1979 PLP 644 (CLC)

Sh. Abdul Haque for Appellant. The facts leading up to this second appeal are that the respondent, Mst. Sakina Karim made an application, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, for eviction of the appellant, Commissioner of Income-tax, Lahore Division, Lahore, from a house belonging to her. The application was resisted by the appellant on the ground that according to clause 12 of the agreement of tenancy between the parties any dispute or difference arising out of the agreement was to be referred to arbitration. It was, therefore, prayed by the appellant that the respondent be asked to refer to arbitration the dispute involved in the ejectment proceedings initiated by him. The plea raised by the appellant found favour with the learned Rent Controller who was seized of the application. He, therffore, stayed the proceedings before him and directed the respondent to apply for the appoint ment of an arbitrator in terms of clause 12 of the agreement.

2. Feeling aggrieved by the order of the learned Rent Controller, the respondent went in appeal before the District Judge. The view taken by the learned District Judge was that the dispute had to be decided by the Rent Controller without being referred to arbitration. He, therefore, accepted the appeal and remanded the case to the Rent Controller for disposal in accordance with law.

3. As the appellant was not satisfied with the result of the first appeal he has come up in second appeal to this Court.

4. Sh. Abdul Haque, learned counsel for the appellant, contended that there was no bar in the Ordinance against the settlement of the dispute between the parties through arbitration and, therefore, the order of the learned District Judge was not sustainable. I am unable to agree with him. No doubt, in the Ordinance it has not been expressly provided that its provisions shall take effect notwithstanding any such stipulation in the agreement of tenancy as relied upon by the appellant but a perusal of clause (i) of sub-rule (2) of section 13 of the Ordinance would show that where the framers of the Ordinance intended to give effect to a particular term of the agreement of tenancy, namely, the term fixing time for payment of rent, they did make an express provision in that behalf. Since they did not include any such provision in Ordinance for giving effect to the other terms of an agreement of tenancy like the one being pressed into service in the present case it would follow that they did not intend to allow the other terms of the agreement to override the provisions of the Ordinance.

5. Section 13 of the Ordinance deals with the eviction of tenants. It has been emphasized in subsection (1) of section 13 that- "A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section." There is, thus, no manner of doubt that a tenant cannot be ejected except in accordance with the provisions of section 13, and since these provisions do not permit a Rent Controller to order or disallow ejectment of a tenant in terms of an award given in pursuance of an arbitration agreement, clause 12 of the agreement of tenancy relied upon by the appellant is of no consequence. Even if the respondent had referred the matter in dispute to arbitration before it was brought before the learned. Rent Controller and had obtained an award in his favour and also a decree in pursuance of the award, it would not have affected the ejectment proceedings. taken out against him because according to subsection (1) of section 13 of the Ordinance, a tenant cannot be evicted in terms of a decree whether passed before or after the coming into force of the Ordinance. By incorporating the word "otherwise" in subsection (1) the framers of law made it amply clear that a tenant`1 shall not be ejected in any .manner except the one provided in section

13. In this view of the matter, the learned Rent Controller was not right in staying the ejectment proceedings on the basis of the arbitration clause relied upon by the appellant.

7. I, therefore, affirm the order of the learned District Judge and dismiss the appeal in limine. Appeal dismissed.