' Appellant Mst. Rashida Afsar had moved an application under Order 1,Rule 10, C.P.C. For being impleading as a respondent in place of, or in addition to, her husband against whom respondent Not M/s. Kazi and Sons had filed an eviction application. This application was dismissed by the learned Rent Controller by impugned order dated 9-7-1990. FRA No,341/90 is directed against this order. Subsequent to the dismissal of her application under Order 1, Rule 10, C.P.C., the learned trial Court proceeded to hear the eviction application ex parte because appellant's husband is no more traceable, could not be served and was, therefore, proceeded against ex parte and vide judgment dated 11-8-1990 passed an ex parte eviction order against appellant's husband. The second appeal (FRA No, 207/91) is directed against this order. Both these appeals are disposed of by this consolidated judgment.
2. Appellant's husband Muhammad Afsar was the tenant of respondents M/s. Kazi and Sons who instituted Rent Application No, 431/89 on 19-4-1989 against the said Muhammad Afsar on the ground that he had failed to pay or tender rent w,e,f, September 1987. It was also alleged in the application that Muhammad Afsar was not residing in the premises but a lady claiming to be his wife was residing there who was for some time prior to the filing of eviction application had been tendering rent on behalf of the tenant. As soon as the appellant came to know of the filing of eviction application she moved an application, ostensively under Order 1, Rule 10, C.P.C., on 19-12- 1989, for being impleaded as a party in the eviction application. In her affidavit in support of the application, she stated that she was the wife of the tenant Muhammad Afsar and further stated that her husband had been missing and unheard of since 1985 but she and their children had been living in the demised premises and she was paying rent since her husband went missing in 1985.
This application was contested by respondent No,1 and a counter-affidavit was filed by their Manager and Rent Collector in which it was stated that there was no private of contract between respondent No,1/landlord and the intervenor, that they had no knowledge that the intervenor was the wife of the tenant, that it was unbelievable that the tenant should be missing since 1985 and on these assumptions it was further stated that the intervenor was either not the wife of the tenant or had been divorced by him and, therefore, cannot claim to be his heirs because he (the tenant) is alive. The appellant/intervenor then filed her affidavit-in-rejoinder and, in the face of doubts expressed by respondent No,1 as to her status as the wife of the tenant, she filed copy of her 'B'
Form of the Registration Department of Government of Pakistan in which she is shown as wife of Muhammad Afsar. She also filed copy of her identity card in which also she is shown as wife of Muhammad Afsar. Learned Rent Controller, agreed with the counsel of respondent No,1 that it was Muhammad Afsar who was inducted as a tenant and the rent receipts were issued in his name, notwithstanding the fact that the rent was tendered by intervenor, and, therefore, the intervenor had no concern with the tenancy of the eviction proceedings and, consequently, dismissed the application of the appellant on 9-7-1990. Learned counsel of the parties have been heard.
3. In her affidavit in support of her application under Order 1, Rule 10, C.P.C., the appellant states that after her husband went missing in 1985, she herself commenced paying the rent through cheques under her own signatures. The fact that it was the appellant/intervenor which had been paying rent through cheques under her own signatures is sufficiently proved by the bank certificate and copies of the cheques appended to her application as Annexures `A/1' to 'A/14'. No doubt respondent No,1 was issuing receipts in the name of her husband. Naturally enough, the receipts could only be issued in the name of appellant's husband Muhammad Afsar who was the tenant.
They could not be issued in the name of the appellant. The tenancy continued to be in the name of appellant's husband and there was no irregularity if the appellant was tendering the rent on behalf of her husband. As a member of the family of the tenant, she was living in the premises and it was in her own interest to see to it that default was not committed and, therefore, it was only natural to expect that she should tender the rent. Since the rent was being tendered through cheques under appellant's own signatures, respondent No,1 had, at least, notice of the fact that the rent was not being tendered by the tenant. It is, therefore, not clear why respondent No,1 did not raise any objection in this regard for nearly two years. In para. 5 of the eviction application respondent No,1 concedes that tenant Muhammad Afsar is not living in the premises but a lady claiming to be his wife is occupying the premises. Now, being occupant of the premises, the said lady was clearly vitally interested in being heard and defend the eviction application irrespective of the validity of her legal status and I am, therefore, surprised that the manager of respondent No,1 should state in his counter-affidavit that there was no privity of contract between the appellant and respondent No,1 and she was a totally stranger and, therefore, could not be joined as a party. I am of the view that whatever she may be, the appellant was certainly not a "total stranger". She was the wife of the tenant. It is also incorrectly stated in the affidavit of the Manager of respondent No,1 that a person who is not a tenant cannot be impleaded as a party in a rent application. I have no doubt in my mind that a person who is in occupation of a rented premises as a sub-tenant or as a lessee of the tenant can also be impleaded alongwith the tenant so that he comes forward and explains his position as to his status. After all, he should not be condemned unheard if the person who is made a respondent does not care to appear in the Court to defend himself. There can be innumerable circumstances which justify that an occupant of the premises, who shall be evicted by an order of eviction, must also be impleaded as one of the respondents alongwith the tenant. For example, 'A' may rent out some premises to 'B' through a written rent- agreement and after the termination ofthe tenancy of 'A' may again rent out the premises to 'C' through another written rent agreement or through an oral agreement. Now, if 'A' dishonestly files an eviction application against 'B' on the ground of default in the payment of rent, it can only be expected that 'B' would not be served on the address of the demised premises and would be, therefore, proceeded against ex parte and an ex parte order of eviction shall then follow in favour of 'A' and in execution thereof 'C' would be evicted without being heard and without explaining his position that it was he who was the current tenant of 'A' in the premises. It is thus evident that current occupant of premises must also be impleaded whether he or she is tenant or not, alongwith the tenant so that the occupant can explain his position before the Court and a dishonest landlord may not play fraud upon the Court and evict his tenant by filing an eviction application in the name of a previous A tenant. If, in the above example, 'C' comes forward before Rent Controller during the pendency of the eviction application and explains that it is he who is in occupation and, therefore, should be made a party and be heard, he has a right to be joined as a party in the proceedings. In the present case the case of the appellant is even more strong than the case of 'C' in the example given above because respondent No,1 admits in the eviction application itself that it is appellant Mst. Rashida Afsar who is in occupation of the premises and who had been tendering rent through cheques which she was issuing under her own signatures.
4. Since in the present case it is established beyond doubt that the appellant/intervenor is the wife of Muhammad Afsar, the tenant in the demised premises, and since it is an admitted position that she has been living in the demised premises ever since the inception of the tenancy and since she claims that her husband is unheard of since 1985, she becomes a necessary party to the eviction proceedings. I have gone through the two judgments on which learned counsel of respondent No,1 has relied, 1990 CLC 1320 (Mrs. Ruby Misso v. Mrs. Kaniz Fatima and others) and PLD 1986 Karachi 70 (Islamuddin v. Abdul Rehman and another). Unfortunately for respondent No,1 both these judgments are not relevant in the present case and do not advance his cause. In the above-noted first judgment possession was handed over by a tenant to a third party and the question before the Court to decide was whether this third party was a sub-tenant, having been inducted into the premises unauthorisedly by the tenant or whether the third party was inducted into the premises by the tenant with the permission of the landlord. This is not the position in the present case.
Appellant/intervenor has admittedly not been inducted into the premises by the tenant. She had been living in the premises from the inception of the tenancy as wife and as a member of the family of the tenant and she continues to live in the premises and according to her, her husband is not traceable since 1985. In the above-noted second judgment an intervenor had applied for being impleaded during the execution proceedings of the eviction order and the intervenor's only credentials to claim tenancy in his own right was that he was in possession of some electricity bills, receipts and envelopes showing his address as that of the demised premises and it was held that these documents, at best, only showed that the intervenor was in possession of the premises but these documents did not show that the intervenor was a tenant. As is clear from even a cursory perusal of this judgment, the status of the intervenor was in doubt. This is not the position in the present case.
5. For the above-noted reasons I am of the view that the tenant Muhammad Afsar as well as his wife, the appellant, both are necessary parties to the eviction proceedings. If the tenant is alive, as claimed by respondent No, 1, appellant can defend the eviction proceedings on his behalf as a member of his family. If the tenant is dead, or cannot be found, as claimed by the appellant, she naturally succeeds and enters into the shoes of the tenant as his legal-heir in occupation of the premises. I would, therefore, accept the appeal which means that application under Order 1, Rule 10, C.P.C. Moved by the appellant on 19-12-1989 stands allowed.
5-A. After the application of the appellant under Order 1, Rule 10, C.P.C. Is alloweid, it is only natural that the ex parte order of eviction dated 11-8-1990 passed against Muhammad Afsar cannot be sustained and- must also be set aside. F.R.A. No, 207/91 is, therefore, also allowed.
6. The case is remanded to learned I-Rent Controller, Karachi East. Respondent No, 1 shall file amended eviction application, impleading the appellant as respondent No, 2 whereafter she will file her written statement and the eviction application shall then proceed in accordance with law, Under the circumstances the parties are left to bear their own costs.