PAGE MISS 1349 (PLP)

Malik Shamsher Ali for Appellants. This order will dispose of S.A.Os. Nos.52 and 53 of 1999 respectively. The facts of forming background of these S.A.Os. are that Masjid Malik Ramzani Paracha situate in Mohallah Sheikh Abdullah Street No. 1 Bhabra Bazar Rawalpindi City through its President Gul Zaman, instituted ejectment petitions under section 13 of the Urban Rent Restriction Ordinance, 1959 against Ghulam Murtaza and Muhammad Yameen tenants in the shops of the said Masjid. During the pendency of the ejectment petitions, the appellants/tenants filed an agreement mark A before the learned Rent Controller seized of the ejectment petitions. As per the said agreement, the appellants/tenants claimed to have arrived at a settlement with the landlord as to the matter of ejectment pending before the learned Rent Controller. The prominent conditions of the agreement mark A were as follows:-- (a) that with effect from the month of December, 1997, the rate of rent of the property in possession of the tenants would be Rs.500 instead of Rs.250: (b) that the tenants shall vacate the shops in their occupation as arid when the same shall be required by the Masjid for its extension.

2. Upon the said applications being moved by the tenants before the learned Rent Controller, the landlord i.e. Masjid above-named withdrew the applications for ejectemnt filed by it against the tenants. As the ejectment petitions had been withdrawn by the Masjid in terms of the aforesaid compromise, there was no question of a formal order of ejectment being passed against the tenants or in favour of the Masjid. The Masjid/landlord later took the possession of the shops in occupation of the appellants/tenants not through execution of any order of ejectment as there was no order of ejectment at all but otherwise. After the reconstruction of the shops by the Masjid, the appellants/tenants filed applications before the learned Rent Controller for re-delivery to them the possession of the shops vacated by them in favour of the Masjid. Their applications were dismissed by Mr. Khizar Hayat Gondal, learned Rent Controller Rawalpindi vide his orders, dated 15-5-1999 holding that as there was no formal, order of ejectment passed by the learned Rent Controller and instead the landlord/Masjid had withdrawn the ejectment petitions against the appellants/tenants, there was no question of directing the delivery of the possession of shops to the appellants/tenants. Against this orders of the learned Rent Controller made on the applications of the appellants/tenants, they preferred appeals before the learned- District Judge which came to be laid before Kh. Imtiaz Ahmad, a learned Additional District Judge at Rawalpindi. He dismissed the appeals filed by the appellants/tenants vide his orders, dated 25-6-1999, holding to the same effect as was held by the learned Rent Controller. Thus, feeling themselves aggrieved of the orders of the learned Rent Controller and those of the learned appellate Court, the appellants/tenants. have approached this Court in second appeal.

3. Malik Shamsher Ali, Advocate appeared for the appellants while the respondents were represented by Mr. Muhammad Akmal Khan, Advocate Sardar Muhammad Aslam, Advocate a senior member of the Bar Association, was appointed as amicus curiae to assist the Court in attending to the question raised in these S.A.Os.

4. Learned counsel for the appellants submitted that order allowing withdrawal of the ejectment petitions ought to have been read with the agreement mark A by the Courts below and if so read, it would show that the order allowing withdrawal of the ejectment petitions and the compromise mark A constituted an order of ejectment within the meaning of section 13 of the Urban Rent Restriction Ordinance, 1959. That being so, the appellants/ tenants were very much entitled to seek re-delivery of the shops previously in occupation and vacated by them in favour of the landlord/Masjid.

5. Learned counsel for the respondents on the other hand submitted that a perusal of the record placed before this Court by the appellants/tenants would show that on the agreement mark A being placed before the learned. Rent Controller, the landlord/Masjid withdrew the ejectment petitions against the appellants/tenants. No formal order of ejectment within the meaning of section 13 of the Urban Rent Restriction Ordinance, 1959 was passed by the learned Rent Controller nor the possession was taken by the landlord/Masjid in execution of any such order of ejectment. He maintained that in that view of the matter, there was no question of re-delivery of the reconstructed shops to the appellants/tenants within the meaning of section 13(4) and (5-B) of the Urban Rent Restriction Ordinance, 1959. Learned counsel for the respondents in support of his this plea placed reliance on Muhammad Ramzan v. Abdul Hadi and others 1983 CLC 2820 and Phool Muhammad v. Abdul Ghaffar 1982 CLC 2575. -

6. I have considered and evaluated the respective submissions of learned counsel for the parties and, have gone through the orders passed by the learned Tribunals below very carefully. The admitted position on the record is that on the compromise having been arrived at between the parties i.e. Masjid and its tenants, the landlord withdrew the ejectment petitions. It is plain that when the ejectment petitions were withdrawn by the landlord, there was no question of passing a formal order of -ejectment against the tenants within the meaning of section 13 of the Urban Rent Restriction Ordinance, 1959. It is also a matter of record that as there was no formal order in favour of the landlord and against the tenants, the shops in occupation of the appellants/tenants were also not taken possession of by the landlord through the execution of any formal ejectment order. For, there was none. The question of the maintainability of the application moved by the appellants/tenants and re-delivery of the reconstructed shops by the Masjid would have arisen only if there had been a formal order of ejectment in favour of the landlord and against the tenants. If there was any agreement between the parties which was alleged to have been violated by the landlord/Masjid, proper course for the appellants/tenants was to enforce the agreement against the landlord/Masjid by having recourse to the Civil Court. The question of section 13(4)(5-B) of the Urban Rent Restriction Ordinance, 1959 being attracted would arise only if the possession of the shops in dispute had been taken by the landlord in pursuance of an order of ejectment. The same not having been done, as aforesaid, the applications moved by the appellants/tenants before the learned Rent Controller were wholly 'misconceived and were rightly dismissed by the learned Tribunals below. There is no force in these S.A.Os. and the same are dismissed in limine. H.B.T./G-70/L Appeals dismissed.