' This Revision Application is directed against the order passed on 17th November, 1979 by the learned VIIIth Additional District Judge whereby he set aside the order passed on 5th April, 1979 by the VIth Rent Controller, Karachi.
1. The brief facts of the case are that the respondent filed an application (R. C. No, 2250/71) against the applicant for his ejectment from portion of Quarter' No, 41/1, Muslim League Quarters, Nazimabad on the ground of default in payment of rent for the period from 1st April, 1971 to 1st'
August 1971 and also on the ground that the premises in question was required by him for his personal bona fide use and occupation.
' During the proceedings, order for deposit of arrears of rent and also future rent was passed which was not complied with by the applicant. Consequently the respondent filed an application under section 13 (6) of the then West Pakistan Urban Rent Restriction Ordinance for striking off the defence of the applicant.
' After hearing the parties by order passed on 15th July, 1975 the said application was allowed and the defence was ordered to be struck off.
' The applicant was further directed to vacate the premises and hand over its vacant possession.
' Against the above order an appeal was preferred by the above-named applicant which was dismissed by the learned IVth Additional District Judge, Karachi on 25th April, 1976. Thereafter a review application was filed by the applicant which was also dismissed on 11th February, 1977.
2. Application for execution of the order of ejectment passed as aforesaid, was thereafter filed by the respondent/landlord in the Court of the V 1th Rent Controller/Civil Judge, Karachi. After receipt of notice of the above execution application, the applicant raised oral objections to the maintainability of the said execution application on the ground that pursuant to a complaint filed against the respondent/landlord before the Martial Law Authorities/the Sub-Martial Administrator, both the parties appeared before Major Pervaiz on 8th June, 1977 and there they settled their disputes whereby ?The landlord/respondent agreed to continue the tenancy of the applicant (Qurban Hussain) on the same terms and conditions and not to press the order of ejectment against him.
3. In order to dispose of the oral objections thus raised, the learned Execution Court allowed the parties to lead evidence.
' In support of his plea of alleged settlement the applicant examined himself and two other witnesses namely one Mr. Maqsood Hussain. a contractor, and the other Mr. M. Luqman from the Army Unit. The applicant's case was supported by Maqsood Hussain who deposed that such a compromise was made between the parties and that three copies of it were prepared, one was supplied to decree-holder, the other was given to the judgment-debtor and the third was placed on the record of the Martial Law Authorities. He however stated that the compromise document was not shown to him. Mr. M. Luqman from the Army Unit to which Major Pervaiz also belonged, was the other witness who was examined in order to support that there was a compromise between the parties as contended by the applicant tenant. It may be noted here that this witness did not produce any copy of the alleged compromise application/deed made by the parties and which was allegedly kept on the record of Martial Law Authorities. The applicant also did not produce any copy of the alleged compromise.
' In rebuttal, the decree-holder/respondent examined himself, who denied the alleged compromise.
4. After hearing the parties and considering the evidence produced by the parties, oral as well as documentary, the learned Rent Controller by order passed on 21st January, 1978 held that there was no compromise' outside the Court between the parties so as to prevent the decree-holder from executing the decree against the applicant. The objections raised by the applicant were thus rejected.
5. Against the above order passed by the learned Rent Controller in execution proceedings, the applicant/judgment-debtor filed an appeal being C. M. A. No, 27/78 which was heard by the learned VIIIth Additional District Judge Karachi. The said learned Appellate Court after hearing the counsel for the parties on the question as to whether a compromise was arrived at between the applicant and the respondent before the Martial Law Authorities, held as follows :- "If there has been compromise between the parties in writing and there were three copies of the compromise one which was given to the D. H. Other to J. D. And the other was kept on record of the Martial Law Authorities then why it was not produced by the witness of the appellant namely, Mohammad Luqman who was Army Officer. It shows that there was no compromise in writing between the parties otherwise it would have been produced either by the J. D. Or his witness who has said that there were three copies of compromise. The other point is if there was compromise between the parties then what was necessity of sending rent to the respondent through Money Order. The appellant should have given in person when there was compromise.
' With the above observations, I am of a considered view that the learned lower Court has rightly overruled the objections of the appellant. I find nothing wrong in the impugned order. The appeal is, therefore, dismissed and the impugned order is upheld."
' The appeal was accordingly dismissed by order passed on 21st August, 1978.
6. After the rejection of the plea that there was a compromise between the parties both by the Rent Controller and the appellate Court, the applicant/judgment-debtor, filed an application under section 47, C.P.C, raising the same plea, this time in writing, that there was a compromise between the parties where by the tenancy of the applicant judgment-debtor was allowed to be continued and that the decree was therefore not liable to be executed. The learned Execution Court while rejecting the plea advanced on behalf of the D. H./respondent to the effect that applicant/ Judgment-debtor's objection under section 47, C. P. C. Had already been disposed of by the Execution Court as well as by the Appellate Court, proceeded to entertain the same objections afresh and to frame issues making the following observations :- "I have gone through the record, there is no written objection on the file, on behalf of J.D. But the parties led their evidence and judgment was given. The other circumstance is that no issues were .Framed by the Court. It is very difficult to ascertain on what issues the parties led evidence."
' Pursuant to the above order, the learned Court framed the following issues :- "(1) Whether objections under section 47, C. P. C. Read with section 151 have already been decided, if so its effect?
(2) Whether this Court has jurisdiction to entertain this execution application?
(3) What should the order be?"
7. Against the aforesaid order the respondent filed Civil Miscellaneous Appeal No, 112 of 1979 which was allowed by the VIIIth Additional District Judge, Karachi by order passed on 17th November, 1979 wherein it was held :- "It is also admitted position that my earlier order dated 21st January, 1978, passed on like nature Miscellaneous appeal has not been challenged in my Court. The matter is admittedly at the same stage as it was on 21st August, 1978. The second application dated 28th February, 1979 has been filed without any fresh cause of action. I think the learned Rent Controller was not justified in allowing this application for further evidence. The evidence has already been led by the parties at length. The objections filed by the J.-D. Did not mention any fresh averment to reconsider the matter, Moreover, the issue No, 2 framed by the Court is very much belated as the point of jurisdiction was to be decided at the initial stage. After order of writ to issue and its confirmation by appellate Court, this issue is quite unjustified. The learned Rent Controller has not gone through the record as the matter has already been decided by appellate Court and the application dated 28th February, 1979, was barred by the principles of res judicata. The execution application was pending since last, July, 1977 and has already been decided. The matter cannot be allowed to be reopened again. I think the present application has been filed with intention to delay the further proceeding of execution application.
' In view of my above discussion I am satisfied that the impugned order of the learned Rent Controller is not a proper order. I, therefore, set aside the same and allow this appeal."
8. Against the above orders, this Revision Application has been filed under section 115, C. P. C. The learned counsel for the applicant contended that no written objections had been filed at the earlier stage though oral objection to the same effect was raised that there was a compromise between the parties before the Martial Law Authorities whereby the applicant/judgment-debtor was agreed to be continued and recognized as a tenant and that the ejectment orders would not be pressed or executed. The learned counsel frankly conceded that the parties led evidence on this very question as already noted above. He, however, submitted that since no written objections were filed earlier and no formal issues were framed, it was obligatory for the Rent Controller when written objections were filed to frame issues and decide the matter in accordance with the law in view of the judgment of the Hon'ble Supreme Court (1972 SCMR 228).
9. 1 have considered the arguments of the learned counsel and gone through the, record with the assistance of both the learned Advocates appearing for the parties in the case.
A perusal of the record show that the oral objection to the execution application earlier raised by applicant/Judgment-Debtor about the settlement, were rejected by the Rent ' Controller by order passed on 21st January, 1968, after iiving opportunity to the parties to lead evidence. The said order was challenged in C. M. A No, 27 of 1978 which was also dismissed by order passed on 21st August, 1968, after hearing the parties on the points involved in the case, though no formal issue was framed.
10. Against the above order passed by the learned VIIIth Additional District Judge on. 21st January, 1978 no further appeal or other proceedings were taken and thus the said order attained finality. In view of this position it was, hardly open to the judgment-debtor to have further filed the same objections afresh on the mere plea that the objections then taken were oral and that no formal issues had been framed.
' The submission made by the learned counsel for the applicant that the written objections for the first time, were filed under. Section 47, C. P. C. After the disposal of the appeal No, 27/78 and, therefore, the Rent Controller by order passed on 5th April, 1979 was justified to entertain the same and frame the issues, cannot be accepted. Admittedly the objections raised afresh in writing were the same and the issues framed by the learned Rent Controller on 5th April, 1979 involved the decision of the same questions of facts and law as were already disposed of by the Rent Controller on 21st January, 1978 and which order was upheld in Civil Miscellaneous. Appeal No, 27/78 by the First Appellate Court. A mere failure to frame the issues or to frame defective issues would not be a valid ground to file the same objections in writing and nullify the orders, which otherwise have not resulted in miscarriage of justice or prejudice to any of the parties on decision of the case on merits.
' It may be noted here that the applicant himself had raised the plea of settlement between the parties and led evidence to establish the same. There was no suggestion on his part that any issue be framed when the plea was raised before the learned lower Courts. Nor it has been shown that the parties were misled on account of the alleged omission to frame the issues. In the circumstances defect in any would stand cured under section 99, C. P. C. And the applicant cannot be allowed to assail the judgments or re-open the case.
' The subsequent application, therefore, amounted to a gross abuse of the process of the Court to further delay the proceedings which were initiated as far back as 1971.
11. No case for interference by this Court in exercise of its supervisory jurisdiction under section 115, C.P.C., therefore has been made out. It is hardly necessary to observe that the exercise of jurisdiction under section 115, C. P. C. Cannot be invoked in aid of injustice.
' In the circumstances and for the reasons stated above I dismiss this Revision Application. It is also ordered that the applicant shall pay Rs, 500 as costs of these proceedings to the respondent.
' At the request of the learned counsel for the applicant to which Mr. Azhar Ali Siddiqui has no objection the applicant is granted two months time to vacate the premises subject to the condition that he deposits rent regularly for the said period. In case of failure to deposit rent as directed- or to vacate the premises within the time granted, writ of ejectment shall be issued without any notice.