1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against the orders dated 22-3-1997 and 14-4-1997 whereby application for execution and application under section 20 of General Clauses Act were dismissed hence the present appeal.
2. ' Brief facts of the case are that appellant filed Ejectment Application No,1522 of 1988 against the respondent for eviction on the ground of default in the payment of rent and on the ground of personal need which application was granted on the basis of personal need as per order dated 30-12-1991 passed by VIII Senior Civil Judge and Rent Controller, Karachi-South, against the said order of eviction, the respondent had preferred an Appeal No,56 of 1991 before this Court which was also dismissed when the appellant was even not served with the notice of appeal, as not pressed on 17-5-1992 on the ground that the parties had compromised the matter. In the meanwhile what has happened that the respondent entered into agreement whereby lease deed with the appellant as per registered lease deed dated 13-2-1992 was executed at the rate of Rs,20,000 per month for the next three years commencing from 1-1-1992 which period was extendable for further period of three years with the mutual consent of the parties. However, the appellant filed execution application on the basis of eviction order passed on 30-11-1991 against the respondent on 16-1- 1995, notice of which was sent to the respondent who filed his objections. After hearing the learned counsel for parties, the said execution application was dismissed as per order dated 22-3-1997 by the learned Rent Controller. Thereafter an application under section 20 of the General Clauses Act was filed with a prayer to recall the order dated 22-3-1997 but it was also dismissed as per order dated 14-4-1997. Against the both orders the present appeal has been preferred.
3. ' Hafiz Abdul Baqi, learned counsel for the appellant, has placed reliance upon section 22 of Rent Ordinance which reads as under:- "22. Execution of orders.--Final orders passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit.
4. 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 contention of learned counsel for the appellant is that in view of explanation to section 22 of the Sindh Rented Premises Ordinance, 1979 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 but in the instant case the deed has been executed between the parties without the permission of the Rent Controller passing ejectment order therefore the lease-deed shall not be valid hence the learned Rent Controller erred in not allowing the execution application filed by the appellant for ejectment of the respondent. I find force in the contention of the learned counsel for the appellant. Reference may be made to (i) Abdul Qayyum v. Muhammad Azeem PLD 1994 Karachi 319 wherein the learned Judge in Chambers has observed at page 322:-- .....Such agreement, for what it may be worth, had to satisfy the requirements of the Explanation to section 22 of the Rent 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 this, law has deemed either to be invalid."
(ii) Noor Muhammad v. Muhammad Kamil and another 1991 CLC 92 wherein their Lordships at page 93 have observed:-- "... ..Section 22 of the Sindh Rented Premises Ordinance was re-enacted by Sindh Act No, I of 1986 which makes it obligatory to obtain the permission of the authority passing the order whenever any agreement is made before or after such order. Admittedly in this case no such permission has been obtained."
(iii) Alam Khan v. Muhammad Ramzan 1995 MLD 429 wherein the learned Judge in Chambers at page 430 has observed:-- "A perusal of the above provisions would show 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. The section makes it obligatory to obtain the permission of the authority passing the order whenever any agreement is made before or after such order. Admittedly in the instant case, no such permission has been obtained. It seems that the Rent Controller has rightly rejected the objections filed by the appellant."
6. ' Mr. Muhammad Sadiq Khan, learned counsel for the respondent, in reply to the arguments of learned counsel for the appellant, has contended that as per lease deed dated 13-2-1992 a separate and independent contract was created between the parties whereby rate of rent was enhanced and the period of lease was also agreed to be for further period of three years commencing from 1-1-1992 and it was also extendable for further three years' period with the mutual consent of the parties therefore section 22 of Sindh Rented Premises Ordinance, 1979 would not be attracted. He has placed reliance upon Syed Hussain Zaidi v. Dr. Zaheer Umer 1993 CLC 543.
7. The facts of cited case were quite different and distinguishable to the facts of the instant case. In the cited case eviction was ordered by the Rent Controller against the appellant/tenant who preferred F.R.A. Before this Court which was disposed of as per statement of the parties whereby appellant/tenant undertook to vacate the tenant-hold on or before 31st March, 1992 consequently appeal was dismissed as not pressed. The appellant failed to vacate the premises by 31-3-1992 therefore execution application was filed where the appellant/tenant took the plea in the execution that the order passed in first appeal was in executable being an order of compromise and not in the nature of an order of eviction. However, the learned Judge in Chambers has observed:-- "On facts, it becomes manifest that the parties to these proceedings settled the dispute by agreeing to a lawful and enforceable eviction as from the date specified above. No ground is shown as to why, upon default of compliance, execution should not be lie. In the result, I see no merit in this First Rent Appeal and dismiss it."
8. The cited case on the contrary supports the contention of the learned counsel for the appellant that ejectment order passed by Rent Controller could be executed through an execution application. This cited case does not help the respondent's case. In view of aforesaid facts, the execution of the subsequent lease deed could not be treated as shield to the execution of ejectment order lawfully made by the Rent Controller and upheld by this Court by dismissing the First Rent Appeal No,56 of 1991 as not pressed. The said lease deed would 6 not operate so as to negate legal validity of the order passed by the Rent Controller keeping in view the explanation to section 22 of Sindh Rented Premises Ordinance, 1979. Accordingly, the refusal of the Rent Controller to execute the order of eviction is neither legal nor justifiable under the law.
9. ' The next contention of learned counsel for the respondent is that the execution application filed by the appellant/landlord is time-barred because it was filed beyond three years as required by Article 81 of Limitation Act and the time would run from the date of original order dated 30-11-1991.
10. He has placed reliance upon (i) Mahboob Khan v. Hasan Khan Durrani PLD 1990 SC 778 and (ii)
11. Hasan Khan Durrani v. Mehboob Khan 1987 CLC 2185. The both cited cases are on the point that Article 181 of Limitation Act would apply for execution of decree whereunder three years' period has been prescribed and subsequent application if any made would be governed outer time limit of six years prescribed by section 48, C.P.C. For the reason that subsequent or fresh application would be out of purview of Article 181 of Limitation Act of its expressed terms. In the instant case admittedly the respondent was granted six months' time to vacate the premises which period expired on 30- 5-1992 and to right to file execution application arose to the appellant after the expiry of six months' period, adding three years to it as required by Article 181 of Limitation Act the appellant could file execution application by 30-5-1995 and the execution application having been filed on 16-1-1995 would, therefore, be within time. I do not find substance and merit in the contention of the learned counsel for the respondent that the execution application is time-barred.
12. ' In view of aforesaid reasonings and the case-law the appeal has merit which is hereby allowed.
13. Mr. Muhammad Sadiq Khan, learned counsel for the respondent, requests for time to vacate the premises. Accordingly, three months' period is granted to the respondent to vacate the premises subject to deposit of rent.