ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
J.M. No.04 of 2012
Anant Kumar Parshtam Kanabar
Versus
Swami Narain Temple Estate Trust & another
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Date |
Order with signature of Judge |
1. For hearing of CMA 456/2012
2. For hearing of mina application.
3. For orders on CMA 112/13
4. For orders as to non-prosecution of CMA 11354/13 as notice not issued as process for not paid.
Date of hearing: 25.11.2013
Applicant present in person.
Mr. Neel Keshov for the respondents.
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Muhammad Shafi Siddiqui, J.- In this J.M. the applicant has sought to be impleaded as party in the civil suit No.1387 of 1999 by challenging the judgment and decree passed in Suit No.1387 of 1999 with consequential restraining order.
It is the case of the applicant that father of the applicant and father of defendant No.2 had registered company in the name of M/s Sindh Gujran Hindhu Lodge dated 15.04.1964. The applicant present in person submitted that he left for India and remained there for long time and respondent No.2 started looking after the premises alone. The applicant further submitted that the suit referred above was filed without impleading him as a party though he is the lawful successor of his father in terms of tenancy acquired as the business referred above was being conducted at the tenement. He submitted that concealment of such fact constitute fraud and misrepresentation.
On the other hand Mr. Neel Keshov, learned counsel appearing for respondent No.1 argued that only father of respondent No.2 i.e. Diyal Jee was the tenant of the respondent No.1 and as such the suit for possession of the rented premises was filed in respect of the property which is meant for lodging and boarding and as such since it was beyond the purview of Sindh Rented Premises Ordinance, 1979, therefore, the ejectment was sought through the aforesaid suit. Learned counsel contended that the suit was decreed against which appeal was preferred by respondent No.2 and the same was disposed of in terms of compromise. Learned counsel submitted that the applicant has not shown anything to establish that his father and one Diyal Jee jointly acquired the property in question on rent. He submitted that the registration certification in respect of Sindh Gujrat Hindhu Lodge may have been issued however such document does not demonstrate that the premises in question was under tenancy of the father of the applicant. He submitted that the reliance of the applicant on the document available at page 47 and 49 issued by defendant No.1 are in respect of tenement 153 only whereas the present proceedings in respect of which the suit has been filed were in respect of premises No.121.
Learned counsel without prejudice to the above submitted that even if contention of the applicant is accepted that his father was the co-tenant even then after sad demise of applicant’s father and Diyal Jee only those legal heirs who were in occupation of the premises would have been considered to be the statutory tenants and not all the legal heirs. Since the applicant has left for India as admitted in paragraph 10 of the main application, therefore, there is no occasion to implead him as being a necessary and proper party.
I have heard the learned counsel and perused the material available on record. The proceedings under section 12(2) CPC are initiated by the applicant on the ground that he was not impleaded in the suit filed by respondent No.1. The applicant however in this regard had to establish independently that any fraud or misrepresentation has been committed. At the very outset the applicant could not establish that either he or his father were in joint possession with one Diyal Jee as co-tenants. The applicant has relied on the documents at pages 47 and 49. The same are issued to the father of the applicant in respect of Premises 153, which is not the subject matter of this JM and/or the suit. In addition to this applicant has relied upon the statement of Diyal Jee which is filed along with a statement. This statement also does not demonstrate that it was given with regard to the premises in question. Be that as it may, the admission on the part of the applicant itself demonstrated that he left Pakistan for India and levied there for long time and at the time of demise of his father he was not in occupation of the premises. Even if the contention of applicant is taken to be correct, after the sad demise of Diyal Jee and Parshtamdas, the legal heirs who were in occupation of the premises in question are to be regarded and considered as statutory tenants and all other legal heirs of both cannot be regarded or considered as statutory tenants of the premises in question.
In case of Mst. Sadori Bai v. Faiz Muhammad reported in 1990 CLC 1353 it has been held as under:-
“2. The tenant as defined by section 2(j) of the Sindh Rented Premises Ordinance, 1979, 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 tenant.
It is thus clear that only those heirs of a deceased tenant who are actually in possession of premises are to be treated as tenants and not those who are not occupying the same. The case reported as Ghulam Nabi v. Muhammad Sachal 1986 CLC 2858 is relevant on this point. The objections filed by appellant Gurmukhdas are also silent on this aspect of the case. He never pleaded before the Rent Controller that appellants No.1 to 4 or any one of them are in occupation of the disputed premises, which is commercial one. The Sindh Rented Premises Ordinance, 1979, brought about a change in the definition of “tenant” from the one provided in the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed). In the repealed Ordinance,
“tenant means any person by whom or on whose account rent is payable for a building or a rented land and includes (a) a tenant continuing in possession after the termination of tenancy in his favour, and (b) the wife and children of a deceased tenant ……”
In addition to the above, in case of Ghulam Nabi v. Muhammad Sachal reported in 1986 CLC 2858 it has been observed as under:-
“So far as the maintainability of the petition is concerned, the learned Controller has dealt with this point at length and has rightly pointed out that only those heirs of the tenant who are actually in possession of the disputed premises are to be treated as tenants and not those heirs who are not occupying the premises. His finding that only the appellant is in possession and occupation of the shop is supported by the evidence on record as well as the admission of the appellant himself. Hence this issue does not require any interference.”
Upshot of the above discussion is that the applicant has failed to demonstrate that he is a necessary and property to be joined in the suit proceedings, which could be contemplated as fraud and misrepresentation. Accordingly, the J.M. is dismissed along with all pending applications.
Dated: 29.1.2013 Judge