' This first rent appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979, by Muhammad Hanif and two others, who are the sons and legal heirs of late Muhammad Siddique. Respondent No,1 is D.B. Ghadialy and respondent No,2 is Ghulam Hyder. The facts are that deceased Muhammad Siddique, father of the present appellant, was the tenant in respect of a shop on the ground floor of Ghadiali Building located on plot No,23 S.B.- I, Preedy Street, Opposite Empress Market, Karachi. The shop measured about 11 x 30 square feet. Muhammad Siddique was ejected on the basis of an order of ejectment passed in the execution application filed by respondent No,1, D.B. Ghadiali, the landlord, on the ground of reconstruction of the building by the landlord. Muhammad Siddique was entitled to get possession of premises in the new building in view of the provisions of section 13 (5-B) of the 1959 Rent Ordinance. On 17-11-1966, Muhammad Siddique, the original tenant, applied to the Rent Controller by an Application No,2813 of 1967 for possession under section 13(5-B) of the 1959 Rent Ordinance. During the pendency of the said application before the Rent Controller, Muhammad Siddique died and the present appellants were brought on record. By order dated 28-11-1969, the Rent Controller granted the application of the appellants. It may be observed here that after reconstruction of the building by respondent No, 1, he inducted Ghulam Hyder, respondent No,2 in this appeal, into the disputed shop, which has been claimed by the appellants. Against the order dated 28-11-1969 of the Rent Controller passed in favour of the appellants, respondent No,1 filed Rent Appeal No,6 of 1969 and respondent. No,2 filed Rent Appeal No,767 of 1969. By a common order dated 4-5-1970, both the said appeals were dismissed by the Additional District Judge, Karachi. Ghulam Hyder, respondent No,2, filed Second Appeal No,187 of 1970 in this Court and the same was dismissed on 26-10-1979 by a learned Single Judge of this Court but while dismissing the appeal a certificate was granted by the learned Single Judge under clause 10 of the Letters Patent and on the basis of that certificate Ghulam Haider filed L.P.A. No,208 of 1970. Respondent No,1, the landlord, filed a Second Appeal No,490 of 1970, being aggrieved by the order dated 4-5-1970 of the First Appellate Authority and the said appeal was admitted to regular hearing on 18-12-1970. L.P.A. No,208 of 1970 filed by the new tenant Ghulam Hyder and Second Appeal No,490 of 1970 filed by the landlord D.B. Ghadialy were heard by a Division Bench of this Court and by a judgment dated 17-10-1978 both the appeals were dismissed.
The judgment dated 17-10-1978 is reported in PLD 1979 Kar.
169. Ghulam Hyder, respondent No,2, filed a Civil Petition for Special Leave to Appeal No,K-208 of 1978 in the Supreme Court of Pakistan but the said petition was also dismissed by order, dated 14- 2-1979 of the Supreme Court which order is reported in 1979 SCMR 396. The appellants then filed Execution Application No,2 of 1979 in Rent Case No,2813 of 1967. Objections were filed to the said execution application and the learned Senior Civil Judge and Rent Controller, Karachi, by order 17- 11-1982 'dismissing their execution application. Being aggrieved by the order dated 17-11-1982 dismissing the execution application, the appellants have preferred this appeal. I have heard Mr. Badruduja Khan, learned counsel for the appellants, Mr. A.R. Siddique, learned counsel for respondent No,1 and Mr. Rasheed A. Rizvi, learned counsel for respondent No,2.
2. Various objections were taken by respondent No,2 before the Rent Controller in the execution application but the execution application was dismissed on the ground that it was barred by time and on the ground that in the execution application a prayer was made that the order dated 21-11- 1969 of the Rent Controller be executed, which order, according to the Rent Controller, did not exist, as it had been modified by the judgment dated 17-10-1978 in L.P.A. No, 208 of 1970 and as such the order dated 28-11-1969 could not be executed.
' Apart from the aforesaid reasons, which have been supported by Mr. Rashid A Rizvi, learned counsel for respondent No,2, two further contentions were raised on behalf of respondent No,2 against the maintainability of the execution application filed by the appellants and these are as under:
(a) In the execution some demarcation will have to be done by the Rent Controller pursuant to the judgment dated 17-10-1978 in L.P.A. No,208 of 1970 and this demarcation cannot be done by the Rent Controller. To be precise, the agrument was that the judgment of High Court dated 17-10-1978 in L.P.A. No,208 of 1970 is an inexecutable judgment.
(b) Section 13 of the new Rent Ordinance, 1979, protects respondent No,2, who had been inducted as a tenant by respondent No,1 and unless a fresh application was filed for ejectment of.
Respondent No,2, his ejectment cannot take place.
3. First I would take up the point that the execution application was for executing the order dated 28-11-1969, which order, according to the Rent Controller, as well as learned counsel for respondent No,2, did not exist and as such the same could not be executed. The relevant part of the order dated 28-11-1969 of the Rent Controller is as follows:- "In view of the above grounds the applicants should be put in possession of new shop constructed on the old site, or the shop of the corresponding area in the new building.
' I deem it just and proper that the monthly rent of the new shop be double of the previous rent paid by the applicant in the old building. Order accordingly."
' The aforesaid order of the Rent Controller dated 28-11-1969 was modifided by the High Court by their judgment dated 17-10-1978 in L.P.A. No,208 of 1970 and the operative part of the judgment dated 17-10-1978 is as follows:-- "The area of the old shop was 11' x 30' amounting to total area of .330 sq. Ft. The same area would be made available to the respondent out of the disputed shop. The shop in question which has larger area of 400 sq. Feet was let out on Rs,250 per month by Exh.4/1 and since there is no allegation that this rent was in any manner an inflated rent, therefore, taking that rent as a guide to rent prevailing in locality for such new accommodation a proportionate rent of 330 sq. Ft. Would amount to Rs,204 only and we would, therefore, modify the order of the Rent Controller to this extent that the rent of the shop to be handed over to the respondent measuring about 330 sq. Ft.
Would be Rs,204 only per month."
' When the execution application was filed before the Rent Controller alongwith the execution application a copy of the judgment, dated 17-10-1978 of the High Court in L.P.A. No,208 of 1970 was also annexed. As already noticed, the order dated 28-11-1969 was modified by the judgment dated 17-10-1978 of the High Court in L.P.A. No,206 of 1970 and as such the order that was to be executed was the order dated 28-11-1969 of the Rent Controller as modified by the judgment dated A 17-10- 1978 of the High Court in L.P.A. No,208 of 1970. A very technical and artificial view has been taken by the Rent Controller in holding that the execution application was not maintainable and liable to be dismissed on the ground that the execution application prays for execution of the order dated 28- 11-1969, which does not exist. No doubt the execution application was for execution of the order dated 28-11-196 of the Rent Controller but a copy of the judgment, dated 17-10-1978 0 the High Court in L.P.A. No,208 of 1970 had been attached and the Rent Controller was fully aware of the fact that the order date 28-11-1969 had been modified and in these circumstances he should not have dismissed the execution application on the aforesaid ground, but should have proceeded to adjudicate the matter on the basis that the order that was to be executed was the order dated 28- 11-1969 of the Rent Controller as modified by the High Court by their judgment date 17-10-1973 in L.P.A. No,208 of 1978.
4. The other ground on which the execution application had been dismissed, is that the execution application was barred by time. It is an admitted position that after passing of the order dated 28- 11-196 of the Rent Controller continuous proceedings had been taken by the respondents and the matter was taken up to the Supreme Court when finally the petition for special leave to appeal filed by respondent No, was dismissed on 14-2-1979. In all the proceedings stay had been granted against the appellants and as such execution application could not be filed. In view of the stay granted by the appellate Courts and in vie of the provisions of section 15 of the Limitation Act, 1908, I am of th view that the execution application was not time-barred.
5. The other two contentions raised on behalf of the respondent No,2 may now be considered. It was first argued that demarcation could not be done by Rent Controller in execution proceedings.
As already noted, the argument was that the order of High Court dated 17-10-1978 is inexecutable.
According to the learned counsel for the respondent No,2, the new shop constructed by the respondent No,1 landlord and in which respondent No,2 was inducted as a new tenant is about 600 feet in area and under the orders of the High Court an area of 330 square feet is to be given to the appellants and as demarcation cannot be done by the Rent Controller, the order is inexecutable and the Rent Controller is also not competent to execute the order. The order dated 17-10-1978 of the L.P.A. Bench is very clear. It states that the area of the old shop (which was in occupation of the original tenant, Muhammad Siddique, predecessor-in-interest of the present appellants) was 11' x 30' amounting to total area of 330 square feet. A clear direction had been given by the High Court that the same are: would be made available to the respondents (the present appellants) out of the disputed shop. No provision of law has been shown by the learned counsel for respondent No,2 that there is any restriction of the powers of the Rent Controller that in execution he cannot demarcat the area. Section 22 of the Sind Rented Premises Ordinance, 1979, provides that an order made by the Rent Controller or by the Appellate Authority shall be executed in such manner as may be ,:determined b the Rent Controller or as the case may be, the Appellate Authority. In my view, the order of the Rent Controller dated 28-11-1969 as modified by the judgment dated 17-10-1978 of the L.P.A. Bench is an order which is executable and the Rent Controller has adequate powers on execute such order.
6. The only other contention of the learned counsel for respondent No,2, was that section 13 of the Rent Restrictions Ordinance, 1959, protects respondent No,2, the new tenant. In this case the right of the appellants to be inducted into the new building was conferred by section 13 (5-B) of the 1959 Rent Ordinance and that right could not be taken away by the repeal of the 1959 Rent Ordinance as firstly, the right had accrued before the repeal and secondly, even the execution application had been filed before the repeal of the previous Ordinance.
7. As a result, First Rent Appeal No,1231 of 1982 is allowed, the order dated 17-11-1982 of the Rent Controller is set aside and the execution application filed by the appellants is granted and the Rent Controller is directed to issue a writ for executing the order dated 28-11-1969 of the Rent Controller passed in Rent Case No,2813 of 196 as modified by the judgment dated 17-10-1978 of the High Court in D L.P.A. No,208 of 1970. This matter has been pending for a long time and the matter had gone upto the Supreme Court and the petition for special leave filed by the respondent No,2 was dismissed as far back as 14-2-1979. The execution application remains inexecuted. It is directed that the Rent Controller concerned will see to it that the writ I executed within 30 days of receiving intimation of the passing of the judgment.
' The appellants are also granted costs as against respondent No,2.