All these objections are based on the ground that as the appeal has been filed against a dead person there is no valid proceeding in law and, therefore, no order could be passed to bring the legal heirs on the record. In this regard the learned counsel has referred to Mehar Muhammad v. Deputy Settlement Commissioner and others 1979 SCMR 182 where it was held that a petition filed against a dead person is incompetent and any order passed op such petition is nullity in law, specially when long before institution of the proceedings against him he had already died. The learned counsel has relied upon Qazi Mehar Din v. Murad begum PLD 1951 B J 1 where it was held that an appellate Court has no power to add as a respondent, a person who was a party to suit and against whom the appeal is barred. The learned counsel contended that as appeal against legal heirs of the Mughul Abdul Shakoor who have now been joined as respondent has become barred by time they cannot be made as respondent. Reliance was also placed on Municipal Corporation of Karachi v. Baradio Jumoo Mughal AIR 1946 Sind 20 where it was held that where a suit is filed against a dead person the Court has no jurisdiction to grant an application under Order I, rule 10, C.P.C. Or under Order XXII, rules 4 and 9, C.P.C. Mr. Abdul Matin the learned counsel for the appellant has contended that in the present case the appellant was not negligent but he was misled by the certified copy of the order of the Court and the moment he realized he made proper application. It is submitted that in the certified copy of the impugned order respondent has been shown as Mughul Abdul Shakoor and, therefore, the appellant filed appeal showing him as a respondent. The learned counsel contends that the discrepancy has occurred due to mistake of the Court which issued a certified copy with wrong title. Mr. Alvi contends that the appellant was aware of the facts that the respondent Mughal Abdul Shakoor has died and, therefore, the mistake of the Court, if any is of no consequence. Mr. Abdul Matin the learned counsel for the appellant has referred to Muhammad Sher v. Muhammad Khan PLD 1975 Lah. 1016 wherein almost similar circumstances the Court after very instructive and exhaustive discussion of various authorities and provisions of law observed as follows:- "There was a clerical mistake in the proceedings of the learned first appellate Court in that it failed to include the names of the legal representatives of Muhammad Khan, who had already been brought on record, as the respondents decree-holdeRs, It is not the case of the respondents that this mistake error was not an accidental slip or omission. It is also an admitted position that what the learned first appellate Court could do by way of correction can also be done by this Court.
8. Therefore, the decree can be corrected even in second appeal so as to include the names of the legal representatives of Muhammad Khan, This would be the correction of an accidental slip or omission resulting in a clerical mistake in a decree and shall be deemed to have been done under section 152 read with section 107, C.P.C. It could have been done at any time without the bar of limitation and even an application in this behalf was not necessary. Consequently upon the correction made under section 152, a further correction could have been made by this Court under section 153, C.P.C. In the proceedings in this second appeal, by way of correcting the names of the respondents so as to bring it in line with the position of parties as achieved by virtue of correction made in the decree under section 152, C.P.C. In Sher Muhammad and others v. Khuda Bux and another, it was held that sections 152 and 153 of the Code of Civil Procedure make it clear that even after a Court has disposed of a suit it can 'exercise powers under those sections and indeed a part of section 152 of the Code of Civil Procedure could come into play only after a suit, in the proceedings of which correction is sought, has been disposed because till except in those cases in which a preliminary decree has to precede the final decree as in cases for accounts. Sections 152 and 153 of the Code confer powers on Courts to make necessary corrections in their proceedings, orders, judgments and decrees, 'which powers are unlimited by the law of limitation or in any other manner', and those powers can be exercised even if no application in that behalf has been made to the Court. It was, however, further ruled that it is not necessary that the corrections under sections 152 and 153 would be made always when an application in that behalf is made, without regard to the circumstances of the case. It was, for example, observed that the Court might be reluctant to exercise its unlimited but discretionary powers for the benefit of such a party who has not taken early steps for necessary correction. Nor will the Court effect amendments in its own proceedings, orders, judgments or decrees if the error is so insignificant that it could not cause any great prejudice to the party asking for the exercise of the power of amendment. 'If, however, a party has applied for amendment at as early a stage as possible and the error or omission, which can be corrected by amendment is of such a nature that it can adversely affect the party making the application, the Court will ordinarily exercise the power because, technicalities notwithstanding laws of procedure are meant for advancement of justice and not for denying it.' The principle that mistake of Court should prejudice no one was also reiterated. I am in respectful agreement with and adopt, the reasoning for application in the present case. On merits there is full justification for allowing the corrections. The appellant was not responsible for the clerical mistake committed by the staff of the learned first appellate Court while drawing the decree and likelihood of prejudice to him is undoubtedly there. He made the application for impleading the legal representatives of Muhammad Khan within reasonable time. Therefore, for these reasons also, with assumed correction of the decree under section 152, the applications for bringing on record the legal representatives of Muhammad Khan deceased are allowed by way of correcting the proceedings of this Court under section 153 read with section 107, C.P.C.
9. ' I am in respectful agreement with the above observation. Mr. Alvi relying on 1980 CLC 568 contended that as Code of Civil Procedure is not applicable to the present proceedings observations made in Muhammad Sher's case will not apply. It is correct that the provisions of C.P.C. Are not applicable to the rent proceedings before the Controller but its principles can be applied. However, it is pertinent to note that in view of explanation to section 15 of Sind Urban Rent Restriction Ordinance 1969 an appeal from the order of the Controller was to be heard and determined under section 96 of the Code of Civil Procedure and Part VI of the First Schedule to the said Code relating to appeals with such modifications as the context may require. Therefore, the observations made in Muhammad Shears case will apply to the present case.
10. In the present case I am convinced that the appellant was misled by the certified copy of the order and he made application for adding the legal heirs on record within a reasonable time. The preliminary objections of the learned counsel for the respondent are, therefore, overruled.
11. ' Now coming to merits of the case I find that the property in dispute which has been part of the property of Ram Chand Manjimal family has been subject-matter of litigation from 1948. There has been series of litigations up to Supreme Court and the status of their properties has been thrashed out. In this regard several proceedings and judgments have been referred by the appellant. I would particularly mention the judgment in Revision Application No, 423 of 1971 (Exh.43) passed by Durab Patel, J. (as he then was) in which entire history of the litigation has been fully discussed with reference to the judgments passed by the Supreme Court and the orders passed by various authorities from time to time. A perusal of this judgment makes it clear that when the property was sold to the appellant it was not an evacuee property. Mr. Matin has also referred to a judgment in C.P. No, 111 of 1975 passed on 18-4-1984 in which the nature and character of the property owned by this Hindu family came under challenge which has been dismissed. I do not wish to dilate upon the entire history of the litigation and discuss various orders and judgments in this regard as the same have already been discussed thoroughly by Dorab Patel, J. I am convinced that the property in dispute was not an evacuee property and was validly transferred to the appellant.
12. ' Mr. Alvi referred to section 23 of the Pakistan Administration of Evacuee Property Act, 1957 and contended that unless order for restoration has been obtained from the Custodian by mere declaration of the property as non-evacuee property, the property does not become non-evacuee.
13. In this regard the learned counsel has referred to 1979 SCMR 686 and 1981 CLC 1219. Section 23 will apply to the property which has been disposed of by the Settlement Authorities or in any other manner. In such circumstances after the property is declared non-evacuee property it becomes necessary that the non-evacuee owner should apply for the restoration of the property. In the present case it is not alleged that the property in dispute has been transferred by the Settlement Department. In the present case from Exh.31, a letter from the Deputy Settlement Commissioner, dated 20-4-1961 the Hindu owners were informed that their property has been excluded from compensation pool. A list of property was annexed with this letter which included property in dispute also.
14. ' The learned counsel for the respondent then contended that the order declaring the property non-evacuee did not specify the property, therefore, it was not a proper order. In this regard reference can be made to Zafarullah Khan's case where Cornelius C.J. Observed at page 874 that 'the order is silent as to the property, but that is immaterial for any property which can be shown to belong to the persons who had been declared to be non-evacuees would clearly be non-evacuee property.' I do not find any force in this contention as well. In the result the appeal is allowed the orders of the first Appellate Court and Controller are set aside. The case is remanded to the Controller to decide it on merits.