1. This is an application in constitutional jurisdiction by Muhammad Nawaz and others, tenants in occupation of Shop No. P/245, Saidpuri Road, Rawalpindi City and raises two points for consideration: (7) whether the death of landlord after he had obtained orders of ejectment a, from the Courts of competent jurisdiction under Rent Ordinance, pending exercise of judicial review, affects rights of his successors to execute orders of ejectment and recover possession of the demised premises; (2) whether orders of ejectment, on material placed before the Courts below, were competently, property and correctly passed.
2. Facts giving rise to the points raised, in brief are Muhammad Ibrahim was owner of Shop No.P/245.
3. Ghulam Rasool was the tenant in possession and paid rent to the owner-landlord. On the death of tenant, Muhammad Nawaz and others, petitioners became his successors-in-interest.. Owner applied to Rent Controller, Rawalpindi Urban Area to seek eviction of his tenants from the shop in dispute. Ejectment petition proceeded on personal requirements. It was alleged that the petitioner who was employed in the Railway as Tailor was due to retire on 2-9-1980 and after his retirement will require the shop for his own personal use, where he intended to carry on the business of tailoring. It was furher expressed that after retirement pension allowed to him may not be enough to provide adequate maintenance to him and his family and to augment resources, shop to run business therein was required. With these facts, owner went to the Court and prayed for ejectment of his tenants from the shop in dispute. Application was contested and in the statement of defence submitted it was pleaded that petition for ejectment was barred under section 14 of Ordinance VI of 1959; that it was defective for non-joinder of necessary parties as all the tenants had not been impleaded. On merits, facts alleged and set forth in the ejectment petition were also controverted.
4. Rent Controller, on pleadings, raised following issues:-
(1) Whether petition is bad for non-joinder of necessary parties? O.P.R.
(2) Whether the petition is barred under section 14 of Ordinance? O.P.R.
(3) Whether the petitioner requires the shop in dispute for his personal use in good faith? O.P.A.
(4) Relief .
5. On evidence produced before him, Rent Controller found for the landlord, accepted ejectment petition on 21-1-1982, directed ejectment of the tenants and gave them four months time to vacate and hand over possession of the shop to the owner-landlord. Appeal was filed against the decision of the Rent Controller in the Court of learned District Judge, Rawalpindi. However, it was heard and decided by a learned Additional District Judge and on 2-12-1982 appeal was dismissed and findings of Rent Controller were maintained. Petitioners were allowed three months more to vacate.
6. Not satisfied, an application to seek judicial review has been put in. It so happened that after this application was received in this Court and before it was admitted to hearing, Muhammad Ibrahim breathed his last and his legal representatives were substituted in his place. Death of the respondent ushered in a new development and provided altogether a different dimension to the case. Tenants were not slow to take advantage of this situation and pleaded that with the demise of the original owner who had succeeded to satisfy the learned Judges of the Courts below about his own personal requirements, the whole process had come to an end and the ejectment orders passed in his favour, lost their legal efficacy, in execution whereof tenants could not be dispossessed. To examine the point, constitutional petition, was admitted to hearing and execution of ejectment order stayed.
7. Maulvi Siraj-ul-Haq, Advocate addressed the Court on behalf of the petitioners. Raja Bashir Ahmad, Advocte represented the heirs of deceased and addressed arguments on their behalf. It was contended for the petitioners that since the shop was required by late Muhammad Ibrahim for his own occupation, his personal need disappeared with his death and his successors, could not, in law, avail of ejectment orders passed for the benefit of their predecessor, more so, when ejectment petition had proceeded not for the benefit of any of the male children of the deceased but for his own self. Learned counsel drew distinction in case of need for residential premises and that of non- residential buildings and argued that in case of non-residential premises, need for self-occupation disappears with the death of the landlord which may not be the case in respect of residential premises. It was stressed that it was a personal action and with the death, proceedings commenced with ejectment petition and culminating in final ejectment orders abated altogether and came to an end. In support, learned counsel relied on the case of Taiyab A. Kapadia v. Agha Zia-ud-Din Barni 1981 CLC 1267, Muhammad Ashraf v. Mst. Azizan and others PLD 1981 Lah. 201 Muhammad Ilyas v. Muhammad Shafi etc. PLD 1984 Lah. 404 and urged that distinct and different from the case of residential premises, need expressed by the landlord for himself in respect of shop could not survive his death, and, in case, his heirs or any one of them required the. Shop for their own use and occupation, it may provide them with a fresh cause of action, for which they were obliged to approach the Rent Controller afresh. For the respondents, it was argued, by Raja Muhammad Bashir, Advocate that when the cause of action had matured in an ejectment order, which in the hierarchy provided in Rent Laws, had attained finality, the principle of law given in cases cited for the petitioners may not apply and the correct rule of law to attract was that declared in Muhammad Saleem alias Seema v . Sardar through his legal representatives and others PLD 1984 Lah. 179, Messrs Ally Brothers and Company v. The Additional District Judge, Rawalpindi and 5 others 1983 CLC 1897, Muhammad Aslam (through his L.Rs) v. Wazir Muhammad PLD 1985 SC 46, Haji Ibrahim v. S. Rahmat Ullah (represented by his legal heirs) 1985 SCMR 241, Muhammad Shafi and others v. Muhammad Ilyas 1986 SCMR 451. It was also argued that petition in judicial review was not a continuation of Rent proceedings as an appeal from a civil action is.
8. Therefore, learned counsel submitted that in supervisory jurisdiction, High Court can only examine the decisions made by the subordinate Courts or Tribunal in relation to the material on which these were based and any change in events subsequent to the decision cannot and should not be noticed by the High Court so as to set at naught orders competently and correctly passed. Learned counsel, by reference to law declared by Honourable Supreme Court of Pakistan in aforenoticed cases argued that finality given to the ejectment order under section 15 (7) of the Rent Ordinance, 1959, which order was to be executed by Rent Controller as if it were a decree of the civil Court, was not at all affected by the death of decree-holder. Counsel submitted, that, on the death of Muhammad Ibrahim, all his rights including right to execute ejectment order and recover possession of the tenanted premises became part of the heritable estate of the deceased. On merits, it was contended by Maulvi Siraj-ul-Haq, Advocate that the findings of the Courts below on issue of personal requirement were outcome of gross misreading of evidence and that the owner- landlord failed to discharge the onus and prove that the shop in question was really required by him for his self use. It was argued that it may be a case of simple desire, but it was certainly not a case of bona fide personal need. Raja Muhammad Bashir, Advocate for the respondent defended the impugned orders and urged that findings of fact properly resolved on evidence adduced, by the Courts of competent jurisdiction, could not be re-examined in constitutional jurisdiction to substitute its own opinion and to arrive at different conclusions of fact: It was also argued that impugned judgments did not suffer from any error of jurisdiction or procedural law or that of misreading or misappreciation of evidence. It was further argued that mere fact that a different conclusion on the evidence was possible was insufficient to cause interference in supervisory jurisdiction.
9. After hearing learned counsel, examination of the record and the precedents relied upon by the parties, I find that this petition which is also concluded by findings of fact, cannot succeed and must be disallowed. It appears that Muhammad Ibrahim in the ejectment petition had sought eviction of the tenants on the ground of his personal bona fide need. Rent Controller found for him and held that he required the shop bona fide. This finding was maintained on appeal by Additional District Judge, Rawalpindi. Right to file appeal meanwhile had been abolished by the Legislature.
10. Obvious intent of law discernible appears to be that decisions in rent matters must be reached expeditiously and also end at the lower levels. However, from this, I may not be understood, to say that constitutional jurisdiction against orders passed under Rent Ordinance was not available under all circumstances. What I intend to convey is that scope of interference in constitutional jurisdiction with orders passed by the Courts/ Tribunals possessed of exclusive jurisdiction is governed by well-defined principles of law and the Courts of this country as well as those from foreign jurisdiction have from time to time, laid down some useful guidelines. However, neither this is an appropriate occasion nor do I intend to examine in depth the scope of interference in constitutional jurisdiction, but I do wish to say that the Court in issuing a writ of certiorari, acts in supervisory and not in appellate jurisdiction. One obvious consequence of this is that the Court will not review findings of fact properly reached. Cases of errors of law, jurisdiction, decisions given in breach of rules of natural justice as also cases of findings based on "no evidence" are some of the examples where interference could legitimately be made. But the mere fallacy or errors in appreciation of evidence, or drawing an inference from evidence could hardly provide an occasion for a suitor to ask for exercise of extraordinary jurisdiction. To these, acts of misreading/ non- reading of evidence, failure to notice and an act in accordance with the binding precedents of superior Courts, as also misapplication of Statute law may also be added as instances where interference in constitutional jurisdiction can be made available. It may be noticed that the Courts invested with powers to administer justice, undisputably a sacred trust, are obliged by compulsion of law both divine and Statute to carefully examine, analyse the evidence present before them, before they arrive at decisions. Every bit that has been placed before them has to be taken note of and given due weight. Absence of right of second appeal to this Court in rent matters has added further responsibility in this behalf. On scope of interference in rent matters. I cannot do better than to quote observations from their Lordships of the Supreme Court in Muhammad Sharif and another v. Muhammad Afza1 Sohail etc. PLD 1981 SC 246. Relevant to the case are the observations:- ....We have been noticing, of late, that notwithstanding the. Fact that the Legislature, in its wisdom, has abolished the second appeal in cases under the West Pakistan Urban Rent Restriction Ordinance and has made the orders of the District Judge as final, yet the parties, probably after obtaining legal advice, have taken to filing writ petitions in the High Court against the final order passed by the appellate Court, merely to take another chance or to delay their eviction, hoping that the matter shall take considerable time to be disposed of or that in any case the High Court while dismissing their writ petition may be persuaded to allow further time for vacating the premises-in-question. The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judge of the High Court take great pains to reappraise the evidence and to consider each and every contention raised by the petitioner's side before deciding the petition without realising that, more often than not, such petitions are merely a device to circumvent the amendment in the law and defeat the obvious intention of the Legislature, namely, a speedy determination of cases under the Urban Rent Restriction Ordinance.
11. Such frivolus aplications not only cause the poor litigants to incur necessary expenditure but also result in the waste of valuable public time and should, therefore, be discouraged by the High Court.
12. It has been repeatedly held that a tribunal having jurisdiction to decide the matter is competent to decide it rightly or wrongly and the mere fact that another conclusion could be arrived at from evidence does not make it a case for interference in the exercise of its constitutional jurisdiction."
13. Therefore, it could not be urged that on evidence, conclusions drawn were either incorrect or that the conclusions reached were not possible. On factual plane, therefore, I do not see any ground to interfere.
14. Now comes the legal proposition as to the effect of the death of the landlord qua rights of his successors. It is not in dispute that Muhammad Ibrahim was alive till after the decision of the appeal Court. Ejectment order, in terms of section 15 (7) of Ordinance VI of 1959 had clearly attained finality, of course, subject to exercise of powers of judicial review by this Court. In Muhammad Ashraf v. Mst. Azizan and others PLD 1981 Lah. 201, A. Rahman, J. Observed:- An order of ejectment passed against a tenant of a non-residential building, on the ground that the rented premises were required in good faith by the landlord for his own use, would not enure to the benefit of the legal representatives of the landlord after his death for another reason also inasmuch as it would not be possible to meet the requirement of subsection (4) of section 13 of the Ordinance which lays down that the landlord must occupy the rented premises within one month of the date of obtaining possession because otherwise the tenant who is evicted, may apply to the Controller for an order for restoration of the possession of the rented premises. An order of ejectment passed against a tenant of a residential building can be executed by the legal representatives, even after the death of the landlord through the rented premises were got vacated by him for his own occupation because the rented premises could also be occupied by his family in view of the interpretation of the expression !For his own occupation' as noticed in the case referred to above. The requirement of subsection (4) of section 13 of the Ordinance would also be met if in execution of an order of ejectment,* possession of the rented premises is obtained by the legal representatives of the deceased for the aforementioned reason."
15. In this case, death of the landlord had occurred after ejectment order was passed by Rent Controller, but during the pendency of the first appeal before the District Court and it was in that context that the aforesaid observations were made by the High Court. In Taiyab A . K . Kapadia v .
16. Agha Ziauddin Barni 1981 CLC 1267 the landlord had expired after the decision of the first appeal Court and effect of his death on the rights of his successors was examined in second appeal by his Lordship Mr. Justice Ajmal Mian, J. Relevant observations are:- ------..In my view it will be appropriate to take up the second contention advanced by the learned counsel for the appellant in respect of the personal requirement of the deceased landlord. It is an admitted position that the property in question now stands vested in the five legal heirs, namely, one widow and the four married daughters. In my view the personal requirement of a married daughter cannot be equated with the personal requirement of the deceased landlord, particularly when the work of producing of documentary films involves element of personal skill/ experience.
17. Furthermore, the property in question stands vested in the five legal heirs as pointed out hereinabove, the alleged personal requirement of one of the married daughters cannot be substituted in a rent application, which was filed on the basis of the personal requirement of the deceased landlord since the alleged personal requirement of the married daughter in question had allegedly accrued after the death of the landlord. In this view of the matter. I am inclined to agree with Mr. Fazalbhoy, that the ground of the personal requirement cannot be pressed into service in order to support the two orders under appeal in view of the changed situation on account of the death of landlord.
18. Similarly, in Muhammad Ilyas v. Muhammad Shafi etc. PLD 1984 Lah. 404 owner-landlord had died in the course of hearing of the ejectment petition by the Rent Controller. Therefore, in all these cases, landlord had either died in the Court of first instance or in appeal first or second and it was observed that need expressed evaporated with the demise of the landlord. Therefore, these cases do not lend any direct assistance to resolve the matter in dispute. It may also be observed that decision taken in PLD 1984 Lah. 404 was set aside on appeal by the Supreme Court of Pakistan in Muhammad Shaft and others v. Muhammad Ilyas 1986 SCMR 451. In the case on hand, distinguishing feature is that the landlord was alive till after the final decision of the Court of appeal. Facts demanding consideration, therefore, stand on materially different footing. In Messrs Ally Brothers & Company v. Additional District Judge, Rawalpindi and 5 others 1983 CLC 1897,' a similar question was placed for consideration before Mr. Justice Abdul Shakurul Salam, J. And his Lordship after noticing the contentions had this to say:- .....I have gone through the record and the authorities cited by the learned counsel for the petitioner.
19. In all the cases quoted, the landlord who sought ejectment for personal use had died prior to the conclusion of the proceedings before the relevant authorities under the Rent Restriction Ordinance.
20. In the case in hand, the landlady was alive when her prayer for ejectment was accepted by the two competent Courts of exclusive jurisdiction i.e. The learned Rent Controller and the appellate authority the learned Additional District Judge, vide orders, dated 18th December, 1982 and 17th April, 1983, respectively. She was even alive when the writ petition filed against her was dismissed in limine by the learned Judge, on 5th June, 1983 because she died two days later on 7th June, 1983.
21. Therefore, the order of ejectment of the petitioner has become final during her lifetime. If after the final orders passed by the competent Courts of exclusive jurisdiction and upheld by High Court in exercise of Constitutional jurisdiction, an unsuccessful litigant continues to carry on the litigation, that will not mean that successful party must survive till eternity or until the unsuccessful litigant exhausts himself. If it were the law, there will never be an end to litigation. The right to repossess her property having come to vest in her lifetime, will pass on to her heirs on her demise: Therefore, there is no force in the contentions that ejectment orders have become infructuous .
22. This Court again had occasion to examine the effects of death of the landlord qua rights of his successors in Muhammad Saleem alias v. Sardar Khan through his Legal Representatives and others PLD 1984 Lah.
179. Relevant observations are found in para. 8 of the report which read:- ------..After closer examination of the precedents referred to above, the legal position which emerges is that personal requirement of a landlord for business is distinguishable from that of a residence. In case of residence, the personal need includes the need of those dependent on the landlord and the mere death of the landlord during pendency of the ,ejectment proceedings under the Ordinance would not effect the requirement of his dependents. In case of personal requirement for business, the death of the landlord during the pendency of proceedings under the Ordinance, may or may not affect the requirement of his children depending upon the facts of each case. For example, if a landlord applies for personal requirement of a non-residential building and dies during the course of ejectment proceedings, the personal requirement will not remain intact if he leaves no male issue. In case, the landlord is survived by his male heirs and there is evidence on record to show that the landlord required the premises for a business to be run by him or by male issues or by both, the death of the landlord would not affect the personal requirement of the survivors. In case, there is no evidence, the legal representatives of the deceased landlord and the tenant may be permitted to lead additional evidence in view of the changed situation caused by the death of the landlord during the pendency of ejectment proceedings. If, however, an order of ejectment passed under the Ordinance, on personal need, either for business or for residence attains finality during the lifetime of the landlord, the right so vested in him will be inherited by his heirs. Where the landlord dies during the course of execution proceedings, his successors-in- interest and/or heirs cannot be deprived of the benefit of eviction order passed against the tenant on the ground of personal requirement of the landlord, in that, they step into the shoes of the landlord. The execution proceedings do not abate upon the death of the landlord. The provisions of subsection (4) of section 13 of the Ordinance create no hurdle if in execution of an order of ejectment, possession of the rented premises is obtained by the legal representatives of the deceased landlord, in that, the term 'landlord', as defined in section 2(c) of the Ordinance, includes even a person for the time being entitled to receive rent in respect of any building or rented land and every person from time to time deriving title under a landlord. The respondents being the heirs/legal representatives of Sardar Khan, deceased landlord, were deemed to be 'landlord' within the meaning of section 2(c) of the Ordinance."
23. Discussion, on the subject, shall not be complete unless latest pronouncement of the Supreme Court in Muhammad Aslam through his Legal Representatives v. Wazir Muhammad PLD 1985 SC 46 is not noticed. Their Lordships of the Supreme Court, to speak with immense deference, examined the issue in all its depth and then observed:- "It is clear, therefore, that personal actions connected with the individuality of a person do not survive him (actio personalis moritur cum persona). There is, however, an important exception to it L.e. Where personal actions have matured into a decree or become part of the estate of the deceased. As Salmond has put it 'A right vests when all the facts have occurred which by law occur in order for the person in question to have the right'. In the words of Paton 'Every right arises from title, when all the investitive facts which are necessary to create the right have occurred, the right is vested'. By a judgment, decree or order, as the case may be, personal action get perfected and becomes a part of the estate of the deceased. The right to immediately possess a property subject to its being tested in appeal, is a tangible, valuable property right which comes to vest in the owner of the property and on his death passes on to his heirs. The heirs inherit his estate along with the vested right to obtain actual physical possession of the demised premises with the attaching limitation of law in the form of conditions attaching to such an order of possession. The legal representatives can execute the order of ejectment and take the property on the same terms on which their deceased predecessor-in-interest was entitled to it."
24. This view was reiterated in Muhammad Shafi and others v. Muhammad Ilyas 1986 SCMR 451.
25. After an order of ejectment survives the test of appeal, it attains finality subject to any possible interference with its finality in constitutional jurisdiction. Therefore, the cases in which the landlord dies during the pendency of Rent proceedings and before the ejectmeni order attained finality, superior Courts rightly took the view that the r need expressed being personal to the landlord disappeared with his demise, and proceedings initiated may not enure for the benefit of his successors, who, if so advised, in cases of their own personal need could apply afresh. These cases are clearly confined to the personal need of the landlord in respect of non-residential premises and may not be found applicable to the cases of residential premises where considerations applicable are totally different. In case need expressed in also for the benefit of other heirs, no impediment is provided by law for the further continuance of Rent proceedings. As I have already noticed, late Muhammad Ibrahim expressed that he required the shop for his own use to augment his meagre resources after his retirement, but before he could reap benefits of successful litigation, he passeu away. In the rent application, he did not assert that shop was also required for the use of any of his male children. In these circumstances, can it be said that all the efforts and steps taken to have the shop vacated from the tenants went steps taken to have the shop vacate from the tenants went waste and the ejectment order did not enure for-- the benefits of his legal representatives. Answer to my mind is clearly "no". General rule is that all rights of action existing in favour of or against a party survive, but those connected with the individuality of the deceased die with him. This is, on the principle, actio personalis moritur cum persona (personal rights of action die with the person. In this case neither I am called upon nor do I propose to give the catalogue of those personal actions which did with the death and those which survive. However, there are certain actions which on the authority of decided cases have been found to survive the death.
26. Such as actions based on rights in property or incidental to the ownership of property and personal actions which have matured into a decree. Examined from this angle, cause of personal need had clearly merged in the order of ejectment which in course of time was blessed with finality under section 15(7) of the Rent Ordinance. If death had not intervened, Muhammad' Ibrahim could have successfully taken out execution and recover possession of the shop and there were no legal impediments in his way to do so. Order of ejectment in terms of section 17 of the Rent Ordinance is executable by Rent Controller as if it were a decree of a civil Court. Rent Ordinance has not provided procedure for execution of orders passed there under. Except for the matters expressly provided', in section 16 of the Ordinance, rest of the provisions of the C.P.C, stricto senso have been made inapplicable. In this state of law, in my opinion, in the absence of specific restraining provisions, the executing Court can safely rely on the enabling provisions of the C.P.C. To effectuate execution of its orders. Rule 16 of Order XXI, C.P.C. So far as relevant provides "where a decree or if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder" . It is not in dispute that transfer by operation of law includes transfer by death. On the analogy of this ii rule of procedure, successors of decree-holder were clearly entitled to execute the decree which in my opinion, did not abate or lapse on the death of the decree-holder.
27. Additionally, successors are also included in the definition of landlord in section 2(c) of the Rent Ordinance 1959. Therefore, ejectment order enured for benefits of heirs of late Muhammad Ibrahim who could take out its execution and recover possession of the said shop. To hold otherwise, was fraught with manifold complications. Proverbial laws delays cannot be permitted to operate adversely, which is neither the purpose of law or the cause of justice, Section 13(4) of the Ordinance, in my opinion also, does not provide any insuperable hurdle. It may also be observed that supervisory jurisdiction conferred on this Court is essentially both discertionary and equitable.
28. In the very nature of jurisdiction, it must be exercised to aid and to subserve the cause of justice but surely not to defeat it. Where substantial justice has been done,, this Court may decline interference despite some irregularity in the proceedings. Yet there has also been another consideration to decline interference and that was that respondent No.1 son of the deceased decree-holder stated in Court that he had a grown up son who had left education and was also jobless. In case of vacation of the shop, he shall be inducted/settled down in the shop for purposes of business. Assurance was also given that in case shop was not occupied or that the shop was rented out, possession may then be restored to the petitioners. In theses circumstances, I also feel that remand even if necessary shall have served no useful purpose.
29. In the result, I find that orders of ejectment were competently and correctly passed. No infirmity attaches to them which may render them without lawful authority or without jurisdiction and that the death of landlord did not adversely affect the rights of his successors to take out execution and to recover possession of suit property. This petition, accordingly fails, and is dismissed with costs.