1. MUHAMMAD YAQUB ALI, J.-- The petitioner seeks leave to appeal from an interim order of a Division, Bench of the Sind --Baluchistan High Court which provides that the ejectment of the petitioner from a leased premises shall remain stayed subject to his furnishing security for payment of arrears of rent and deposit of monthly rent in Court till the disposal of the Letters Patent Appeal lodged by him against the order of a learned Single Judge.
2. The order passed by the High Court is most favour able to the petitioner, but he calls it in question for reasons to be seen-- presently. The petition was liable to be dismissed on the short ground that the petitioner had no just grievance to invoke the special jurisdiction of this Court, but we are setting out all the, relevant facts to bring out haw frivolous this petition is and why inordinate delay occurs in disposal of civil matters in Courts against which one hears so many adverse comments.
3. The petitioner is a tenant of the first floor of the premises known as R. G. M. Square, near Plaza Cinema, Karachi. The--re respondent-landlord filed a petition for his ejectment in the Court of the Rent Controller. Karachi, for non-payment of rent. In his written statement, the petitioner claimed that respondent was not the sole-owner of the building and that there were three other co-owners who had not joined in the action for ejectment. Relationship of landlord and tenant was not denied.
4. After the written statement was filed the --Rent Controller acting under section 13(6) of the Rent Restriction: Ordinance fixed tentative rent of the leaned promises at Rs. 966.15 p.m. And by order dated 11-5-1971 directed the petitioner to deposit arrears amounting to Rs 25,987.50 by a given date and to deposit future rent in Court every month.
5. Aggrieved by the directions of the Rent Controller, the petitioner filed an appeal in the Court of the District Judge, Karachi, which was dismissed on 10 September 1971. The petitioner then filed a Second appeal in the High Court which too was dismissed by a learned Single Judge on 21-2-1972 by a fairly exhaustive order. It was pointed out by counsel for the respondent to the learned Judge that as the petitioner had failed to deposit rent, the Rent Controller has in the absence of a stay order struck off his defence and passed an order for ejectment. This circumstance by itself constituted a valid ground for dismissal of the appeal, but the learned Judge did not examine this plea as he did not see "any merit in the appeal".
6. The petitioner promptly filed an application before the learned Single Judge for grant of a certificate to prefer a further appeal in the High Court under clause 10 of the Letters Patent on the ground that he had raised question of title In his defence and until the Rent Controller first adjudicated upon it, he could not have directed the petitioner to deposit arrears of rent etc. The prayer was accepted and requisite certificate granted on 1-3-1972. Along with the Letters Patent Appeal, the petitioner filed an application under Order XLI, rule 5, C. P. C., for stay of his ejectment till the disposal of the appeal. The learned Judges granted an interim order and confirmed it on 23-8- 1972 by the order impugned in this petition: The relevant paragraphs of the written statement are reproduced below :- "Preliminary Objection
1. That the applicants are not the sole owner of the Property viz. R. G. M. Square, wherein premises in dispute situate. The other owners of the said building are: (1) Muhammadi Bibi, (2) Ghulam Zohra, and (3) Ghulam Fatima. These three named persons have made an application to this Hon'ble Court for being joined as party to these proceedings and unless they are joined as party, the proceedings are incompetent.
7. "6. That the contents of para. No. 4 of the application is false and frivolous. The opponent paid a sum of Rs. 15,909.88 (rupees fifteen thousand nine hundred and nine paisa eighty --eight only) as loan to the applicants vide Photostat copy of Receipt attached hereto. Beg. Pies this amount the applicants sold Bonus Vouchers to the applicants and a sum of Rs. 8,000 (Rupees eight thousand) is due and payable by the applicants to the opponents. It was agreed that Rs. 15,909.88, shall be adjusted towards rent of premises and Rs. 8,000 will be paid or refunded to the opponent. The applicants failed to give credit for the above amounts and have filed this petition to harass the opponents in their attempt to coerce the opponent."
8. "The relationship of landlord and tenant was thus admitted though it was averred that rent had been paid and no default was committed. The plea that question of title was raised which the Rent Controller should have first decided was, therefore, without any foundation. That there were three other co-owners of the leased premises had, in law, no effect on the competence of the application for ejectment. A suit for possession can be brought by all the co-owners jointly. It is open, however, to one of them also to sue for possession, but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only. Unlike, that a suit for ejectment can be filed by one of the co-owners without joining the others as defendants. This is the difference between an action for possession and an action for ejectment. If this clear distinction was kept in view, certificate of fitness under clause 10 of the Letters Patent would not have been granted, nor the appeal admitted to hearing by the Division Bench.
9. The second ground raised by the counsel for the respondent before the learned Single Judge that the appeal had become Infructuous was also not without force. The petitioner had failed to comply with the directions given under section 13(6). An order of ejectment was, therefore, passed with the result that the earlier order for deposit of rent had merged in the final order passed by the Rent Controller. The only remedy now open to the petitioner was to file an appeal against that order and he had, in fact, already filed an appeal before the, District Judge. The order of ejectment was notth before the High Court and could not be interfered with in the appeal emanating from directions given under section 13(6).
10. On this premises the Letters Patent Bench was equally in error in directing stay of ejectment of the petitioner. That order was not before the learned Judges. No application, therefore, lay under Order XLI, rule 5, C. P. C, for its stay. That is why we have said in the beginning that an order most favourable to the petitioner was passed by the Letters Pateno Bench, and yes he had the imprudence to bring it under challenge 9n this Court.
11. The male fides of the petitioner is quite manifest. He want3 to continua in possession without payment of rent and to support this unjust plea, he is relying on the litigation which is pending between tae respondent and others who claim to be co-owners of the leased property. Whatever be the merits of their claim, the petitioner was not absolved from the legal duty to deposit arrears of rent in Court which amounted to Rs. 25,987.50 as on 11-5-1971 and have by now accumulated to more than Rs. 43,000. Even on merits, it was not a fit case-- for grant of a stay order. A wholly untenable plea was raised by him in the appeal merely to obstruct and delay his ejectment from the leased premises and at the same time avoid payment of rent. The beneficial jurisdiction of the, High Court under Order XLI, rule 5, C. P. C., ought not, therefore, have been exercised in his favour.
12. With these observations we will dismiss the petition for leave to appeal.