AJMAL MIAN, J.-(1) (a) This- is a certificated Letters Patent Appeal against the order dated 2-3-1970 passed by the learned Single judge of this Court in 2nd Appeal No. 119/66. The certificate was granted by the learned Single Judge on the following two points
(i) Whether in the facts and circumstances of this case relief against the forfeiture was rightly granted by the Courts below.
(ii) Whether in any proceeding arising out of the West Pakistan Urban Rent Restriction Ordinance, 1959, there could be an agreement enforceable by execution.
Mr. Kishanchand, learned counsel for the appellant concedes that as far as point No. 2 is concerned the case-law as since developed is against the appellant. In this view of the matter he has not pressed the same.
(b) Before dealing with the above first question, it will be pertinent to state briefly the facts leading to the filing of the present appeal. It seems that the appellant is a landlord of a property, situated in Hyderabad, which was occupied by the respondent sometime in 1948 according to the appellant as a trespasser. In 1951 the appellant had filed Civil Suit No. 55/51, which was compromised in terms of the decree dated 6-8-1952, whereby the respondent acknowledged and admitted the appellant as his landlord and agreed to pay rent at Rs.60 p. m. Were. f. July 1948. According to the averment of the appellant, the respondent did not adhere to the terms of the aforesaid compromise inasmuch as he did not pay the rent. As was agreed to. It further seems that the case was agitated before the Custodian on the question whether the property in question was evacuee or not, which question was finally settled in 1960. After that the appellant filed Rent Case No. 1/62 on 7-3-1962 on the two grounds namely, default and bona fide personal requirement. However, the learned Rent Controller by his order dated 1-5-1963 dismissed the above application and held that there was no wilful default on the part of the respondent. The appellant being aggrieved by the above order filed First Rent Appeal No. 153/63 in the Court of District Judge, Hyderabad, which was also dismissed on 1-4-1964.
(c) Being aggrieved by the above two orders the appellant filed Second Appeal No. 183/64 in this Court, which was dismissed by the order dated 30-3-1965. However, while dismissing the above appeal certain undertakings on the part of the respondent was recorded in the said order. It may be advantageous to reproduce hereinbelow paras. 5, 6 and 7 "5. Mr. Kishanchand, however, contended that there. Was no justification for the respondent not to pay rent from January, 1959 upto February, 1962 at the rate of Rs. 60 per month because the cloud on the title of the appellant had been cleared by 3rd November, 1959. In this connection it will be noticed that the respondent has remitted the arrears of rent for this period also through Money Order, which the appellant has admitted to have received on 7th February, 1962. Thus, in fact there are no arrears of rent due for the period. But the appellant's counsel contended that since the cloud on the title of the appellant had been cleared by 3rd Novem--ber, 1959, the respondent thereafter ought to have paid rent regu--larly in terms of the compromise of 1952 at the rate of Rs.
60 per month. Both the Courts below rejected this plea because it was found that the appellant after the cloud on his title was cleared neither informed the respondent about this fact nor demanded any rent from him during this period before filing of the ejectment application. In my view the reasoning of the learned subordinate Courts on this point is quite cogent. It was- the duty of the appellant to inform the respondent that the Evacuee Tribunal had finally declared him as non-evacuee and there was no longer any trouble with the Custodian Department in respect of the property in dispute. I am, therefore, of the opinion that there is no force in the appellant's contention that the respondent has wifully committed default in respect of the arrears of rent up to 2nd February, 1962.
6. Mr. Kishanehand has, however, drawn my attention to the fact that the respondent has deposited rent in the Custodian Department at the rate of Rs. 40 per month and since he is bound to pay the rent at the rate of Rs. 60 per month, he is still in arrears in the sum of Rs. 950 for the period in dispute. Mr. Sulleman U. Punja, the learned c6unsel for the respondent offered to pay this amount within a week. In case he fails to deposit this amount within this period he will be liable to be ejected from the property in dispute. The appellants counsel further urged that if the appellant is unable to recover the amount deposited in Custodian Department from 1st August, 1952 till 31-12- 1958, then some provision may be made for the recovery of the amount from the respondent. The respondent, who was present in Court has undertaken to help the appellant to recover this amount.
He has further argued that if the appellant is unable to recover the amount deposited in the Custodian Department for some technical reason or other unforeseen circumstances, he will pay that amount to the appellant on demand within a month.
7. The appellant has further brought it to my notice that the Custodian Department might deduct some amount towards the repairs of the property in dispute and the respondent must compensate the appellant in this respect. The respondent's counsel agreed to compensate the appellant in this respect. I would, therefore, order that if any amount is deducted by the Custodian Department on account of repairs, the same will be paid on demand by the respondent to the appellant. I further direct the respondent to assist the appellant in recovering the amount deposited in the Custodian Department."
(d) It seems that the respondent did not pay the difference of the arrears of rent, namely, Rs. 950 within one week as was mentioned in the above-quoted para. 6. The above amount was remitted by the respondent to the appellant through a pay order dated 12-4-1965. After that the appellant filed an execution application dated 1-3-1965 on 29-4-1965 for the enforcement of the alleged decree for ejectment contained in the above-quoted para. 6 of the High Court judgment.
Thereupon, the respon--dent filed objections to the above execution application on 1-9-1965, which were dismissed by the learned Civil Judge by an order dated 19-10-1965 and the ejectment order was issued as prayed for. The respondent being aggrieved by the above order filed Miscellaneous Appeal No. 311/65 in the Court of District Judge, Hyderabad on 20-10-1965, which was allowed by an order dated 23-2-1966. The appellant being aggrieved by the above order of the District Judge filed Second Appeal No. 179/66 on 14-3-1966, which was dismissed by the aforesaid order dated 2-3-1970.
2. (a) In support of the above appeal Mr. Kishancband learned counsel for the appellant has urged that the appellant had granted concession to the appellant on the condition that the respondent would pay Rs. 950 within one week failing which he would be ejected and that as the respondent had failed to pay the above amount within one week, he had become liable to be ejected in terms of the decree. His further submission was that the case relied upon by the learned Single Judge in the order under appeal, namely, Umedali v. Gobind Singh Shahani (PLD 1969 Kar. 12), was not correctly decided inasmuch as in the above Karachi case, the Full Bench case of the Bombay High Court, namely, the case of Waman Vishwanath Bapat v. Yeshwant Tukaram (AIR 1949 Bom. 97), was not considered.
On the other hand, it has been urged by Mr. Muhammad Matin, learned counsel for the respondent that there was no concession granted by the appellant and that it was a voluntary offer on the part of the respondent to pay Rs. 950 within one week and failing which, he would be liable to be ejected. His further submission was that the aforesaid Full Bench case of the Bombay High Court relied upon by the learned counsel for the appellant was considered in a subsequent case by a Division Bench of the aforesaid High Court, namely, in the case of Gajanan Govind Pathak v.
Puntarn Bekar (AIR 1951 Bom. 290), wherein the view found favour with the aforesaid Division Bench is in consonance with the view taken in the order under appeal.
(b) In order to appreciate the respective contentions of the parties, it will be necessary to examine the quoted paras. 5, 6 and 7 of the learned Single Judge's aforesaid judgment dated 30-3-1965 passed in Second Appeal No. 183-64. A perusal of the above-quoted para. 5 indicates that the learned Single Judge had come to the conclusion that there was no wilful default on the part of the respondent in respect of the arrears of rent up to the period expiring on 2-2-1962. In other words, the learned Single Judge concurred with the finding of the two Courts below on the question of default. However, it seems that after the above finding was recorded by the learned Single Judge, it was submitted by the learned counsel for the appellant that the respondent in any event was liable to pay the difference in rent at Rs. 20 p.m. Inasmuch as be had deposited rent with the Custodian at the rate of Rs. 40 p.m., whereas under the consent decree passed in Suit No. 56/61 he bad agreed to pay at the rate of Rs. 60 per month and that the arrears of the above difference of rent up to 2-2-1962 were Rs. 950. Thereupon, the then learned counsel appearing for the respondent made an offer to pay the above amount within one week on the condition that if he would fail to pay the same within the above period, he would be liable to be ejected from the property in dispute. The latter undertaking was recorded by the learned Single Judge in para. 6 quoted hereinabove. In our view at the most it was an offer made by the learned counsel for the respondent, which was accepted by the other side, and, therefore, it was at the most an agreement between the parties, which could not have been enforced through an execution application in a case under the Rent Restriction Ordinance, 1959 nor it could have been enforced through a suit in view of the provisions of the aforesaid Ordinance. Furthermore, the learned District Judge was entitled to grant relief against the forfeiture or the penalty on the principle enunciated in the aforesaid Karachi case of Umedali v. Gobind Singh Shahani, relied upon by the learned Single Judge in the order under appeal.
(c) In our view the Full Bench case of Bombay High Court referred to hereinabove, reported in AIR 1949 Born. 97 has no application to the present case. The above case would have been applicable to the instant case if the learned Single Judge in the aforesaid Second Appeal No. 183/64 would have come to the conclusion that in fact there was default on the part of the respondent, and consequently be was liable to be ejected. Thereupon, the appellant would have granted concession to the effect that in case the respondent would pay the arrears of difference, namely, Rs.950, within one week, he would not eject him, failing which the respondent would be ejected. This was not the case, as pointed out hereinabove that the learned Single Judge concurred with the finding of the two Courts on the question that there was no wilful default in payment of rent on the part of the respondent. In view of the above conclusion arrived at by the learned Single Judge, it cannot be urged that the appellant , had granted any concession to the respondent in terms of the aforesaid Full Bench case of Bombay High Court. It may be pertinent to state that in the Bombay case, the question before the Full Bench was, whether a relief could be granted in respect of a mortgage decree, wherein certain conditional concession was granted to the judgment-debtor, but who failed to fulfil the condition. In that context, it was held that the decree-holder was not enforcing any penal stipulation, but in fact was executing his, legal right, which he was entitled to in view of the default on the' part of the judgment-debtor.
(d) It may be observed that there is distinction between the enforce--ment of a penal stipulation and enforcement of a right or obligation. This can be illustrated by giving an example. Suppose in a given case the claim in a suit is for Rs. 5,000. The plaintiff agrees to accept Rs. 4,000 on the condi-- tion that if the defendant will pay the above amount of Rs. 4,000 within one week, he will accept the same in full and final settlement of his claim, but in case of default, he shall be entitled to recover his full amount of claim, namely Rs. 5,000. In such a case if the defendant does not pay the amount within one week, namely, Rs. 4,000, there will be no question of enforcement of any penal stipulation. In fact the plaintiff will be enforcing his right to recover Rs. 5,000, in respect of which he had granted concession conditionally to the extent of Rs. 1,000, which he was not obliged to grant.
Converse example can be that the plaintiff may have a claim for Rs. 5,000 and that under the terms of compromise, parties agree that if the defendant will not pay Rs. 5,000, within 6 months the defendant shall be liable to pay Rs. 150,000. The latter example involves enforcement of a penal stipulation and in such a case the Court will be competent to grant relief against the above penal stipulation -on the basis of a principle enunciated in the aforesaid cases, reported in PLD 1969 Kar.
12 and AIR 1951 Bom. 290.
3. In view of the above discussion we do not find any thing wrong with the order under appeal and hence no exception can be taken to it.
Consequently, the appeal does not merit, and, therefore, it is dismissed with no order as to costs.