1997 PLP 2981 (MLD)

Mrs. Ameena Lodhi and 2 others v. Maqbool Hussain 1983 CLC 178 ref. Bashir A. Mujahid for Petitioner. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the order dated 6‑7‑1995 passed by the learned Additional District Judge, Lahore, whereby the petitioner's appeal was dismissed and the order dated 17‑4‑1995 passed by the learned Rent Controller thereby issuing warrant for the eviction of the petitioner was upheld.

2. The facts forming background of this petition are that the respondent No.3 filed an ejectment application against the petitioner in respect of the shop No.338/2 situated Gawalmandi Lahore on the ground of default and personal need. The said application was resisted by the petitioner but was ultimately disposed of by way of a compromise whereby three years time was granted to the petitioner to find out an alternative shop with the rider that no further extension in the said period shall be given. It was, however, agreed that in view of the compromise reached between the parties, the respondent No.3 shall withdraw the ejectment application from the Court of learned Rent Controller, Lahore. The compromise aforenoted was duly received on the record of the ejectment application which was ultimately dismissed as withdrawn vide order dated 29‑9‑1991 passed by the learned Rent Controller.

3. It appears that the respondent No.3 filed an execution application after efflux of three years time granted to the petitioner thereby requesting that the petitioner be ordered to be evicted from the premises in dispute through the process of the Court. The petitioner filed an objection application thereby submitting that since no ejectment order has been passed against the petitioner, therefore, there was no question of taking out an execution against the petitioner. The said objection petition of the petitioner was, however, dismissed by the learned Rent Controller vide his order dated 17‑4‑1995, who simultaneously issued warrant of possession against the petitioner. The petitioner appealed against the abovesaid order but remained unsuccessful inasmuch the same was dismissed by the learned Additional District Judge, Lahore. Hence, this Constitutional petition.

4. Mr. Nazar Hussain, Advocate entered appearance on behalf of the respondent to oppose the present petition but is not in attendance today, therefore, the contesting respondents are proceeded against ex parte. Mr. Bashir A. Mujahid, learned counsel for the petitioner heavily relied on rule of law laid down in Mrs. Ameena Lodhi and 2 others v. Maqbool Hussain (1983 CLC 178) whereby it was held that the ejectment application having been disposed of in terms of compromise without passing an ejectment order, there was no question of any execution and argued that in the instant case also since no ejectment order was passed and as a matter of fact that ejectment application had been dismissed therefore, the learned Rent Controller as also the learned Additional District Judge, did commit a jurisdictional error in proceeding to issue a warrant of possession. There is much force in the argument of the learned counsel for the petitioner. As pointed out earlier, the ejectment application was dismissed by the learned Rent Controller on the basis of compromise reached between the parties, therefore, there was no question of taking out any execution for the simple reason that there did not exist any ejectment order to be executed. Needless to add that even the compromise reached between the parties did contain a clause that in view thereof, the respondent No.3 would withdraw the ejectment application and it was in view thereof that the learned Rent Controller had dismissed the ejectment application filed by him.

5. In the circumstances, the order dated 6‑7‑1995 passed by the learned Additional District Judge as also that of the learned Rent Controller are declared to be without lawful authority and of no legal effect. The writ petition is allowed with no order as to costs. M‑375/L Petition accepted.