1983 PLP 178 (CLC)

(3) That the said arrears of rent shall be paid by the opponent to the applicant in easy monthly instalments of Rs. 150 alongwith the current rent of Rs. 250 per month. In all Rs. 400 shall be paid by the opponent from .1st January, 1974 on or before 10th of each month. (4) In case of consecutive default of two months instalments of arrears as mentioned above, the opponent shall be liable for ejectment without notice and the whole remaining amount shall become payable in lump sum. The Attorney for the applicants are present in persons alongwith their counsel. The contents of this application have been admitted by them. Let it be recorded. The case is disposed of in terms of the compromise with no order as to costs. Order accordingly. Sd/‑ (Civil Judge and Rent, Controller, Karachi) 19‑12‑1973." (b) It may be noticed that in the above compromise application, it was agreed by the respondent that he would pay the amount mentioned therein in the manner provided therein. It was further agreed that in case of two con secutive defaults of two months instalments of arrears as mentioned, the opponent shall be liable for ejectment without' notice. It is the case of the present applicant that the respondent against the arrears amounting to Rs: 3,250 has paid only a sum of Rs. 2,800 and that he has also committed default in payment of monthly current rent.

4. The question, which requires consideration is, as to whether tire order dated 19‑12‑1973 passed by the learned Rent Controller in aforesaid Rent Case No. 14k2 of 1973 was an order for ejectment executable through an execution application. Reference has been made to the above case, reported in. P L D 1969 Kar.

12. The relevant facts of the above case were that the landlord had filed an ejectment application before the Rent Controller under the late W. P. U. R. R. Ordinance, 1959 (hereinafter referred to as the late Ordinance) on the ground of default and additional ground was added, namely, personal requirement. The Rent Controller by order dated. 27‑I‑1969 ordered the appellant/opponent to vacate the said premises but this order was upset by the learned District Judge, Mirpurkhas, and it was held by him that the landlord had remedy by way of suit and not through an application under the Ordinance. The respondent/applicant being aggrieved by the above order had filed a second appeal, which was disposed of through a compromise application. The relevant portion of the compromise application was follows : "Respondent admits that he is the tenant of the appellant and under takes to pay the arrears of rent in the sum of Rs. 2,202 (Rupees two thousand two hundred and two) only after adjustment of Rs. 500 (rupees five hundred) towards repairs calculated at Rs. 14 (four teen) per month from 1st January, 1948 up to the end of February, 1964 by the 31st of May, 1964. He further agrees that the appeal may be allowed and a decree for ejectment in respect of the house .nay be passed on condition that if he fails to pay the abovementioned amount by 31st May, 1964 the appellant will be entitled to execute the decree and evict him from the property m dispute. The appellant has also accepted these terms." The aforesaid compromise was recorded by Waheeduddin Ahmad, J. (as he then was) on 2‑3‑1964, who through his order gave a decree for ejectment in favour of respondent; applicant on the condition stated in the compromise application. It seems that in the above case the appellant/oppo nent committed default and, therefore, the respondent/applicant moved an application on 13‑11‑1964 for the execution of the ejectment order on the ground that the opponent/appellant failed to deposit Rs. 2,202 by the stipu lated date, to which the appellant/opponent filed objections. The learned executing Court by order dated 17‑12‑1965 held that the amount payable by the appellant/opponent under the compromise decree was not expressly and clearly fixed in the decree and, therefore, there was a bona fide mistake in calculating the arrears at Rs. 1,

702. After recording the above finding, the executing Court permitted the appellant/opponent to deposit the balance of Rs.

500. This order was assailed by the respondent/applicant before the District Judge in an appeal, which was accepted. The appellant being aggrieved, the above order filed a second appeal, which was disposed of through the above reported case the main question for consideration before a learned Single Judge was, whether the executing Court could grant relief to the tenant against the default in case in which ejectment order was passed conditionally and was sought to be executed on account of non‑payment. The appeal was allowed and it was held that the executing Court was competent in law to grant the relief against the penal provision warranting the execution of ejectment order. 5. (a) Mr. Mubarak, learned counsel for the applicant has submitted that in the aforesaid case the principle that in a rent case there can be a compromise relating to ejectment, which can be executed through an execu tion application upon commission of default is accepted. On the other hand Mr. Hussain Adil Khatri has urged that the facts of the above Karachi case are distinguishable from the instant case inasmuch as no objectment order was passed in the present case by the Rent Controller in pursuance of the afore said compromise application filed in aforesaid Rent Case No. 1482 of 1973. It has also been urged by Mr. Mubarak that in view of section 17 of the late Ordinance every order passed inter alia under section 13 is executable as a decree of the Court and has force of a decree. Reliance has been placed on the case of Habib Ismad Bajwa v. Ghulam Muhiuddin, in which the appellant was directed to make good deficiency of court‑fee before proceeding with the matter on the ground that the order passed by the Rent Controller was in the nature of a decree.. (b) Reverting to the case, 1973 S C M R 307, it may be observed that the relevants of the aforesaid case were that the controller granted ejectment application, against which an appeal was filed, in which a compromise was arrived at between the parties, whereby the tenant was allowed to continue in possession for a period of 3 years from the date' of compromise on condition of payment of all the arrears and regular payment of future monthly rent. However, that tenant after the expiry of 3 years failed to vacate the premises. Thereupon, the landlord moved an application for execution of order of ejectment, to which the tenant filed objections. How ever, the above objections were dismissed. The matter went up to the Supreme Court while refusing to grant leave against the order of the learned Single Judge of the then High Court, the Supreme Court held that the execution application was competent. (c) As regards the case, reported in 1982 C L C 156, it may be stated that the facts were that the landlord had filed ejectment application on the ground of default. which was dismissed. The first appeal filed against the aforesaid dismissal order was also dismissed. The landlord being aggrieved by the above two orders had filed a second appeal in the High Court. In the aforesaid second appeal Waheeduddin, J. (as he then was) after con curring with the finding of the two Courts below that there was no wilful default, recorded the offer made by the tenants' counsel to the effect that the tenant would pay the difference of the arrears of rent within one week, failing which he would be ejected. The tenant committed default of the above under taking, thereupon the landlord filed an execution application for ejectment, to which objections were filed, which were dismissed by an order dated 19‑10‑1965, consequently a writ of ejectment was issued as prayed for. The respondent being aggrieved by the aforesaid order filed a miscellaneous appeal before the District Judge, Hyderabad, which was allowed by an order dated 23‑12‑1976. The appellant being aggrieved by the above order filed a second appeal in the High Court, which was dismissed by a learned Single Judge by his order dated 2‑3‑1977. Against the above order of the learned Single Judge a certificated letters patent appeal was filed. The certificate was granted on the following two points: . (i) Whether in the facts and circumstance of this case relief against for feiture was rightly granted by the Courts below? (ii) Whether in any proceeding arising out of the Pakistan Urban Rent Restriction Ordinance, 1959, there could be an agreement enforce able by execution? The above second point was not pressed before the D. B. hearing the letters patent appeal, as it, was conceded by the learned counsel for the appellant that the case law as since developed was against the appellant.

6. From the above cited and discussed cases, it is evident that a con ditional ejectment order is executable if the condition on which the execu tion of the same was deferred was not fulfilled. It is also apparent that even in such a case, the Court has the power to grant relief to the defaulting party on sufficient cause being shown. A person in whose favour an ejectment order is passed may postpone its execution or may waive it upon fulfillment of certain conditions. However, in the absence of passing of an ejectment order by the Rent Controller, it cannot be spelled out from the terms of a compromise application having no provision providing for passing of an. ejectment order or from the order passed thereon in general form that the application stand disposed of in terms of compromise. In the instant case admittedly no ejectment order was passed by the learned Rent Controller and, therefore, the principle enunciated in the above cited cases cannot be pressed into service.

7. As regards the contention of Mubarak that an order passed under the late Ordinance was a decree and, therefore, is executable as such, it may be mentioned that section 17 of the late Ordinance provided that every order made under section 10 or section 13 and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. In my view the order of ejectment passed under the Ordinance was treated on account of deeming provision as a decree for the purpose of execution of the order, but cannot be equated with a decree passed in a civil suit. It may be observed that when a thing is to be deemed something else, it is to be treated as that something else with the attendant consequences, but it is not in fact that something else. Furthermore, even if I were to hold that an objectment order is a decree, as pointed out hereinabove, in fact no objectment order was passed in the present case and, therefore, there is no question of executing any such order as a decree.

8. For the aforesaid reasons I do not see any wrong with the order under revision, and, therefore, the revision application is dismissed with no order as to costs. S. Q. Revision dismissed.