1989 PLP 736 (CLC)

3. The plaintiff was called upon to file copies of the order of .the Rent Controller and of the judgment of the F.R.A., which he has done.

4. From the perusal of the same it appears that the defendant No:l had filed an application for ejectment of the plaintiff alleging that the plaintiff was his tenant in Shop No.2/A situated on plot No.RC‑2(KD‑27) Ranchore Quarters, Bohra Pir, Ambaji Villa Road, Karachi at a monthly rent of Rs.500. Therefore, he was in arrears of rent since 1‑2‑1978 amounting to Rs.42,000 and had also sublet the shop unauthorisedly to Miskin Saheb. The plaintiff in his written statement stated that defendant No.l had nothing to do with the shop in question which was on K.M.C. land and denied the charge of default in payment of rent. He also denied the plea of subletting. The plaintiff did not stop there. Subsequently he raised a plea that his father had purchased the super‑structure of the shop from defendant No.l for Rs.6,

000. The learned Rent Controller decided the issue as to relationship of landlord and tenant in favour of defendant No.l and called upon the plaintiff to deposit arrears of rent amount amounting to Rs.42,

000. The plaintiff deposited the same. However, after trial the application was allowed and the plaintiff was ordered to be ejected by the Rent Controller. The plaintiff came in F.R.A., to this Court but the same was also dismissed. The findings of the Rent Controller including the finding of existence of relationship of landlord and tenant between the parties were maintained.

5. Under these circumstances it would appear that the plaintiff having lost before the Rent Controller and this Court in the rent A proceedings now wants to repaginate the same defence in this Court by means of this suit. It is not open to the plaintiff to do so on the general principles of res judicata as well as under section 22 of the Sind Rented Premises Ordinance, 1979 which reads as under:‑ "

22. Execution of Orders. Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit. Explanation:‑ In the execution proceedings relating to the order ejectment, no payment, compromise or agreement shall be valid unless such payment, compromise or agreement is made before' or with the permission of the .authority passing the order."

6. Mr. Muhammad Muzaffarul Haq Advocate referred to 1987 MLD 231 Fehmida Begum v. M. Khalid where it was held by a Single Judge of this Court that provisions of section 12(2) CPC were applicable only to civil suits and not to rent matters. This ruling is distinguish able from the present case because it makes it quite clear that it interprets section 22 of the Sind Rented Premises Ordinance, 1979 as it was before its amendment by Sind Act I of 1986. Now that section 22 has been amended, and clear provision has been made to the contrary this ruling will not apply to the present case. Mr. Muzaffarul Haq has also cited 1980 CLC 1214‑ Abdul Mannan Umer v. I.D.B.P. and 1988 M L D 496 Faryad Ahmed v. K.M.C. which as I will show later on are not applicable to this case.

7. It is therefore quite clear that whenever a final order has been passed under the Sind Rented Premises Ordinance all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Rent Controller and not, by a separate suit. It is further explained that in such execution proceedings no payment, compromise or agreement shall be valid unless such payment, compromise or agreement is made before or with the permission of the authority passing the order. Hence it would appear that the present suit is barred un0er section 22 of the Sind Rented Premises Ordinance, 1979 as well as on the general principles of res judicata.

8. The plaintiff has admitted that his father had purchased the super structure of this house from defendant No.l. Hence the learned Rent Controller as well as this Court in the F.R.A. were justified in relying ‑ upon the oral evidence of defendant No. l that he was the owner of the shop and had rented it out to the plaintiff. The above two rulings cited by the plaintiff's counsel presupposed fraud and mala fides which the plaintiff should have clearly and specifically made .out. The perusal of the plaint does not make out a case of fraud or mala fides. It only repeats the plea of the plaintiff which he‑had taken in the proceedings under the Rent Restriction Ordinance that his father had purchased the super structure of the house from defendant No.l and therefore he was the owner thereof. On disproof of this plea he was ordered to be ejected. By now it is a settled jaw that where the proceedings under Rent Restriction Ordinance have been finally decided against a party up to the last stage, it is not open to him to reagitate the same by filing a civil suit or a writ petition. Such suit or writ petition is barred on the general principle of res judicata. Reference in this connection is invited to the case of Salahuddin v. Zaheeruddin reported 'n P L D 1988 S C 221 wherein it was held as under:‑ "A matter involving even a dispute of title having once obtained finality in the Rent Controller's forum (including the hierarchy of appeals and thus the appellate and superior Courts) cannot be reagitated in a suit before a Civil Court of general jurisdiction, inter alia because of principle of general res judicata; the provisions contained in section 12(2) CPC read with section 9, C . P.C., and, the provisions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (as amended).

9. I am therefore, of the clear view that the plaintiff has no prima facie‑case nothing to say of balance of convenience or irreparable loss. He has not come to the Court with clean hands. He is therefore not entitled to the equitable relief of interim injunction or attachment D before judgment. Hence I dismiss C.M.As. No.760 and 761 of 1989. At the same time 1 am also satisfied that the suit is barred under section 22 of the Sind Rented Premises Ordinance, 1979 as well as on the general principle of res judicata and therefore reject the plaint under Order VII, Rule 11, C.P.C. A.A. /S‑330/ K . Plaint rejected.