P L D 1994 Karachi 319 (PLP)

1 & 2. The dispute between the parties has been discussed and disposed of by the learned Controller in these words:

"On the other hand learned counsel for opponent/JD (urged) that in fact applicant/D.H. has settled his matter and dispute with the opponent and had engaged into fresh agreement with the opponent/J.D. in respect of the said shop by receiving the sum o Rs.1,00,

000. Learned counsel further argued that applicant/D.H. no only received Rs.1,00,000 but simultaneously he authorised his so Jawaid for issuance of rent receipts at the rate of Rs.300 and the son Jawaid was receiving the rent according to fresh agreement. Learner counsel further argued that although applicant/D.H. is denying the factum, of fresh tenancy agreement' yet this Court is not debarred to exercise the power under Order 21, C.P.C. in respect of investigation of matter or determining bona fide claim of person and, therefore, this Court is competent to investigate the claim advanced by opponent/JD in his application. In support of his intention learned counsel has relied upon 987 CLC page

604. It is an admitted fact that opponent/J.D. has filed the application under section 12(2), C.P.C. on the ground that since applicant/D.H entered into fresh tenancy agreement with the opponent/J.D. hence he is liable to be ejected. It is also an admitted position that present application has been made during the pendency of present execution proceedings. Here it may be pointed out that presume for sake of arguments that applicant entered into fresh tenancy agreement and he received Rs. 1,00,000 from the opponent/J.D. during the pendency of proceedings, then point. arises which thing prevented the opponent/J.D. from not seeking permission from this Court or honourable High Court, particularly when section 22 of Sindh Rented Premises Ordinance is very much clear on this point, as in the said section it has been provided that in the execution proceedings relating to the order of 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. It may further be pointed out that no doubt opponent/J.D. has produced some rent receipts purported to be signed by son of applicant/D.H. alongwith the present application but it is strange to note that these receipts were neither disclosed at the stage of objections to the execution application particularly when opponent/J.D. alleges that receipts pertain to the month of July, August and September, 1993. So all these factors constitute that opponent/J.D. has taken frivolous plea in order to protract the execution proceedings. The cases as set up by opponent/J.D. in the application under section 12(2), C.P.C. is clearly hit by section 22 of Sindh Rented Premises Ordinance. For these reasons I find no merits in the application under section 12(2), C.P.C. consequently the same is dismissed. The order of writ of possession be repeated through police force." As found by the learned Controller the matter, in essence, was covered by section 22 of the Sindh Rented Premises Ordinance, 1979 which, as amended, runs thus:‑‑ "

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 of 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." The referred provision as well as that under section 12(2), C.P.C. came up for consideration before a Division Bench of this Court in Noor Muhammad v. Muhammad Kamil and another 1991 CLC 92 and the Court opined on the subjects in words which are as follows:‑‑ "The allegation that there was an oral agreement besides the written compromise application, is on the face of it unbelievable and absurd. With a view to discourage such a false plea from being raised in rent cases, which were being raised falsely in the past in abundance, section 22 of the Sindh Rented Premises Ordinance was re‑enacted by Sindh Act No. I of 1986 which makes it obligatory to obtain permission of the authority passing the order whenever any agreement is made before or after such order. Admittedly in this case no such permission has been obtained. We are, therefore, satisfied that this application is improper, mala fide and has been made only to protract and abuse the process of Court. In Iqbal Sultan v. Chand Sultana reported in 1990 CLC 366, it was held that an application for setting aside decree allegedly obtained by fraud and misrepresentation under section 12(2), C.P.C., if found to be improper, mala fide and having been made only to protract the proceedings and to abuse the process of the Court, could be dismissed by the Court without framing any issue or recording any evidence." Mr. MA. Lakhani, the learned counsel for the appellant, on his part has placed reliance on Kabiruddin v. Subtain Ahmed 1987 CLC 604, but that was a case pertaining to third party interests and not one limited to the same parties as were arrayed in the rent proceedings or were being proceeded with in exercise of powers conferred by section 22 of the Sindh Rented Premises Ordinance. Mr. Muhammad Amin Lakhani was also at pains to urge that here was a case where the appellant had been defrauded and made poorer by a sum of Rs.100,000 and even though the respondent had created a fresh tenancy by issuing receipts of rent, he had kept the original novated agreement with himself (bearing the title acknowledgment of receipt) and thus an investigation both pursuant to section 12(2), C.P.C. and section 22 of the Sindh Rented Premises Ordinance ought to take place. Learned counsel, in support, draws upon Bambino Ltd. v. Selmor International Ltd. PLD 1983 SC

155. That also was a case where a third party interest, which had purportedly intervened at the instance of the landlord itself, had come up for consideration. The instant case is different in that a fresh agreement of tenancy is alleged to have been entered into between the same landlord and the same tenant, which is sought to be used as a shield against eviction. Such agreement, for what it may be worth, had to satisfy the requirements of the Explanation to section 22 of the Rent Ordinance but did not so satisfy the requisites. The essential pre condition for such an agreement or ancillary payment is none other than that such must be shade before or with the permission of the authority passing the order. Failing this, law has deemed either to be invalid. The simple device of prior authentication or approval in relation to the "payment, compromise or agreement" in section 22 supra is calculated to forestall fake and fraudulent transactions from coming in the way of smooth execution of orders. It may be that in rare cases, because of ignorance of the law, some suffering may be generated but that would obviously be a self‑infliction. On balance, the benefits flowing from the amended version of section 22 far outweigh the detriments, if any. The only other contention from the side of the appellant was that, at any event, because fraud was practised by the respondent the order of eviction could be and was challenged under section 12(2), C.P.C. On the facts, as narrated by the learned Controller, no fraud appears to have been committed. Assuming for the sake of argument that fraud, in fact, was committed and also that the principle underlying section 12(2) ibid being an equitable principle, applied to rent cases, it appears to me that in the face of the deeming clause in section 22 of the Sindh Rented Premises Ordinance, 1979, no scope for further I E inquiry as to allegation(s) of fraud would ordinarily arise in respect of any payment, compromise or agreement which fails to satisfy the mandates of section 22, if otherwise applicable. Mr. Muhammad Lakhani, at this stage, has urged that consequent upon such findings, as above, the appellant would be left with no remedy. That may or may not be so. All that need be said on the subject is that even where a transaction is treated by law to be void some, though limited, remedies in relation to the same, if the transaction existed at all, may yet be available. For the purposes here, however, the impugned order calls for no interference. Appeal dismissed and with it also C.MA. listed above. H.B.T./A‑1469/K Appeal dismissed.