2005 PLP 165 (CLC)

2002 SCMR 222; 2004 SCJ 547, 2002 MLD 861; Nasim Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others 1994 SCMR 22; Muhammad Daud v. Mst. Surriya Iqbal and 3 others 2001 CLC 1819 and Mir Nawaz Khan and others v. Gul Ayub Khan and another 2003 CLC 1428 ref. Malik Muhammad Bashir for Petitioner. Sajid Nawaz Khan Saddozai for Respondent. Date of hearing: 7th September, 2004. Facts relevant for the disposal of this civil revision under section 115, C.P.C. are that Haji Muhammad Iqbal, respondent herein, moved petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of Senior Civil Judge/Rent Controller, D.I. Khan seeking ejectment of Rabnawaz, petitioner herein, from the suit shop situated at Circular Road, D.I. Khan, recovery of outstanding rent for the last 25 months at the rate of Rs.12,000 per month and recovery of rent for onwards period at the same rate till the final eviction of the petitioner from the shop in question. The application was resisted on all grounds legal as well as factual and in view of the rival pleadings of the parties, seven issues were framed. Upon consideration of the evidence produced by the parties, learned trial Court vide his order dated 10-1-2001 partially allowed the petition to the extent of vacation of suit shop and dismissed the remaining claim of the respondent regarding recovery of past and future rent. Both the parties, feeling aggrieved, went in appeal which came up for hearing before learned Additional District Judge, D.I. Khan who vide her order, dated 30-10-2001 accepted the appeal of respondent and dismissed the appeal of the petitioner. This order was unsuccessfully challenged before this Court by the petitioner through W.P. No.186 of 2001. The writ petition was dismissed on 7-2-2003. The appeal of the petitioner before the august Supreme Court was also dismissed.

2. In this background of the case, respondent filed an execution, petition on 2-1-2002 in the Executing Court i.e. Civil Judge/Rent Controller, D.I. Khan. The petitioner paid a sum of Rs.5,04,000 to the respondent and filed application dated 6-10-2003 in the Executing Court for consigning the execution petition of the respondent on the ground that the claim of the respondent stands satisfied and nothing is outstanding against the petitioner. The respondent contested the application and submitted his application on 5-11-2003. The learned Civil Judge/Rent Controller dismissed the application of the petitioner vide his order dated 6-12-2003 which was maintained by learned District Judge, D.I. Khan through his order, dated 7-2-2004. The learned District Judge also determined the cost of the said appeal as Rs.5,000 to be paid by the petitioner to the respondent along with the rent of the suit shop upto June, 2003.

3. Malik Muhammad Bashir, Advocate for the petitioner contended, inter alia, that the Court is not competent to modify or amend the decree; that in his execution petition the respondent had prayed for the satisfaction of his decree in terms of order, dated 30-10-2001 passed by learned Additional District Judge-1, D.L. Khan, according to which, the petitioner was liable to pay a sum of Rs.5,04,000 only. Since the petitioner had paid the said amount to the respondent before the Court of learned District Judge, D.I. Khan which fact stands admitted by the learned District Judge in his order, dated 6-9-2003, therefore, the petitioner was legally not obliged to pay any further amount to the respondent. This important aspect of the case, the learned counsel added, has escaped notice of the Courts below which has resulted in manifest injustice. The learned counsel further submitted that the execution petition can only be satisfied to the extent of a specific decretal amount and nothing more can be granted to the decree-holder. Since further claim of the decree-holder mentioned in his application dated 5-11-2003 was nowhere mentioned/referred in the original decree, dated 30-10-2001, therefore, the respondent was not entitled to claim such amount from the petitioner in the instant execution proceedings. In the last leg of arguments, it was maintained that the Rent Controller had no jurisdiction to execute the decree in question and on this ground alone, the impugned order cannot be allowed to remain intact. The learned counsel also contended that the learned District Judge was not competent to impose special cost. To substantiate the pleas, reliance was placed on 2003 CLC 1428 (Peshawar), 2002 SCMR 222, 2004 SCJ 547 and 2002 MLD 861 (Karachi).

4. Mr. Sajid Nawaz Khan Saddozai Advocate for the respondent on the other hand, whole heartedly supported the impugned orders.

5. No doubt it is true that it is not open to executing Court to go beyond the decree and re-determine liabilities of the parties as held in Nasim Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others 1994 SCMR 22, but the fact cannot be lost sight of that in lie instant case, neither the executing Court has gone beyond the decree nor liabilities of the parties have been re-determined. It has been established from the material on record that the petitioner enjoyed possession of the suit shop for almost 20 months after passage of decree against him without paying any rent to the respondent. The judgment-debtor has enjoyed the possession of the suit shop during this period and he cannot be allowed to take benefit of his own failed attempts through which he blocked the execution of the impugned orders. The petitioner cannot be rewarded for this act. An amount of Rs.2,50,040 is outstanding against him and he is bound to discharge his liability and pay the outstanding amount. The decree-holder cannot be deprived of the fruits of the decree. Mere technicalities of procedural law, unless offering insurmountable hurdles, were not to be allowed to defeat the ends of justice.

6. The objection regarding in competency of civil Court to execute a decree is misconceived as on the one hand, no such objection has been raised in the memorandum of revision petition whereas on the other judgment of this Court reported as Muhammad Daud v. Mst. Surriya Iqbal and 3 others 2001 CLC 1819 (Peshawar) furnishes complete answer to the objection. The objection seems to have been raised for no other reason but to delay the recovery of outstanding amount as long as possible. The other objection regarding imposition of cost of Rs.5,000 by the learned District Judge is also groundless. The Appellate Court keeping in view the past antecedents of the petitioner had valid reasons to saddle the petitioner with cost of Rs.5,000 to be paid to the respondent. The authority in this aspect i.e. Mir Nawaz Khan and others v. Gul Ayub Khan and another 2003 CLC 1428 (Peshawar) is distinguishable and proceeds on different facts.

7. Pursuant to above, I find that learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned orders requiring interference by this Court in its revisional jurisdiction. Civil revision having been bound bereft of substance, is dismissed with no order as to costs. H. B. T./249/P Revision dismissed.