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Petitioner: MESSRS AD1L BROTH RS KARACHI LTD. VS Respondent: AMIN MESSRS AMIN AKA PRESS AND JUDGMENT
Court Name: Sindh High Court Judge(s): Abdul Hafeez Memon Title:MESSRS AD1L BROTH RS KARACHI LTD. vs AMIN MESSRS AMIN AKA PRESS AND
JUDGMENT
Reported As: PLD 1976 Karachi 53 Result: Appeals allowed Judgment JUDGMENT ' ABDUL HAFEEZ MEMON, J.-These two connected second appeals arise out of ejectment proceedings initiated by the landlord Messrs Sadiq Traders Ltd., respondent No. 2 in both these second appeals, against his tenants Messrs Amin Art Press, respondent No. 1 in Second Appeal No. 190/68 and Messrs Statesman Weekly, respondent No. 1 in Second Appeal No. 191/68, hereinafter referred to as 'respondents tenants,' by filing two separate applications under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) on the ground of nonpayment of rent. ' The case of the respondent No. 2 in both the applications was that he had purchased the building, including the premises tenanted by the respondents tenants, from its previous owner landlord Ibrahim Sultan Ujainpurwala under a registered sale-deed. The latter thereafter, informed all the tenants in the building including the respondent's tenants through a letter (Exh. A/3) and the respondent No. 2 also informed them by his own letter (Exh. A/4 about the purchase of the building by them the respondents tenants, however, did not pay rent and hence the applications against them. The respondents tenants contested the ejectment proceedings and denied to have committed default. They pleaded that they had not received any intimation regarding change of ownership and further pleaded that nobody on behalf of the respondent No. 2 had come to collect the rent from them at the premises which was the mode of payment of rent previously settled between the respondent's tenants and the previous landlord. On these pleadings, the learned Rent Controller framed similar issues in both the applications to the effect firstly, whether the respondents tenants had been duly intimated about the change of ownership of the premises and,
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secondly, whether they committed default in payment of rent, and, thirdly, what should the order be ? ' In both the applications, the learned Rent Controller gave a finding on both the main issues against the respondents tenants holding that they had been duly informed about the change of ownership of the building but they wilfully defaulted in paying rent and ordered their ejectment by his orders dated 7-5-1965 and 16-7-1965 passed in both the applications. Being aggrieved by the orders of Rent Controllor, the respondent's tenants filed first appeals. During the pendency of these first appeals, the respondent No. 2 sold the building to the appellant Messrs Adil Brothers on 27-9- 1966 under a registered sale-deed. On coming to know of the above sale, respondent No. 1, Amin Art Press in Second Appeal No. 190/68, on 8-9-1966 filed an application under section 151, C.P.C. Before the Additional District Judge urging that with the sale of the building, respondent No. 2 ceased to be landlord of the respondent No. 1 and the relationship of landlord and tenant between the respondent No. 2 and the respondent No. 1 came to an end with the result that the jurisdiction of the Rent Controller as well as of the first appellate Court over the subject-matter and the parties stood terminated and the order passed by the Rent Controller became infructuous, Appellant Messrs Adil Brothers also filed applications under Order I, rule 10, C. P. C. In both the first appeals, for being joined as respondent in the first appeals in place of the respondent No. 2 on the ground that they had acquired rights, title and interest of the respondent No. 2 in the premises which were opposed by the respondents tenants. In the process, respondent No. 2 Messrs Sadiq Traders Ltd. Also filed objections wherein they opposed the application filed by respondent No. 1 Amin Art Press under section 151, C. P. C. And supported the application under Order I, rule 10, C. P. C. Filed by the appellant Messrs Adil Brothers stating that the order passed by the Rent Controller subsisted and held the field and that with the transfer of the building the benefit of the order of ejectment of the respondents tenants had also been assigned to the appellant and as such the latter were entitled to defend the appeals. The learned Additional District Judge by his orders dated 27-4-67 and 9-2- 67 dismissed the application under section 151, C. P. C. Filed by the respondent No. 1 Amin Art Press and allowed both the applications under Order I, rule 10, C. P. C. Filed by the appellants who were consequently joined as respondent No. 2 in both the first appeals before the learned Additional District Judge. ' In deciding the first appeals, the learned Additional District Judge concurred with the findings of the Rent Controller on the main issues and held that the respondents tenants had been duly informed about the transfer of ownership and in spite of the knowledge, they committed default in paying rent to the respondent No. 2. He, however, formed the view that default per se did not justify ejectment of the respondents tenants and exercising his discretion under section 13 of the Ordinance, declined to order their ejectment and allowed both the first appeals, filed by the respondents tenants. Against the judgments of the learned Additional District Judge allowing both the appeals, respondent No. 2 Messrs Sadiq Traders Limited did not file any appeal but appellant Messrs Adil Brothers alone filed these two second appeals. Second Appeal No. 190/68 against Messrs Amin Art Press and Second Appeal No. 191/68 against Messrs Statesman Weekly. ' Mr. Enver Adil, the learned counsel for the appellant, anticipating the objection by the opposite side, first addressed the Court on the question of the locus standi of the appellant to file these second appeals, in the absence of respondent No. 2 Messrs Sadiq Traders (respondent No. 1 in both the first appeals), filing any appeal. The learned counsel contended that on purchase of the building from the respondent No. 2 during the pendency of the first appeals, appellant acquired all rights, title, interests, benefits and advantages which the respondent No. 2 had in the building on the date of the transfer of the building, including the benefit of the orders of ejectment passed in favour of respondent No. 2 under which the latter had acquired the right to eject the respondents
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tenants from the building, so that when that right was adversely affected by the decision of learned Additional District Judge allowing the first appeals, he had the locus standi to file these appeals. In this connection the learned counsel referred to the sale-deed under which the respondent No. 2 had transferred and conveyed all the rights, title, interest, benefit and advantages vesting in them in respect of the building to the appellant and relied upon PLD 1961 Lah. 788 in support of his contention that default being in respect of premises, it conferred an advantage on the landlord which stood transferred to the new landlord with the transfer of the building. ' The learned counsel next contended that the respondent No. 1 in Second Appeal No. 190/68 had on 8-10-1966 filed an application under section 151, C. P. C. Before the learned Additional District Judge urging that the order of the Rent Controller had become infructuous with the sale of the building by respondent No. 2 to the appellant. The appellant had also filed an application under Order I, rule 10, C. P. C. For being substituted as a respondent in both the first appeals in place of respondent No. 2. The Rent Controller dismissed the application of the respondent No. 1 and granted the application filed by the appellant and joined him as a respondent in both the appeals. These orders were not appealed against and therefore became final so that the appellant having been held to have interest in the property and having been allowed to defend the first appeal, had the locus standi to file these second appeals when orders adverse to their interest was passed in those first appeals. The learned counsel next contended that on the date of transfer of the building to the appellant, respondent No. 2 held the right of re-entry into the premises occupied by the respondents tenants by virtue of the orders of ejectment passed against the latter. This right being a legal incident of the ownership, was capable of transfer and respondent No. 2 by transferring the ownership of the premises in question shall be deemed to have transferred also the right of re- entry to the appellant within the meaning of section 6(b) and section 8 of the Transfer of Property Act, so that when that right was adversely affected, the appellant had the locus standi to file the second appeals. ' On merits, the learned counsel for the appellant, first contended that the learned Additional District Judge, having concurred with the findings of the Rent Controller, on the main issues that the respondents tenants and the knowledge of transfer of ownership and yet paid no rent and committed default, had no justification to interfere with the discretion exercised by the Rent Controller ordering eviction of the respondents tenants from the premises. In support of this contention the learned counsel placed reliance on the cases reported as Muhammad Alimullah v. Ziaul Islam (1), Sabu Mall v. Kikka Ram (2) and Sh. Muhammad Nawaz v. Muhammad Azeem (3). ' The learned counsel also contended that the learned Additional District Judge by relying on the observations of my brother Noorul Arfiri, J. Made in Second Appeal No. 58/65 filed by the respondent Messrs Sadiq Traders against their another tenant Malu Khan, had misconstrued the observations. To substantiate this, he referred to the case reported as Muhammad Alimullah v. Ziaul Islam and relied upon the observations made therein by my brother Dorab Patel, J. At page 63 regarding Second Appeal No. 58/65. As to the reasoning of the learned Additional District Judge for declining ejectment of the respondent No. 1, Amin Art Press, in Second Appeal No. 190/68 because heavy machinery had to be removed by them, the learned counsel contended that this was a relevant factor for allowing maximum time to the respondent to vacate the premises but was not a consideration for declining their ejectment, as the default could not be washed off on compassionate grounds or grounds of inconvenience. For this, the learned counsel relied upon the case reported as Syed Musawar Ali Naqvi v. Muhammad Saeed (4). ' Mr. Naimuddin, the learned counsel for the respondent No. 1 in Second Appeal No. 190/68, opposing the appeal, however, contended that the appellant had no locus standi to file the appeal in the absence of respondent No. 2 filing any appeal. Mr. Hassan Akbar, the learned counsel for the respondent No. 1 in Second Appeal No. 191/68 also raised the similar contention and adopted the
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arguments of Mr. Naimuddin. The first argument of Mr. Naimuddin was that rights and liabilities of the parties had to be decided under the Ordinance and not under the Transfer of Property Act so that, even if the appellant became the landlord under the Ordinance on sale of the building to him, he could be an aggrieved party only if the respondents tenants had committed default in paying rent to him. The respondents tenants, however committed no such default as firstly, the appellant had admittedly not given statutory notice under section 13-A of the Ordinance to the respondents tenants, and secondly, in any case, the respondents tenants had deposited and continued to deposit rent in Court for the period before and after purchase of the building by the appellant. (1) PLD 1973 Kar. 56 (2) 1973 SCMR 185 (3) PLD 1961 Lah. 788 (4) 1968 SCMR 498 ' His second argument was that under section 8 of the Transfer of Property Act, transferee is entitled to future rent, unless different intention is expressed or is necessarily implied and the sale-deed in the instant case expressed no such different intention, the appellant transferee was entitled to future rents only and could not claim past rent and since he could not claim past rent, he also could not claim the benefit of the default and the order of ejectment passed in respect of past rent. Mr. Naimuddin sought to fortify his contention by further arguing that, suppose the respondents tenants did not pay rent to the original landlord for the past five years but the landlord took no action against him, could the appellant in that case have realised it, in the absence of such right being given to him by the respondent No. 2. Answer, according to the learned counsel, had to be in the negative. ' As to the Division Bench case reported in PLD 1961 Lah. 788 relied upon by the learned counsel for the appellant, Mr. Naimuddin argued that in that case the LRs. Of the deceased tenant were made liable for the default of their father because of the definition of tenant given in the Ordinance. In the case of landlord, however, the LRs. Could not succeed to any advantage accruing to the deceased landlord in view of section 13-A of the Ordinance which imposes obligation on the new transferee, including transferee by inheritance, to serve notice under section 13-A on the tenant and if L Rs. Could not succeed to the benefit accruing to the deceased landlord, the appellant being a purchaser also could not succeed to the benefit accruing to his predecessor-in-title namely, the respondent No. 2, without giving notice to the respondents tenants under section 13-A of the Ordinance. ' Mr. Naimuddin next contended that assuming that the orders of ejectment passed in favour of the respondent No. 2 were decrees, they were set aside in first appeals in favour of the respondents tenants. Thereafter, if any one was aggrieved, it was respondent No. 2 and not the appellant as the decrees were not assigned in favour of the latter under Order XXI rule 16 C. P. C. To invest him with any right. ' The last contention of Mr. Naimuddin on this point was that in the first appeals, respondent No. 2 remained as respondent No. 1 and the appellant was merely added, not substituted, as respondent No. 2, so that, after the order/decree passed by the Rent Controller was set aside, there remained in the respondent No. 2 a mere right to sue i.e. Right to file an appeal, which he could not assign in view of section 6(e) of the Transfer of Property Act. ' On merits, the learned counsel contended that it was within the discretion of the learned Additional District Judge to refuse ejectment of the respondent No. 1 and since he had exercised the discretion after taking into consideration the various circumstances and had given cogent reasons therefor, he could not be said to have exercised the discretion arbitrarily so that it would not be open to this Court to interfere with it in these second appeals. He also argued that even on the main findings, the learned Rent Controller had wrongly held that the respondents tenants had the knowledge of the transfer of the ownership of the building and that, in spite of this knowledge, they had refused to pay rent to the respondent No.
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2. Mr. Hassan Akbar appearing for the respondent No. 1 in Appeal No. 191/68 adopted the arguments of Mr. Naimuddin and added that right to eject a tenant was personal to the landlord which could not be alienated by him to a transferee landlord as otherwise section 13-A of the Ordinance would become redundant and if the sale-deed conferred on the transferee any advantage contrary to above, it would be void and thirdly, on the evidence led, the finding by the Rent Controller that the rent had been demanded from his client by the agent of respondent No. 2 was erroneous and was not sustainable. They, however, filed no cross-objections to assail the findings given against them on the main issues. ' In view of the preliminary objection raised, the first question for consideration is whether the appellant has the locus standi to file these appeals in the absence of the respondent No. 2, Messrs Sadiq Traders Limited, filing any appeal against the judgments passed by the learned Additional District Judge allowing the first appeals. In order to answer this question, reference has to be made to subsection (4) of section 15 of the Ordinance which provides as under :- "(4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1) and if an appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be, of the Controller, prefer an appeal,in writing to the High Court and the decision thereof shall be final." ' Under this subsection, any party aggrieved by an order passed on appeal by the appellate authority may prefer an appeal to the High Court. Now, any party aggrieved under the Ordinance can be either a landlord or a tenant, as this Ordinance regulates relationship and deals with disputes arising between landlord and a tenant, as defined under the Ordinance. It has, therefore, to be seen, first, whether the appellant is a landlord of the respondents tenants, within the meaning of the Ordinance. Landlord under section 2(c) of the Ordinance is defined as under :- "(c) 'Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord." 'It has not been disputed that the respondent No. 2 Messrs Sadiq Traders were the landlord of the respondents tenants and that they had sold the building to the appellant Messrs Adil Brothers during the pendency of the first appeals before the Additional District Judge, under a registered sale-deed transferring all their rights, title, interest therein to the appellant. Thus, appellant being a transferee from a previous landlord would be covered by the definition as "a person for the time being entitled to receive rent in respect of the rented building or land". Such being the case, the relationship of landlord and tenant came into existence between the appellant and the respondents tenants. For support reference be made to Sabu Mal v. Aiiturain (1) and Sardar begum v. Gulfraz Khan (2). In the first case his Lordship while dealing with the question, held at page 188 as under ;- "The term "landlord" is defined in clause (c) of section 2 of the (1)1973 SCMR, 185 (2) PLD 1967 Pesh. 176 ' Ordinance as meaning any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of any other person or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and any person from time to time deriving title under a landlord. It will be seen that the transferee from the original landlord would be covered by this definition as a person for the time being entitled to receive rent
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in respect of the rented building or land. Such being the case the relationship of landlord and tenant came into existence between the parties before us once the rights, title and interest of the original landlord were transferred, to the respondent under the sale effected in May 1964. This tenancy was in no way dependent upon the service of a notice under section 13-A of the Ordinance." ' In the second case, a landlady had filed ejectment proceedings against her tenants mainly on the grounds of non-payment of rent and of requirement of the premises by her for her personal use. The Rent Controller decided against her on both the issues and dismissed the ejectment application. First appeal filed by her was also dismissed by the District Judge on 2-12-1963 against which she filed second appeal. While this second appeal was pending, the landlady sold the house on 20-2-1964 under a registered sale-deed to one Muhammad Safdar Qureshi. One of the objections taken by the respondents in that second appeal was that since Muhammad Safdar Qureshi had purchased the suit property under a registered sale-deed during the pendency of the appeal, he was not competent to seek their ejectment. The High Court repelled this objection and held that Muhammad Safdar Qureshi came within the definition of "every person entitle to receive rent .", as contemplated by clause (c) of section 2 of the Ordinance and could continue the appeal. ' Then, the building was transferred to the appellant during the pendency of the first appeals. The transfer in appellant's favour was therefore subject to the result of the litigation pending in respect of the transferred premises. Suppose, the first appeals filed by the respondents tenants were dismissed and they had filed these second appeals and were decided in their favour. Against whom could they have enforced the decision in the second appeal? Surely, not against the respondent No. 2 as the latter had sold and transferred the building to the appellant and had no interest left in it. They could enforce the decision in the appeals against the appellant only; who could not have ejected the respondents tenants and obtain vacant possession, which he otherwise could have. ' Further, the appellant was impleaded by the learned Additional District Judge as a respondent in both the appeals which he contested and lost and the orders adverse to his interest were passed in both the appeals. It was held by their Lordships of the Supreme Court in the case reported as H. M. Saya & Co. v. Wazir Ali Industries (1) that "If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings," The above observations of their Lordships of the Supreme Court apply a fortiori to the facts of this case in which adverse orders were passed against the appellant after he had been joined as a respondent in the first appeals. (1) PLD 1969 SC 65 ' Reference be also made here to section 146 of the C. P. C. It provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It was held in Sitha Ram Swami v. Lakhshmi Narsimha (1) that an appeal is a proceeding for the purpose of this section, and that further the expression 'claiming under him' is wide enough to include cases of devolution and assignment mentioned in Order XXII, rule 10. This decision was quoted with approval in AIR 1955 SC (India) 376. Both the decisions were again referred to in AIR 1958 SC 394 wherein the Supreme Court of India quoting with approval I L R 41 Mad. 510 and following its own decision in AIR 1955 SC 376 observed at page 397 as under :- "It would follow from the above decisions that whoever is entitled to be but has not been brought on record under Order XXII rule 10 C. P. C. In a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if this assignor could have filed such an appeal, there being no prohibition against it in the Code the right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims.
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' Reference to yet another case from the Indian Jurisdiction reported as Durhin Suga v. Deorani Knev (2), may not be inappropriate. In this case a suit was filed for declaration of title and confirmation of possession. The suit was decreed ex parte. Defendant No. 1 tiled an application under Order IX, rule 13 for setting aside the ex parte decree on the grounds that there was fraudulent suppression of the summons. Learned Munsif rejected this application. Against this, an appeal was preferred to the District Court by two persons to whom the defendant No. 1 had sold and transferred the disputed lands subsequent to the passing of the ex parte decree but before filing of the application under Order IX, rule 13, C. P. C. An objection was taken in the Court below that the appeal by transferees was not maintainable. The objection was repelled and the ex parte decree was set aside. The plaintiff filed a revision application and contended that the appeal in the Court below was not competent and the Court had, therefore, no jurisdiction to set aside the ex parte decree. The High Court relying on section 146 of C. P. C.…
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