WAJIHUDDIN AHMAD, J.-1 & 2 The dispute between the parties has been discussed and disposed of by the learned Controller in these words:- "On the other hand learned counsel for opponent/JD(urged) that in fact applicant/D.H. Has settled his matter and dispute with the opponent and had engaged into fresh agreement with the opponent/J.D. In respect of the said shop by receiving the sum of Rs. 1,0, 000/-. Learned counsel further argued that applicant/D.H. Not only received Rs. 1,00,000/- but simultaneously he authorised his son Jawaid for issuance of rent receipts at the rate of Rs. 300/- and the said Jawaid was receiving the rent according to fresh agreement. Learned counsel further argued that although applicant/D.H. Is denying the factum of fresh tenancy agreement yet this Court is not debarred to exercise the power under Order 21 CPC in respect of investigation of matter or determining bona fide claim of person and therefore, this Court is competent to investigate the claim advanced by opponent J/D in his application, In support of his contention learned counsel has relied upon 1987 CLC page 604.
It is an admitted fact that opponcnt/J.D, has filed the application under section 12(2) CPC on the ground that since applicant/D.H. Granted into fresh tenancy agreement with the oppqnent/J.D.
Hence he is liable to be ejected. It is also an admitted position that present application has been made during the pendency of present execution proceedings. Here it may be pointed out that presume for sake of arguments that applicant entered into fresh tenancy agreement and he , received Rs. 1,00,000/- from the opponent/J.D. During the pendency of proceedings, than point arises which thing prevented the opponcnt/J.D. From not seeking permission from this Court or Honourable High Court, particularly when section 22 of Sindh Rented Premises Ordinance is very much clear on this point, as in the said section it has been provided that in the execution proceedings relating to the order of ejectment no payment, compromise or. Agreement shall be valid unless such payment, compromise or agreement is made before or with the permission of the authority passing the order. It may further be pointed out that no doubt opponcnt/J.D. Has produced some rent receipt* purported to be signed by son of applicant/D.H. Alongwilh the present application but it is strange to polt that these receipts were neither disclosed at the stage of ptyeclions to the execution application particularly when opponcnt/J.D. Alleges that receipts pertains to the month of 4ulyt August and September, (993. So ail these factors constitute jtfcat opponcnt/J.D. Has taken frivolous plea in order to protract the execution, proceedings. The case as set up by opponent/J.D. In the application under section 12(2) CPC is clearly hit t>y section 22 of Sindh Rented Premises Ordinance. For these reasons I find no merits in the application under section 12(2) CPC consequently the same is dismissed. Th e order of writ of possession be repeated through police force."
4. As found by the learned Controller the matter, in essence, was covered by Section 22 of the Sindh Rented Premises Ordinance, 1979 which , as amended, runs thus:- "22-Execution of orders. Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parlies and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit.
Explanation. In the execution proceedings relating to the order of ejectment, no payment, compromise or agreement shall be valid unless such payment, compromise or agreement is made before or with the permission of the authority passing the order."
5. The referred provision as well as that under Section 12(2) CPC came up for consideration before a Division Bench of this Court in NOOR MUHAMMAD v. MUHAMMAD KAMIL AND ANOTHER, (PLJ 1990 Kar. 509), and the Court opined on the subjects'in words which are as follows: - "The allegation that there was an oral agreement besides the written compromise application, is on the face of it unbelievable and absurd. With a view to discourage such a false plea from being raised in rent cases, which were being raised falsely in the past in abundance, Section 22 of the Sindh Rented Premises Ordinance was re-enacted by Sindh Act No. 1 of 1986 which makes it obligatory to obtain , permission of the authority passing the order whenever any agreement is made befortf or after such order. Admittedly in this case no such permission has been obtained.
We are, therefore, satisfied that this application is improper, mala fide and has been made only to protract and abuse the process of Court. In Iqbal Sultan vs. Chand Sultana reported in 1990 C.L.C.
366, it was held that an application for setting aside decree allegedly obtained by fraud and misrepresentation under section 12(2) CPC, if found to be improper, mala fide and having been made only to protract the proceedings and |o abuse the process of the Court, could be dismissed by the Court without framing any issue or recording any evidence."
6. Mr. M.A, Lakhani, the learned counsel for the appellant, on his part ""has placed reliance on KABIRUDDIN v. SUBTAIN AHMED, (1987 CLC 604), but that was a case pertaining to third parly interests and not one limited to the same parties as were arrayed in the Rent proceedings or were being proceeded with in exercise of powers conferred by Section 22 of the Sindh Rented Premises Ordinance.
7. Mr. Muhammad Amin Lakhani was also at pains to urge that here was a case where the appellant had been defrauded and made pdorer by a sum of Rs. 100,000/- and even though the respondent had created a fresh tenancy by issuing receipts of rent, he had kept the original novated agreement with himself (bearing the title Acknowledgement of Receipt) and thus an investigation both pursuant to Section 12(2) CPC and Section 22 of the Sindh Rented Premises Ordinance ought to take place. Learned counsel, in support, draws upon BAMBINO LTD. v. SELMOR INTERNATIONAL LTD. (PLD 1983 S.C. 155). That also was a case where a third party interest, which had purportedly intervened at the instance of the landlord itself, had come up for consideration. The instant case is different in that a fresh agreement of tenancy is alleged to have been entered into between the same landlord and the same tenant, which is sought to be used as a shield against eviction. Such agreement, for what it may be worth, had to satisfy the requirements of the Explanation to Section 22 of the Renl Ordinance but did not so satisfy the requisites. The essential pre-condition for such an agreement or ancillary payment is none other than that such must be made before or with the permission of the authority passing the order. Failing thii, law has deented cither to be invalid. The simple device of pqjjpr authentication or approval in relation lo-the "payment, compromise or agreement" in Section 22 supra is calculated to forestall fake and fraudulent transactions from coming in the way of smooth execution of orders, It may be that in rare cases, because of ignorance of the law, some suffering may be generated but that would obviously be a self infliction. On balance, the benefits flowing from the amended version of section 22 far oul-weigh the determinants, if any.
8. The only other contention from the side of the appellant was that, at any event, because fraud was practised by the respondent the order of eviction could be and was challenged under Section 12(2) CPC. On the facts, as narrated by the learned Controller, no fraud appears to have been committed. Assuming for the sake of argument that fraud, in fact, was committed and also that theprinciple under lying Section 12(2) ibid., being an equitable principle, applied to rent cases it appears to me that in the face of the deeming clause in Section 22 of the Sindh Rented Premises Ordinance, 1979, no scope for further inquiry as (0 allegation(s)of fraurj \ypujd ordinarily . Arise J||i jgfijte!#. *of any payment, compromise or agreement which fails to satisfy the mandates of Section 22, If otherwise applicable.
9. Mr. Muhammad Lakhani, at this stage, has urged that consequent upon such findings, as above, the appellant would be left with no remedy. That may or may not be so. All that need be said on the subject is that even where a transaction is treated bylaw to be void some, though limited, remedies in relation to the same, if the transaction existed at all, may yet be available. For the purposes here, however, the impugned order calls for no interference.
Appeal dismissed and with it also C.M.A, listed above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.