HABIB through his Legal Heirs Versus ALEY RASUL

1. Rent Case No. 2071/81, was filed by Aley Rasool under Section 14 of Sind Rented Premises Ordinance, 1979. The Rent Application was allowed by Senior Civil Judge/Rent Controller XII, Karachi, by order dated 18‑4‑1982, whereby respondent was directed to hand over possession to landlords within 60 days. Appellant filed appeal under Section 21 of the Ordinance in this Court which came up for regular hearing on 9‑4‑1985, when following consent order was passed:‑‑

2. "Abdul Latif Sakoor Advocate.

3. Mr. Khalid Daudpota, Advocate.

4. It has been argued by both the counsel that parties have compromised the above matter and appellants have agreed to hand over the vacant possession to the respondent within 9 months. Such application has been filed. The appeal is disposed of in terms of the application with no order as to costs. The rent amount if deposited by the appellant shall be paid to the respondent:"

5. Application duly signed by both the counsel on 9‑4‑1985, reads as under:‑‑

6. "It is submitted on behalf of the parties above‑named that they have compromised the above matter in terms whereof the appellant have agreed to vacate the premises in their occupation within 9 months i.e. on or before 31st December, 1985, subject to payment of agreed rent by the appellants upto the said period.

7. The parties, therefore, pray to dismiss the appeal in terms of compromise."

8. On 6‑8‑1986, appellant filed an application under Section 151, C.P.C. The contents are as under:‑‑

9. "For the reasons disclosed in the accompanying affidavit, it is prayed on behalf of the appellants above‑named that this Honourable Court may be pleased to recall the order dated 9‑4‑1985, passed on the application under Order 23, Rule 3, C.P.C. which was moved by the learned Counsel the Appellants for withdrawal of the above appeal on the ground of the compromise behind the back of the appellants and set aside the order i ' which has been contained through misrepresentation and without the knowledge and consent of the appellant.

10. This application is made in the interest of justice."

11. This application C.M.A. 1294/86, was disposed of by an order dated 15‑3‑1987, by which appellants had to hand over possession to Respondent on 31‑12‑1987. The application was not pressed and following order was passed:‑‑

12. "That appellant shall vacate and hand over the vacant possession of the premises to the respondent by 31st December, 1987. In the meanwhile, they should continue to deposit the monthly rent as already ordered by the Rent Controller.

13. It is open to the respondent to withdraw the rent. The application is duly signed by the appellants, their counsel and respondent be kept on record."

14. The contents of the Statement filed by the parties are as under:‑‑

15. "The undersigned appellants undertake to vacate the premises in question i.e. OT‑3/129, Gao Gali, Mithadar, Karachi, by 31‑12‑1987, subject to deposit of the rent in lower Court without any default.

16. In case premises are not handed over, writ of possession be issued without any further notice.

17. Once again Appellants have filed an application under Section 12(2), read with 151, C.P.C. on 28‑3‑1988, praying that order dated 15‑3‑1987, be set aside on the ground that point of jurisdiction was suppressed and appellants do not know English and they signed under the belief that 1,hey were getting a `Tarikh'.

18. I have heard Mr. SA. Samad at length. It is argued that main ground of jurisdiction was not considered and appellants having no knowledge of English do not know the result of the Statement. He has referred to a cage reported in P L D 1983 Lah. 278.

19. The First Rent Appeal was decided by consent order on 9‑4‑1985, by which 9 months time was allowed to appellants. The statement was signed by both the Counsel. The appellants did not hand over the possession and after lapse of more than one year and four months, moved an application under Section 151 C.P.C. The same was disposed of on 15‑3‑1987, and by consent again time was allowed. While disposing of this application, the written statement was filed duly signed. Before the Rent Controller, there was no issue of jurisdiction. Moreover, at the time of arguments, no such submission was made in this Court. In spite of consent orders dated 9‑4‑1985 and 15‑3‑1987, and having not stay, since then a case was under Section 14, the appellants are in possession of the remises since 1982. These applications are made just to avoid to hand over premises The ejectment order has become final. The matter was taken to D.B, or review of the consent order but it was again referred to Single Judge.

20. I do not find any merit in this application which is accordingly dismissed in limine.

21. Since application filed under section 12(2) has been dismissed, no order is required on stay application.

22. M.Y.H./H‑90/K Petition dismissed.