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Civil Miscellaneous Application in Suit No.70 of 1986, decided on 19tho,, August, 1986.

‑‑‑ O.XXXVIII, R. 5, S. 151 & 0. XLVIII, R.1‑‑Sind Rented Premises Ordinance (XVII of 1979, S. 15‑‑Order for attachment of movable property granted by High court in original civil jurisdiction‑ ‑Movable property on site i.e. machinery etc. was to remain in possession of defendant who, however, could not alienate the same or create charge thereon or remove same from premises‑ ‑Plaintiff subsequently getting ejectment order against defendant from the Court of Rent Controller which became final due to non‑filing of appeal by such defendant‑ Execution proceedings pending before Rent Controller‑ ‑Plaintiff making application before High Court under S. 151, C.P.C. for clarification of its order of attachment‑‑ High Court clarifying ealier order and directing Nazir of Court to remove articles lying on premises on expenses of plaintiff so that plaintiff could reap fruit of his success of his ejectment petition by getting possession of vacant site.

Mst. Allah Rakhi v. Mst. Rajab Bibi and others P L D 1957 (W.P.) Lah. 70; Yusuf I.A. LaIji and others v. Abdullabhoy and others A I R 1930 Bom. 362 ref.

This is an application under section 151, C.P. C. for clarification of the order dated 22‑4‑1986. The background of this application, briefly stated, is that the plaintiff while filing Suit No.70 of 1986, out of which this proceeding has arisen filed an application under Order XXXVIII, Rule 5, C.P.C. for attachment of the Sewing Machines and other articles lying in the premises, which was owned by the plaintiff and was under the tenancy of the defendants at a monthly rent of Rs.18,926. The suit pertains to the recovery of Rs.2,46,047.10 as arrears of rent.' It may also be stated that an earlier suit No.790 of 1984 was already pending for the recovery of arrears upto December, 1984 in the sum of Rs.1,70,000. The application under Order XXXVIII, Rule 5, as stated earlier was moved in Chamber on 28‑1‑1986 on which an ad interim order of attachment of machines and other articles was passed by me. The Nazir of this Court was directed to visit the site alongwith the plaintiff and prepare an inventory of the articles lying in the premises as mentioned in the application. Accordingly, the Nazir went to the site and prepared an inventory of the articles, and on 29‑1‑1986 he submitted his report alongwith the original inventory prepared by him. The said application came up for hearing on 13‑4‑1986 when it was disposed of by consent of the counsel for the parties in the following terms:‑

"l. All the machineries and other articles appearing at serial Nos.1 to 12 of the inventory list prepared by the Nazir of this Court on 28‑1‑1986 shall remain attached till the final disposal of the suit.

2. The stocks as shown in the inventory list dated 28‑1‑1986 may be released to the defendant."

However, the defendants counsel on 14‑4‑1986 moved an application under Order XLVII, Rule 1, read with section 151, C.P.C. for clarification of the above order dated 13‑4‑1986 which came up for hearing on 22‑4‑1983 and the following order was passed by consent of the learned counsel for the parties.

"Heard the learned counsel for the parties at some length. It appears that there is some misunderstanding in the mind of the defendant regarding the nature and scope of the word 'attached' in my order dated 13‑4‑1986. The order is, therefore, clarified with the consent of both the learned counsel for the parties as under:‑

"The attachment of machineries and other articles as stated in the order dated 13‑4‑1986 means that the defendant shall have the right of possession and use of the said machineries and other articles but it will not alienate the same or create charge thereon or remove the same from the premises till the disposal of the suit."

Miss. Wijahat Niaz is satisfied with the above clarification and does not press the above applications which are dismissed as not pressed."

It is now pertinent to note that the plaintiff had already filed some ejectment application against the defendant on the ground of default in payment of rent in the Court of learned Rent Controller, Karachi, which was allowed by the learned Rent Controller by his order dated 4‑7‑1985, against which no appeal was filed by the defendant, as submitted by Miss Wijahat Niaz before me today, with the result that the order of ejectment dated 4‑7‑1985 passed by the learned Rent Controller became final The plaintiff as applicant in that ejectment matter filed an application for execution bearing No.129 of 1985 wherein the learned Controller passed an order dated 14‑7‑1986. A part of the said order which is relevant for the purpose of the case before me reads as follows:‑

"I have carefully considered the contentions of learned counsel for the parties. In my humble opinion the order of Hon'ble High Court dated 2‑4‑1986 whereby word 'attached' has been clarified has rendered the ejectment order inexecutable. Since the J.D. has right to possess and use the machineries and cannot remove the same from the premises as per order of the Hon'ble High Court. I fail to understand how the applicant/D. H. can be given vacant possession. In the circumstances the eviction order cannot be executed till such time the machineries of J.D. remain attached or any further clarification is sought so as to enable this Court to execute the eviction order. To execute the eviction order in the present circumstances is likely to amount to frustrate/ defiance of the order of attachment of Hon'ble High Court which I cannot imagine."

The above order passed by the learned Controller has compelled the plaintiff to approach this Court with the above application as referred to in para I of this order.

Mr. Syed Sami Ahmad learned counsel for the plaintiff submitted that the defendant is taking shelter behind the order passed by this Court on 22‑4‑1986 which amounts to an abuse of the process of the Court.

Miss Wijahat Niaz, learned counsel for the defendant submitted that the application under section 151, C.P.C. is not entertainable as the order was passed with the consent of the parties. The plaintiff may, however, if he is so advised, prefer a High Court appeal or file a Constitutional Petition.

Mr. Syed Sami Ahmad relied on the cases reported as Mst. Allah Rakhi v. Mst. Rajab Bibi and others P L D 1957 (W.P.) Lah. 70 and Yusuf I.A. LaIji and others v. Abdullabhoy and others A I R 1930 Bom. 362, in support of his submission that an application, in the circumstances of the case under Order XLVII, Rule 1, C.P.C. was not maintainable; it is only under the provisions of section 151, C.P.C. that the Court exercising its inherent power may grant the relief to the plaintiff. The cases cited by Mr. Sami at the Bar go to support his submission. I may quote below the observation made in the second case A I R 1930 Bom. 362 which reads that: ‑

"I am, therefore, of opinion that the Court has jurisdiction to set aside an order made by consent which is not in the nature of a final order or judgment but which is merely an interlocutory order in the suit provided proper grounds are made out."

I am also of the view that the situation as has emerged out in the case can be met under section 151, C.P.C. under inherent powers of the Court as it is necessary to meet the ends of justice and to prevent the abuse of the process of the Court.

The order passed on 13‑4‑1,986 as clarified on 22‑4‑1986 was never meant to give a premium to the defendant. The order was intended to attach the machineries and other articles. Since it was a going concern, the defendant was allowed to use the said machineries and articles till the disposal of the suit with an embargo that he will not remove the same from the premises, as they stood 'attached' by the order of this Court. Now a difficulty has arisen that the defendant or for' that matter the learned Rent Controller cannot remove those machineries and articles because of this Court's order dated 22‑4‑1986. With the result that the plaintiff is left with no remedy to reap the fruit of the decree passed in the ejectment case as the vacant possession of the premises cannot be handed over to him. 1, therefore, order the Nazir of this Court to remove the machineries and other articles lying there as by order dated 13‑4‑1986 which are already attached and take possession thereof and keep them in his custody till the disposal of the suit. The order dated 22‑4‑1986 will thus, stand modified to that extent, except stocks in trade which were already released to the defendant by my order dated 13‑4‑1986.

Now, at this stage, Miss Wijahat Niaz on behalf of the defendant who is also present in Court, makes a request that one week's time may be granted by this Court in order to enable the defendant to deposit the suit amount in the sum of Rs.246,047.10 and future rent at the rate or Rs.18,926 as accrued due from 1‑1‑1986 upto this date. By consent of Mr. Sami the request is allowed and the above order passed by me will be held in abeyance for a week. On deposit of the amount, as aforesaid, the attachment order will stand vacated and the defendant will be at liberty to remove machineries and other articles wherever he likes. In case the plaintiff commits default in depositing the amount as above within the time allowed this order will be executed by the Nazir of this Court.

A copy of this order may be communicated to the learned Rent Controller concerned. The learned Controller will be at liberty to issue writ of ejectment /possession against the defendant on expiry of one week's time as the order dated 22‑4‑1986 was never intended to stay the order of eviction against the defendant from the premises in his occupation as a tenant of the plaintiff.

In case the order is to be executed by the Nazir for failure of the deposit of the amount within the time stipulated hereinabove the Nazir will be entitled to an amount of Rs.1,000 towards his fee, which will be deposited by the plaintiff on or before the expiry of one week. The expenses for removal of the machineries and other articles and the transportation charges will be paid by the plaintiff to the transporter direct under the instructions of the Nazir.

A.A./A- 89/ K Order accordingly

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