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First Rent Appeal No.2 of 1986, decided on 15th February, 1987.

---Ss.15 & 21--Ejectment of tenant--Parties compromising during ejectment proceedings whereby tenant was to handover vacant possession to landlord within one year--Record of proceedings however, was burnt along with other record of Rent Controller soon after such compromise--Record of proceedings was reconstructed wherein tenant denying factum of compromise--Rent Controller after recording evidence of parties accepted plea of compromise and issued writ of possession against tenant--Appeal by tenant against writ of possession--Evidence produced by parties coupled with Court diary of the date when compromise was effected, held, proved the factum of compromise--Tenant's subsequent plea that compromise reached by parties was different than the compromise proved by landlord was not borne out by evidence of parties and record of Court--Draft compromise application produced by landlord was, held, to be the draft of compromise actually arrived at between parties in circumstances.

---S.21--Writ of possession--Appeal against--Where Rent Controller had proceeded in a legal and appropriate manner in re-capitulating the entire proceedings and had rightly relied upon Disposal Register, of Court which had been spared by fire, writ of possession issue by Rent Controller on basis of compromise, being legal and prope r was upheld by High Court--Appeal against reconstruction of record and writ of possession being devoid of merit was dismissed it circumstances.

Nawaz A. Jajjah for Appellant.

Abdul Qadir Channa for Respondent.

Date of hearing: 15th February, 1987.

The appellant has felt aggrieved against the order, dated 24-10-1985 by which the writ of possession was issued against the appellant.

The relevant facts are that the respondent claims to be the owner of premises A-12-11-S-34, Koela Godown Behar Colony, Karachi and he filed an application against the appellant for ejectment. In the said application the appellant filed his written statement through his counsel and the matter proceeded to the extent of filing of the affidavits by the respondent as well as the filing of the affidavits by the appellant.- However, on 17-2-1983 through a compromise between the parties the matter was disposed of in terms of the said compromise. Another important fact is that on 18-3-1983 a fire took place in the office of the Rent Controller where the record and proceedings of that case were burnt. Consequently, on 23-8-1984 the respondent made an application to the Rent Controller for reconstitution of the file. The appellant took up the position that he had no knowledge of the institution of the case and that all had been done fraudulently by Muhammad Ameen, Attorney of respondent Ashfaq Ahmad. The Rent Controller perused the disposal register of the Court pertaining to the year 1983 on 9-1-1985 in presence of the counsel for the parties and he found that the matter was compromised on 17-2-1983. He also found that the compromise terms were not ascertainable and, therefore, adjourned the matter to 23-1-1985 for filing of the certified copy of the compromise but also observed that even if the certified copy is not produced on the next date the case will be considered. Before that the ordinary photostat copy of the compromise without the signature of any one had been produced in the Court alongwith an application for issue of writ of possession.

The Court proceeded, thereafter, to examine the counsel for the respondent, Mr. Abdul Hakeem Khan who filed his affidavit in support of the making of compromise by the parties and also stated that the present appellant had signed the compromise on which he also put his signature and the Rent Controller had executed the compromise and directed the appellant to hand over the possession of the disputed premises within the time mentioned in the compromise. Mr. Abdul Hakeem Khan, Advocate was examined in Court and he produced the copy of the application filed by the respondent along with copies of P.T-I, agreement of tenancy between the parties and affidavit of Muhammad Ameen originals of which had been destroyed. He also produced application under section 16(1) and the copy of the affidavit of Muhammad Bachal. He further stated that the appellant had approached the attorney of respondent for allowing him twelve months time and that after that period he will hand over possession to the respondent. He stated that the compromise was drafted by him and was signed by the parties and submitted in Court. He produced the simple copy of the compromise as Exh. No.13 and stated that the Court in his presence called the appellant and explained the contents of the compromise which he had accepted and thereafter, compromise was allowed.

He was cross-examined by the counsel for the appellant and he stated that the contents of the compromise application were read over to the appellant. He also explained that the appellant was not identified by his counsel because of the fact that the counsel was not present at that time and that the appellant had not pressed for identification. Beyond this patchy cross-examination, there was nothing else suggested to Abdul Hakeem Khan, Advocate for the respondent. His evidence has, therefore, gone un-rebutted.

Respondent also examined Zafar Iqbal Ahmad Arain, Advocate for the appellant in that case who stated that he had appeared in the case and filed Vakalatnama on behalf of the appellant but written statement had been filed before he appeared in the case. Written statement was handed over to him by the opponent and he produced photostat copy of the written statement. He also produced photostat copy of affidavit of Bashir Ahmad and Allah Rakha and he also stated that he had cross-examined the applicant and his witnesses Muhammad Ameen and Ashfaq. He also stated that he had issued notice to appellant under section 16(1) of Sind Rented Premises Ordinance, 1979 but thereafter he went to Punjab. However, he made an important statement that on his return from Punjab to Karachi he was told by the appellant that the compromise application had been filed in the Court. He was cross-examined by Mr. Mahmoodul Hassan. Advocate for the appellant and stated he did not know about the contents of compromise application. He also stated that he had applied for certified copy of compromise application and order thereon and certified copy of evidence of witnesses but he was told that the files had been burnt.

I am surprised at the cross-examination which has been directed against Mr. Zafar Iqbal Ahmad Arain because the appellant never questioned that he had not engaged either Mr. Zafar Iqbal or that he did not write statement in the case. Even in respect of the compromise the only question put to Mr. Zafar Iqbal was that he did not know about the contents of the compromise application. Otherwise, the statement made by the appellant to Mr. Zafar Iqbal that the compromise application was filed in the honourable Court has not at all been challenged.

The appellant Bashir Ahmad was examined by the counsel for the appellant' on 15-12-1985 and he has now made a different statement and stated that a case was filed against him and he had engaged Mr. Abul Khair and Mr. Zafar Iqbal and that Nasir Khan and Allah Rakha were his witnesses in that case, and their affidavits were filed on 9-1-1983. He filed copies of those affidavits as well as that of his own affidavit. He stated that he had not admitted the relationship of landlord and tenant in that case he had purchased the case property by way of an agreement from Moulvi Bashir Ahmad and Nazir Ahmad and he produced the photostat copy of the agreement. He further stated that the case was fixed for cross-examination of the witnesses of his side who were present on that date i.e. 17-2-1983. He was waiting for his Advocate and he had talked with the applicant/ respondent and they arrived at a compromise. It was settled that the respondent will pay Rs.50,000 to him for construction raised by him but again he stated that he had not accepted that amount and the applicant /respondent had compromised and allowed him to continue in the premises. At this stage it may be of relevance to note that the copy of the compromise that the appellant had talked about in his examination-in-chief has not been produced by him at all. He was cross-examined and he admitted that he had filed affidavit on 18-11-1984. It was wrongly stated that no case was filed against him. He also stated that it is incorrectly stated in that affidavit that he had received summons of case. He denied that in 1968 any agreement of tenancy was executed. He, however, explained that the signatures were obtained under misrepresentation of facts. He stated that he did not know that the respondent Ashfaq Ahmad was paying the property-tax. He admitted that he had not paid any property-tax of that property. He denied that he had paid rent upto March, 1977 and thereafter, failed to pay the same. He denied that by virtue of compromise he had undertaken to vacate the premises in question within one year. He stated that after some time his Advocate informed him that the case file had been burnt. He denied if he had undertaken to vacate the premises by 17-2-1984.

In support of his case the appellant examined Allah Rakha who stated that case was pending between the parties in the Court and he was witness of the appellant and had filed his affidavit and he had attended the case for his case-examination on 17-2-1983 on which date the parties had arrived at a compromise. But the compromise had not taken place between the parties in his presence. Other witness Nasir Ahmad was also sitting with him while the parties were settling the terms of compromise. He was not with the parties when they were setting the terms of compromise. He was informed by the appellant that he had accepted the compromise proposal and they had reached a compromise and by virtue of that compromise the appellant was to receive Rs.40,000 or Rs.50,000 and the premises was to be vacated within 2/3 months. He was cross-examined where he admitted that he knew the parties. He stated that the appellant was not the tenant of the respondent and that he was himself owner of the property. He denied that he was making a false statement.

I have read the evidence produced by the parties and I have also seen the Court-diary, dated 5-1-1985 where the Rent Controller has observed that he had seen the Disposal Register of the Court pertaining to the year 1983 where he found that the matter had been compromised and disposed of on 17-2-1983. The respondent has even filed a copy of the compromise application and the factum of compromise is admitted on all hands by the appellant as well as by the respondent. It is important to note that in the first affidavit filed by the appellant at the time of the request for reconstitution of the file, he had made a very clean denial that any compromise had been arrived at between the parties. The same was absolutely incorrect affidavit filed by the appellant and the same has received a severe treatment from the Rent Controller and probably rightly. It does appear that there was a compromise between the parties. The compromise arrived at has been sought to be filed by the respondent and the compromise about which the appellant has stated that it was a different compromise has not been produced by the appellant. It is, therefore, reasonable to believe that the draft compromise application produced by the respondent was actually the draft of compromise actually arrived at.

The Rent Controller has proceeded in a legal and appropriate manner in recapitulating the entire proceedings before him in view of the fact that the case file had been burnt. He has rightly relied upon the Disposal Register of the Court which had fortunately been spared by the fire. This is nothing wrong in the order passed by the Rent Controller and, therefore, this appeal is found to be without any merit and is hereby dismissed. However, I accept the submission made by Mr. Nawaz A. Jajja that although there has been a mis statement from the appellant but still in view of the fact that he has been residing in the premises for a good deal of time and it is difficult to obtain vacant premises in Karachi without a great deal of expenses and time and also in view of the fact that the appellant has B been depositing the rent in. Court and undertakes to continue depositing the same at the agreed rate of Rs.50 per month, he should be allowed one year's time to vacate the premises. I must also state that Mr. Abdul Qadir Channah, Advocate for the respondent has been graceful to persuade his client, Muhammad Ameen who is also present in the Court, to allow this time of one year. I, therefore, direct that writ of possession without notice to the appellant should be issued after one year from today if he continues depositing rent regularly. However, if he defaults in the deposit of rent then the writ of possession will be issued after the default. The rent deposited by the appellant is allowed to be withdrawn by the respondent and the appellant and his counsel have agreed to the same.

A.A./B-11/K Appeal accepted.

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