' In this rent appeal under section 21(1) of Sindh Rented Premises Ordinance, 1979 (hereinafter to be referred as "the Ordinance") the appellant has challenged the order dated 10-11-1993 passed by III Senior Civil Judge/Rent Controller, Karachi (Central) (Mr. Mian Mohsin Raza) whereby he has dismissed the appellant's application under Order-1, rule 10, C.P.C. For impleading him in Rent Case No,753 of 1992.
2. The back ground of facts necessary for disposing of the instant appeal are that an ejectment application was filed by Mst. Shahjehan Begum (respondent No,1 in this appeal) against one Naeemullah Khan (respondent No,2 in this appeal) for his eviction from house bearing No,286/B, Qasimabad, Liaquatabad, Karachi under section 15 of the Ordinance. She claimed to have purchased the premises in issue from one Hashmatullah although the same was allegedly in the occupation of respondent No,2 as a tenant, while she obtained an undertaking from the said respondent No,2 to vacate the said house. As alleged by respondent No,1 it was breach of that undertaking which had forced her to file an application for eviction and recovery of outstanding rent under section 15 of the Ordinance.
3. The respondent No,2 in the proceedings before the Rent Controller through para. 2 of his written statement though admitted the title of respondent No,1 as well as the undertaking given by him to her while alleging that he had vacated the said premises on 31-5-1991 and the eviction proceedings had become infructuous while no rent was outstanding. In the said written statement by the respondent No,1 it is also stated that Syed Sarfraz Ali, the present appellant, had also submitted a like undertaking but had not honoured the same and had not vacated the premises, while alleging to be the owner thereof. .4. It was in these circumstances that the appellant moved an application under Order 1, Rule 10, C.P.C. Before the Rent Controller for being joined as a proper and necessary party in the rent proceedings before him. The learned Rent Controller dismissed the said application on grounds that the appellant has claimed ownership of the property in question in Suit No,414/91 against respondent No,2 which is pending adjudication in the same Court, while as a Rent Controller he was not empowered to go into the question of ownership.
5. I have heard Mr. A.F.M. Mukarim, learned counsel for the appellant, Mrs. Navin S. Merchant learned counsel for the respondent No,1 and Mr. G.M. Saleem learned counsel for the respondent No,2.
6. Learned counsel for the appellant vehemently urged that the appellant is in possession of the premises in dispute in his capacity as owner and he had also filed a suit in which he has impleaded respondent No,1 as defendant No,5. In this manner Mr. Mukarim has alleged that he is a necessary and proper party and should have been impleaded in the ejectment proceedings before the Rent. Controller to safeguard his interests. In support of his submission he has cited Muhammad Mobin Siddiqui v. Mst. Shahzadi Begum and 2 others (1982 SCMR 233), Mahboob Bakhsh (Pvt.) Ltd. v. Moinuddin Paracha and another (1989 CLC 1354) and Mst. Zubaida Bai v. Mst.
Kaniz Bano and another (1989 CLC 1929).
7. Mrs. Navin Merchant, learned counsel for respondent No,1 submitted that the rent case is still pending while according to her the impugned order dismissing appellant's application under order 1, rule 10, C.P.C. Is an interim order and hence not appealable. In support of this contention she has placed reliance upon Mian Manzar Bashir and others v. M.A. Asghar & Co. (PLD 1978 SC 185), Wahid Bux Soomro v. Ghulam Muhammad Baloch (1982 CLC 1438), Sultan Ahmed v. The Vth Senior Civil Judge/Assistant Sessions Judge/Rent Controller and another (1984 CLC 101) and Vaqaruddin v.
Abdul Haseeb Alvi and another (PLD 1988 Karachi 116).
8. Mr. G.M. Salim, learned counsel for respondent No,2 mainly submitted that since he is no more in possession of the premises in question, therefore, he has now nothing to do with the matter.
9. From perusal of the record and after considering the arguments of both sides it appears that the issues fundamental for a just disposal of the instant appeal are:--
(i) Whether the impugned order is appealable?
(ii) Whether the appellants can press impleadment under Order 1, Rule 10 of the C.P.C.?
10. In respect of the first issue there appears to be little doubt after the decision of the Supreme Court in Muhammad Mobin Siddiqui v. Mst. Shahzadi Begum and 2 others, (1982 SCMR 233) that an order passed by a Rent Controller rejecting an application for impleadment under Order 1, Rule 10 of the C.P.C. Is appealable, inasmuch as that, the same order amount to a final order and cannot be termed as interlocutory. This decision of the Supreme Court is well-reasoned since such an order amounts to a final adjudication as regards the intervenor as to whether he is or not entitled to participate in proceedings. Although the facts of the case of the decision of the Supreme Court revolve round the issue that once a Rent Controller declares a person to be not a tenant of premises the said person, therefore, lacks the locus standi to file an appeal against an ejectment order, there is an obiter dictum at para. 7, page 235 of the said judgment where it has been specified that an order of the Rent Controller refusing impleadment is a final order as regards the intervenor. This decision of the Supreme Court also covers any possible objection to the effect that an application under Order 1, Rule 10 of the C.P.C. Would be completely unwarranted in that proceedings since the C.P.C. Is inapplicable to rent proceedings. There is suggestion and reference in the said decision of the Supreme Court Muhammad Mobin Siddiqui v. Mst. Shahzadi Begum and 2 others (1982 SCMR 233) at paras. 3, 6 and 7 that a Rent Controller is empowered to entertain an application under Order 1, Rule 10 of the C.P.C. In fact in another decision reported as Muhammad Saeed Daftri v. Mst. Razia Begum (1992 MLD 1033), a learned Single Judge of this Court has held that provisions of C.P.C. Are although not applicable in toto in rent proceedings, the same may be applicable to some extent. Earlier, in another case reported as Muhammad Ibrahim v. Zeenat Bibi and others (1991 CLC 1967) a Single Bench of this Court had held that equitable and just provisions of the C.P.C. Are applicable to ejectment proceedings before the Rent Controller. Accordingly, there is hardly any cavil with the preposition that provisions of the C.P.C. Are applicable to rent proceedings, mutatis mutandis specially where application of the same are warranted on ground of equity and justice.
11. It can hardly be stressed that where a person is interested in a cause being a proper and necessary party, the dictates of equity and justice warrant impleadment of that party in that cause. In this manner I am of the view that the appeal against the impugned order is maintainable, since an order passed by- the Rent Controller rejecting an application moved by the intervenor under Order 1, Rule 10, C.P.C. Is not an interlocutory order as regards the intervenor and the same amounts to a final order in relation to his qualification and locus standi to contest the proceedings as an intervenor. In this regard I am further fortified by the decision of the Supreme Court in Mian Manzar Bashir v. M.A. Asghar & Co. (PLD 1978 SC 185) which has prescribed a test to determine as to whether orders are final or interlocutory in nature. The test prescribed therein is that where an order "embraces the whole gamut of the dispute", the order is not interlocutory in nature. In this case as already pointed out the intervenor's fate as regards his eligibility to be part of the proceedings stands finally decided in view whereof it can safely be presumed that the order rejecting the application under Order 1, Rule 10 embraces the whole gamut of the dispute in issue which in that case would be the eligibility to contest proceedings as a proper and necessary party.
12. The next issue which requires consideration is whether the appellant is in fact a proper and necessary party. The appellant has disputed the ownership of respondent No,1 in respect of the property and has contended that the rent proceedings are a farce. The counsel for the appellant has vehemently contended that the application for eviction is an act of collusion between the two respondents wherein the idea is to seek a decree and execution from the Rent Controller against the respondent No,2 and enforce it against anyone who is in possession of the property, who is the appellant in this case. On the other hand, Mrs. Navin Merchant learned counsel for respondent No,1 has placed reliance upon a decision of a learned Single Judge of this Court in Vaqaruddin v. Abdul Haseeb Alvi (PLD 1988 Kar. 116). In this case writing for the Court, Muhammad Mazhar Ali, J. (as he then was), observed that a person who alleges co-ownership of a particular property cannot be made a party under Order 1, Rule 10 of the C.P.C. By the Rent Controller. The learned Judge held that it is only a person who alleges to be a co-tenant who can press into service Order 1, Rule 10, C.P.C. In arriving at this conclusion the learned Single Judge appears to be persuaded by the reasoning that the Rent Controller is only empowered to determine the relationship of landlord and tenant and not the issues of title, possession and ownership of the property. In Vaqaruddin's case the intervenor advanced the argument that the decree of the Rent Controller would be executed against whosoever is in possession and since he was the one in possession he would be ousted from the property. The learned Single Judge while discussing this argument observed that in such an eventuality the intervenor would have the right to adopt the requisite legal proceedings for safeguarding his interests. Mrs. Navin Merchant has attempted to persuade me that since the appellant is alleging ownership and not tenancy of the property in issue he would not constitute a proper and necessary party in terms of the verdict in Vaqaruddin's case.
13. I find myself unable to agree with the views of the learned Single Judge in Vaqaruddin's case cited at the bar for the simple reason that an intervenor would become a proper and necessary party if he alleges to be in possession. The appellant alleges to be in possession and in my humble view it is this fact which is of the essence as to whether he has sufficient interest to safeguard. If the Rent Controller were to frame a preliminary issue to determine as to whether the intervenor was in possession he would hardly be determining the issue of title or ownership. He in that manner would not be exercising jurisdiction as a Civil Court. Such an approach would on the contrary not only avoid multiplicity of proceedings but in fact facilitate taking of the real issue at the very outset. In case the Rent Controller after adjudicating and framing the preliminary issue comes to the conclusion that the appellant is not in possession he may proceed with the trial as between the respondents Nos.1 and 2. However, in case the preliminary issue is decided otherwise, i,e,, that the appellant is in possession and the respondent No,2 has vacated the property the only issue left to be determined would be whether the respondent No,1 has any right of any outstanding claim of rent against the respondent No,2 under section 15 of the Ordinance. It is in such an event there would be no question of entering into execution proceedings of eviction and the Court's time shall be saved and so would the intervenor be saved from applying to get the decree of eviction set aside. In this regard there can hardly be two opinions on the scores that law favours adjudication in a manner which would avoid multiplicity of proceedings and that the Courts ought to act more readily to avert a genuine but threatened illegality at the outset rather than act in a manner to allow the illegality to ensue and subsequently adopt curative measures. As regards the contention that an owner or a co-owner can claim impleadment in rent proceedings I find support of such preposition in M/s. Mahboob Bux (Pvt.) Ltd. v. Moinuddin Paracha (1989 CLC 1354).
14. Due to the reasons as aforesaid I find substantial merit in this appeal which is accordingly allowed and the case remanded to the Rent Controller to allow impleadment of the appellant as an intervenor but as a co-applicant rather than as a co-respondent as held in the Mehboob Bux case referred above since the appellant claims ownership rather than tenancy. While commenting on this judgment in Mehboob Bux I would like to add that the ratio therein appears to be that where the intervenor claims title or ownership of property he should be allowed impleadment as a co- party to the landlord but where the intervenor claims joinder as a tenant he should be joined as a co-party to the tenant.
15. Before parting with the judgment, the Rent Controller is directed to frame a preliminary issue as to whether the appellant is in possession as claimed by him and proceed in a manner as discussed in paras. 12 and 13 above. As regards framing of the preliminary issue the same is permissible in view of the suggestion and discussion obtaining in the judgment of the Supreme Court in Muhammad Mobin A. Siddiqui, 1982 SCMR 233. The necessity for framing the preliminary issue has arisen in view of the fact that the possession of the appellant in relation to the property in issue is in dispute as in para. 4 to the affidavit in support of the application under Order 1, Rule 10, C.P.C. Before the Rent Controller the appellant has alleged exclusive possession which has been denied by the respondent No,1 at para. 3 of the counter-affidavit.
16. There shall be no order as to costs.