This appeal (FRA-No. 249 of 1982) is from the order dated 14-2-1982 of the learned VII Senior Civil Judge and Rent Controller Karachi, (Lalchand Peswani) whereby he allowed the application of the respondent directing the appellant to deliver a room of the size of 10' x 8' to him.
2. Briefly stated the facts are that the appellant Phool Muhammad who owns the house bearing No. 3/448 (half portion of a quarter) Liaquatabad. Karachi, filed ejectment application seeking ejectment of the respondent Abdul Ghaffar from the said house on the solitary ground of the default in payment of the rent. Although the respondent denied the relationship of tenant/landlord between him and the appellant in his written statement, the dispute was ultimately compromised.
According to the terms of the compromise the respondent accepted the appellant as owner of the premises, agreeing to vacate the same within 30 days of the limitation to be given by the appellant indicating the date on which he wished to start construction of the house and in return the appellant undertook to provide to the respondent a room measuring l0' x 8' in the newly- constructed house. It is alleged that the respondent did not vacate the disputed house as per compromise whereupon the appellant filed execution application as a result of which the possession of the house was delivered to him. After the house had been reconstructed, it was now the respondent who took out execution proceedings with a view to make the appellant fulfil his part of the compromise (i.e. Deliver to him a room of the above dimensions). His application was however dismissed and the revision application filed by him against the order of the dismissal also failed. Thereafter on 31-10-1979 he filed an application purporting to fall under section 13 (5-B) of the Sind Urban Rent Restriction ordinance, 1959 (hereinafter called as the old Ordinance) praying therein that the appellant be directed to deliver to him a room of the specified size in accordance with the settlement reached between the parties. This application was allowed by the learned Controller by the impugned order as stated above.
3. Mr. S.M. Rizvi, who represented the appellant, first contended that the respondent's application allowed by the learned Controller was not maintainable. According to the learned counsel section 13 (5-B) was not attracted as the conditions that were sine qua non for its application were not satisfied. The conditions spelt out by him are :-
(1) The appellant/landlord had obtained the possession of the dispu--ted premises in pursuance of an order under section 13 (2) (vi) of the Old Ordinance, (2) The application for accommodation in the newly-constructed building had been made before completion of the new building (3). The accommodation in the new building shall be given on payment of rent to be fixed by the Controller.
4, In order to appreciate his arguments it would be useful to re--produce subsection (5-B). It reads as under :- (5-B) where, in pursuance of an order under clause (vi) of sub--section (2), a landlord has obtained possession of a buildings (in this subsection referred to as the old building), and constructs a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation, and the Controller shall make an order accor--dingly in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant. He deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality."
It would appear that the first requirement for invoking subsection (5-B) is that an order is passed under clause (vi) of subsection (2) of section 13 of the old Ordinance and the landlord has obtained possession of the disputed premises in consequence of such order. This is however not the position in this case. In the ejectment application, the appellant had not raised the plea of requiring the house for the purpose of construction nor the learned Controller has allowed such plea and ordered him to be put into possession .On the ground. The fact was that the parties reached private settlement outside the Court and the learned Controller passed the order in terms of the settlement. Thus it was in execution of the com--promise between the parties that the appellant got the possession of the disputed premises. In these circumstances the learned Controller's order providing legal cover to the compromise cannot be construed to be an order under clause (vi) of subsection (2) referred to above.
5. The second requirement to be fulfilled for applying subsection (5-B) is that application for accommodation in the new building is made before completion of that building. In the instant case it is not denied that the application which is the target of the attack was made long after the new building had been completed. Thus this condition too was not fulfilled.
6. As for fulfilment of third requirement the accommodation in the building is to be given to the tenant/respondent on rent to be fixed by the Controller. Submitting his arguments on this point, the learned counsel for the appellant made a pointed reference to the application made by the respondent for accommodation in the new building. The relevant passages relied upon by the learned counsel may be reproduced as under "The applicant was also bound by the agreement to provide a room 10' x 12' in the said premises, without rent, to the opponent on account of his past obligations, after construction thereon.
3. That the opponent sent a legal notice dated 25-10-1976 after the reconstruction, calling upon the applicant to hand over a room measuring 10' x 12' for the same room the opponent is entitled to live therein free of any monthly rent etc. As agreed by the applicant."
The learned counsel argued that while making prayer for accommodation in the new building, the respondent wanted the same without obligation of paying any rent in respect thereof. This means that he did not want the requirement of the section to be satisfied. He did not like the Controller to fix any rent for the accommodation he Lad applied for in the new building. These arguments made by the learned counsel for the appellant are not without force. But the question is if the application would ever lie under the aforesaid provision of the law. The learned counsel for the respondent was frank enough in saying that the application was filed not in accordance with the subsection (5-B) but in pursuance of the compro--mise arrived at between the parties. In other words he wanted the compromise to be enforced. The compromise having matured into a decree, it was capable of execution through execution proceedings In fact the appellant had already obtained the possession of the disputed premises by intervention of the Court in execution proceedings.
Similarly it was open to the respondent to have recourse to such proceedings. Of course he did take out the execution proceedings but the view taken by the two Courts below was that the respondent could secure accommodation in the new building only by applying under subsection (5-B) of section 13. Thus his efforts to have the compromise decree enforced in his favour through execution proceedings did not succeed. However, he did not think fit to challenge the correctness of the orders passed by the lower Courts, dismissing his execution application at appropriate legal forum such as High Court through Writ Petition or like other process. Instead the respondent preferred to follow the course suggested by the lower Courts. Whether or not the execution application for execution of the compromise reached between the parties could be filed is to be examined in the light of section 17 of the old Ordinance. 1t reads as under :- "17. Execution of orders.-Every order made under section 10 or section 13, and every order passed on appeal under section 15 shall be executed by a civil Court having, jurisdiction in the area as if it were a decree of that Court."
It is thus clear that every order made under section 10 or section 13 shall be executed as if it were a decree. The order on compromise application obviously fell under section 13 and consequently it was capable of execution as a decree. In view of this legal position, the view taken by the lower Courts was not correct and consequently the application under subsection (5-B) of section 13 was incompetent and hence not maintainable. The learned Controller's order allowing the application was clearly without jurisdiction and as such could not be sustained.
7. Even if it is assumed that the respondent had rightly approached the Controller in application under subsection (5-B). Of section 13, still his .Case would not be free from- difficulties. It is an admitted position that .While the application in question was pending before the Controller, the old Ordinance under which it was filed was repealed and replaced by the new law, namely, the Sind Rented Premises Ordinance, 1979 (herein--after referred to as the new Ordinance). As provided in subsection (2) of section 27 of the new Ordinance, all appeals and the cases fixed for arguments or judgment filed under the old Ordinance had to be disposed in accordance with the said Ordinance.
The case under consideration was neither an appeal nor the-;one fixed for arguments or judgment and as such it was not covered by subsection (2) of section 27 of the new Ordi--nance. It however fell under subsection (3) of the same section which provides that all other cases (other than those mentioned in subsection (2) (referred to above) instituted under the old Ordinance and pending atthe time of promulgation of the new Ordinance would be continued and disposed in accordance with the new Ordinance. It would be noticed that the new Ordinance does not contain any provision corresponding to subsection (5-B) of section 13 of the old Ordinance and as such the application filed under the said subsection could not be maintained under the new Ordinance.
Thus on promulgation of the new Ordinance the application being inconsistent with the provisions of the said Ordinance as liable to be dismissed on the ground that it was not maintainable.
8. For the foregoing reasons the appeal is accepted and the impugned order of the learned Controller by which he allowed the respondent's application for restoration of the accommodation in the new building is set aside. The parties will bear their own costs.