1. ' In this appeal, the appellant has impugned two orders, dated 16-12-1987 and 17-12-1987 passed by IInd Senior Civil Judge and Rent Controller (South) Karachi. By first order, appellant's application under Order IX, Rule 4, C.P.C., seeking restoration of his application for being joined party in the Rent Case (under Order I, Rule 10, C.P.C.) is dismissed and by second order, defence of tenant/respondent No.4 Nabi Ahmed is struck off. In order to appreciate the contentions of the learned Advocates it will be pertinent to give the facts of the case.
2. ' A Rent Case No.2596 of 1975 was filed by Haji Mohiuddin and his two sons Haji Nizamuddin and Qutubuddin against one Nabi Ahmed (respondent No.4 herein), seeking his eviction from Shop No.4 situated on ground floor Macci Manzil, Bab-e-Urdu Road, Karachi, on the ground of default in payment of rent. Some time thereafter, the record of the Rent Case was misplaced and new record was constituted and it was given Rent Case No.952 of 1985. Subsequently Haji Mohiuddin died on 20-5-1985 and the case was pursued by his two sons Haji Nizamudtlin and Haji Qutubuddin (respondents Nos.2 and 3 herein).
3. ' The present appellant who claims to be the tenant of the disputed Shop No.4, in which respondent Nabi Ahmed was the tenant, moved an application under Order I, Rule 10, C.P.C., for being joined as a party and contended that he was the tenant in Shop No.4 at Rs,27 per month, and had paid Rs,70,000 to Late Haji Mohiuddin. On this application notice was issued and it was fixed for hearing on 2-8-1987 when it was dismissed in default as neither the intervenor nor his Advocate were present. Against the dismissal of his application, appellant/intervenor filed application under Order IX, Rule 4, C.P.C., on 23-8-1987 which was also dismissed on 16-12-1987. In the main rent case an application under section 16(2) of the Ordinance, was filed by Haji Qutubuddin and Haji Nizamuddin seeking that defence of opponent Nabi Ahmed may be struck off, as he had failed to comply with the order of deposit of rent. This application was heard and decided on 17-12-1987 and defence of Nabi Ahmed was struck off with directions to put landlords in possession of the disputed premises within 60 days. It is this order dated 17-12-1987 and the order, dated 16-12-1987, whereby appellant's application under Order IX, Rule 4, C.P.C., seeking restoration of his application for being joined as a party was dismissed, which are challenged in this appeal.
4. ' When this appeal came up before this Court for Katcha Peshi on 11-2-1988, it was admitted only against the ejectment order (i.e. order dated 17-12-1987), and I shall, therefore, not dilate upon the order dated 16-12-1987 passed by the Rent Controller.
5. ' Appellant's case is, that he is the tenant of Shop No.4 situated on ground floor Macci Manzil, Baba- e-Urdu Road, Karachi, at monthly rent of Rs,27. His case further is that he had paid Rs,70,000 as a Pagri to Late Haji Mohiuddin. After taking the shop on rent, he got installed a public telephone bearing No.723929 in his name and also obtained agency of different companies and obtained licence from K.M.C., for running Snack Bar in the said shop. His case further is that a rent case was filed by respondents Nos.1 and 2 against Nabi Ahmed (respondent No.4) who vacated the shop in December, 1984, whereafter on receipt of Rs,70,000 as Pagri from appellant, he was inducted as a tenant at monthly rent or Rs,27. Since the status of appellant as a tenant was disputed by the owners, he filed a Civil Suit No.404 of 1987 for declaration and permanent injunction with prayer that he be declared to be tenant of the said shop and for restraining respondents to eject him from the shop. This suit was filed by appellant on 28-2-1987. During this time, appellant also filed application under section 10 of the Ordinance, for permission to deposit rent in Court which was being refused by the landlord and that he has been depositing rent in Court.
6. ' The case as set up by appellant, was disputed by respondents Nos.2 and 3, the heirs of late Haji Mohiuddin. Their case is, that they never accepted appellant to be the tenant, nor that their father Haji Mohiuddin had ever received Rs,70,000 as Pagri for putting appellant in possession of the said shop.
7. ' Before this Court, on application of appellant, enquiry was held, in which Akhlaque Ahmed, elder brother of Nabi Ahmed, Syed Aijaz Ahmed Homeopathic Doctor attending to late Haji Mohiuddin, Dr. Zubair Ahmed Shakir, a Doctor in Anklesaria Hospital, Karachi, Sh. Muhammad Naseem (appellant) and Mr. Muhammad Rauf, Advocate were examined. During enquiry by this Court, discharge certificate and prescription slips of Haji Mohiuddin were produced and so also copy of application under Order 39, Rules 1 and 2, C.P.C. read with section 151, Cr.P.C, moved by appellant Sh.
8. Muhammad Naseem in Suit No.404 of 1987 for declaration and permanent injunction, affidavit in support of his said application, photostat copy of the plaint in Suit No.404 of 1987, a bill of telegraph and telephone department etc., were produced. Appellant also produced original rent agreement on Rs,50 stamp paper purporting to have been executed by Late Haji Mohiuddin on 4-5-1985 in his favour, showing receipt of Rs,70,000 by Haji Mohiuddin and accepting appellant as a tenant. A legal notice dated 17-8-1985 issued by Mr. Faizuddin, Advocate to appellant and appellant's reply through his Advocate Mr. Rauf were also taken on record. The evidence and documents are placed on a separate file of this first rent appeal.
9. ' Mr. Zaheeruddin Khan the learned Advocate contended that application of appellant for being joined as a party was dismissed by Rent Controller on the day when it was not fixed for hearing.
10. Appellant was not heard in those proceedings and that if proper opportunity had been given, appellant could have succeeded in showing that he was a tenant of the disputed shop and therefore a necessary party. His application for restoration of the application for being joined as a party dismissed in defaut, was also not legally disposed of which has resulted into failure of justice .
11. In support of his contention he referred to (i) 1973 SCMR 103, (ii) PLD 1981 Karachi 498, and (iii) PLD 1966 (W.P.) Lahore 356.
12. ' It is also contended that since the appellant is aggrieved by order dated 17-12-1987, his appeal is maintainable. In support of this contention, reference is made to (1) PLD 1992 Kar. 54 and (ii) 1984 CLC 2684. It is contended that the order dated 17-12-1987 whereby defence of respondent Nabi Ahmed was struck off, has adversely affected the appellant and as such, although not a party in the rent proceedings, his appeal is maintainahle because he was tenant in occupation since 1983.
13. ' Mr. Faizuddin, the learned Advocate for the respondents Nos.2 and 3 has contended that appellant is not a tenant in the disputed shop and the rent agreement dated 4-5-1985 produced by him during evidence before this Court is a forged document. He has also contended that the original rent case was filed against the tenant Nabi Ahmed respondent No.4 in April, 1975 and the appellant has managed to prepare documents to show himself to be in occupation of the shop. The tenant Nabi Ahmed never admitted that appellant was put in possession by him or by late Haji Mohiuddin.
14. ' I have gone through the entire record of the Rent Controller, the evidence recorded by this Court and perused various orders passed by Rent Controller particularly the order dated 17-12-1987.
15. During this evidence before this Court, appellant stated that he was tenant in the disputed shop since 1983, and the shop was rented out to him by Haji Mohiuddin under oral tenancy at monthly rent of Rs,500. Further that no rent receipt was ever issued to him and the tenancy continued up to 1985, when written tenancy agreement was executed between him and Haji Mohiuddin who received Rs,70,000 as goodwill and the rent was reduced to Rs,27 per month. The execution of tenancy agreement is doubtful for the reasons that Haji Mohiuddin, was taken to hospital on 1st or 2nd May, 1985 in an unconscious condition. This has come through evidence of Dr. Syed Aijaz Ahmed. It has also come on record that throughout, Haji Mohiuddin was unconscious and died on 20-5-1985. The date of rent agreement is 4-5-1985 which means that it was executed on a day when Haji Mohiuddin was hospitalised and was unconscious.
16. ' On 17-8-1985 Mr. Faizuddin, Advocate on behalf of respondents Nos. 2 and 3 had addressed a legal notice to appellant stating therein that appellant had trespassed into the shop and had made unauthorised structural changes. A reply was given by appellant through his Advocate Mr. Muhammad Rauf on 4th September, 1985 wherein it was asserted that he (appellant) had nothing to do with the shop which was lawfully held by Nabi Ahmed as the tenant. The notice and the reply notice are duly proved before this Court. In view of the reply given on behalf of appellant, it becomes very clear that on 4-9-1985 appellant denied to be the tenant or having had any concern with the disputed shop. Ground of being a tenant in the shop, taken by appellant is in my view, vexatious, creating no right in his favour.
17. ' Since the appeal was admitted by this Court only against the order of ejectment of Nabi Ahmed (17-12-1987), I do not think it proper to dilate upon contentions of appellant's learned Advocate that his application for being joined as a party was erroneously dismissed without proper opportunity to him. Or that his subsequent application seeking restoration of application under Order I, Rule 10, C.P.C., was also erroneously dismissed. This appeal was admitted only against the order of ejectment dated 17-12-1987, passed against respondent Nabi Ahmed whose failure to comply with deposit of rent order had resulted in striking off his defence.
18. ' Against the order dated 16-12-1987, appellant had other remedy under law which he has failed to avail. Such order cannot be questioned in this appeal by appellant, who, as observed above, is not a tenant.
19. ' On his own showing, appellant's suit for declaration and permanent injunction as to his title over the disputed shop is pending where it could be agitated by him that he is a tenant. There is nothing before this Court to hold that appellant is a tenant of the disputed shop or that his right could be protected under rent laws. He is inconsistent in his pleas with regard to the date of his being a tenant in the disputed shop.
20. ' In view of the above discussion, I do not see any reason to interfere with the order of the Rent Controller directing eviction of respondent Nabi Ahmed from the disputed shop, as the order is based on correct appreciation of evidence and law. The appeal merits no consideration and is dismissed with no orders as to costs.