JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, KARACHI.

C.P.No.2061 of 2015

Date	Order with signature of Judge

Petitioner:                      Pervez Ahmed through Mr. Khilji Bilal Ali                                         Advocate

Respondents:                 Muhammad Amin and another through                                            Yaseen Azad advocate

28.08.2017.

J U D G M E N T

=

MUHAMMAD IQBAL KALHORO J:    Respondent No.1 who is landlord of the property viz. Mandviwala Building, Survey No.21, SB-4, Saddar Bazzar Quarters, Zaibunisa Street/Inverarity Road, Karachi filed a rent case No.319/2012 for ejectment against his tenant namely Akhlaq Ahmed through Pervez Ahmed the petitioner, who is his son. In para No.6 of the rent application, he has mentioned that original tenant Akhlaque Ahmed has expired. Meanwhile during pendency of the said rent case, respondent No.1, filed an application u/s 2(j)(ii) Sindh Rented Premises Ordinance, 1979( SRPO, 1979) pleading that the petitioner be taken on record as tenant and be made party in the rent case. At the same time, the intervener respondent No.2 Rehman Ahmed, who is also son of the original tenant Akhlaque Ahmed filed an application u/o 1 rule 10 CPC impleading to be made a party in the said rent case on the ground that he is partner in the business being carried out in the subject premises. Both the applications were allowed by the impugned order and as a result of which besides the petitioner, respondent No.2 Rehman Ahmed has been made respondent in the said rent case and such amended title has been filed before the learned Rent Controller. Petitioner is aggrieved by this order on the ground that the rent case has been filed against a dead person (his father), therefore, the same is not maintainable, and thus the impugned order allowing him and his brother to be made party in the rent case is not sustainable in law. Learned counsel for the petitioner in support of his arguments has relied upon case law reported in 2013 SCMR 464, PLD 2004 AJ&K 12, PLD 2003 Lahore 615, PLD 2001 SC 149 and 2004 SCMR 400.

2.       On the other hand, learned counsel for respondent No.1 has argued that the rent case was not filed against a dead person but since Ashfaq Ahmed was the original tenant, therefore, his name was mentioned but because of his being dead, he is made party through the petitioner, who is his son, and is in occupation of the premises as tenant.

3.       I have considered the submissions of the parties and perused the material available on record including the case law relied upon by the learned counsel for the petitioner. A perusal of rent application shows that although name of Akhlaque Ahmed is mentioned but he has been made party through his son Pervaiz Ahmed, the petitioner, who is in occupation of the subject premises for the last many years. In para No.6 of the rent application, the fact about death of Akhlaq Ahmed has been specifically mentioned. It appears that said Akhlaq Ahmed was made party out of an abundant caution, being the original tenant of the premises but through the petitioner, his son who after his demise has become the tenant by operation of law. There is no cavil to the proposition that the civil suit or any proceedings cannot be filed against a dead person, therefore, the objection of the petitioner that the rent case cannot be filed against a dead person is correct. However, at the same time, it may be noted that after the application of respondent No.1 to make the petitioner as party in the rent case has been allowed, said objection has become infructuous and the anomaly redressed. Therefore, at this stage to ask the respondent to withdraw the rent case and file a fresh one against the petitioner who has already been made respondent in the case  would be a technical approach in negation of doing substantial justice. The other objection of learned counsel for the petitioner is that he is the sole proprietor of the business being carried out in the demised premises, and respondent No.2, who is his brother has nothing to do with said business and hence he is not entitled to be impleaded as party, it may be mentioned that this question is factual in nature and cannot be adjudicated in the constitutional petition. The petitioner may avail proper remedy against his said grievance before the proper forum. Resultantly, I do not find any merit in this constitutional petition and dismiss it accordingly.

JUDGE

A.K/P.S.