1. ' This revision application arises out of an order dated 6-11-2004 passed by the learned Vth Senior Civil Judge and Rent Controller, Karachi South, in Execution Application No,24 of 2003 (Rent Case No,217/10). The learned Senior Civil Judge/Rent Controller by said order rejected the objections filed on said execution application by the judgment-debtor/respondent and allowed the execution in favour of the applicant/decree-holder.
2. ' Briefly the facts appear to be that the respondents of this civil revision has filed a Rent Case as applicants against the applicants of this civil revision as opponent vide Rent Case No,217 of 1990 before the learned Rent Controller for ejectment of opponent/applicant of this civil revision. The learned Vth Rent Controller, Karachi South, vide order, dated 19-3-1996 allowed the ejectment application in favour of landlord/applicants. The operative para. Of order is reproduced here as under:-- "Under the facts and circumstances of the case, documents and law relied upon by the parties it is clear that opponent has violated section 10(3) of the Sindh Rented Premises Ordinance, 1979 accordingly, opponent has committed default. I, therefore, allow the application of applicant and opponent is directed to hand over the peaceful vacant possession of the demised premises to applicant within 60 days from the date of passing this order with no order as to costs."
3. ' The applicants and opponent, both filed First Rent Appeals against the said order, dated 19-3-1996 of the Rent Controller, Karachi South, before the High Court of Sindh at Karachi vide F.R. No,143 of 1996 United Bank Ltd. v. Muhammad Rafi and another and F.R.A. No,243 of 1996 Muhammad Rafi and others v. United Bank Ltd. This Court by its common order dated 11-2-1999 allowed the F.R.A.
4. No,243 of 1999 filed by the tenant and rejected the F.R.A. No,243 of 1996 filed by the landlord/applicants. The operative para. Of the order is reproduced here as under:-- "(9) A plain reading of the evidence makes it clear that the landlords expressed their desire to reconstruct the old building because the hotel business in its present shape has lost its charm for the local and foreign clients. Nowhere it has been said that hereafter the rent should be paid to them as they had become the landlords-although there is no allegation that till 1989 the tenant committed default in payment of rent. This notice in my view is not a legal notice fulfilling the requirements of section 18 of Sindh Rented Premises Ordinance, 1979. Therefore, there is considerable force in the submission of learned counsel for the tenant that due to non-compliance of mandatory provisions of section 18 of Sindh Rented Premises Ordinance, 1979, the landlord cannot take advantage of the alleged default. Notwithstanding this fact, since the tenant had been paying rent regularly for more than 9 years after the death of the deceased landlord (late)
5. Muhammad Shafi the question of having committed wilful default does not arise. On the contrary the efforts of the tenant to deposit rent in Court in the peculiar circumstances of this case shows their bona fide and willingness to continue paying the rent regularly. It would be relevant to note that the learned Rent Controller proceeded on the assumption that the notice dated 19-2-1989 was in the terms of section 18 and the tenant was consequently bound to pay rent to the new landlord owners. He came to the conclusion that the tenant having failed to pay or tender rent subsequent to the receipt of the aforesaid notice committed default and was liable to be ejected which he accordingly ordered. Since I am of the opinion that notice was not valid, its non-compliance would not entail any adverse consequence for the tenant. Moreover, the notice, instead of demanding rent, called upon the tenant to vacate the demised premises. It was evident that the primary concern of the landlord was to obtain vacant possession of the demised premises and, therefore, in such a situation the preponderance of probabilities may be given due consideration which in the instant case are clearly against the landlords in their refusal to accept the rent as stated by the tenant in its evidence: Accordingly when the landlords were not ready and willing to receive rent, the tenant in order to safeguard its interest was left with not alternative but to deposit the rent in Court in M.R.C. No,2780 of 1986. Accordingly, I do not find that the tenant committed any default in the payment of rent.
(10) Now coming to the point of reconstruction the notice is also vague and ambiguous. There is nothing in the evidence of the landlords that the hotel business has lost its charm. There is also no evidence to show that the building known as Dilkusha Hotel is in dilapidated condition or it requires repairs or reconstruction. There is also no evidence to show that the landlords took any step to establish their bona fide requirement for reconstruction of the property in dispute. Accordingly finding of the Rent Controller on the issue of reconstruction and personal requirement are based on correct appraisal of evidence and are upheld.
(11) the, upshot of the above discussion is that the Appeal No,.143 of 1996 filed by the tenant is allowed while the appeal of the landlords i,e, F.R.A. No,243 of 1996 having no merits is dismissed along with Miscellaneous Application No,53 of 1997.
6. Dated 11-2-1999 (Sd.) Judge.
7. ' Both the parties has filed appeal before the Honourable Supreme Court against the judgment of this Court, dated 11-2-1996 vide C.P.
8. ' No,512/K of 1999 Muhammad Rafi and another v. United Bank Ltd. And C.P. No,513-K of 1999. The matter was compromised outside the Court between the parties, hence the Honourable Supreme Court disposed of both the Constitutional petitions by passing common order dated 25-5-2000 as under:- "Order RANA BHAGWANDAS, J. Learned counsel for the parties have submitted an application "Mark 'A' for compromise of the dispute on the terms and conditions contained therein which do not appear to be unlawful on the face of it. Both the petitions are accordingly disposed of in terms of settlement arrived between the parties."
9. ' The applicant United Bank Ltd., filed a civil suit against the applicants/landlords of said rent case in this Court vide Suit No,1685 of 2001 with the following prayers: "(a) Declaration that pursuant to the compromise application and the lease deed (Annexure la, lb and 2) the defendants cannot demolish/reconstruct the suit property save as provided therein;
(b) Declaration that notwithstanding the plaintiff's Nicole Road Branch has merged with the Jaswa ni Street Branch, the plaintiff is still entitled to retain the suit property for the banking business in terms of (Annexure laa, lb and 2);
(c) Permanent injunction directing the defendant not to violate, the terms of the lease deed dated 12th August, 2000 (Annexure 2).
(d) Permanent injunction to restrain the defendants, directly or indirectly, from leasing the suit property in favour of any party, or from acting or omitting to act in a manner which may adversely effect any of the rights of the plaintiff flowing from a judgment of the superior Court or the lease deed dated 12th August, 2000 (Annexure 2) or otherwise.
(e) Permanent injunction against the defendants, his servants, agents or any other person acting on their behalf, directly or indirectly, and by any means whatsoever' from interfering with the plaintiff's right to possession of the suit property.
(f) Any other and better relief deemed just and appropriate in the circumstances of the case.
(g) Cost of the suit.
10. ' The said suit was disposed of on 28-11-2002 by this Court by passing the following order:- "The grievances of the plaintiff in this case is that although in terms of a compromise reached between the parties (Annexure 1/A to the plaint) and as sanctified by the Honourable Supreme Court (Annexure 1 to the plaint) and further in terms of the lease deed dated 12-8-2000 the defendant was/is required to obtain and furnish to the plaintiff a copy of an approved plan/demolition permission for the demolition and reconstruction of the building in question, however, the defendant is seeking possession of the plaintiff's Mr. Khalil-ur-Rehman submits that before the defendant could obtain permission for demolition or an approved plan for reconstruction, he would be required to obtain no objection from the plaintiff in that regard.
11. ' Mr. Naimur Rehman learned counsel for the plaintiff submits that such is not the legal requirement and that even otherwise in view of the compromise reached between the parties, and as ordered by the Honourable Supreme Court and so also in terms of the aforesaid lease executed between the parties, whereby the plaintiff has consented to shift from the tenement to an alternate place as specified therein, to enable the defendant to demolish and reconstruct the building in question, no permission/consent is required from the plaintiff as suggested by Mr. Khalil-urRehman. The learned counsel further submits that in terms of the compromise as recorded by the Honourable Supreme Court and so also in terms of the lease deed dated 12-8-2000, the plaintiff has already given has no objection and has consented to the demolition and reconstruction of the building in question.
12. Mr. Naimur Rehman has, however, shown his anxiety that the defendant after reconstructing the building may not provide to him the space as specified in the lease deed and within the period as prescribed therein. Mr. Khalil-ur-Rehman submits that the plaintiffs' anxiety is unfounded, as in terms of the compromise application and so also by virtue of the lease deed the defendant is obliged and bound to proved to the plaintiff a space in the building as specified in the lease deed and within the stipulated period and shall do so Mr. Khalil-ur-Rehman further submits that all other tenants except the plaintiff have given their no objections for the demolition and reconstruction of the building and the plaintiff has in possession such permission/no objections. I find no impediment in the way of the defendant to obtain the permission for demolition and reconstruction of the building in question from the K.B.C.A. Provided he has obtained permission/no objection from the remaining other tenant in the building as claimed above. In view of the foregoing, K.B.C.A shall not be hindered in giving permission for demolition and approved for reconstruction for want of any no objection permission from the plaintiff in this regard and shall not require the defendant to submit any no objection from the plaintiff for permitting demolition and for the approval of the building plan on Plot No,SRII and II-A, Serai Quarters, Nicole Road, Karachi.
13. ' Both the learned counsel express their satisfaction with the foregoing and request that the suit may be disposed of in terms of hereof.
14. ' The suit is accordingly disposed of in the foregoing terms. Consequently the listed applications also stand disposed of (Sd.) Maqbool Baqar, Judge."
15. ' The applicants/landlords of Rent Case No,217 of 1990 has filed an execution Application vide No,24 of 2003 for execution of decree dated 19-3-1996 and 25-5-2000. The applicants/decree-holder mentioned the terms of compromise in Column No,7 of the execution application as under:-- "(1) Under the compromise record in C.P. No,512-K of 1999 and C.P. No,513-K of 1999 before the Supreme Court of Pakistan, the parties agreed as under:-
(i) That the ejectment application as filed by the petitioners against the respondent above named be disposed of on the following terms.
(ii) That the petitioners will provide to the Bank a copy of the approved plan of demolition permission issued by the Karachi Building Control Authority. Thereafter the Nicole Branch of United Bank Ltd. Shall be temporarily shifted to adjacent to main entrance of Dilkusha Hotel within a month of the receipt of the approved plan or demolition permission.
(iii) that after demolition of the building premises, the petitioner shall reconstruct the building within the period of 12 months from the date of handing over possession by the Bank of the premises in question.
(iv) That the area' to be provided to the bank after the cons would be as under:-- Basement 400 sq. Ft.
16. Ground FloOr Mezzanine floor Total 900 sq. Ft. 1000 sq. Ft. 2300 sq. Ft.
2. Messrs United Bank Ltd. Filed Suit No,1685 of 2001 against the applicants/D.Hs. Wherein by judgment dated 28-11-2002, it was ordered that K.B.C.A. Shall not be hindered in giving permission for demolition and approval -for reconstruction for want of any No Objection permission from United Bank Ltd. In this regard and shall not require the decree-holders to submit any No Objection for permitting demolition and for the approval of the building plan on Plots Nos.SR-11 and' 11A, Serai Quarters, Nicole Road, Karachi. A photostat copy of the order, dated 28-11-2002 passed in Suit No,1685 of 2001 is enclosed herewith.
3. That Karachi Building Control Authority vide letters Nos. KBCA/ DCB-B/Saddar Town/2003/1 and Kl3CA/DCBB/Saddar Town/2003/2 both dated 4th February; 2003 has issued demolition permission to the decree-holders, photostat copies whereof are also filed herewith."
17. ' The judgment-debtor/United Bank Ltd. Filed objections dated 17-11-2003 on execution application and prayed:-- "That it is humbly submitted on behalf of the judgment-debtor that the execution application has been filed erroneously and this Court has no jurisdiction to entertain, this application as no decree has as yet been passed on the compromise application.
18. ' It is therefore, humbly prayed on behalf of the judgment-debtor that this Honourable Court may in the interest of justice dismiss with cost the said execution application as no executable decree exists."
19. ' The learned Vth Senior Civil Judge/Rent Controller, Karachi South rejected the objections of the judgment-debtor/United Bank Ltd. And allowed the execution in favour of decree-holder/landlords.
20. The relevant paras. Of order is reproduced here:- "He has further more urged that no time was, judgment or decree ever, passed by the Honourable Supreme Court on the compromise agreement between the parties. He has further more urged that the decree-holder had forcibly tried to evict the judgment-debtor from the premises in response to which the judgment-debtor had' filed Suit No,1605 of 2001 in the Honourable High Court of Sindh at Karachi, whereby Honourable High Court of Sindh Karachi directed the D/H to receive demolition permission and approved plans before possessions of said premises would be handed over by the judgment-debtor in terms of lease deed. He h further more rged that the applicant/DH has to date failed to produce to the judgment-debtor a copy of the approved plan for the building as is required to be issued by law and which the judgment-debtor required to be issued by law and which the judgment-debtor requires so as to better ensure their rights to the said premises. He has 'further more urged that .The D/H has provided the judgment-debtor a proposed plan (presumably meant to indicate a propose plan) which is not the same thing approved plan. He has further more urged that on the part of D/H failure to provide an approved plan indicates the mala fide( intention of the decree-holder, whose entire intention is to dispossess the judgment-debtor of his legal rights to the subject premises permanently. He has finally urged that the execution application has been filed erroneously and this Court has no jurisdiction to entertain this application as no decree has yet been passed on the compromise application, he has finally urged that the execution application of applicant/DH is liable to be dismissed: ' On other hand, learned counsel for applicant/DH has contended that the D/H is ready to comply with the terms and conditions laid down in the compromise application and the same application was allowed in the Supreme Court by consent of the J/D opponent. He has further more contended that the D/H has submitted the approved plan and demolition order of the premises in the Court and the same approved plan has got been verified by this Court on 16-9-2004 by K.B.C.A. And copy of such verified plan is available on the record of file. He has further more contended that J/D opponent wants to lingering on the matter and defeat the decision of Honourable Supreme Court of Pakistan. He has finally contended that the orders of Honourable Supreme Court of Pakistan be implemented by this Court.
21. ' Admittedly fife K.B.C.A. Has verified the genuineness of approved plan, which was issued by them, and such copy of plan was admittedly given to J/D and also demolition certificate has also been issued and provided to J/D by the D/H. Moreover, applicant/DH is prepared to comply with the terms and conditions of compromise order. Apart from this being Executing. Court this Court cannot go beyond the order already passed by Supreme Court, I, therefore, allow the execution application of D/H with directions to J/D to hand over the vacant possession of premises within one month as per compromise order dated 25-5-2000 with no order as to costs. Let the copy of this order be served upon J/D/opponent on the cost of applicant/DH."
22. ' The judgment-debtor/United Bank Limited through this civil revision application challenged the order of Senior Civil ,Judge/Rent Controller, dated 6-11-2004 passed in Execution Application No,24 of 2004.,(Rent Case No,217 of 1990).
23. I have heard the learned counsel for the judgment-debtor and the decree-holder.
24. ' The learned counsel for the applicant/judgment-debtor Mr. Abdul Rehman argued that after execution of registered lease deed dated 12th August, 2000 between the applicant and respondent, the consent decree dated 26th May 2000 has been novated hence the decree is unenforceable. He also argued that the Executing Court had no jurisdiction to entertain the decree filed by the respondent. He further argued that the Executing Court, by allowing, the decree not only exercise wrong jurisdiction but also exercised excess of jurisdiction. He argued that the Executing Court has allowed execution application on the basis of decree which is not executable. Finally he argued that the Executing Court had the jurisdiction to go behind the decree. Hence he prayed that the order dated 6th November, 2004 passed by the learned Vth Senior Civil Judge may please be declared void.
25. ' In support of his argument he referred'the cases (1) Habib and 8 others v. Haji Muhammad and 3 others PLD 1970 Kar. 495; (2) Mst. Khatoon Begum v. Mst. Barkatunnisa Begum and 6 others PLD 1987 Kar. 132; (3) Dr. Khalid Kamal Khan v. Dr. Arshad Kamal Khan and another 1992 CLC 1887; (4)
26. Abdul Qayoom v. Ziaul Haq and another PLD 1962 (W.P.) Kar 334; (5) S. Sibtain Fazli v. Star Film Distributor and Muhammad Ali Khan PLD 1964 SC 337; (6) Messrs Country Products Export Ltd. v.
27. Messrs Bawany Sugar Mills Ltd. PLD 1968 Kar. 115; (7) Pir Bakhsh through L.Rs, and others v. The Chairman Allotment Committee and others PLD 1987 SC 145; (8) Anwarali Bepari and others v.
28. Jamini Lal Roy Choudhury and others AIR 1940 Cal. 89; (9) Abdullah. Bhai and others v Ahmed Din PLD 1964 SC 106; (10) Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore PLD 1996 SC 246; (11)
29. The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; (12) Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; (13) Muhammad Bashir v.
30. Muhammad Ramzan and 2 others 1979 SCM R 260; (14) Muhammad Aslam Siddiqui v. Mst. Hasina Begum 1986 M LD 735; (15) Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCM R 496.
31. The learned counsel for the respondent/decree-holder Mr. Khalil-ur-Rehman argued that the civil revision under section 115, C.P.C. Is not maintainable in rent cases and the order passed in execution of rent case is appealable under sections 21/22 of Sindh Rented Premises Ordinance, 1979. He emphasized that this civil revision is liable to be dismissed on this ground alone.
32. ' In support of his argument he has referred the following reported cases Mehmood Elahi Farooqi v.
33. Messrs United Bank Limited PLD 1998 Kar. 133; Abdul Ghaffar-Abdul Rehman and others y. Asghar Ali and others PLD 1998 SC 363.
34. ' After having heard the learned counsel for the parties and in the light of the record available in case-file and cases cited by the learned counsel the question of maintainability of civil revision in execution of rent cases required consideration. Before promulgation of Sindh Rented Premises Ordinance, 1979, it was held by the Supreme Court of Pakistan that the civil revision under section 115, C.P.C. Is not applicable under the West Pakistan Urban Rent Restriction Ordinance, 1959. The relevant paras. Zahurul Hasan v. Mst. Ruqqia Begum and 4 others PLD 1981 SC 112 is reproduced:-- "Thus, this Court has already expressed its opinion that a revision under section .115 of the C.P.C. Is not applicable under the West Pakistan Urban Rent Restriction Ordinance as it stood before the amending Ordinance IX' of 1979. In view of the language contained in subsection (7) of the newly- constituted section 15 any doubt which could be entertained on this question stands resolved."
35. ' In the above judgment the referred subsection (7) of section 15 is a newly-constituted section of Punjab Urban Rent Restriction (Amendment) Ordinance, 1979, which replaced section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
36. ' Section 15 of West Pakistan Urban Rent Restriction Ordinance, 1959 was regarding appeal and its subsection (5) says:- "No order passed by the Controller, the Appellate Authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance". This section substituted by subsection (7) of section 15 of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979, which says "The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law, including the High Court, by suit, appeal or otherwise.
37. ' Section 15 of West. Pakistan Urban Rent Restriction Ordinance, 1959 has been substituted by section 21 of Sindh Rented Premises Ordinance, 1979 (Ordinance XVII of 1979) section 21 of Sindh Rented Premises Ordinance, 1979 is reproduced here:- "21 Appeal.--- (1) Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order prefer an appeal to the High Court.
(2) The Appellate Authority may pending the final disposal of the appeal, grant injunction staying further proceedings or action on the order of the Controller: ' Provided that no injunction shall be granted if the appeal has been preferred from the order under section 14.
(3) The Appellate Authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final."
38. 'The order passed by the Rent Controller in execution under section 22 of the Sindh Rented Premises Ordinance, 1979 is appealable under section 21 of Sindh Rented Premises Ordinance, 1979. The Honourable Supreme Court of Pakistan in a case reported in Messrs Bambino Ltd. v. Messrs Selmor International Ltd. And others PLD 1983 SC 155 held as under:-- "As regards the second contention that no appeal lay from the order passed by the Rent Controller in execution of the order of ejectment it may be stated that a plain reading of section 21 of the Sindh Rented Premises Ordinance, 1979 shows, was appealable before the High. Court. There is, therefore, no substance in this contention as well. "
39. 'In this case the Rent Controller/Senior Civil Judge has passed the order in execution filed under section 22 of the Sindh Rented Premises Ordinance, 1979 which is appealable under section 21 of the Sindh Rented Premises Ordinance, 1979. Hence the contention that the Rent Controller in execution of the order of eviction converts himself into a Civil Court and an order thus, passed during the execution proceedings becomes revisable under section 115 of Civil Procedure Code, is not correct. Therefore, an order passed in execution proceedings by the Rent Controller is not amenable to revision under section 115 of the C.P.C.
40. ' As regards the next submission that the Rent Controller/Senior Civil Judge had the jurisdiction to go behind the decree. This contention, need not to discuss as this civil revision application under section 115, C.P.C. Has no force and is not maintainable.
41. ' The learned counsel for respondent in support of his contention cited a reported case PLD 1998 Kara 133; in this case the learned Judge has observed as under:-- "... Therefore, execution application was filed where the appellant/tenant took the plea in, the execution that the order passed in first "appeal was inexecutable being an order of compromise and not in the nature of an order of eviction. However, the learned Judge in chambers has observed:,- ' On facts, it becomes manifest that the parties to these proceedings settled the dispute by agreeing to a lawful and enforceable eviction as from the date specified above. No ground is shown as to why, upon default to compliance, execution should not be lie. In the result, I see no merit in this first rent appeal and dismiss it."
42. ' The cited case on the contrary supports the contention of the learned counsel for the appellant that ejectment order passed by the Rent Controller could be executed through an execution application. In view of aforesaid facts, the execution of the subsequent lease deed could not be treated as shield to the execution of ejectment order lawfully made by the Rent Controller and upheld by this Court by dismissing the First Rent Appeal No,56 of 1991 as not pressed. The said lease deed would not operate so as to negate legal validity of the order passed by the Rent Controller keeping in view the explanation to section 22 of Sindh Rented Premises Ordinance, 1979.
43. Accordingly, the refusal of the Rent Controller to execute the order of eviction is neither legal nor justifiable under the law.
44. ' So far as the case-law referred by the learned counsel of the applicant is concerned, I am of the opinion that the case-law is alien to the facts of the case in hand as inapplicable.
45. 'The upshot of the above discussion is that the revision is not maintainable and same is dismissed along with all the listed applications with no order as to costs.