Muhammad Ishaq (hereinafter called the landlord) filed an application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance (Ordinance VI of 1959), against Maula Bakhsh (hereinafter called the tenant) from Shop No. P-23/B, situated in Aminpur Bazar, Layallpur. The learned Rent Con--troller, on the 30th of January 1963, directed the tenant to deposit arrears of rent and also the future rent in the terms mentioned by him in his order of the said date.
As the said order was not complied with, an application was made by the landlord to strike off the tenant's defence. This application was rejected by the learned Rent Controller on the 15th of July 1964. Against the aforesaid order, the landlord filed an appeal which was accepted by the learned District Judge, Layallpur, by means of his judgment dated the 27th of November 1964. Holding that the tenant had defaulted in the deposit of rent, he struck off the defence of the tenant and directed him to put the landlord in possession. The tenant has come up in second appeal against the last mentioned order of the learned District Judge.
2. During the pendency of appeal in this Court Muhammad Ishaq, landlord, died on the 19th of tune 1967. On the 9tb of October 1967, the tenant-appellant filed an application being C. M. 1216/C of 1967, to bring his legal representative on record. In the said application, the learned counsel for the tenant added two notes. Note 1 reads as follows:- "That application is being made after some days after the expiry of 90 days provided in civil cases but C. P. C. And Limitation Act do not apply in proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959 or in the alter--native their penalty sections do not apply and therefore, there has been no abatement of the appeal. For this reason, only application for impleading legal representatives is being made and not application to set aside abatement or any ancillary application."
Note No. '' reads as follows:- "That applicant (appellant in S. A. O.) lives in the City of Layallpur while respondent Muhammad Ishaq lived in village Chak No. 1 J. B. Tehsil and District Layallpur, which is situated at a distance 15/16 miles from Layallpur City, and, therefore, applicant-appellant could not come to know of death of Muhammad Ishaq. Nobody informed the applicant-appellant about death of Muhammad Ishaq. It is only when on 2-10-1967 when the counsel appointed by Muhammad Ishaq made a statement to that effect before Mr. Justice Sher Bahadur, that the applicant-appellant came to know of the death of Muhammad Ishaq. Applicant-appellant after returning to Layallpur, made visits every day to said village but either no responsible person was present or inhabitants did not answer the queries made by applicant in that respect. It is only after 4/5 days of continuous struggle and successive visits to that village that applicant has been able to collect all the necessary details to file this application. Hence this delay in filing that present application, which is not intentional in any way whatsoever."
3. Notice of this application was directed to be issued by an order of this Court dated 11-10-1967.
This appli--cation has been contested by the legal representatives of the deceased-respondent and their learned counsel Mr. Jariullah Khan has filed a written reply supported by an affidavit sworn by Abdul Hamid, one of the legal representatives of the deceased landlord.
4. The first question which arises for consideration is as to whether the appeal in this Court has abated or not and secondly, even if it has abated, whether there are sufficient grounds to set aside the abatement and bring the legal repre--sentatives on record. On the first point, learned counsel for the appellant argued that according to Note. No. 2, appended to his application hereinbefore mentioned, the appellant had no knowledge about the death of the deceased, Muhammad Ishaq, and that his client learnt it only in Court on 2-10-1967. The contents of the note, referred to above, are not supported by any affidavit and cannot be given any serious credence. Even otherwise, the Note does not explain each day of limitation and is vague and too general. It mentions that the appellant had been making continuous visits to the village for 4/5 days and it was then with a great effort that he was in a position to collect the necessary particulars about the legal representatives of the deceased to file the application. It is not mentioned from whom the date was collected nor was it disclosed as to who was the person whom he met and who gave the necessary particulars. It is common, knowledge that in every village there is a Chowkidar and a Lambardar, both of whom are supposed to lay information about the death of a person in the village. It is not mentioned that the applicant-appellant contested any of these village officers and that they refused to give any information to him. The application (C. M. 1216/C of 1967) was filed in this Court on the 9th of October 1967, and it does not explain each day of limitation involved in the instant case. With the passage of so much time, even otherwise, the appellant has not taken care to put in an affidavit on the appellant, as contained in the aforesaid Note No. 2, especially when they had been denied on oath by Abdul Hamid, son of the deceased landlord. The result is that full effect shall have to be given to the aforesaid failure on the part of the appellant in not applying in time for bringing the legal representativesthe deceased landlord on record.
5. When confronted with the above situation, learned counsel took up the same position, which has been taker, by him in his Note No. 2, appended to the application under consideration. He submitted that the Code of Civil Procedure did not apply to a Rent Controller, nor to the lower appellate authority and from that point of view, since the Provisions Order XXII, C. P. C. Do not apply to the said functionaries, could not dismiss a cause on account of abatement due to the death of a party, in an, case, before them. Taking the argument further, he submitted that under section 107(2) of the Code of Civil Procedure, the appellate Court has the same power which the trial Court generally has and as a Rent Controller, according to his submission, could not give effect to the provisions of Order XXII, C. P. C., therefore, the High Court also cannot hold that any abatement has taken place. The contention is misconceived. So far as the High Court is concerned, the "Explanation" attached to subsection (4) of section 15 of the said Ordinance, clearly states that the appeals, by the High Court shall be decided in accordance with the: provisions of the First Schedule to the C. P. C. It is well-settled that while hearing appeals under the aforesaid provisions, of law viz. Orders XLI and XLII of the Civil Procedure Code, the High Court can give effect to the provisions of Order XXII,1 C. P. C., with the necessary modification by reading the word `appeal' for the word `suit' according to the context of each case. The net result of the discussion hereinbefore made will be that in accordance with the provisions of general law as well as the Code of Civil Procedure, when a party dies, the proceedings in the High Court in appeals under the aforesaid Ordinance] will abate, though the High Court will have the power to set aside the abatement and bring the legal representatives on record even after the period of limitation if sufficient cause in that behalf is made out. It, cannot be held, that the appeals before the High Court under the West Pakistan Urban Rent' Restriction Ordinance (Ordinance VI of 1959) will never abate.
6. The result is that the appeal shall have to be dismissed as abated. I order accordingly. There shall be no order as to costs. The stay order issued earlier shall stand vacated.