ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
C.P No. S-806 of 2009.
|
Date Order with signature of Judge |
1. For Katcha Peshi.
2. For hearing of C.M.A No.3657/2009.
Present before: Ahmed Ali M. Shaikh, J
Mr. Javed Iqbal Barqi learned counsel for the petitioner.
Ms. Mehrunissa learned counsel for the respondent No.2.
Date of hearing: 24-05-2010.
Petitioner Umar Mujeeb-ur-Rehman Shami through his attorney Mir Abbas Raza Mubasshir.
Respondent V-Additional District Judge Karachi (South) and an other.
Decided on 11th June, 2010.
AHMED ALI M. SHAIKH, J. Through this constitutional petition the petitioner has prayed as under:-
a) Set aside the impugned judgment dated: 28.09.2009 passed by V-Additional District Judge Karachi (South).
b) Call the R & Ps. Of the case.
c) Accompanying application under Order 39 Rule 1 & 2 C.P.C may also be granted and to suspend any further proceedings in consequence of impugned judgment dated: 28.09.2009 till the disposal of this petition.
d) To grant any other relief or reliefs which may deem fit and proper under the circumstances of the petition.
The facts giving rise to this petition are that the respondent No.2 filed a Ejectment Application / Rent Case No. 2786/2000 against the petitioner in the Court of II-Rent Controller Karachi (South) on the ground of default. The above rent case was disposed of on 15.10.2002 in terms of compromise contained in the application dated: 29.05.2002. For the sake of convenience, the terms of the said application dated: 29.05.2002 are reproduced hereunder:-
(a) That the opponent has no objection for withdrawal of the entire rent deposited by the opponent in the above matter by the applicant including rent deposited by the opponent in Misc. Rent Case No. 106/2001, before the Honourable Court of IXth Rent Controller, Karachi (South).
(b) That the opponent will vacate the premises in question if so desire by the applicant on prior three months’ notice to the opponent.
(c) That the opponent is further willing to pay 10% increase in monthly rent w.e.f May, 2000 onwards the difference amount will be paid by the opponent to the applicant on execution of this application.
(d) That other clauses of Agreement of tenancy dated 4th May, 1999 signed between the parties are binding on the parties.
(e) That the applicant hereby withdraws the above case filed against the opponent.
Upon a perusal of order dated: 15.10.2002 passed by Rent Controller, it appears that the Rent Controller disposed of case in terms of such compromise without passing an ejectment order.
On 13.08.2008 respondent No.2 filed an execution application bearing No. 09/2008 before the II-Rent Controller Karachi (South) for eviction on the basis of order dated: 15.10.2002. The petitioner filed objections to the execution application and after hearing the parties, the Rent Controller vide order dated: 16.02.2009 allowed the execution application whereby he issued writ of possession. The petitioner impugned the same through F.R.A No. 34/2009 which was dismissed vide order dated: 28.09.2009.
It is interalia contended that the appellate Court failed to appreciate the contents of the order dated: 15.10.2002 passed by the Rent Controller as it was an order passed on terms and conditions of the compromise. Per learned counsel, the Rent Controller did not pass any ejectment order, therefore, question of execution of aforesaid order is out of consideration. Learned counsel further contended that the impugned judgment has been passed in haste, mechanical manner and without applying judicial mind, therefore, the same is liable to be set-aside.
Conversely learned counsel for the respondent No.2 has supported the impugned judgment on the ground that the Rent Controller was empowered to initiate the execution proceedings against the petitioner on the basis of he order dated: 15.10.2002. Per learned counsel the impugned judgment has been passed in accordance with the settled principles of law and same does not warrant any interference. In support of his contentions the learned counsel for the respondent No.2 has relied upon PLJ-1982-Karachi-447, 1991-SCMR-2457, PLJ-1973-Lahore-44, 1973-SCMR-307, 2001-SCMR-1191, and NLR-1986-CLJ-492.
Heard learned counsel for the parries and perused the impugned judgment and compromise application dated: 29.05.2002 and order dated: 15.10.2002 passed by the Rent Controller.
From the perusal of clause (b) of the compromise application, it appears that the opponent/petitioner will vacate the premises in question if so desire by the applicant/land lord/respondent No.2 on prior three months notice to the opponent. However clause (e) of the said application reveals as under:-
“That the applicant hereby withdraws the above case filed against the opponent”.
It appears that the learned Rent Controller disposed of the rent case in terms of such compromise application but did not pass any ejectment order.
Section 22 of the Sindh Rented Premises Ordinance, 1979 relates to the execution of orders. Upon a perusal of section 22, it appears that final order passed under Sindh Rented Premises Ordinance, 1979 shall be executed by the Rent Controller and all questions arising between parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit. The law relied upon by the learned counsel for the respondent No.2 is distinguishable and not applicable to the case in hand.
In 2001-SCMR-1191 a question before the Honourable Supreme Court was to consider whether in absence of specific application of Limitation Act, 1908, execution application under S. 22 of the Sindh Rented Premises Ordinance, 1979 would be governed under article 181 of Limitation Act, 1908, or otherwise.
In Haji Abdul Wali Khan Vs. Muhammad Hanif (NLR-1986-CLJ-492, the powers of Rent Controller were defined to determine how, to what extent and in what manner he shall exercise his powers in execution proceedings.
In Mohammad Ajmal V. Govt. of W. Pak., the facts of the case were quite different, whereby it was held that consent order has not created fresh tenancy in favour of the appellant, as the tenant was given further time to remain in possession of the property.
In Haji Abdul Wali Khan and another v. Muhammad Hanif and another (1991-SCMR-2457) powers of the Rent Controller as provided under S. 17 of West Pakistan Urban Rent Restriction Ordinance (VI of 1959) are defined, whereby it is held that object of legislation in enacting S.17 (as amended) was to authorize Rent Controller to execute his own or appellate orders passed under specified sections of the Ordinance.
In Mrs. Ameena Lodhi & 2 Others versus Maqbool Hussain (PLJ-1982-Karachi-447) it is held that conditional ejectment order to be executable if condition on which execution deferred not fulfilled, Court, however, to have power to grant relief to defaulting party if sufficient causes shown. It is further held that person in whose favour ejectment order passed is competent to postpone its execution or to waive execution of same on fulfillment of certain conditions.
Since no ejectment order was passed by Rent Controller, therefore, in absence of ejectment order the execution application field by the respondent No.2 which was allowed by the Rent Controller is nullity in the eyes of law and in the same manner learned appellate Court has also failed to note that no ejectment order was passed by the Rent Controller, thus the same judgment is also liable to be set-aside. In the case of Mrs. Ameena Lodhi & 2 others versus Maqbool Hussain (1983-CLC-178) it is held that when no ejectment order was passed, therefore, there is no question of executing such order as decree.
Since the order dated: 15.10.2002 was not an ejectment order, therefore, same was not executable through an execution application. Consequently I allow this petition and set-aside the impugned judgment dated: 28.09.2009 passed by V-Additional District Judge Karachi (South) in Rent Appeal No.34/2009 and quash the execution proceedings culminating from execution application No. 09/2008.
Judge
Abdul Salam P.A