24/01/2022, 16:34 1989 M L D 4691

1989 M L D
4691
 
[Karachi]
 
Before Saleem
Akhtar, J
 
LT. COL.
(RETD.) M.B. AAZMI Applicant
 
versus
 
M/S. HOMMEE
& JAMSHED and others--Respondents
 
CMA (in First
Rent Appeals Nos. 963, 983, 984 and 985 of 1988, decided on 9th
April,
1989.
 
(a) Transfer
of Property Act (IV of 1882)--
 
---S.8---Transfer
of property---Rights of transferee---Transferee of property can claim all
rights, titles and interests in property at time of transfer, which transferor
is capable of passing
to transferee and transferee would succeed to rights
which had accrued on transferor.
 
(b) Sind
Rented Premises Ordinance (XVII of 1979)-- --
 
-----S.15-Sale
of rented premises during pendency of ejectment proceedings----Effect ---
Where
during pendency of ejectment proceedings, rented premises was sold by landlord,
ejectment proceedings against tenants, held, would neither be affected
nor abated with such
sale---In case transferee landlord would not become a
party to such ejectment proceeding,
same could be continued by transferor
landlord for benefit of transferee landlord, unless it
was clearly shown that
contrary intention could be spelt out from deed of transfer.
 
1984 C L C 1750
and 1987 S C M 8-380 ref.
 
(c) Sind
Rented Premises Ordinance (XVII of 1979)---
 
---Ss.15 &
21---Appeal against ejectment order ---Impleading of transferee landlords as
respondents---During pendency of ejectment proceedings before Rent Controller,
premises
in dispute was sold, but transferee landlords were not impleaded in
proceedings before Rent
Controller---Tenants, against whom ejectment order was
passed, filed appeal against
ejectment order and after admission of appeal,
transferee landlords filed application for
impleading them as respondents in
appeal---Application of transferee landlords was granted
and objection that
same was time-barred was also overruled.
 
(d) Civil
Procedure Code (V of 1908)--
 
---O.XX Rr. 4
& 10--Impleading of parties under O.XX, Rr.4 & 10 C P C- Limitation--
Distinction.
 
S. Sharifuddin
Pirzada for Applicants.
 
Afsar Abidi in
F.R.A. No. 963 of 1988.
 
24/01/2022, 16:34 1989 M L D 4691

Tariq Ahmad for

Appellant in F.R.A. No. 983 of 1988.
 
Iftikhar Hussain
in F.R.A. No. 995 of 1988.
 
Date of hearing:
9th April, 1989.
 
ORDER
 
By this order
the applications filed by the intervenors Nos. 1 to 13 for joining them as
respondents in F.R.As. 963, 995, 983 and 984 of 1988 shall be disposed o Brief
facts are
that respondent No. 1 was the landlord and owner of Mehta Lodge on
plot bearing No. 18
street. No. R-2, Abdullah Haroon Road, Karachi. It filed an
application for ejectment under
section 15 of the Sind Rented Premises
Ordinance through its attorney Syed Riaz Ahmad
against the appellant and
respondents Nos. 1, 2, 3 and 4. It was alleged that respondents
Nos. 2 to 4
became the tenant after the death of their predecessor-in-interest It was
further
alleged that respondent No. 2 has illegally sublet the premises to the
appellant and
respondents Nos. 5 to 8. The respondents denied the allegations
that the premises was
illegally sublet without the consent of respondent No.1.
The factual position was explained at
length and it is not necessary to dilate
upon it for the purposes of this application. Suffice to
say that during the
pendency of the case respondent No. 1 sold the said property to the
applicants
through a registered sale decd dated 15-7-1988. After the sale deed was
executed the applicants did not apply to be joined as party before the
Controller and the
ejectment application was continued by respondent No. 1.
Respondent No. 1 compromised
the matter with respondents Nos.2 to 4 who
admitted that they have sublet the premises to
appellant and respondents Nos. 5
to 8 without the permission of the landlord. In view of this
statement they
were ordered to be ejected, and consequently the sub tenants viz.
respondents
Nos. 5, 6 and 7 were also ordered to be ejected. Respondent No. 8 however
had
taken the plea that she acquired the right by adverse possession and in this
regard she
had filed a suit for declaration and injunction which is pending and
therefore no ejectment
order was passed against her. The appellants filed an
appeal against the order of ejectment
namely F.R-A. Nos. 963, 983, 984 and 995
of 1988. In all these appeals the appellants are
different persons, but have
been ejected on the ground that they are unauthorised sub-tenants
of
respondents Nos. 2 to 4. After the appeal had been tiled and admitted the
applicants filed
this application for being joined as patty in the appeal.
 
This appellant
and respondents Nos. 5 to 8 have vehemently opposed it and have filed their
counter affidavits. I have heard Mr. S. Sharifuddin Pirzada for the applicants,
Mr. Afsar Abidi
in F.RA. No. 963 of 1988, Mr. Tariq Ahmad for appellant in
F.R.A. 983 of 1988 and Mr.
Iftikhar Hussain in F.R.A. 995 of 1988.
 
Mr.
S.Sharifuddin Pirzada, the learned counsel for the applicants, has contended
that the
applicants have purchased the property by a registered sale deed and
have become lawful
owner of the said property, therefore they are entitled to
be joined as respondents in all these
appeals. He has further contended that
after sale the ejectment proceedings had not become
infructous and they could
be continued by the previous landlord for the benefit of the new
purchasers who
had acquired the right of the old landlord.
 
Mr. Afsar Abidi
the learned counsel for the appellant has contended that as application has
not
been made immediately after purchasing the property before the Controller, the
application cannot be made now. Mr. Tariq Ahmed has contended that the
applications
should have been made within a period of 90 days or within a
reasonable time and after sale
of the disputed premises, the rent proceedings
had abated. It was further contended that
24/01/2022, 16:34 1989 M L D 4691

compromise was collusive and did not

confer any right on the applicants to become a party in
the proceedings. Mr.
Iftikhar adopting these arguments further contended that no power of
attorney
was filed by applicants' attorney and they have no locus standi to be joined as
respondents.
 
So far the sale
of the premises is concerned, there can be no dispute about it as a copy of the
registered sale deed has been produced alongwith the rejoinder. The only
question is whether
the transferee has a right to continue with the ejectment
proceeding. In this regard Mr.
Pirzada has referred to 1984 C L C 1750 in which
the following observation was made:--
 
"The
question whether the default, if any, committed during the days of the previous
landlord
was available to the present appellant or not, has not been seriously
pressed by the learned
counsel for the respondent. Moreover Mr. Abdul Wahab
has, in support of the argument that
the default committed during the days of
the previous landlord can be availed of by his
successor i.e. the present
appellant by virtue of section 8 of the Transfer of Property Act,
1882, relied
on the case Adil Brothers Karachi v. Amin Art Press and others. In the above
case, about the right of transferee to continue and prosecute an ejectment
application riled
byte the former landlord, the Court held as under:--
 
"Under
section 8 of the Transfer of Property Act, 1882 transfer of property passes
forthwith
to the transferee all rights, title and interest which the transferor
is then capable of passing in
the property and the legal incidents thereof. In
the sale-deed executed in the instant case, the
landlord transferred all his
rights, title, interest in the property to the appellant and also
convenanted
with the appellants-vendees that `henceforth the vendees shall be the rightful
and
absolute owners of the said property and shall peaceably and quietly hold,
occupy and
possess the same and enjoy all the rights, profits and benefits
thereof without any let, claim,
demand, denial, hindrance, interruption or
eviction .... on the date of transfer, the order
passed by the Rent Controller
directing eviction of the tenants for the default committed by
the latter
existed in favour of the landlord which conferred rights, interest, benefit,
and
advantage on the latter to evict the respondent's tenants and obtain vacant
possession of the
premises. Default is committed in respect of premises and is
not personal. Thus, when the
landlord sold and transferred the building with
all his rights, title, interest, benefits and
advantages in respect thereof to
the appellant, the benefit of the default conferring the right to
elect also
passed to the appellant under the sale deed as well as under the Transfer of
Property Act as the Ordinance does not operate as a complete ouster of the
principles
underlying the Transfer of Property Act and is to be preferred only
in case of inconsistency."
 
In another case
of Muhammad Ishaque v. Abdul Haq and 2 others it was clearly held by
Ajmal
Mian, J. of this Court that a person purchasing premises from the landlord
during
pendency, of an appeal succeeds to all the rights which have already accrued
to the previous
landlord and that the purchaser is entitled to prosecute rent
application on the ground of the
default which was available to the previous
landlord. While coming to this conclusion, the
learned Judge had also relied on
the case of Adil Brothers referred to above.
 
From the above
observation it is clear that a transferee of the property can claim all rights,
titles and interests in the property at the time of transfer which the
transferor is capable of
passing to the transferee and the transferee succeeds
to the rights which had accrued on the
transferor. The learned counsel for the
applicants has also referred to 1987 S C M R 380
where similar question came up
for consideration and it was observed as follows:
 
"In support
of this petition for leave to appeal from the judgment of the High Court we
have
heard Mr. Ali Akbar at some length. His main contention is that respondent
No. 2 could have
24/01/2022, 16:34 1989 M L D 4691

been impleaded as a party during the pendency of the

proceedings before the Rent Controller
and not in first appeal. As no
application for joinder of respondent No. 2 was made before
the passing of the
final order by the Rent Controller, learned counsel contended that there
was no
power left in the Court to implead respondent No.2. The argument is without
substance. Provisions of Order XXII, rule 10, C.P.C., are attracted when there
is
assignment, creation or devolution of any interest during the pendency of
the suit, in which
even such proceedings can be continued by or against the
person to or upon whom such
interest has come or devolved. To our mind the only
important condition for attracting the
aforesaid provisions is that such
assignment, creation or devolution of interest should occur
during the pendency
of the suit. There is' no restriction in the aforesaid provisions that would
prevent the appellate Court from invoking the aforesaid provisions. Indeed
Order XXII, rule
11, C.P.C. makes the aforeasid provisions applicable to
appeals. Even otherwise it appears
that the provisions of Order XXII, rule 10,
C.P.C., are permissible and enabling. Therefore,
the person acquiring interest
may be joined as a party with the leave of the Court. But he is
under no such
obligation to necessarily join the proceedings. The reason is that the mere
devolution of interest of a party pending a suit or appeal, will not arrest the
hearing of the suit
which will continue between the original parties, and the
person acquiring interest pendente lit
will be bound by the decree. In any case
under section 146, a person upon whom rights had
devolved during the pendency
of the proceedings m the original Court, can apply for
permission to continue
the appeal, even if, no application under Order XXII, rule 10, C.P.C.,
was made
in the original Court."
 
From the
aforestated observation it is clear that by transfer of the property the
pending
proceedings are not affected or abated and if the transferee does not
become a party to
ejectment proceedings, then it is continued by the transferor
for the benefit of the transferee
unless it is shown clearly that contrary
intention can be spelt out from the deed of transfer.
 
In the present
case the respondents have not been able to show from the transfer deed that
the
applicants are not entitled to the rights, claims, and privileges which the
transferor was
entitled to at the time of sale. Mr. Afsar Abidi has referred to
a notice dated 31-7-1988
annexure R-2 to the rejoinder to show that the
attorney of respondent No. 1 had issued
notice to Nusrat Agencies to pay rent
to the applicants but such notice was not issued to the
appellant. In reply the
learned counsel for the applicants has contended that the notices were
issued
to the tenants and not to the unauthorised sub-tenants. Mere issuance of notice
to the
tenants does not disentitle the applicants from filing this application.
Having succeeded to the
rights of the transferor they were entitled to claim
rent from the tenants.
 
Mr. Tariq has
contended that immediately on registration of sale deed the applicants should
have filed the application, but they have delayed it beyond 90 days from the
date of sale and
therefore, the application should be struck down. The learned
counsel has not been able to
show any provision of law under which the
limitation of 90 days has been provided for an
application filed under Order 22
rule 10 C.P.C. The limitation referred by the learned counsel
is in respect of
application under Order 22 rule 4. Order 22 rule 4 is completely different
from
Order 22 rule 10 C.P.C., which deals with situation where a party acquires
right of
ownership by assignment, creation or devolution of any interest during
the pendency of a suit,
for an application under Order 22 rule 10 C.P.C. period
of limitation as contended by Mr.
Tariq has not been provided. The case of
assignment is completely different from the case
where a person acquires right
due to the death of his predecessor. So far as the objection
regarding filing
of the power-of-attorney is concerned, it has been pointed out that the
power-of -attorney is a registered one and has been riled with application for
ejectment. For
these reasons the application is granted. The amended memo of
appeal should be filed within
two weeks.
24/01/2022, 16:34 1989 M L D 4691

 
H.B.T,/M-948/K
 
Application
granted.
 
 
 
 
 
 
 
 
 
24/01/2022, 16:34 1989 M L D 4691

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