1. ' The facts giving rise to the present rent appeal are that on 7-7-1979 the present appellant/landlord had filed an application for ejectment against deceased ancestor of present respondents in respect of the house in dispute under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the grounds of bona fide personal need and default in payment of rent. After promulgation of the Sindh Rented Premises Ordinance, 1979 the said ejectment application was transferred to the Court of Second Senior Civil Judge and Rent Controller, Larkana and was numbered as R.A. No,64/1988 The parties however, entered into a compromise during the proceedings before the Rent Controller on 4-9-1983 and the said ejectment application was disposed of in terms of the compromise by an order passed on the same day. The said ancestor of the present respondents is, however, said to have flouted the terms of said compromise and, therefore, an execution application (No,10/::) was tiled by the present appellant before the Rent Controller which was dismissed by an order passed on 31-104988. Being aggrieved the appellant has filed this appeal.
2. ' I have heard Mr. Sikandar Ali Alvi, the learned counsel for the appellant and also Mr. Shabir Ahmed Awan the learned counsel for the respondents. Mr. Sikandar All Alvi Advocate has urged that the said compromise and the order passed thereon by Rent Controller amount to an order of ejectment and, therefore, is an order executable under section 22 of the Sindh Rented Premises Ordinance, 1979. He has further submitted that in view of above fact the learned Rent Controller could not refuse to execute the said order. He has placed reliance on the case of Qasim All v. Mst.
3. Sakina and others (1973 SCMR 307). He has further submitted that a mere omission by Rent Controller in not directing the ejectment cannot be pressed into service to the disadvantage of the party. In support of his above contention he has relied on the case of Pakistan Day Memorial Committee v. Mian Abdul Khaliq & Co. (1987 CLC 1169). The learned counsel has then submitted that the order passed by the Rent Controller amounts to a consent decree and the same cannot be challenged by the respondents now. He has placed reliance on the case of S. Anwar Ali Shah v.
4. S. Niaz Ali Shah (PLD 1978 Lahore 1078).
5. ' Mr. Shabir Ahmed Awan Advocate for respondents repelling the above-said contentions of the learned counsel for appellant has submitted that the above-cited cases have no bearing on the facts of the present case as in the present case there is no specific order of ejectment passed by the Rent Controller but the said compromise amounts to a fresh agreement between the parties and in case the appellant seeks ejectment of the respondents on the basis of said compromise/agreement, he will have to seek proper legal remedy in the Court. He has further submitted that the order passed by the learned Rent Controller on the compromise application is not a decree and thus the same could not be executed in terms of section 22 of the Sindh Rented Premises Ordinance, 1979. He has placed reliance on the case of Dewan Kewalram v. Messrs Farooq & Co., Hyderabad (1982 CLC 156) and the case of Mrs. Amina Lodhi v. Maqbool Hussain 1983 CLC 178.
6. ' I have given anxious consideration to the submissions of the learned counsel for the parties. In order to appreciate the legal position involved in the case it would be pertinent to reproduce the terms of the said compromise and order passed thereon: "We both the parties have compromised as per following terms. The Honourable Court is required to dispose of the case in accordance with the terms of compromise.
(1) The opponent has paid today the rent arrears at the rate of Rs,25 per month for the period from September 1978 to 31-8-1983, to the applicant.
(2) The rent has been fixed at Rs, 50 per month which is payable by the opponent to the applicant after getting rent receipts therefor from 1-9-1983. Without receipt, payment of rent will not be considered.
(3) The opponent will hand over the vacant possession of the house in suit to the applicant after expiry of 3 years and in case of refusal, the applicant will get the vacant possession of the house in suit through the Court.
(4) Both the parties bear their own expenses.
7. ' Accordingly the parties have compromised, which they ratify and case be disposed of accordingly.
8. Sd. Applicant Jumromal Sd.Dhani Bux Opponent Sd. Advocate. Sd. Advocate
9. ' Parties are present. They state that they have compromised. The application is disposed of in terms of compromise. Sd. 4-9-1983 ' IInd Senior Civil Judge and Rent Controller, Larkana."
10. Clause 2 of above compromise application shows that rent was enhanced and fixed at Rs,50 per month. Clause 3 of compromise also shows that the opponent had undertaken to vacate the premises after the expiry of three years with the stipulation that in case of his failure to do so the applicant will get the vacant possession through the Court. The Court here would mean the Rent Controller. The order of the Rent Controller on this applicant is to the effect that application is disposed of in terms of compromise. This itself shows that the Rent Controller has not passed any order with regard to ejectment of the opponent but all that can be inferred from the order is that in case of failure of opponent to hand over the vacant possession the landlord will have to seek remedy through the Rent Controller which can be done only by way of filing an application for his ejectment and cannot be construed to be through execution application. The submission of the learned counsel that the order passed by Rent Controller on the compromise application can be construed to be order of ejectment is not' tenable as it would be beyond the jurisdiction and authority of the Rent Controller to allow a period of 3 years to the tenant to vacate the premises on the basis of compromise but he has to pass specified order for ejectment allowing reasonable time.
11. ' In the above-cited case of Diwan Kewalram v. Messrs Farooque & Co. Hyderabad the facts were that the landlord had moved an application for ejectment of his tenant on the ground of default wherein the Rent Controller and the first appellate Court had held that there was no willful default on the part of the tenant, a second appeal was filed before the High Court which was also dismissed. However, certain undertaking on behalf of the tenant was recorded in the order of dismissal by a Single Judge of that Court whereby the tenant had offered to pay difference of arrears of rent within a week failing which he was to be ejected. On failure of tenant in payment of the difference of rent as stipulated, the landlord had filed the execution application which was dismissed. Matter ultimately came before the Division Bench of this Court wherein it was observed: "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."
12. ' In the above-cited case of Mrs. Amina Lodhi v. Maqbool Hussain, a learned Single Judge of this Court in similar circumstances has held that the compromise and the order disposing of the ejectment application in terms of the compromise do not amount to an ejectment order and the same was not executable under the provisions of section 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In this case Ajmal Mian, J (as he then was) had also considered the above-cited Supreme Court case of Qasim Ali v. Mst. Sakina. This case of Qasim Ali v. Mst. Sakina in my humble view would not be applicable as the facts in that case are different than the present case. In the said case the order of ejectment was passed by Rent Controller and during pendency of appeal a compromise was arrived at between the parties whereby the tenant was allowed to continue in possession for a period of three years from the date of compromise on condition of payment of all arrears and regular payment of future monthly rent and, therefore, it was held by their Lordships that the order passed by the Rent Controller against the petitioner was only modified in the appellate Court to the extent that the petitioner was to continue in possession for a period of three years from the date of compromise provided he fulfilled certain conditions regarding payment of the arrears of rent and of future rent. The point for distinction in the present case as compared with the above case of the Honourable Supreme Court is that in present case there is no order of ejectment passed by the Rent Controller but as discussed above this compromise amounts to a fresh agreement and an offer by the tenant to hand over vacant possession on expiry of the period of three years and also that in case of his failure to do so the landlord will have to seek recourse through the Court of Rent Controller. The facts in the above- cited case of S. Anwar Ali Shah v. S. Niaz Ali Shah were that the very validity of the consent decree was challenged and it was held that no appeal would be competent against a consent decree. In the present case it is not the validity of compromise or order that is challenged but the point for consideration is that no order of ejectment was passed. Also the facts of the case of Pakistan Day Memorial Committee relied upon by the learned counsel for the appellant are different from the facts of the present case.
13. ' From the facts as observed above it can safely he assumed that the said compromise and the order thereon does not amount to an order of ejectment but at the most it is a fresh agreement between the parties and an offer given by the tenant to vacate the premises on expiry of three years. In such circumstances the remedy available to the landlord would be to seek the ejectment of the tenant through legal proceedings and course of law. The said order, however, cannot be equated with a decree and this would not be executable under section 22 of the Sindh Rented Premises Ordinance. In view, of the above discussion the present appeal is dismissed with no order as to costs. es