1989 PLP 1201 (CLC)

JUDGMENT . This appeal is directed against an order dated 10‑1‑1987 passed by the learned VIth Senior Civil Judge/Rent Controller, Karachi, in Rent Case No.3633 of 1979/Execution Application No.45 of 1986 declining the present appellant's for execution.

2. The brief facts leading to the filing of the above appeal are that the respondent filed aforesaid rent case for ejectment on the grounds of default and personal requirement. It seems that the above case was resisted by the present appellant. However, the case was compromised and it was disposed of on the basis of the terms and conditions contained in in application under Order XXIII rule 3 C.P.C. signed by the parties and their Advocates, which was disposed of by an order dated 29‑1‑1985. It may be pertinent to reproduce paras 3 to 5 of the compromise application, which reads as follows:‑ "The Opponent No.l shall hand over the vacant and peaceful possession of the shop in case to the applicant within a weak hereof. If opponents fail, writ of possession shall be issued by this Hon'ble Court in execution directly without notice to the Opponents. ; (4) The applicant shall get the newly shop constructed on the plot in cafe within the period of two years and the applicant shall put the opponent No.l in possession of one shop facing to the main road for which he shall be liable to pay the rent of the newly‑constructed shop. The area of newly‑constructed shop will not be less than 6' x 8'. In case the applicant fails to hand over vacant and peaceful possession of new shop as agreed writ of possession shall be issued directly in execution of the terms of compromise in favour of Opponent No.l/tenant. (5) After possession of newly‑constructed shop as aforesaid, the opponent shall be liable to pay monthly rent which would be settled mutually or by third person nominated by the parties for fixation of monthly rent. The nominee shall settle the rent keeping in view the monthly rent as prevalent in the locality in respect of shops of such standard, class and size and further keeping in view that the applicant has charged nothing towards "Advance", "Fixed Deposit" or, "Goodwill" from the Opponent No.l."

3. It seems that in pursuance of the above‑quoted clause 3, the appellant handed over the possession of the shop within one week and thereafter the respondent after demolition of the shop ant the other structure, constructed a building comprising of inter alia, four shops. Since possession of one of the shops was not given in terms of the above compromise, the appellant filed the above execution application. The learned Rent Controller declined the above execution application on the ground that the appellant failed to take steps to settle the monthly rent in terms of the compromise. The appellant being aggrieved by the above order, filed the present appeal.

4. In support of the above appeal Mr. Imran Ahmed. learned counsel for the appellant has urged that in terms of the compromise. the rent was to be settled in terms of above‑quoted clause 5 of the compromise application either mutually or by a third person after putting the appellant into possession and not prior to that. His further submission was that the learned Rent Controller was not justified in declining the appellant's above application.

5. On the other hand Mr. Mukhtiar Hussain Naqvi, learned counsel for the respondent has submitted as follows:‑ (i) That the learned Rent Controller had no jurisdiction to enforce the terms of the compromise and the proper remedy for the, appellant was to file a suit. (ii) That the possession of the shop was to be given after the rent would have been settled and not prior to the settlement of the rent. (iii) That in any case the respondent has let out the shop which was earmarked for the appellant after the dismissal of the execution application, and, therefore, he cannot hand over the possession of the shop.

6. Adverting to the above first submission of the learned counsel for the respondent that the learned Rent Controller has no jurisdiction to order handing over of or possession of a shop to the appellant, it may be observed that Mr. Naqvi in support of his above submission s referred to the case of Muhammad Ramzan v . Abdul Hadi etc. 1983 CLC 2820 in which a learned Single Judge of the Lahore High Court while dealing with a Second Appf,al; intler alia, observed that an application under section 13 (5B) of the late Rent Restriction Ordinance, 1959 was not maintainable at the behest of a tenant for the possession of the premises after re‑construction of the shop. In my view, the above case has no application to the present case as the above provision of section 13(5B) of the Rent Restriction Ordinance. 1959 is not an issue in the instant case. The point for consideration is, as to whether the Rent Controller has the power to execute his own order in an execution application. It may be observed that the above compromise application was disposed of by the learned Rent Controller by his aforesaid order dated 2Q‑1‑1985 in terms of the compromise application and, therefore, it will be deemed that the aforesaid rent case was disposed of in the above terms. In the compromise application, it was provided that in case the appellant would fail to hand over the vacant possession, the respondent would A be entitled to get a writ of possession issued from the Rent Controller. Similarly, it was further provided that in case after the re‑construction of the building within the period of two years, the respondent would fail to hand over the possession of the shop, the area/ measurement of which should be not less than 6' x 8' the appellant would be entitled to get a writ of possession issued by the Rent Controller. It may further be observed that section 22 of the Sind Rented Premises Ordinance, 1979 provides that an order made by the Controller or the appellate authority shall be executed n such manner as may be determined by the Controller, or as the case may be, by the appellate authority. I am inclined to hold that a Rent Controller by virtue of above section f the Ordinance is entitled to execute his order as the dictates of justice demand. In the instant case, if the respondent could have got a writ of possession issued on the strength of the compromise order against the appellant, it must follow that the appellant was also entitled to get a writ of possession issued from the Rent Controller against the respondent.

7. Adverting to the question, whether the rent was to be first settled or the possession of the shop was to be first handed over by the respondent to the appellant, in my view, a perusal of the above‑1 quoted clauses 4 and 5 of the compromise application makes it clear that the respondent was to first hand over the possession of the shop and then the rent was to be settled either mutually between the B parties or in case of disagreement by a third person who was nominated by the parties for the above purpose. In the instant case the respondent has failed to discharge his obligation in terms of compromise application by not putting the appellant into possession. The finding' of the learned Rent Controller is contrary to the terms of the compromise on this point and, therefore, I reverse the same.

8. As regards the third submission of the learned counsel for the respondent that after the dismissal of the execution application, he has let out the shop to a third person, in my view, the above act on the part of the respondent cannot deprive the appellant to claim C possession of the shop. However, it will be just and proper to remand the case to the learned Rent Controller in the above execution application with the direction to implead the third person as a party to the execution application and, thereafter, after hearing the parties to pass an appropriate order in accordance with law. The above appeal stands disposed of in the above terms with no orders as to cost. The parties are directed to appear before the learned Rent Controller on 18‑9‑1988 and the learned Rent Controller will not issue any notice to the parties. The office is directed to send back the R & P of the above case to the IIIrd Senior Civil Judge/Rent Controller, Central, Karachi. The contempt application is adjourned for hearing for a period of two months. In the meantime the progress in the above execution application will to made. M .,.Yi . H . /S‑282/ K Case remanded.