P L D 1997 Lahore 451 (PLP)

Through this Constitutional petition, the petitioners have called in question the legality of order dated 11-11-1996 passed by the learned Additional District Judge on the appeal filed by Abdur Rashid, respondent.

2. Briefly stated the facts of the case are that the petitioners filed an ejectment petition on 30-1-1993 against respondent No. l for eviction from the disputed shop which was accepted by the learned Rent Controller vide order dated 27-6-1995. Respondent No. l filed an appeal before the learned District Judge which was entrusted to the learned Additional District Judge for disposal. Before the appellate Court, the present petitioners filed an application for dismissal of the appeal on the ground of limitation and non-payment of court fee. Perhaps, respondent No. l realized the legal infirmities in his appeal and merely prayed for time for, one and a half years for vacating the disputed premises. The petitioner accepted the respondent's request and the appellate Court passed order dated 31-10-1995 allowing a period of one and a half years to respondent No. l to vacate the premises subject to regular payment of monthly rent, failing which he was liable to be evicted forthwith. It may be mentioned that the rate of rent determined by the learned Rent Controller in his order dated 27-6-1995 was Rs.1100 per month. It was also held that the tenancy had commenced since before July, 1989 and after three years the rent stood increased by 25 % as provided under section 15-A of the Ordinance. Since, respondent No. l did not pay the increased rent, he was held to be a rent defaulter.

3. The petitioners verified from the Treasury that respondent No. l' had been depositing rent at the rate of Rs.850 per month (instead of Rs.1,375). Hence he filed an execution petition on 15-1-1996. Respondent No. l appeared before the executing Court and stated that he had filed an application for review of order dated 31-10-1995, whereupon the case was adjourned. It remained pending for a few months and then respondent- No. l withdrew the review petition on 2-7-1996 and filed an object petition before the executing Court on 11-7-1996. The petitioners resisted the objection petition and submitted their written reply in the Court. The executing Court dismissed the objection petition vide order dated 30-7-1996 with a direction to respondent No.l to clear the arrears of rent till 4-9-1996. Respondent No. l did not deposit the rent or produce receipts, whereupon the executing Court issued warrants . of possession against him on 4-9-1996. Respondent No. 1 filed two appeals, one against order dated 30-7-1996 and the other against order dated 4-9-1996. Both the appeals came up for hearing before the learned Additional District Judge who accepted the same vide his order dated 11-11-1996.

4. The petitioners' learned counsel urged that the appeals filed by respondent No. l were incompetent; treat the executing Court, was proceeding under tire provisions of section 17 of the Ordinance and any order passed during the course of execution proceedings was not open to challenge by way of an appeal under section 17 of the Ordinance. In this connection, lie places reliance on the following judgments:-- (1) Abdul Hamid v. Abdul Waheed, etc. 1983 CLC 3075. (2) Haji Ahmed Haji Eassa v. Rent Controller, etc. 1983 CLC 840. .1, (3) Maqbool Ahmad etc. v. Mumtaz Ali 1984 CLC 948. (4) Muhammad Saleem alias Seema v. Sardar Khan through L.Rs. 1983 CLC 2787. (5) Sardar Noor Hussian v. Chief Settlement Commissioner etc. PLD 1983 SC 62. , (6) Syed Sarwar Abbas v. Syed Muhammad Taqi Rizvi 1969 SCMR'689. (7) Mst. Afzal Begum and others v. Y.M.C.A. through General Secretary PLD 1979 SC 18. . On the other hand, learned counsel for respondent No.1 urged that after 1 compromise between the parties, respondent No. l was allowed time for one and a half years with effect from 31-10-1995 for vacating the shop; that respondent No. l has been regularly depositing rent at the rate of Rs.850 per month and was not a rent defaulter and that his appeal before the learned Additional District Judge was competent.

5. There is considerable force in the arguments raised by the petitioners' learned counsel. The period of one and a half years for vacating the disputed shop was allowed to respondent No. l by the learned. Additional District Judge vide order dated 31-10-1995 subject to regular payment of monthly rent. The rate of rent fixed by the learned Rent Controller was Rs.1,100 per month plus 25 % increase by operation of the provision of section 15-A of the Ordinance. Therefore, the monthly rent which respondent No. l was required to pay was Rs.1,

375. However, he has been depositing rent at the rate of Rs.850 per month. and prima facie, appeared to be a rent defaulter. Hence, notwithstanding the fact that the period of one and a half years has not yet 'expired, the petitioners were competent to initiate proceedings for execution of ejectment order dated 27-6-1995. It is provided under section 17 of the Ordinance that every order made under sections 10, 13, 13-B and the appellate order under section 15 shall be executed by the Rent Controller as if it were a decree of a civil Court. While executing the order under section 17 of the Ordinance, the Rent Controller remains a persona designata and does not become a Civil Court merely because he has to execute his order like a decree of the civil Court. Therefore, any order passed by the Rent Controller during the course of execution proceedings under section 17 of the Ordinance, is not open to appeal under the provisions of section 15 of the Ordinance In the case of Abdul Hamid, it was held that the forum entrusted with execution of eviction order after substitution of Order 17 on 12-9-1979 was not Civil Court but a Special Tribunal. The deeming provision "as if it were a decree of Civil Court" is meant to make it clear that the force of the ejectment order is that of a decree of Civil Court. This view finds support from the judgment in the cases of "Syed Sarwar Abbas v. Syed Uhammad Taqi Rizvi 1969 SCMR 689 and Muhammad Asloob Qureshi v. Muhammad Bashir and another PLD 1986 Lah.

14. However, the deeming clause neither clothes the ejectment order with the perfect status of the decree of a Civil Court or convert the Rent Controller into a Civil Court so as to attract the provisions of C.P.C. for the purposes of appeal, revision etc. The ejectment order passed by a Rent Controller has been given force of a decree of the Civil Court with limited purposes of bestowing all the necessary powers on the Rent Controller which are ordinarily available to a. Civil Court for complete and 1 effective execution of the decree of a Civil Court. Before. substitution of section 17 with the present provisions, the Civil Court had the power to execute an ejectment order passed by the Rent Controller as if it were a decree of the Civil Court. Interpreting the deeming clause the Hon'ble Supreme Court held in the case of Mst. Afzal Begum and others v. Y.M.C.A. through General Secretary PLD 1979 SC 18 that the provisions of Article 169 of the Limitation Act regarding rehearing of an appeal, heard ex pane were not applicable in respect of an appeal arising out of the West Pakistan Rent Restriction Ordinance, notwithstanding the fact that the ejectment order was deemed to be decree of a Civil Court. Instead, the Court applied the provisions of residuary Article 181 of the Limitation Act to an application filed for re-hearing of the appeal. The Court also observed:-- "In coming to this conclusion, however, I am not unmindful of the provisions contained in section 17 of the Urban Rent Restriction Ordinance, 1959. It, inter alia, lays down that every order made under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. It implies that although an order passed in appeal under section 15 is not by itself a decree yet for the limited purpose of execution only it shall be treated as if it were a decree of that Court. It does not clothe the ejectment order passed under it with the full effect of a decree for all. other purposes, including that of Article 169 of the Limitation Act." Since, for the purposes of execution alone, a Rent Controller has to treated his order as a decree of the Civil Court he is competent to decide all questions, relating to executability of the order/decree and can decide an objection petition as well. While dealing with this aspect of the matter, the Hon'ble Supreme Court held in the case of Muhammad. Yasin v. Sheikh Ghulam Murtaza and another PLD 1988 SC 163 that:-- "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 a 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. " Hence, for effective execution of the ejectment order, the Rent Controller can competently hear an objection petition and also invoke other enabling provisions of the C.P.C. but all orders passed by him remain the orders of a persona designata and not open to incidents of appeal and revision under the C.P.C. In the case of Zahurul Hasan v. Mst. Ruqqia Begum and 4 others PLD 1981 SC 112 the Supreme Court had settled the controversy regarding the competency of the revision petition against the order of a Rent Controller and held that a revision petition under section 115 of the C.P.C. against an order passed by a Rent Controller was not maintainable. Similarly, an appeal was not maintainable under any provision of the C.P.C. against the orders passed by the Rent Controller. So far as appeals under section 15 of the Ordinance are concerned, the same are limited to orders passed under sections 4, 10, 12 and 13 of the Ordinance. Section 17 of the Ordinance is conspicuously absent from the provisions of section 15 which clearly means that an order passed under section 17 of the Ordinance during the course of execution proceedings is not open to appeal even under section 15 of the Ordinance. In the case of Haji Abdul Wali Khan v. Muhammad Hanif 1985 CLC 827 an appeal filed (under Order 41, rule 1, C.P.C.) against order dated 18-8-1983 passed by the Rent Controller in execution proceedings was dismissed as being not maintainable and the revision petition filed against the said order was dismissed with the observation that the appeal filed under Order 41, rule 1, C.P.C. being misconceived was not maintainable.

6. For the foregoing discussion, the writ petition is accepted, the impugned order dated 11-11-1996 is declared to be without jurisdiction, without lawful authority and of no legal effect. The Rent Controller shall proceed further in the matter of execution of the ejectment order and finalize the same in accordance with the law. 1 A.A./M-295/L Case remanded.