1. ' The respondent filed an application for ejectment before the Rent Controller, Mirpurkhas on 16th March 1966. They claimed therein that the property bearing No, 558/559 Ward B Khisakpura, Mirparkhas, was the property of the applicant, that the present appellant Hakim Ali Ahmad is in occupation of the upper portion of the same premises as tenant on a monthly rent of Rs,
25. It was claimed that notice dated 6th December 1963 was served upon the tenant calling upon him to pay the arrears of rent due against him. This notice was allegedly replied by the tenant-appellant by his letter dated 22-12-63 in which he acknowledged the receipt of the notice. It was further contended in the application that the tenant appellant later met the applicant and agreed to pay the entire arrears of rent amounting to Rs, 900 and to pay the future rent at the rate of Rs, 25 per month. But in spite of the notice the tenant had failed to pay either the arrears or the regular rent and, therefore he was a defaulter in terms of the West Pakistan Urban Rent Restriction Ordinance. It was consequently prayed that the tenant appellant should be ejected from the premises in dispute.
2. ' In his objections the tenant-appellant denied if the applicant was the owner of the premises in dispute. It was also denied that he was a tenant under the applicant on a monthly rent of Rs 25 It was, however, contended that the tenant appellant was in pessession of the premises in dispute since 1947 without the permission or the consent of the applicant and he was not the tenant of the applicant. Service of notice dated 6- 2-1963 and its acknowledgment through his letter dated 22- 12-1963 was also denied. It was also denied that the tenant appellant had ever agreed to pay the arrears of rent amounting to Rs, 900 or had agreed to pay rent at the rate of Rs, 25 per month. In his additional pleas the tenant appellant contended that no relationship of landlord and tenant existed between the parties and, therefore, the application was not maintainable in law. The jurisdiction of the Court was also challenged and it was further contended that the rights of the applicant had been extinguished as the tenant appellant had remained in adverse possession of the premises since 1947. However, without prejudice to these pleas it was contended that the applicant was charging Rs, 10 per month from the tenants of premises adjacent to the premises in dispute and, therefore, the rent of Rs, 25 per month was excessive and exorbitant.
3. ' On these pleadings following three issues were framed on 7-11-1966: "(1) Whether the applicant is the owner and landlord of the house in dispute, and the opponent his tenant in the house in dispute?
4. (2)Whether the present ejectment application filed by the applicant against the opponent is barred under section 30 of D. P. Act, 1958?
5. (3)Whether this Court has no jurisdiction to entertain the present ejectment application against the opponent ?"
6. ' Subsequently, on 18th April 1968 the following farther issues were framed: "(4) Whether the opponent is liable for ejectment? (5) What should be the final order?"
7. ' On 18th April 1968 the matter was put off to the next day i. e. 19-4-1968 when the applicant produced his evidence. He examined Abdul Rehman, a clerk of the Civil Court, who brought the proceedings of suit No, 105/64 and produced it as Exh.
52. He also produced a copy of the judgment of the Supreme Court Exh.
37. One Devraj son of Manjimal was also examined on the same day. After his examination the side of the applicant was closed and the matter was put off to 30th April 1968 for the evidence of the tenant. On 30th April the advocate of the appellant moved an application praying for adjournment on the ground that the tenant resided at Philadiyeen, Taluka Khipro which is far away and could not be contacted by the counsel, as the counsel needed further instructions from his client, therefore, the prayer for adjournment was made in the interest of justice. This prayer was not accepted and the side of the tenant was closed. The learned Rent Controller proceeded to pass the final order on the application on the same day. Finding the first three issues in favour of the landlord he came to the conclusion that the -tenant appellant was liable to ejectment. Such orders were accordingly passed directing the tenant to hand over the possession of the house to the applicant landlord forthwith.
8. ' The tenant-appellant moved the District Judge, Tharparkar in appeal which was also dismissed with costs, by an order dated 25-2-1969. This appeal challenges these orders of the Courts below.
9. ' The learned counsel for the appellant contends that the refusal of the Rent Controller to grant adjournment on 30-4-68 was not warranted both in equity as well as in the interest of justice. He contends that that was the first prayer by the counsel for the tenant-appellant and the grounds were very cogent. On the other hand the learned counsel for the respondent contends that it is entirely discretionary for the learned Rent Controller to grant or refuse to grant an adjournment on a ground on which the adjournment was sought in the present case, and in the instant case the learned Rent Controller has rightly exercised the discretion in refusing the adjournment. But in the circumstances of the case it is difficult to agree with the learned counsel for the respondent. As contended by the learned counsel for the appellant this was the first ever application made on behalf of the tenant appellant for adjournment. The record shows that after framing the issues on 7-11-66 there were about 22 adjournments in the case before the second set of issues were framed on 18-4-68. Out of these 22 adjournmeris 13 were sought by the applicant landlord. Other adjournments were either due to the absence of the Presiding Officer or his engagement in other judicial work or for other causes. Not a single prayer was made for adjournment on behalf of the tenant. In view of this the observation of the learned Rent Controller that the application for adjournment was made in order to protract the proceedings was uncalled for. Apart from this it has to be seen if prayer for adjournment merits the exercise of discretion in its favour. In the present case the tenant had challenged the very jurisdiction of the Court. This is an objection not in these proceedings but to the validity of the proceedings themselves. It is a challenge against the Court itself regarding its competence A to try the matter. In such a case it is always wise and prudent to allow the party raising such objection the fuller opportunity to substantiate its challenge to the jurisdiction of the Tribunal before which it is to face the proceedings. In the present case, therefore, it was all the more necessary that the discretion should have been exercised in favour of the tenant-appellant so that he was afforded full opportunity to place his entire case before the learned Rent Controller. I would, therefore, hold that the discretion, refusing to grant the adjournment, was not properly exercised in the circumstances of the present case.
10. ' The next contention reised by the learned counsel for the appellant is that according to the statement of Devraj himself the property was joint Hindu family and bad been partitioned after the filing of the application in the present case. Devraj had claimed in his statement before the Rent Controller that the house in dispute had fallen to his share. According to the learned counsel for the appellant as Devraj had not moved any application under Order I, rule 10, C. P. C. For substitution the proceedings should have abated as the original applicants were no longer the landlords of the property in dispute, and therefore, could not enforce any order passed in their favour. In support of his contention that an application under Order I, rule 10. Was necessary the learned counsel relies upon the case of Muhammad Azam, v. Muhammad Nawaz (1). In this case it was held by a Single Judge of the West Pakistan High Court that proceedings before Rent Controller were proceedings of a civil nature and as such section 141 of the C. P. C. Should be invoked for regulating the procedure with regard to the trial of the applicants present before the Rent Controller. On this ground it was held that if a tenant died during the pendency of the proceedings his legal representatives should be brought on record. On the other hand, the learned counsel for the respondent contends that in accordance with the authority contained in Khadim Mohyuddin's case
(2) the Rent Controller was not even a Court and, therefore, the question of application of Code of Civil Procedure does not arise. He, therefore, contends that any argument claiming that the provisions of Order I, rule 10 were necessary and had to be followed in the present case was not tenable. It may however, be pointed out that the authority of Khadim, Mokiuddin's case declares that the Rent Controller does act in a quasi-judicial capacity. The relevant observations of their Lordships of the Supreme Court are as follows:- "We, therefore, conclude from the foregoing examination of the relevant-provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that he acts in a quasi-judicial capacity."
11. ' In further support of his argument the learned counsel has referred me to the-definition of landlord as contained in section 2 (c) of the Ordinance which declares that landlord is a person who for the time being is entitled to receive rent in respect of any property etc. He seeks support from a ruling of this Court contained in Adil Brothers v. Amin Art Press (3). In this case ejectment proceeoings against the respondents had been initiated and an order of ejectment had been passed. An appeal was taken to the Distr ct Court. During the pendency of the appeal the premises in dispute was sold to Adil Brothers and they approached for being impleaded as a party to the proceeoings and such a prayer was granted but the order of ejectment was set aside. In the High Court it was held that the transfer of property was covered by the definition of landlord as given in section 2 (c) of the Ordinance and that any order of ejectment by the Rent Controller in respect of such property stood transferred with the property and enured for the benefit of the transferee. This ruling is not applicable to the facts of the present case as there never was any application for substitution of Devraj as landlord of the property in dispute. There is no doubt that if a private partition had taken place and if the premises in dispute had fallen to the share of Devra; he would no doubt be the man entitled to receive rent of the building in, dispute. As such he would fall under the definition of landlord of the: {{FOOT NOTE}}
(I) PLD 1961 Lab. 137 (2) PLD 1965 SC 459
(3) PLD 1976 Kar. 53 {{FOOT NOTE}} ' premises in dispute. But would that entitle him to an order under section 13 of the Ordinance in a proceeding in which he is not a party.
12. ' Notwithstanding the fact that the provisions of C. P. C. Do not, as such, apply to the proceedings before the Rent Controller, but he still remains a tribunal of quasi-judicial nature, as has been held in Khadim Mohiuddin's case. In order that such a tribunal be able to decide disputes referred to it there have to be parties before it. Such parties are to be of the type who have a real legal interest in the matter before the Rent Controller. In the present case Mohandas was a party in dispute before the learned Rent Controller in his capacity as a Karta of the joint Hindu family. Devraj may have been a part of that Hindu family, but after partition of the joint property his character before the Rent Controller did not automatically become that of the party before the Rent Controller. Joint Hindu family was a legal person completely distinct from Dev Raj. And till today it is the joint Hindu family, through its Karta Mohandas, which is the party to the dispute before the Rent Controller. But that joint Hindu family no longer exists due to partition of their property. That means that the appellant before the Rent Controller was no longer the landlord of the property in dispute and therefore, that applicant did not have any locus standi to be present before the Rent Controller.
13. Having lost all interest in the property the original applicant ceased to be party without legal interest in the matter. As the original applicant had ceased to be the landlord no order could be passed in his favour. At the same time Devraj who now claims to have become -the landlord had not made any application for substitution in the proceedings before the Rent Controller. The result is that Devraj is a stranger to the proceedings before the Rent Controller. The contention that merely because he qualifies to be the landlord of the premises in dispute and no 'matter if he is not a party before the Rent Controller he should still be deemed to be entitled to an order in his favour, is not tenable. The result would be that the proceedings before the Rent Controller would be deemed to have abated from the time of partition of the joint Hindu property. For this view I am fortified by the ruling of this Court reported as Imperial Dyeing & Printing Mills v. Safdar All (1).
14. ' The learned counsel for the respondent contended that in the present case the default is quite patent on record because the tenant appellant has challenged the very relationship of landlord and tenant and has not denied the allegation of default as such. In such a case, the learned counsel contends the moment the question of the relationship of landlord and tenant is found by the Rent Controller to be subsisting, an order of ejectment should follow automatically. In this connection he relies upon Nisar Ahmed v. Nazar Muhammad (2). There is no doubt that in case the relationship of landlord and tenant is found to have existed between the parties the only consequence that would follow is that of ejectment, because default is not a question in dispute between the parties. But in the present case, as has been seen earlier, the question of relationship of landlord and tenant was not decided.
15. ' In view of the above discussion I find that as Devraj had not made any prayer to the Rent Controller for his substitution as a party to the proceeding D the application before the Rent Controller stood abated and in this view of the matter the appeal stands accepted and the order of ejectment is set aside. There would however be no orders as to costs.