1. WAJIHUDDIN AHMED, J.- The subject-matter of these proceedings is a shop situated on Qazi Abdul Qayyum Road, Gari Khata, Hyderabad, belonging to the respondents. Such shop, per agreement dated 1-12-1976, was let out to one Muhammad Hanif at a monthly rental of Rs. 200. The said Muhammad Hanif, having expired in April, 1982, was succeeded by his widow, Mst. Hajran Begum and the shop continued to run, allegedly on the widow's behalf, by Abdul Ghafoor, petitioner No. 2, who happened to be the husband of Mst. Shamsun Nisa, a sister of Mst. Hajran Begum. In course of the, the respondents filed Rent Case No. 277 of 1984 on the two-fold grounds of default in the payments of rent as from May, 1982 and sub-fetting of the premises in favour of the said Abdul Ghafoor. An order of eviction dated 30-4-1986 was returned by the learned Controller, giving rise to F.R.A. No. 169 of 1986 before the High Court of Sind at Hyderabad. As it came to transpire, the said Mst. Hajran Begum herself expired during the pendency of the above F.R.A, and C.M.A. 67 of 1998 was preferred, citing a number of persons as the legal representatives of the lady out of whom tenancy on the basis of possession was claimed by Mst. Shamsun Nisa, the aforesaid sister of the deceased lady and Muhammad Rafique, their brother. This C.M.A, was ordered to be heard alongwith the main F.R.A, and each came-up for hearing before a learned Judges in Chambers, on 19-2-1999, who dismissed the F.R.A, on the sole ground that neither of the two claimants could qualify as successor tenants, as per definition of the word 'tenant' occurring in Section 2, clause (i) of the Sind Rented Premises Ordinance. The learned Judge, however, allowed two months' the to Abdul Ghafoor aforesaid, appellant No. 2, before him, to vacate and hand over the premises. The definition clause above-mentioned runs thus:-- "Section 2(i) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:--
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant;"
2. It is undisputed in the case that Abdul Ghafoor is the husband of Mst. Shams-un-Nisa, admittedly, the sister of Mst. Hajran Begum, appellant No. 1 before the High Court. Likewise, there does not appear to be any dispute and regards the fact that Muhammad Rafique was also the brother of the two ladies. Besides, the case of the deceased tenant seems to have been that being a widow and Pardanasheen, at that, the tenant-hold premises was being run through such Abdul Ghafoor, brother-in-law of Mst. Hajran Begum. On that basis, apparently, the sub-tenancy was also denied.
3. Nothing, therefore, that follows shall effect merits of such controversy.
4. The High Court in dismissing the plea of impleading Mst. Shams-un- Nisa and her brother Muhammad Rafique came to the conclusion, and obviously correct that only such heirs of a deceased tenant would succeed to the tenancy as be found to be "in possession or occupation of the premises after the death of the tenant". Such factual aspect would normally pose little difficulty where the tenant-hold is a residential unit. However, problems could arise where the tenancy of a commercial or non-residential premises stands in the name of an individual and such individual, having personally run the business, expires. For the successors to be determined in cases of the genus last mentioned, quite understandably, there can be no physical possession or occupation of any of the heirs of the tenant at the the of the tenant's demise and it is for this reason that the definition clause relates and is specific to the concept of possession or occupation to a point of the "after the death of the tenant". On this question, no apparent dispute of any significance was raised before the High Court and, on principle, Mst. Shams-un-Nisa, sister of the deceased lady and Mahammad Rafique, her above brother, should have been impleaded and the appeal consequently disposed of on merits. This not having been done and the dismissal of the appeal having taken place on a hyper-technical ground, we are inclined to convert this petition into an appeal and allow it. The appeal having, thus, been allowed, the matter would stands remanded to the High Court which would take-up to revive F.R.A, within a period of two months from the date of communication of this order and dispose of the same on merits. Meanwhile, an amended memo, of appeal would be submitted by and on behalf of the said two legal representatives of the deceased tenant.