1996 PLP 991 (CLC)

(a) That the issuance of writ of possession by Rent Controller was patently illegal, coram non judice and without lawful authority; (b) That if there was any violation of terms of compromise, which this Court accepted and disposed of appeal in terms thereof, the execution of such order would lie before this Court and not before the Rent Controller; (c) The compromise between the parties before this Court was a fresh contract and for its non‑performance the aggrieved party had to go td, a Civil Court and not before the Rent Controller for execution; (d) this Court while disposing of appeal in terms of compromise, had not interfered with Rent Controller's order who had directed respondent's eviction; (e) it is the choice of landlord to offer any shop after reconstruction at any place in the reconstructed building and not to offer a shop built at the original place where a tenant was occupying old tenement; and (t) because this is the first rent appeal, it has to be admitted as a matter of course. In support of all these contentions, the learned Advocate referred the following case‑laws:‑‑ (a) Muhammad Ramzan v. Abdul Hadi and others (1983 CLC 2820). (b) S. Anwar Ali Shah v. S. Niaz Ali Shah (PLD 197$ Lahore 1078). (c) Mian Bashir Haider v. Mrs. Nur Jehan (1984 SCMR 730) Mr. Mobarak Ahmad, Advocate for respondent, has also been heard. He has contended that because appellant failed to hand over possession of the shop after reconstruction, application under section 22 of the Ordinance was filed for restoration of possession, that appellant has made a statement before lower Court that he would hand over possession but did not do so, that respondent had sought possession of a shop on the main road where appellant had constructed 3 shops instead of 4 shops in the old structure, and lastly that possession under section 22 of the Ordinance is to be restored by the Rent Controller and not by this Court which is an Appellate Court and had disposed of appeal in terms of compromise. In support of all these contentions, reliance is placed on:‑‑ (i) Abdul Aziz v. Muhammad Ashraf and 1 other (PLD 1993 Karachi 304). (ii) Shahzady v. Muhammad Yamin (1989 CLC 1201). (iii) Muhammad Younis v. Mst. Muqadam Sultan and 3 others (1993 SCMR 141). I have considered all these contentions of the learned counsel, perused the record and the case‑law referred. The admitted facts are that respondent vacated a shop comprised in his tenancy pursuant to compromise entered into between the parties before this Court. He even agreed to pay rent at much higher rate (Rs.700 per month) than what he was actually paying till he vacated the shop after receipt of notice from appellant that building plan was approved by the authorities. Condition No.4 of compromise between the parties provided that within a period of 6 to 8 months; from the date of handing over possession, appellant would hand over possession of newly‑constructed shop of the same dimension: In Addition, appellant agreed that if failed to hand over possession within the stipulated period, he would pay damages at the rate of Rs.500 per month; till he restored possession to respondent. On 13‑12‑1992, respondent through his advocate addressed a notice to appellant in which it was stated that appellant had entered into an agreement of sale of questioned shop with someone else. Appellant replied the notice on 30‑12‑1992 through his advocate and refuted respondent's allegation that any agreement of sale of shop was executed in some one's favour. In deviation of the approved plan, which showed 3 shops, appellant constructed 4 shops but did not offer one shop to respondent who was prepared to receive even a smaller shop, but at the same place or even at some other place on the main road, although he was bound by law as well as under compromise to do so. As against that, he rushed up to Court and filed a fresh Rent Case No.278/93 alleging therein that respondent had refused to take over possession of shop. It was in these circumstances, that respondent filed application under section 22 of the Ordinance, before the Rent Controller for restoration of possession. Said section reads as under:‑‑ "

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 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." Contention of appellant's learned advocate that because compromise was accepted by this Court, the execution proceedings would lie before this Court, is totally devoid of any force. Words "final order" in section 22 would include order of this Court which disposed of appeal in terms of compromise. Execution of said order was therefore rightly sought by respondent through Rent Controller. I also do not agree with appellant's contentions that because fresh terms were agreed upon between the parties, through compromise, the violation of said terms by any party, gave fresh cause of action to an aggrieved party to seek his redress through a civil suit. If such a plea is accepted, the entire section 22 of the Ordinance would become redundant, which will be against the spirit of law. The learned Rent Controller acted legally in directing issuance of writ of possession against appellant for restoration of possession. He was further justified in rejecting appellant's application for recalling/reviewing the order. Both orders impugned in this appeal are lawfully passed and call for no interference. Case‑law referred by appellant's learned advocate is not applicable to the facts of this case. In the case of Muhammad Ramzan (1983 CLC 2820), the tenant had entered into agreement with landlord to re‑occupy building after construction. Landlord let out premises to another person who had notice of previous agreement between landlord and tenant. The tenant filed application for restoration of possession long after construction and occupation by another tenant. In such circumstances it was held that Rent Controller as well as First Appellate Court rightly dismissed tenant's application for restoration of possession and further that jurisdiction to enforce agreement vests in Civil Courts alone. In the case of S. Anwar Ali Shah (PLD 1978 Lahore 1078), the facts were that landlord filed ejectment case against tenant on the ground of default. During such proceedings both parties entered into compromise stipulating entitlement of landlord to get possession of property if he gets building plan sanctioned by Municipal Committee and starts construction within 4 months. By consent compromise order was passed. On refusal by tenant to vacate building, landlord filed an execution application which was granted. Tenant's appeal was also dismissed, where after he filed revision before the High Court. In said case it was held that a consent decree was not appealable and the validity of such a decree cannot be challenged in collateral proceedings such as execution proceedings. In the case of Mian Bashir Hyder (1984 SCMR 730), on appeal before High Court by the tenant, case was remanded to Rent Controller by consent of parties for fresh decision. It was held by the Honorable Supreme Court that such consent order could not be challenged in appeal and was binding on tenant in all subsequent proceedings. Thus the above precedents do not advance appellant's case in any manner as the same are quite distinguishable from the facts of appellant's case. The case of respondent is fully covered by the precedents cited by his learned Advocate. In the case of Abdul Aziz (PLD 1993 Karachi 304), a learned Judge of this Court, while dealing with the extent of tenancy rights on the reconstruction of building, held, that landlord on reconstruction was bound to restore the tenant same or smaller area on payment of rent as determined by Rent Controller. In the case of Shahzady (1989 CLC 1201), Ajmal Mian, J. (as he then was), held that Rent Controller by virtue of section 22 of the Ordinance was entitled to execute his orders as dictates of justice demanded. It was further held that landlord was first to hand over shop and then settle rent either mutually or in case of disagreement, by a third person to be nominated by parties for the purpose. In the case of Muhammad Younis (1993 SCMR 141), the Honorable Supreme Court while refusing leave to appeal to petitioner (tenant) observed that frivolous _ attempts to create hurdles in the execution of decrees by judgment debtors must be checked and to achieve that end would initiate taxing judgment debtors, with reasonable compensatory costs to make up the losses suffered by decree‑holders. i have also perused the report of Mr. Umer Farooque Khan, Advocate, who agreed to act as arbitrator without any fee and visited the site. The report dated 29‑8‑1993 shows that appellant did not agree to hand over shop to respondent on main road but he was offering a place adjacent to the staircase situated in the street, where there are pillars and area of same is reduced to 4' x 26' which is just a passage under the stairs. The conduct of appellant clearly shows, that having got possession of shop from respondent under a compromise, reconstructed the building and backed out from his legal obligation. The appeal in these circumstances merits no consideration and is dismissed in limine, C.M.A. No.612/93 is also dismissed. H.B.T/A‑1583/K Appeal dismissed.