1991 PLP 1216 (MLD)

2. This order of eviction was not challenged by Muhammad Sharif but Abdul Rashid respondent No.1 filed an appeal which was heard by Mr. Muhammad Aslam Sumra, Addl. District Judge, Gujrat. The appeal was dismissed on 27-2-1985 on the ground that respondent No.1 had no locus standi to file the same and also that it was barred by time. The Addl. District Judge however observed that if respondent was in possession of the property in his own right, he could agitate the matter during execution.

3. When the petitioner applied for execution of the order of ejectment, an objection petition was filed by respondent No.1 under Order XXI, Rules 99 and 103 of the Civil Procedure Code alleging that he was in possession of the shop as tenant under Islahi Committee and was not liable to be ejected in the execution of the order of ejectment obtained by the petitioner against Muhammad Sharif.

4. The Rent Controller dismissed this objection petition on 10th of April, 1985 holding that there was nothing on the record to show that respondent No.1 was in possession of the property in his own right.

5. Aggrieved of that order, respondent No.1 filed an appeal which was accepted by Addl. District Judge, Gujrat on 1st of December, 1985, who reversed the findings of the Rent Controller. He held that respondent No.1 was in possession of the property in his own right and accepted the objection petition of respondent No.1. This order of the learned Additional District Judge has been assailed by the petitioner by filing this Constitutional petition.

6. This petition was admitted on 8th of April, 1986 to consider the question as to whether an objection petition was at all maintainable in the proceedings of execution before the Rent Controller. The learned counsel for the petitioner conceded that in view of the pronouncement of the Supreme Court in the case of Muhammad Yasin v. Sh. Ghulam Murtaza PLD 1988 SC 163 his objection as to non-maintainability could prevail. He however, ought permission to raise another legal plea i.e. that no appeal was competent against order of the Rent Controller rejecting the objection petition. This request, was allowed by my learned brother Zia Mehmood Mirza, J. on 3rd of June, 1987.

7. Today, during the course of the hearing of this petition the learned counsel for the petitioner has raised the following two contentions:- (i) That as the objection petition filed by respondent No.1 was rejected by the Rent Controller, no appeal against that order was competent before the District Judge. (ii) That respondent No.1 had failed to prove or even prima facie show that he was in possession of the property in his own right and, therefore, the Addl. District Judge acted illegally in proceeding to accept the ejectment petition. In this connection it was emphasised by the learned counsel that respondent No.1 claims to be in possession as tenant under the Islahi Committee but in litigation between the Islahi Committee and the petitioner before the Civil Courts which ultimately culminated in Civil Revisions No.1660 of 1983 and 1661 of 1983, it has been held that Islahi Committee has no right whatsoever in the property in question.

8. In elaboration of the first contention, the learned counsel for the petitioner argued that after the amendment of section 17 of the Punjab Urban Rent Restriction, 1959 by Ordinance IX of 1979 the order of ejectment has to be executed by the Rent Controller and not by the Civil Court, and the provisions of the Code of Civil Procedure, providing for appeals viz. section 104 and Order 43, Rule 1, C.P.C. cannot be pressed into service. As regards section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, it was contended, that an appeal lies under this provision against an order of the Controller disposing of an application made under the Ordinance and as there was no provision for filing any objection petition, in the Punjab Urban Rent Restriction Ordinance, 1959, the disposal of the objection petition by the Rent Controller cannot be said to under the Ordinance and, therefore, cannot be subjected to an appeal. According to section 17 of the Punjab Urban Rent Restriction Ordinance, 1979, as it originally stood the orders passed by the Rent Controller were to be executed by the Civil Court. However, section 17 was substituted by the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979 so as to provide that every order made under sections 10, 13 and every order passed in appeal under section 15 shall be executed by the Controller as it were a decree of the Civil Court. The effect of this amendment was that the order was to be executed by the Rent Controller and not by the Civil Court. However, further command of the legislature was that the Rent Controller shall execute the order as if it was a decree of the Civil Court. The exact import of the deeming provision contained in section 17 came up for consideration before the Supreme court of Pakistan in Muhammad Yasin v. Sh. Ghulam Murtaza PLD 1988 SC 163 wherein it was observed:- " .....A Controller has no power or control over a decree of a Civil Court except for this deeming provision. Where a power to execute an order in the manner of a decree of a Civil Court is conferred then on the ordinary rule of interpretation all the powers necessary or enjoyed by the executing authority for effectively and completely executing a decree of a Civil Court shall be available to the Controller. The deeming cannot stop short or boggle. To hold that the Controller will have the power to execute the order as decree of the Civil Court but will have no power to decide objections to the order, and to its executability, will amount to in fact denying the Controller the very power to execute the decree itself. Such cannot be the result or the effect of the deeming clause. It has to be given full effect and the logical consequence of the empowering provision must follow.'

10. From this authoritative pronouncement of the Supreme Court it becomes evident that a third person can object to the execution of the order against him by the Rent Controller by virtue of section 17 of the Ordinance and the Rent Controller is called upon to decide the same. That being so an order passed by the Controller finally disposing of an application, cannot but be held to be under the Ordinance and is thus appealable under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959. As observed by the Supreme Court, the deeming provision in section 17 must be given full effect to and all logical consequences must follow. It would indeed be strange to hold through section 17 permits the filing of an objection petition but the disposal of such a petition is not under the Ordinance. I am supported in this view by the judgment of this Court in Manzoor Hussain v. Muhammad Ali 1990 MLD 1227.

11. Adverting to the argument of the learned counsel for the petitioner that there was no evidence, led by respondent No.1 to show that he was in possession of his own rights, it is to be seen that no opportunity was allowed by the Rent Controller to resp6ndent No.1 to produce any evidence but the objection petition was summarily rejected. It stands admitted that the property was at one time taken over by Auqaf Department and was subsequently releases. It is also no denied that there was a dispute between the Islahi Committee and respondent No.1 with regard to this property. In these circumstances the stand taken by respondent No.1 that he was inducted into possession by Islahi Committee could not be rejected straightaway without any inquiry.

12. It is also to be noted that while dismissing the appeal filed by respondent No.1 against the order of eviction the Addl. District Judge in his order dated 27th February, 1985 had observed that if the appellant was in possession of the disputed shop in his own right he could seek this remedy during execution' proceedings. That being so it was clearly not open to the Rent Controller to summarily reject the objection petition filed by respondent No.1.

13. The same error was committed by the Addl. District Judge who after holding the dismissal of objection petition to be unjustified proceeded to accept' the same petition instead of remanding it to the Rent Controller for allowing the parties an opportunity to lead evidence. ' As a consequence of what has been stated above, this petition is accepted and the order of the Rent Controller and the judgment of the Addl. District Judge dated 1st of December, 1985 are declared to be without lawful authority and of no legal effect with the result that the objection petition filed by respondent No.1 shall be deemed to be pending before the Rent Controller and shall be decided afresh after allowing the parties an opportunity to produce evidence in support of their respective contentions. The Rent Controller shall decide the matter on its own merits un-influenced by any observation made in this judgment. As the dispute arises out of an ejectment petition which was instituted as far back as 7th September, 1981 it is directed that Rent Controller shall dispose of the ejectment petition within a period for two months. The parties shall appear before the District Judge, on 25th of March, 1991 who shall entrust the matter to a Rent Controller of competent jurisdiction. No order as to costs. A.A./Z-194/L Case remanded.