' This First Rent Appeal has been filed against the order, dated 16th October, 1997, passed by lInd Rent Controller, Karachi (South) in Execution No,21 of 1986 (Rent Case No,26 of 1992) through which appellants application under Order I, Rule 10, C.P.C., seeking himself to be impleaded as one of the parties in the execution proceedings was dismissed. Appellant being aggrieved from the said order has filed instant appeal, under section 21 of the Sindh Rented Premises Ordinance, 1979.
2. I have heard Mr. Rehanul Hassan Farooqui, Advocate, who is respondent No,1 in this appeal.
Counsel for the appellant and respondent No,2 called absent. Mr. Javed Farooqui, Advocate, for the appellant has left a chit with the Reader of this Court that he is engaged before D.B. IV of this Court but has not mentioned the case number and at what serial number his case is fixed. After leaving this city, he has not appeared. It is 10-30. Today being Friday, the Court sitting is till 11-30 a.m.
Without the break. The dispute in the instant appeal pertains to the year 1982 and, therefore, I have given precedence to the same and have heard respondent No,1 as I was left with no alternative.
3. Brief facts of the case are that there is a building known as "Court Chambers" situated at Syedna Tahir Saifuddin Road, Opposite City Court, Karachi where respondent No,1 has his office in Room No,25, IIIrd floor, since 1971. At the time when he .Obtained the tenement in-question. There was a lift in operation, but, at a subsequent stage the landlord namely, respondent No:2 suspended its operation, whereafter Mr. Rehanul Hassan Farooqui filed an application under section 11 of the Sindh Rented Premises Ordinance, 1979, which was granted on 12-5-1985 by the !Ind Rent Controller, Karachi (South). No appeal was filed against this order by the landlord/respondent No,2 herein and, therefore, the same order has attained finality.. Before proceeding further, it would be convenient to quote a portion from that order as it will enable this Court to determine the rights of the present appellant and respondents. Relevant portion of said order reads as follows: ' Now I come to ". The 3rd allegations made by applicant in para.11 of his rent application that opponent has also disconnected the life services supplied by him in terms of tenancy. Though no written rent agreement has been produced by applicant in proof of the amenities enjoyed by him in terms of tenancy but the fact that lift service had been provided to occupants of 3rd floor of Court Chambers including the applicant, has been admitted by opponent in para.10 of his written statement. The defence which has been taken by opponent in his written statement is that "the lift which was available in the building became unserviceable with the result it could not he continued and was Stopped under compelling circumstances when the condition became such that it could not carry the load and would have collapsed any moment. So for as the entrance gate is concerned, it has been admitted by the opponent in the same para. That the same has been destroyed by white ants...."
4. In 1986 respondent No,1 filed Execution Application which is still pending and contempt proceedings have been initiated against the respondent No,2/landlord for not complying the same.
Meanwhile, present applicant filed an application in the said execution proceedings under Order 1, Rule 10, C.P.C., to get himself joined as one of the parties in view of the fact that he has become owner of an office in the same tenement on 1-7-1997. According to Mr. Rehanul Hassan Farooqui, this portion, which is in occupation of the appellant, is the place where, after removing lifts, an office was carved out on the 1st floor. It was done in order to frustrate; to make judgment in executable and to defeat execution proceedings as claimed by Mr. Farooqui. It was also argued but faintly that respondent No,1 was not competent to make any alteration or addition in the area where the lift was fixed without first obtaining approved building plan as required under section 6 of the Sindh Building Control Ordinance, 1979. Be that as it may, the application of the appellant under Order 1, Rule 10, C.P.C., was dismissed against which instant appeal has been filed. The conduct of the landlord/respondent could not be ignored while dealing with this appeal which is totally due to his conduct. Prior to leasing out the premises in question to the appellant on 1-1-1997, the proceeding of execution application was already in progress since 1986. On 23-4-1987 take learned 'Ind Rent Controller, Karachi, SouTh, ordered issuance of warrant of arrest which has not yet been executed. It is very regrettable to note that despite passing of more than (M) fourteen years, the order of Rent Controller was not executed. The conduct of landlord is clear abuse of process of law and he could not be permitted' to flout/violate the same. The conduct of the appellant is also highly doubtful. Along with the memo of appeal, an Annexure "A/9' has been filed, which is an application under section 151, C.P.C., filed by the appellant as an Intervener in Exh.No,21 of 1986. In that application it was prayed that the execution application be dismissed as it stands disposed of by the order, dated 23-4-1987. In the first place, the Intervener was not competent to maintain such application. Secondly, it reflects collusion of the appellant with the landlord. It will not be out . Of context to quote the relevant portion of the order of the Ilnd Rent Controller, dated 23-4-1987, which reads as follows:--- "....The judgment, dated 12-5-1985 shows that the judgment-debtor was directed to restore the electricity and lift within 2 months from the date of judgment but the judgment-debtor has failed to restore the same and thereby he has disobeyed the directions of this Court contained in the said judgment. The judgment-debtor not has come to appear in the Court and given satisfactory explanation in this respect, therefore, this Court has no option but to punish the Judgment-debtor under section 11(5) of Sindh Rented Premises Ordinance, 1979, I am, therefore, satisfied that the Judgment-debtor has deliberately disobeyed the directions of this Court contained in judgment, dated 12-5-1985. I, therefore, convict the Judgment-debtor Haroon Rehmatullah to suffer 7 days simple imprisonment for 7 days under section 11(5) of Sindh Rented Premises Ordinance, 1979. The judgment-debtor called absent---issue warrant of arrest against the judgment-debtor costs. Put off to 2-5-1987' for return of N.B.P.
5. It was contended by Mr. Rehanul Hassan Farooqui that since the judgment, dated 12-5-1985 passed by the Rent Controller has attained finality, and is pending in the Executing Court, no deviation can be made from the said decree. Reliance is placed on the following cases:
(i) Pir Abdullah Shah and R others v. Humayon and 5 others (PLD 1957 (W.P.) Lah. 1054).
(ii) M. Shafi v. The State (1986 CLC 110).
Note.--- Case file of this citation was summoned by me which indicates that not only the name of respondent is incorrect but the number of F.R.A. Has also been shown wrongly.
(iii) Gulzar Muhammad v. Moazzam Ali and others (PLD 1959 (W.P.) Karachi 340).
(iv) Muhammad Ali and others v. Ghulam Sarwar and others (1989 SCM R 640).
6. It is well-settled principle of law that the Excepting Court cannot go behind the decree and that the same is to be executed in terms thereof unless it is shown that the decree obtained.Is patently a nullity in law or that it was passed without jurisdiction. However, this was not the case of appellant. The Court of Rent Controller is competent to grant application under Order 1, Rule 10, C.P.C., as held by this Court in the case of Syed Sarfraz Ali v. Shah Jehan Begtim and others (1996 CLC 1034) but for that purpose the intervener who is seeking to join proceeding before the Rent Controller must show that he is a necessary party in the case. The present appellant was inducted as tenant in such area by the respondent No,2 which is in dispute since 1982. Apparently, it was done to defeat and frustrate the judgment of lInd Rent Controller Karachi (South) in Rent Case No,26 of 1982. A right was created as a result of the said order not only in favour of the present respondent No,2 but in favour of all the tenants of "Court Chambers". They are entitled for the facility of the lift. The landlord/respondent No,2 in order to deprive the tenants of "Court Chambers" had carved out office premises in the place where lift was affixed. He cannot do this in view of the decree in R.C. No,26 of 1982 which still holds the field. In that case, the dispute was between the landlord and tenant in respect of restoration of amenities. Present appellant, who was neither tenant nor owner of the premises in question either in the year 1982 when proceedings under section 11 of the C Ordinance, 1979, was filed or in the year 1984 when execution proceeding was filed, cannot be termed to be a necessary or proper party. The subsequent event which happened in the year 1997 through which present appellant acquired so-called rights in the building will not affect the decree in R.C. No,26 of 1986. In this background the appellant could not claim himself to be a necessary party in the execution proceedings arising out of an order passed under section 11 of the Ordinance, 1979.
7. Before parting with this order, I would like to clarify that there are two modes of execution of the orders passed by a Rent Controller under section 11 or 12 of the Ordinance, 1979, which is distinct to the execution of an order passed under section 15. All final orders passed under section 15 of the Ordinance, 1979, are to be executed by the Rent Controller in line with the provisions of section 22.
However, an order passed by a Rent Controller directing the landlord to restore amenities/services could also be executed under subsection (4) of section 11 which provides that where the landlord has failed to comply with the order of the Rent Controller directing him to restore the services within a specified period, the -Controller would be competent to take necessary steps to get the service restored and to recover the cost of such restoration from the landlord. Likewise, if a direction is passed by a Rent Controller under section-12(i) for making necessary repairs or white wash, it could be executed under subsection (2) of section 12 of the Ordinance, 1979. Therefore, in my humble view the scope of execution of the directions passed by a Rent Controller if invoked under sections 11 and 12 is limited in comparison to the provisions of section 22 of the Ordinance, 1979. The scope of section 22 is quite wider where a Rent Controller has been empowered to decide all questions arising between the parties and relating to the execution, discharge or satisfaction of the final orders, A fresh suit on such questions is barred. To some extent, this is similar to the provision of section 47 of the Code of Civil Procedure, 1908. In the above back-drop I am of the considered view that the appellant's application under Order 1, Rule 10, C.P.C., was liable to be rejected and it was rightly done so by the Rent Controller.
8. As a result of the above discussion, this appeal is dismissed in limine along with listed application with the compensatory cost of Rs,5,000 which will be paid by the appellant to the respondent No,1 within a period of 30 days.