The petitioners are sisters of late Muhammad Ramzan who died on 11-7-1985.
2. The relevant facts arc that Muhamrhad Ramzan owned Shop No.151, Mayo Road, Dharampura, Lahore and had let out the same to respondent No.2. The said Muhammad Ramzan sought the ejectment of respondent No.2 from the premises on the ground of bona tide personal use, damage, etc. The tenant resisted this application. The learned Rent Controller framed the issues, recorded evidence and after hearing the arguments proceeded to grant this application vide order dated 30-6-1985. Before this order could be assailed by the-tenant in appeal before the appellate authority under Rent Restriction Ordinance, the landlord died. The tenant filed the appeal in the Court of District Judge, Lahore on 30-7-1985. The same was entrusted to Malik Mushtaq Ahmad, the then Additional District Judge, Lahore. The learned appellate- authority issued notices to the.
Respondent-landlord for 20-9-1985 but he could not be served, therefore, fresh process was issued for 6-10-1985 and it was followed-by notices for 28-10--1985. It was on this date that the tenant- appellant submitted an application under Order XXII Rule 4 C.P.C. For impleading the present petitioners, as respondents being heirs of the deceased-landlord. This application remained pending and at one juncture arguments were heard but then it was noticed that the heirs have not submitted reply to the application, therefore, the petition was fixed for their reply. The petition was however, never decided and the appellant was directed to submit amended memo of appeal, which was filed on 1-6-1986. The respondent No.1 thereafter proceeded to hear the arguments and accepted the appeal vide order dated 11-4-1988. The appeal was accepted on the ground that since the original landlord has died and the ejectment order is not heritable, therefore, the ejectment proceedings stand abated. This way the petitioners were constrained to file the present Constitutional petition.
3. The -same was admitted to regular hearing and notices issued to the respondents. Respondent No.1 the appellate authority did not appear in spite of service, therefore, it was proceeded ex parte while respondent No.2 has entered appearance through his learned counsel and contested the petition.
4. I have heard the learned counsel for the parties. The learned counsel for the petitioners in support, of the petition, has argued that the appeal was filed against a dead person, therefore heirs could be impleaded only within the limitation. It is submitted that the appeal was tiled on the last day of limitation while the application for impleading the heirs was submitted there after almost 3 months later. It is added that in spite of the fact that the appellant came to know about the death of the landlord before 6-10-1985 still the submission of the application was delayed upto 28-10-1985. The next submission is that the heirs will be deemed to be impleaded from the date of application. In this case since the application was moved after a period of limitation, therefore, the appellant was under legal obligation to file application under section 5 of the Limitation Act. This was not done therefore, the appeal was hopelessly time-barred. On merits it is argued that the learned appellate authority has illegally held that the ejectment proceedings have abated. It is concluded that the moment ejectment petition was accepted, tangible, valuable property rights vested in the owner of the property and on his death passed on to his heirs. The learned counsel in this behalf has placed reliance on the judgment of the Honourable Supreme Court in the case of Muhammad Aslam v. Wazir Muhammad (P.L.D. 1985 S.C. 46).
5. On the other hand learned counsel for respondent No.2 has argued that the delay in impleading the petitioners as respondents in the appeal before the appellate Authority was of no legal consequence' as C.P.C. Is not applicable. It is added that right was not heritable because the deceased-landlord sought the ejectment of his client fox his own personal use which came to an end with his death. The learned counsel in support of the arguments has referred to the judgment of Honourable Supreme Court in the case of Haji Ibrahim v. S. Rahmat Ullah (1985 SCM R 241).
6. 1 have given my anxious considerations to the arguments of the learned counsel -for the parties.
I will confine myself to the point whether the ejectment order was heritable or not. In view of the order I propose to make I am not touching the other legal and factual points involved lest it may not prejudice either of the parties' case.
7. Now coming to the question whether the ejectment proceedings stood abated with the death of Muhammad Ramzan or not. Muhammad Ramzan died on 11-7-1985 whereas ejectment petition had already been accepted on 30-6-1985. Therefore, the appeal was to be decided on its merits.
This question has been dealt at length by the Hon'ble Supreme Court in the case of Muhammad Aslam, relied by learned counsel for the petitioner as well as in the case of Haji Ibrahim relied by learned counsel for respondent No.2. The conclusion in both the judgments was that once ejectment order was passed, then proceedings were to be decided on merits. The relevant portion of the judgment of Honourable Supreme Court in the case of Ibrahim, reads as under:- "The upshot of the above discussion.
(i)
(ii)Once an order of eviction of the tenant is made under section 13 (3) (a) (ii) of the Ordinance, it becomes, on the death of the landlord beneficiary of the order, a part of his heritable estate and the legal representatives can defend the order and claim the benefits arising thereunder subject to all the limitations and exceptions attaching to such, an order."
8. The learned appellate Authority failed to notice the aforementioned g judgments of Honourable Supreme Court, therefore, its decision is rendered illegal.
9.The upshot of the above discussion is that this petition is allowed, impugned order dated 11-4- 1988 of respondent No.1 is set aside.
The result is that the appeal will be deemed pending before the appellate p authority, which is directed to dispose of the same, in accordance with law expeditiously and in any case before 28- 2-1990. There is no order as to costs.