' Through this judgment I propose to dispose of W.Ps. 5684 and 8824 of 1991, in that common questions of law and fact arise therein.
2. The facts forming background of these two cases may be narrated: House No,35/298, Mohallah Sarai Bhabrian, Sialkot City, was owned by Ghulam Mustafa and Muhammad Arif. It was rented out to Ashiq Hussain on a monthly rent of Rs, 2,000, vide rent note dated 23-10-1980, as revalidated/renewed on 27-5-1985. An ejectment application was filed on 18-6-1986 against Ashiq Hussain on the ground of default in payment of rent since October, 1985.
3. During the pendency of the ejectment matter, a compromise took place between the parties and a written compromise deed was filed in Court on 21-9-1987. The Rent Controller recorded the statements of the parties on the same day and decided the matter on 22-9-1987. In the compromise deed it was, inter alia, recited that Ashiq Hussain owed a sum of Rs,46,000, to the opposite party as arrears of rent up to 31-8-1987 and he would clear this liability in two instalments: First instalment of Rs,26,000, to be paid on 1-1-1988 and the second instalment of the balance amount of Rs,20,000 would be payable on 1-2-1988. It was also agreed that from 31-8-1987 he would be liable to pay Rs,2,000, as monthly rent of the house to the landlord and would obtain regular receipts in lieu thereof. Specially, it was recited that the relationship of landlord and tenant was admitted.
4. It appears that the arrears of rent as agreed in the compromise deed were not paid. An execution application was moved by Ghulam Mustafa and Muhammad Arif before the Rent Controller, but it was withdrawn. Second execution application was filed on 25-6-1989, wherein it was claimed that the first instalment of Rs,26,000, had been paid alright, but out of the remaining amount of Rs,20,000, only a sum of Rs,4,000, had been paid leaving the balance of Rs,16,000, and thus Ashiq Hussain had become liable to be ejected.
' This execution application was resisted by Ashiq Hussain through written objections on 11-7-1989 which were turned down by the learned Rent Controller vide order dated 3-12-1991.
5. An appeal was filed by Ashiq Hussain. On 10-3-1991 the impugned order was passed by the learned Additional District Judge, which being not acceptable to both the parties, is being assailed by them through their writ petitions.
' The learned Additional District Judge, inter alia, held, with reference to clauses 3 and 4 of the compromise deed, that whereas under clause 4 Ghulam Mustafa etc. Had agreed that they would not pursue their ejectment application, under clause 3 it was stipulated between the parties that on default of payment of rent through instalment by the target date, the landlord would be entitled to get vacated the house through execution application. In the view of the learned Additional.
District Judge, both these clauses were inconsistent to each other.The learned Additional District Judge, in the ultimate analysis, held that though Ashiq Hussain was to be treated to be a tenant of the house in dispute and as such liable to pay rent, he was not liable to be ejected. Consequently, the appeal was accepted and the order impugned before him was set aside, holding the ejectment order to be unexecutable.
6. According to Ashiq Hussain, the fmding of the learned Additional District Judge, whereby he was adjudged to be tenant is not justified in law. On the contrary, according to the other side, the order of the learned lower appellate Court whereby it was held that they could not seek eviction of Ashiq Hussain, was liable to be set aside.
7. I have heard the learned counsel for both sides. Mr. Shaukat Haroon, Advocate, has vehemently contended that vide mortgage deed dated 18-11-1980 Ashiq Hussain had received mortgage money of Rs,18,000, while the possession of the house was retained by him. Simultaneously a rent note was also got executed wherein the rent was fixed as Rs,400 per month. However, fresh mortgage deeds were being executed between the parties and fresh rent notes were also brought into being later on. In consequence thereof, rent was enhanced to Rs,2,000, per month as on 27-5- 1985. Vide mortgage deed dated 25-5-1985 mortgage money received afresh was Rs,1,10,000.
According to the learned counsel, from these transactions the intention of the parties was clearly to make arrangements for payment of interest on the mortgage money and not rent. It was merely a device adopted by the parties to avoid the curse of interest, which is un-Islamic. He also contended that the compromise between the parties was illegal and not binding on his client. He also contended that in any case, the agreement was vague and, therefore, carried no force in the eye of law. His client was an illiterate person and it is during the course of proceedings of the objection petition that he moved an application that in case the objections were not to be favourably considered, then he be allowed to take these pleas in his written reply to the ejectment application filed against him. He concedes that this application was dismissed on 27-7-1987. In support of his submissions noted hereinbefore, he has relied upon the following case-law:--
(1) Samundar Khan v. Mst. Maqbool etc. (1974 SCMR 388).
(2) Syed Jamaluddin v. Syed Mubashir Hassan Shah (PLD 1976 Lahore 187).
(3) Muhammad Abdullah v. Abdul Jabbar (PLD 1967 Lahore 1000).
' In reply to the contentions of Mr. Shaukat Haroon as well as in support of his own writ petition, Ch. Muzammal Khan, Advocate, has contended that the facts and circumstances of this case were absolutely identical with those of Raza Hussain v. Muhammad Ismail (PLD 1973 Notes 114 at page 175). His contention was that in order to find out the real intention of the parties the terms of the mortgage deed itself have to be looked into. From this, the nature of the transaction would be made clear. According to him, Ashiq Hussain having admitted the relationship of landlord and tenant, firstly when he filed his written reply to the ejectment application and secondly when the compromise took place between the parties and a regular deed was drawn and placed before the learned Rent Controller, was estopped from turning around and taking up the position that he was not a tenant. According to him, since the compromise had not been challenged in an independent proceeding, either by way of review or civil suit, it was not open to Ashiq Hussain, at this late stage of the day, to take up the plea that he was not a tenant and, therefore, not liable to ejectment. As a matter of fact, not only the factum of compromise is not denied, but it was even partly acted upon, in that the first instalment of arrears of rent of Rs,26,000, was paid and out of the balance amount of Rs,20,000, an amount of Rs,4,000, was paid. The learned Additional District Judge has erred in law in reversing the finding of the learned Rent Controller in so far as the question regarding maintainability of the execution application was concerned. It was also contended that the appeal before the learned Additional District Judge, as filed by Ashiq Hussain, was not competent. An appeal in a rent matter is provided by section 15 of the West Pakistan Urban Rent Restriction Ordinance and it is only an order finally disposing of the matter which is appealable. The interlocutory order whereby the objection petition was dismissed was not appealable and, therefore, the judgment of the learned Additional District Judge stands vitiated.
8. In my view, the authorities relied upon by Mr. Shaukat Haroon are distinguishable on facts vis-a- vis the present case. In the precedent cases, at the very outset of the ejectment proceedings, relationship of landlord and tenant was denied. On the contrary, during the course of proceedings of the ejectment matter the parties arrived at a compromise, and as mentioned earlier, relationship of landlord and tenant between the parties was specifically admitted and so also the liability to pay rent. This compromise deed was placed before the Court and the rent matter was disposed of in terms thereof. Ashiq Hussain acted upon the compromise deed up to a certain point of time. He paid the first instalment of Rs,26,000, and out of the second instalment of Rs,20,000, he advanced a sum of Rs,4,000.
' In none of the authorities cited and relied upon by his counsel such a situation arose. Ghulam Mustafa, in my view, is clearly estopped from turning around at a later stage, to claim that ab initio, relationship of landlord and tenant did not exist and he was not liable to be evicted.
9. Ashiq Hussain having admitted himself to be a tenant qua the disputed property cannot be allowed to wriggle out of his responsibility to pay rent and in consequence of his failure in this regard, he has to be ejected.
10. I also find force in the contention of Ch. Muzammal Khan that the appeal filed by Ashiq Hussain before the learned Additional District Judge was not competent. Mr. Shaukat Haroon, Advocate, has been unable to satisfy me about the competency thereof. All that he could say was that since no objection was raised before the learned Addl. Disrict Judge, the same could not be agitated before this Court in writ petition. I am afraid, failure to raise objection to the jurisdiction of a Tribunal/Court at a proper time cannot always be treated to be a bar in the way of raising such an objection at a later stage. If a Tribunal/Court has no jurisdiction to hear a case, then irrespective of the fact that the parties who appeared there in their capacity as respondents had objected thereto or not, such objection can certainly be raised before the higher forum. See Muhammad Afzal v. Board of Revenue and others (PLD 1967 SC 314).
11. Coming now to the last aspect of the case, as to whether or not, after holding that relationship of landlord and tenant existed between the parties, the learned Additional District Judge was justified in refusing execution, my view is that he has faltered. A perusal of the compromise deed shows that the ejectment matter stood finally concluded thereby and the parties were bound by the terms thereof. Consequence of non-fulfilment of condition of payment of arrears of rent in terms of clause 3 was to clearly entail penalty of ejectment.
' Ashiq Hussain cannot be permitted to put premium on his own default, nor the opposite-party can be punished for showing grace to him in permitting him to stay in the premises in dispute, despite the fact that default in payment of rent stood admitted in the rent case. The course of law cannot be permitted to be subverted by the alleged inconsistency between clauses 3 and 4 of the compromise deed, while, in reality, there is none.
12. Resultantly, Writ Petition No, 5684 of 1991, titled "Ashiq Hussain v. Addl. District Judge etc." is dismissed and W.P. No,8824 of 1991 titled "Ghulam Mustafa and another v. Ashiq Hussain and another" is accepted. No costs in both the cases.