1992 PLP 698 (CLC)

The dispute in this case relates to a Flat No.F‑2/2 Block‑B, K.DA. Building, Bori Bazar, Saddar Karachi. The flat in question is owned by the four respondents herein. Out of them respondents Nos.1, 2 and 4 filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 seeking ejectment of appellant Abdul Bari, the tenant of the premises in question on the ground that he had committed default in payment of rent. Respondent No.3 Sabra Nazhat had died before application for ejectment was filed. As her legal heirs did not cooperate with the other respondents they were impleaded as pro forma opponents in the rent case. The appellant Abdul Bari the tenant of the premises in question denied the existence of relationship of landlord and tenant, or that he had committed default in payment of rent. He claimed to have purchased the flat in question from the predecessor‑in‑interest of the respondents who had executed an agreement on 6‑2‑1988 in his favour. He had purchased the premises in question for a consideration of Rs.2,75,000 and actually paid Rs.55,500 as earnest money. Both the parties led evidence before the Rent Controller and he ultimately by his order passed on 6‑2‑1991 held that the appellant had committed default in payment of rent with effect from May, 1989 to July 1989 and ordered his ejectment and directed him to hand over the premises within thirty days of the passing of the order. The appellant being aggrieved by that order filed F.RA. No.144/1991 before this Court which was dismissed as withdrawn on 28‑4‑1991 as by then the appellant had filed a suit for specific performance of the agreement referred to hereinabove. The respondents filed an execution application and the matter was fixed for hearing on 23‑11‑1991 before the First Senior Civil Judge and Rent Controller, Karachi (South). The application for adjournment was filed by the Advocate for the appellant on the ground of his sickness. This application was rejected and writ of possession was ordered. It is against the last order passed in the execution proceedings that the present appeal has been filed under section 21 of the Sindh Rented Premises Ordinance, 1979. Mr. Ismail Padhiar, Advocate for the appellant has contended that the objections filed by the appellant in the execution proceedings were not considered by the Rent Controller. According to him the present appeal is competent and merits to be allowed and case remanded to the Rent Controller for consideration of objections filed on behalf of the appellant. In support of his contention he has referred to cases reported in 1986 CLC 2006 and 1577, PLD 1991 Kar. 417 and PLD 1983 SC

155. Mr. F.M. Mokarram, Advocate appearing for the respondent has pointed out that the present appeal is not competent as the First Rent Appeal filed against the main order of the Rent Controller allowing ejectment application was dismissed by this Court and the only objection raised in the execution proceedings by the appellant was that a suit for specific performance filed by the appellant was pending in a Civil Court. He has referred to the order dated 28‑4‑1991 passed by this Court in F.RA. No.144 of 1991. It clearly indicates that suit for specific performance was filed before filing of the F.RA. Under the circumstances when the appeal was dismissed by this Court the order ejecting the appellant from the rented premises passed by the Rent Controller achieved finality and execution of such an order could not have been stayed on that ground. The cases referred to by Mr. Ismail Padhiar, Advocate for the appellant merely relate to the right of appellant to institute separate proceedings for enforcement of his right under the sale agreement. The execution of an order passed by a Rent Controller under the Sindh Rented Premises Ordinance, 1979 cannot be postponed merely because the tenant in the case has filed a suit for specific performance of the agreement to sell the premises in question. In this case although the Rent Controller has not passed a speaking order while rejecting the objections filed by the appellant and allowed execution application but on examination of the record I find that the only objection taken in the execution was that a suit had been filed. It will not be sufficient to avoid execution of an order passed by Rent Controller merely on the ground that the tenant had filed a suit for specific performance. I am fortified by taking such a view by the decision in the case of Iqbal and 6 others v. Rabia Bibi and others reported in PLD 1991 SC

242. In view of above I find no force in this appeal which is dismissed. Mr. Ismail Padhiar, Advocate for the appellant undertakes that the appellant who is present in Court shall deposit arrears of rent and rent for the current month within a month from today and will continue to deposit future rent for two months more before the 10th of every month with the Nazir of this Court. On such undertaking Mr. F.M. Mokarram, Advocate for respondents 1, 2 and 4 states that he will not insist on execution of writ of possession for three months unless appellant commits default in making such deposits. H.B.T./A‑1153/K??????????????????????????????????????????????????????????????????? Appeal dismissed.