1. ' This IInd appeal has been filed against the two affirming judgments passed by the Rent Controller Karachi in Application No. 970/1979 and by the VIIth Additional District Judge, Karachi, in Appeal No. 603/1979 ordering ejectment of the appellant from Room No. 320 in building known as Qamar House, situated on M.A. Jinnah Road, Karachi. Briefly the facts are these:- ' Under a lease dated 11th July 1976 the premises were let out by the respondent, whom I would call landlord in this judgment, to an East Pakistan based Newspaper the Daily Azad Dacca whom I would call the Tenant. The tenant committed default in payment and ran in arrears of rent. This resulted in a grievance to the landlord. After exchange of notices between landlord and the tenant, the landlord filed an application for ejectment against the tenant. But before I persue the case on merits, I would quote a letter dated 16th November 1973, from one Muhammad Nafis who is respondent No. 2 in this appeal, to the landlord which runs as under:- "M/s. Qamardin & others, Karachi.
2. Sub. Disconnection of the Electric Line and Possession of the Room No. 320, Qamar House, Karachi.
3. ' Dear Sir, ' I have received your letter No. QH-320/311/73, dated 9th November 1973, in reply to my letter dated 16-11-1973.
4. ' In this respect, you asked me in your aforesaid letter that if I can't afford to pay the basic electric charges, I must vacate the premises.
5. ' In para. two of your letter, you have said that I am in arrears of 4 months rent which are to be paid within next one week failing which you will take legal action for ejectment against me.
6. ' It is not out of the way to mention here that due to fall of the East Pakistan I could not manage to maintain the office expenses and very much regret to write that I have also not received my salary at 585 per month since the fall of the East Pakistan which comes to about 10,000 and by handing over possession, I will suffer for my all the dues against the Head Office which will be a great loss to me. But, due to the unavoidable circum stances, I have decided not to go in unnecessary litigation with you as I have very. good relation with you and you have also supported me during these crucial periods in a most deserving manner which is unforgetable.
7. ' However, I have decided to handover the possession to whom you desire and the rent receipt you may change in the name of your desired person for which I will have no objection and also request you to please forgo all the due rents for which I will be thankful to you.
8. ' I will arrange to remove all the articles and fittings from the Room No. 320 with the co-operation of your new tenant and shall handover the possession to your desired tenant on hearing from your side in this respect.
9. ' I will be highly obliged if your goodself will very kindly let me know the name of the tenant to whom you have decided to let out the said room, so that, I will be able to give my consent in this matter.
10. Thanking you.
11. Yours faithfully Sd/- (MUHAMMAD NAFEES) Business Representative."
12. ' On 19th April 1974, Rent Application No. 979/1974, was filed by the landlord alleging that the "Opponents are constant and chronic defaulter in payment of rent and are at present in arrears for a period of eight months i.e. from 1-8-1973 to 31-3-1974 amounting to Rs. 1,047.80 and they have also failed to make payment of electricity charges payable by them amounting. to Rs.
13. 39.48 upto February, 1974." Sometimes later, Zakir Ali son of Ghulam All calling himself as Incharge of M/s. Daily Azad Dacca desired to be joined as a party in the proceedings. He filed an application under Order I, rule 8(1), C.P.C. praying that "Honourable Court may be pleased to accord permission to defend the interest of the Daily Azad Dacca as he being the sole incharge of the said office since September 1973. The business representative of the said firm namely Muhammad Nafees who claimed fraudulently as such was ousted in September 1973, due to his misdeeds. He has no concern whatsoever with the said firm Daily Azad Dacca these days." The learned Rent Controller passed an order which runs as under:- ' ORDER ' Heard the learned counsel for the parties. In view of the fact that after creation of Bangladesh the opponent/tenant "Daily Azad" having its Head Office at Dacca has lost all its control over the branch office at Karachi, but the employees of Karachi branch want to contest the ejectment proceedings. This application has been filed by the intervenor Zakir Ali who also claimes to be the employee of it verified from the list of employees which has been brought on record. It is contended that one Nafees who is also employee is actually against the interest of the opponent/tenant in collusion with the applicant/landlord therefore, the intervenor has expressed that in order to safeguard the tenancy right of M/s. Azad Dacca he is a necessary party.
14. ' After hearing the learned counsel for the parties and from perusal of the contents of the application and affidavit, I hold that the Intervenor is also a necessary party interested in the proceedings being one of the employees of Daily Azad Dacca. I also order that Muhammad Nafees should also be impleaded as opponent.
15. ' Order passed in the open Court.
16. Sd/- 23/5.
17. ' Accordingly he may be impleaded as one of the opponents. Amended application is to be filed by the applicant within one month."
18. ' As a result, on 5-9-1975, an amended rent application was filed by the landlord in which the Daily Azad Dacca as well as Mr. Muhammad Nafees and Mr. Zakir Ali were shown as opponents. It was clearly stated in this application that "Opponents Nos. 2 and 3 are not tenants of the applicant but have been joined as party to the proceedings".
19. ' That learned counsel for the landlord argues that Daily Azad who are the real tenant never appeared nor indeed any one duly authorised by them has contested the case. The contest for whatever it is worth has been put up by Zakir Ali. It is further to be noted that even this Zakir Ali has disappeared after he was joined as a party and a third person has now appeared on his behalf holding a power of attorney from Zakir Ali. This new person is Mr. Riasat Hussain and he has signed the Memo. of Ilnd Appeal and also the Vakalatnama. Further probe in the papers revealed that the photostat copy of the power of attorney in his favour executed by Zakir All simply authorised him to look after the interest of Zakir Ali.
20. ' A few lines from this power for ready reference is that "due to my engagements of routine office and outdoor work I am not able to attend the Courts and the present appeal or any other Court proceedings that may further arise therefrom." and therefore, "appoint and nominate and constitute Mr. Riasat Hussain son of Nawab Ali, Muslim, Adult, resident of Karachi to be my true and lawful attorney in my name and on my behalf." The above would show that Zakir All appointed Mi.
21. Riasat Hussain to defend the case on behalf of Zakir All but there is nothing to be defended so far, as Zakir Ali is concerned. He was made a party at his own request otherwise no claim is raised against him by the landlord and nothing is to be contested so far as he is concerned.
22. ' To resume the discussion on merit it may be stated that the Rent Controller passed an order dated 17th September 1979 whereby he allowed the landlord's ejectment application and directed that the applicant be put in vacant possession of the premises. The learned Rent Controller in his order has disposed of the following issues:-
(1) Whether the opponent is a lawful defaulter?
(2) Whether the opponent 2 had any right or authority after August 1973, to act for or on behalf of the opponent No. 1, if so, what its effect?
(3) What should the order be?
23. ' While disposing of Issue No. 1, the Rent Controller has found that there was a clear default in payment of rents. That this default could not be condoned on account of fall of East Pakistan because "the fall of Decca occurred in 1971, whereas the opponent No. 1 was paying rent till 1973, and default started from August 1973." In answering Issue No. 2, the Rent Controller observed that "Opponent No. 3 had failed to prove by any sort of evidence that he had any authority or right after August 1973, to act,on behalf of the opponent No. 1, when the opponent No. 1 and their authorised agent had showed its inability to pay the rent and retain the premises in case.
24. ' An appeal was filed against this order which was registered in the District Court and was disposed of as Rent Appeal No. 603/1979 by VIIth Additional District Judge, Karachi. Let me quote few lines from the judgment of the learned A.D.J. to show what was the main consideration in the case, at the first appellate stage. The learned Judge has observed as under:- "Mohd. Nafees and M/s. Daily Azad Dacca did not contest the matter, while Zakir All filed his written statement admitting the tenancy of M/s. Daily Azad Dacca but denied the allegations of default in payment of rent. According to Zakir Ali he has paid all the arrears of rent from August 1973, to November 74, and has been depositing rent regularly in compliance of rent order date 5-12-1974.
25. He stated that due to fall of Dacca Mohd. Nafees misappropriated the funds of M/s. Daily Azad and in collusion with the landlord wrote a letter dated 10-9-1973 that the opponent are not in position to pay the rents and left opponent 4 after August 1973. He pleaded that thereafter he tendered rent from September 1973 by Money Order and tendered rent in person to landlord but they refused to accept it."
26. ' The learned Judge then proceeded to deal with the question of default in the following words:- "On the point of default, which in fact has been established by the evidence on the record and the dishonoured cheque Ex.A/5, and A/6. The evidence of Qamaruddin has gone unchallenged on the point of default who has deposed that appellant No. 1 has not paid any rent from August 1973, to March 1975 till the filing of the rent case. ...............................The counsel for appellant has contended that the default should not be treated as wilful default because of fall of Dacca in December 1971. I see, no substance in this argument as the landlord has established the default against the appellant No.
1. Zakir All has failed to prove by evidence that he had any authority or right after August 1973, to act on behalf of the appellant No.
1. The findings of the Rent Controller under all issues do not call for any interference."
27. ' These two concurrent findings concluded the case on merits and in the Ilnd appeal the learned counsel for the appellant has not contested these findings. In this appeal the learned counsel has confined his argument to the question of validity of the two judgments on the ground that after fall of Dacca the premises in question became abandoned property and two learned Courts below had no jurisdiction to entertain this application, adjudicate upon the controversy and pass any order disposing of this dispute. In support of his argument the learned counsel has relied on section 2 clause (a) of Act XX of 1975, Abandoned Property (Taking over and Management) Act 1975, published in Gazette of Pakistan extraordinary Part I on 17th February, 1975. This subsection gives the definition of abandoned properties as follows:-
(a) "abandoned property" means any property, movable or immovable (including share in industrial units and firms, investments, deposits, policies of insurance and all other interests and rights in or to or arising out of any such property), belonging to a specified person and includes any such property sold or transferred to, or placed under the supervision or control of, any other person on or after the sixteenth day of December 1971, but does not include any ornaments or wearing apparel or any cooking vessels or other household effects in the immediate possession of a specified person, not exceeding a total of rupees one thousand."
28. ' Learned counsel contends that the tenancy rights became abandoned property and vested in the Federal Government by force of section 3 which reads as follows:- "All abandoned property shall vest and shall be deemed always to have vested in the Federal Government on and from the 16th day of December 1971."
29. ' To have an idea how the abandoned property was to be dealt with reference to a few more sections in the Act would be necessary. Under section 4 of the Act, a board of trustees is to be appointed by the Federal Government for the control and management of abandoned property.
30. This board "in discharging its functions shall be guided on question of policy by the instructions, if any given to it by the Federal Government which shall be sole judge as to whether a question is a question of policy." Under section 5 of the Act, "the Federal Government may, by notification in the official Gazette, appoint an Administrator for Pakistan and one or more Deputy Administrators for such areas as may be specified in the notification." The Administrator shall exercise his powers and perform his functions subject to the general supervision and control of the Board and shall be guided by any general or special order made by the Board.
31. ' Section 6 provides:- "That every person who is, or has at any time after the sixteenth day of December 1971, been in possession, supervision or management of any abandoned property shall be deemed to hold or to have held, as the case may be, such property on behalf of the Board."
32. Such a person who was in possession of abandoned property was supposed to furnish "full information relating to such property, including the date since when or the period for which he had been in possession, supervision or management thereof and submit a detailed account of rents, profits, income and other moneys received or benefits derived from such property since the 16th day of December 1971." Failure to intimate and get confirmation of the administrator for retaining the possession or any right in the abandoned property would entail forcible ejectment of such a person and acquisation of the property by the Administrator under section 7 of the Act.
33. ' Section 10 provides:- "That property which has vested in the Federal Government or of which possession has been taken by the Administrator shall be exempted from all legal process, including seizure, distress, ejectment, attachment, or sale by any officer of a Court or any other authority and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority, and the Federal Government shall not be divested and the Administrator shall not be dispossessed of such property by operation of any law for the time being in force."
34. ' Learned counsel contends, that on account of the bar, provided in section 10 quoted above the two Courts below had no jurisdiction to pass the order under appeal. In the present case an East Pakistan based newspaper had its office in this part of the country and after fall of Dacca all that was left here was nothing but liability to pay rent. No doubt tenancy rights are valuable rights and in certain case may be a subject-matter to attract the attention of the functionaries under the Abandoned Properties Act. But what happened in this particular case is sufficient to indicate that Administrator of abandoned property was not interested in undertaking the liablity or for that matter the assets in the shape of tenancy rights of the tenant. It is pointed out by the learned counsel for the respondent that on 20-8-1975, he moved an application under Order VI, rule 17, C.P.C. seeking permission of the Court to "allow the Applicants to amend the application by joining the administrator of the abandoned properties because the Opponent has got its Head Office at Dacca, former East Pakistan, and now Islamic Republic of Bangladesh." Another application under Order I, rule 10, C.P.C. was moved by the landlord in which it was prayed that "the administrator of abandoned properties be added as Opponent because the Head Office of the Opponent is situated at Dacca, formerly East Pakistan, now Islamic Republic of Bangladesh, and whose presence before this Hon'ble Court is necessary in order to enable this Hon'ble Court to effectually and completely adjudicate upon and settle all the questions involved in the above ejectment application". The Court issued notices of both these applications to the administrator of the abandoned property. The administrator was duly served. The order sheet of 15th April, 1976 shows the following noting:- "15-4-1974 ' P.O. is under transfer. Parties Advocates are present. A/D received and filed.
35. ' One Advocate is present on behalf of the administrator of abandoned property he had stated that he will file power on the next date of hearing. Put off to 14-5-1976 for Hg of appl: Sd/ Ist.R.0 ' The case was adjourned to 12-7-1976 and following order was passed:- ' Mr. Salim Advocate for applicant is present. Mr. Muhammad Nabi Bux Advocate for intervenor/opponent Zakir All is present. The another intervenor Muhammad Nafees is called absent. Both the Advocates state that Administrator abandoned property had appeared....illegible....and did not submit any statement showing any interest. Hence there is no need to join him as party. Both the counsel suggest the framing of issues after submission of amended written statement by intervenors/opponents. Put off to 20-9-1976 for this purpose."
36. ' This objection was raised before the learned First Appellate Court also. It was argued there by the learned counsel for the applicant that as the administrator had chosen not to treat this property as abandoned property, as is evident from the fact that it was not published in the official Gazette, the property did not vest in Federal Government. As such the jurisdiction of the Court was not barred in respect of this property. The 1st Appellate Court has disposed of these contentions in the following manner:- "Learned counsel for the respondent argued that the property in dispute does not vest in the Federal Government nor the appellant in the absence of any such notification can claim the benefits of the provisions of Act XX of 1975. The learned counsel has further pointed out that even otherwise, the tenancy right is not incorporated in section 2(a) of the Act, as such the provisions of the Act are not applicable. I have considered this point and has gone through the provisions of Act XX of 1975, and I am of the view that it was for the appellant to establish that the property in dispute vests in Federal Government.
37. ' For the facts and reasons stated above, I fully agree with the contention of the counsel for respondent that the jurisdiction of the Court below as well as of this Court is not barred."
38. ' I am afraid it is difficult to agree with the finding of the learned Court that merely because administrator has not published this property in the official Gazette, the property would lose its character of abandoned property even if otherwise it qualifies to be so. It appears to me that the purpose of a public notice was to inform general public which property or which assets were being treated by the Government as abandoned property, so that any person interested in the property may peruse any remedy which he may choose to take.
39. ' Section 11 is as follows:- "Publication of list of abandoned property.-- The Administrator shall publish, by notification in official Gazette, a list of abandoned property in any area."
40. ' It cannot be said that if the Administrator has failed to publish any property it would cease to be abandoned property a character which it acquires by virtue of its definition under section 2(a) of the Act. Nor the contention that the tenancy rights are not covered by the definition has any merit.
41. The words "Any property movable or immovable and all other interests and rights in or to or arising out of any such property belonging to a specified person" are extensive enough of the tenancy rights as well.
42. ' In my humble opinion the property became abandoned property and could be claimed and acquired by the Administrator as stated above. But in this case a notice was issued to the administrator and he entered appearance. But it appears that he did not show any interest and the matter proceeded against the occupant (Zakir Ali) who were E and are holding possession of the premises without any authority from the original tenant or for that matter without any authority or right from the Administrator Abandoned Property "to hold, occupy, supervise or manage" this property in terms of section 6 of the Act. In this situation the plea raised by the appellant No. 2, Zakir All is not available to him. He cannot shield his unauthorised possession by pressing into service section 10 of the Act. The Administrator of Abandoned Property would be the proper person to seek relief if any available to him under the law.
43. ' In this view of the matter the conclusions drawn by the learned 1st Appellate Court are not without any basis and cannot be set aside. On merits the original tenant was found to be in default and from the landlord's point of view neither they nor indeed the Administrator Abandoned property seem to be interested in retaining this property and as such the appellant No. 2, has no right to remain in possession.
44. ' The appeal is, therefore, dismissed with costs. The respondent is entitled to get possession in terms of the order of Court below, within one month from the date of this order. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.