1986 PLP 913 (MLD)

2. Various objections were taken by respondent No.2 before the Rent Controller in the execution application but the execution application was dismissed on the ground that it was barred by time and on the ground that in the execution application a prayer was made that the order dated 21‑11‑1969 of the Rent Controller be executed, which order, according to the Rent Controller, did not exist, as it had been modified by the judgment dated 17‑10‑1978 in L.P.A. No. 208 of 1970 and as such the order dated 28‑11‑1969. could not be executed. Apart from the aforesaid reasons, which have been supported by Mr. Rashid A Rizvi, learned counsel for respondent No.2, two further contentions were raised on behalf of respondent No.2 against the maintainability of the execution application filed by the appellants and these are as under: (a) In the execution some demarcation will have to be done by the Rent Controller pursuant to the judgment dated 17‑10‑1978 in L.P.A. No.208 of 1970 and this demarcation cannot be done by the Rent Controller. To be precise, the argument was that the judgment of High Court dated 17‑10‑1978 in L . P . A . No. 208 of 1970 is an in executable judgment. (b) Section 13 of the new Rent Ordinance, 1979, protects respondent No.2, who had been inducted as a tenant .by respondent No.1 and unless a fresh application was filed for ejectment of respondent No.2, his ejectment cannot take place.

3. First I would take up the point that the execution application was for executing the order dated 28‑11‑1969, which order, according to the Rent Controller, as well as learned counsel for respondent No.2, did not exist and as such the same could not be executed. The relevant part of the order dated 28‑11‑1969 of the Rent Controller is as follows:‑‑ "In view of the above grounds the applicants should be put in possession of new shop constructed on the old site, or the shop of the corresponding area in the new building. I deem it just and proper that the monthly rent of the new shop be double of the previous rent paid by tire applicant in the old building. Order accordingly." The aforesaid order of the Rent Controller dated 28‑11‑1969 was modified by the High Court by their judgment dated 17‑10‑1978 in L.P.A. No.208 of 1970 and the operative part of the judgment dated 17‑10‑1978 is as follows:‑‑ "The area of the old shop was 11' x 30' amounting to total area of .330 sq. ft. The same area would be made available to the respondent out of the disputed shop. The shop in question which has larger area of 400 sq. feet was let out on Rs.250 per month by Exh.4/1 and since there is no allegation that this rent was in any manner an inflated rent, therefore, taking that rent as a guide to rent prevailing in locality for such new accommodation a proportionate rent of 330 sq. ft. would amount to Rs.204 only and we would, therefore, modify the order of the Rent Controller to this extent that the rent of the shop to be handed over to the respondent measuring about 330 sq. ft. would be Rs.204 only per month." When the execution application was filed before the Rent Controller along with the execution application a copy of the judgment, dated 17‑10‑1978 of the High Court in L.P.A. No. 208 of 1970 was also annexed. As already noticed, the order dated 28‑11‑1969 was modified by the judgment dated 17‑10‑1978 of the High Court in L.P.A. No.206 of 1970 and as such the order that was to be executed was the order dated 28‑11‑1969 of the Rent Controller as modified by the judgment dated A 17‑10‑1978 of the High Court in L.P.A. No.208 of 1970. A very technical and artificial view has been taken by the Rent Controller in holding that the execution application was not maintainable and liable to be dismissed on the ground that the execution application prays for execution of the order dated 28‑11‑1969, which does not exist. No doubt the execution application was for execution of the order dated 28‑11‑196 of the Rent Controller but a copy of the judgment, dated 17‑10‑1978 o the High Court in L.P.A. No.208 of 1970 pad been attached and the Rent Controller was fully aware of the fact that the order date 28‑11‑1969 had been modified and in these circumstances he should no have dismissed the execution application on the aforesaid ground but should have proceeded to adjudicate the matter on the basis that the order that was to be executed was the order dated 28‑11‑1969 of the Rent Controller as modified by the High Court by their judgment date 17‑10‑1973 in L.P.A. No.208 of 1978.

4. The other ground on which the execution application had been dismissed, is that the execution application was barred by time. It is an admitted position that after passing of the order dated 28‑11‑1969 of the Rent Controller continuous proceedings had been taken by the1H respondents and the matter was taken up to the Supreme Court where finally the petition for special leave to appeal filed by respondent No. 2 was dismissed on 14‑2‑1979. In all the proceedings stay had been granted against the appellants and as such execution application could not b filed. In view of the stay granted by the appellate Courts and in vie of the provisions of section 15 of the Limitation Act, 1908, I am of the' view that the execution application was not time‑barred.

5. The other two contentions raised on behalf of the respondent No.2 may now be considered. It was first argued that demarcation could not be done by Rent Controller in execution proceedings. As already noted, the argument was that the order of High Court dated 17‑10‑1978 is in executable. According to the learned counsel for the respondent No.2, the new shop constructed by the respondent No.1 landlord and in which respondent No.2 was inducted as a new tenant is about 600 feet in area and under the orders of the High Court an area of 330 square feet is to be given to the appellants and as demarcation cannot be done by the Rent Controller, the order is in executable and the Rent Controller is also not competent to execute the order. The order-dated 17‑10‑1978 of the L.P.A. Bench is very clear. It states that the area of the old shop (which was in occupation of the original tenant, Muhammad Siddique, predecessor‑in‑interest of the present appellants) was 11' x 30' amounting to total area of 330 square feet. A clear direction had been given by the High Court that the same are would be made available to the respondents (the present appellants) out of the disputed shop. No provision of law has been shown by the learned counsel for respondent No.2 that there is any restriction o the powers of the Rent Controller that in execution he cannot demarcate the area. Section 22 of the Sind Rented Premises Ordinance, 1979, provides that an order made by the Rent Controller or by the Appellant Authority shall be executed in such manner as may be Determined b the Rent Controller or as the case may be, the Appellate Authority. In my view, the order of the Rent Controller dated 28‑11‑1969 as modified by the judgment dated 17‑10‑1978 of the L.P.A. Bench is an order which is executable and the Rent Controller has adequate powers t execute such order.

6. The only other contention of the learned counsel for respondent No.2, was that section 13 of the Rent Restrictions Ordinance, 1959, protects respondent No.2, the new tenant. In this case the right of the appellants to be inducted into the new building was conferred by section 13 (5‑B) of the 1959 Rent Ordinance and that right could not be taken away by the repeal of the 1959 Rent Ordinance as firstly, the right had accrued before the repeal and secondly, even the execution application had been filed before the repeal of the previous Ordinance.

7. As a result, First Rent Appeal No.1231 of 1982 is allowed, the order dated 17‑11‑1982 of the Rent Controller is set aside and the execution application filed by the appellants is granted and the Rent Controller is directed to issue a writ for executing the order dated 28‑11‑1969 of the Rent Controller passed in Rent Case No.2813 of 196 as modified by the judgment dated 17‑10‑1978 of the High Court inD L.P.A. No.208 of 1970. This matter has been pending for a long time and the matter had gone upto the Supreme Court and the petition for special leave filed by the respondent No.2 was dismissed as far back as 14‑2‑1979. The execution application remains in executed. It is directed that the Rent Controller concerned will see to it that the writ in executed within 30 days of receiving intimation of the passing of this judgment. The appellants are also granted costs as against respondent No.

2. M. Y. H. Execution ordered.