1991 PLP 489 (CLC)

(1) The opponent has paid today the rent arrears at the rate of Rs.25 per month for the period from September 1978 to 31‑8‑1983, to the applicant. (2) The rent has been fixed at Rs. 50 per month which is payable by the opponent to the applicant after getting rent receipts therefore from 1‑9‑1983. Without receipt, payment of rent will not be considered. (3) The opponent will hand over the vacant possession of the house in suit to the applicant after expiry of 3 years and in case of refusal, the applicant will get the vacant possession of the house in suit through the Court. (4) Both the parties bear their own expenses. Accordingly the parties have compromised, which they ratify and case be disposed of accordingly. Sd. Applicant Jumromal Sd.Dhani Bux Opponent Sd. Advocate. Sd. Advocate Parties are present. They state that they have compromised. The application is disposed of in terms of compromise. Sd. 4‑9‑1983 IInd Senior Civil Judge and Rent Controller, Larkina." Clause 2 of above compromise application shows that rent wag, enhanced and fixed at Rs.50 per month. Clause 3 of compromise also shows that the opponent had undertaken to vacate the premises after the expiry of three years with the stipulation that in case of his failure to do so the applicant will get the vacant possession through the Court. The Court here would mean the Rent Controller. The order of the Rent Controller on this applicant is to the effect that application is disposed of in terms of compromise. This itself shows that the Rent Controller has not passed any order with regard to ejectment of the opponent but all that can be inferred from the order is that in case of failure of opponent to hand over the vacant possession the landlord will have to seek remedy through the Rent Controller which can be done only by way of filing an application for his ejectment and cannot be construed to be through execution application. The submission of the learned counsel that the order passed by Rent Controller on the compromise application can be construed to be order of ejectment is not tenable as it would be beyond the jurisdiction and authority of the Rent Controller to allow a period of 3 years to the tenant to vacate the premises on the basis of compromise but he has to pass specified order for ejectment allowing reasonable time. In the above‑cited case of Diwan Kewalram v. Messrs Farooque & Co. Hyderabad the facts were that the landlord had moved an application for ejectment of his tenant on the ground of default wherein the Rent Controller and the first appellate Court had held that there was no wilful default on the part of the tenant, a second appeal was riled before the High Court which was also dismissed. However, certain undertaking on behalf of the tenant was recorded in the order of dismissal by a Single Judge of that Court whereby the tenant had offered to pay difference of arrears of rent within a week failing which he was to be ejected. On failure of tenant in payment of the difference of rent as stipulated, the landlord had filed the execution application which was dismissed. Matter ultimately came before the Division Bench of this Court wherein it was observed: "In our view at the most it was an offer made by the learned counsel for the respondent, which was accepted by the other side, and, therefore, it was at the most an agreement between the parties, which could not have been enforced through an execution application in a case under the Rent Restriction Ordinance, 1959 nor it could have been enforced through a suit in view of the provisions of the aforesaid Ordinance." In the above‑cited case of Mrs. Amina Lodhi v. Maqbool Hussain, a learned Single Judge of this Court in similar circumstances has held that the compromise and the order disposing of the ejectment application in terms of the compromise do not amount to an ejectment order and the same was not executable under the provisions of section 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In this case Ajmal Mian, J (as he then was) had also considered the above‑cited Supreme Court case of Qasim Ali v. Mst. Sakina. The, case of Qasim Ali v. Mst. Sakina in my humble view would not be applicable as the facts in that case are different than the present case. In the said case the order of ejectment was passed by Rent Controller and during pendency of appeal a compromise was arrived at between the parties whereby the tenant was allowed to continue in possession for a period of three years from the date of compromise on condition of payment of all arrears and regular payment of future monthly rent and, therefore, it was held by their Lordships that the order passed by the Rent Controller against the petitioner was only modified in the appellate Court to the extent that the petitioner was to continue in possession for a period of three years from the date of compromise provided he fulfilled certain conditions regarding payment of the arrears of rent and of future rent. The point for distinction in the present case as compared with the above case of the Honourable Supreme Court is that in present case there is no order of ejectment passed by the Rent Controller but as discussed above this compromise amounts to a fresh agreement and an offer by the tenant to hand over vacant possession on expiry of the period of three years and also that in case of his failure to do so the landlord will have to seek recourse through the Court of Rent Controller. The facts in the above‑cited case of S. Anwar Ali Shah v. S. Niaz Ali Shah were that the very validity of the consent decree was challenged and it was held that no appeal would be competent against a consent decree. In the present case it is not the validity of compromise or order that Js challenged but the point for consideration is that no order of ejectment was passed. Also the facts of the case of Pakistan Day Memorial Committee relied upon by the learned counsel for the appellant are different from the facts of the present case. From the facts as observed above it can sefely be assumed that the said compromise and the order thereon does not amount to an order of ejectment but at the most it is a fresh agreement between the parties and an offer given by the tenant to vacate the premises on expiry of three years. In such circumstances the remedy available to the landlord would be to seek the ejectment of the tenant through legal proceedings and course of law. The said order, however, cannot be equated with a decree and this would not be executable under section 22 of the Sindh Rented Premises Ordinance. In view of the above discussion the present appeal is dismissed with no order as to costs. AA./J‑114/K Appeal dismissed