1. NASIM HASAN SHAH, J.--The facts of this case briefly stated are that the appellant had let out a shop and a house, which he had earlier purchased from one Musa Jan, on a monthly rent to him.
2. However the said tenant allegedly committed default in the payment of rent from September, 1968 to February 1969. He, therefore, decided to file an ejectment application against him but before he actually could do so the tenant, Musa Jan, unfortunately passed away. Consequently, he filed an application before the Rent Controller (on 13-3-1969) for the eviction of his to widows, who, according to the appellant were the only surviving tenants under the law after his death.
3. During the proceedings before the Rent Controller, Abdul Rashid, the respondent herein, and his brother Jan Muhammad made an application on 30-3-1971 for being joined as parties claiming that being the sons of Musa Jan's brother they were legal heirs and the tenancy right in the demised premises also accrued in their favour. Abdul Rashid respondent further claimed that he was living in the house with Musa Jan and he would be adversely affected if the decision in the case was against the widows and he was, therefore, a necessary party to the proceedings.
4. The Rent Controller, however, by his order dated 2-3-1972, rejected the application of Abdur Rashid respondent mainly on the ground that the nephews of the deceased-tenant were not the tenants within the meaning of section 2(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and hence they were not necessary parties. No appeal was filed against this order and Abdur Rashid respondent continued to appear and participate in the proceedings as the attorney of the widow tenants. These proceedings unfortunately dragged on and during these protracted proceedings both the widows expired; one died in 1975 and the other in 1978. However, the Rent Controller continued to proceed in the matter and finally, by a consolidated order dated--28-2-1983 passed in both the cases, directed that the possession of the demised premises be handed over to the appellant herein.
5. Feeling dissatisfied, Abdur Rashid respondent challenged' the said order of the Rent Controller by to separate appeals before the Baluchistan High Court. These were allowed by a consolidated judgment passed by a learned Single Judge of the said Court dated 19-9-1984. The learned Judge in the High Court was of the view that as the order of the Rent Controller was passed against a dead person, which was nullity in law, it was not capable of execution. The learned Judge further observed that after the death of the widow, the proper course for the Rent Controller was to have allowed the legal representatives of the deceased ladies to be brought on record and he should have proceeded with the matter thereafter. On this view of the matter he allowed the appeals by his order dated 19-9-1984, set aside the order of the eviction passed against the respondent observing that the appellant may seek his remedy available under the law for possession of the premises. Hence this appeal, by leave of this Court.
6. Mr. Yahya Bakhtiar, learned counsel, appearing in support of this appeal, submits that Abdur Rashid respondent had no locus standi to file appeals against the order of the Rent Controller dated 28-2- 1983 as his application for being joined as a party had earlier been rejected on the ground that he was not a necessary party to the proceedings, not being a tenant within the meaning of section 2(i) of the Ordinance.
7. The learned counsel also relied on the judgment of this Court in Muhammad Mobin Siddiqui v. Mst.
8. Shahzadi Begum and others 1982 SCM R 233 and contended that a person whom the Rent Controller has refused to make a party on his application under Order I, rule 10, C.P. C. On the ground that he cannot be deemed to be a tenant and he has not filed an appeal against such a refusal of his application by the Rent Controller, he cannot subsequently file an appeal against final eviction order of the Rent Controller. In this connection, he relied upon the following observations made in the said judgment:- "This argument has no force because after the decision of the preliminary issue holding that Mobin Siddiqui was not a tenant under Mst. Shahzadi Begum, he was no longer a party to the case. If he at all wished to contest the matter further, he should have filed an appeal against the aforementioned order of the Rent Controller dated 31-5-1978 because as far as he was concerned that was the final order in this case. Not having done so he was not entitled now to file an appeal against the order of ejectment before the Additional District Judge and the High Court, as he was not a party to the case in which that order was passed."
9. Mr. M.A. Rashid, learned counsel for the respondent has no satisfactory answer to this contention.
10. He, however, pointed out that although the High Court by its impugned judgment had disposed of to appeals filed by Abdur Rashid, the appellant had filed only one appeal in this Court and it was not clear as to against which of the to appeals filed in the High Court the present appeal in this Court was directed.
11. We consider that in view of the opinion expressed by this Court in Mobin Siddiqui's case the contention that Abdur Rashid had no locus standi to file an appeal before the High Court must succeed and, therefore, the order of the High Court cannot be sustained and is liable to be set aside on this short ground alone.
12. As for the plea that only one appeal has been filed against the order of the High Court disposing of to appeals, suffice it to say that both the appeal were disposed of by a consolidated judgment and the appeal filed in this Court challenged the judgment of the High Court in its entirety. It is true that to appeals should have been filed by the appellant for this purpose. But this objection is only of a technical nature. The present memo. Of appeal is treated as memo. In both the appeals but the appellant shall have to make up the court-fee by tendering additional court-fee in respect of the other appeal.
13. This appeal, subject to compliance with the above direction, is allowed and the impugned judgment of the High Court is set aside. The parties, however, are left to bear their own costs.