1999 PLP 275 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, by way of leave of the Court, is directed against an order passed by the High Court on 25‑3‑1998, whereby, while disposing of the writ petition filed by the appellant, herein, the case was remanded to the Rent Controller for holding an enquiry on the points formulated by the High Court.

2. The precise facts, giving rise to the present appeal, are that the appellant, Muslim Commercial Bank, was housed in a building owned by respondent No.2, Noor Zaman Qureshi, who filed an application for eviction of appellant for non‑payment of arrears of rent. Muslim Commercial Bank, the appellant herein, filed an application for fixation of fair rent. Both the matters were decided by Rent Controller on 28th September, 1995, who ordered the eviction of the appellant Bank and dismissed the application for fixation of fair rent. On 29th March, 1997, Noor Zaman Qureshi, respondent No.2 herein, filed an execution application before the Rent Controller and also filed two miscellaneous applications on 31st December, 1997. The Rent Controller ordered the Bank to deposit the arrears of rent at the rate of Rs.8,594 per month. The appellant Bank filed a writ petition in the High Court complaining that the Rent Controller acted without jurisdiction for two reasons which are as follows:‑‑‑ (a) The Rent Controller had become functus officio upon till the judgment in which cross‑petitions were decided. (b) The rent settled between the parties was Rs.6,875 but the Rent Controller himself enhanced the same to the tune of Rs.8,594 acting suo Motu.

3. During the pendency of the writ petition the High Court ordered the bank to deposit rent at the rate of Rs.6,875 per month which order was duly obeyed. Then the High Court formulated two points and sent the case back to the Rent Controller to decide the points after necessary proceedings. The points are as follows:‑‑‑ (i) as to whether the landlord‑respondent is entitled to the rent at the rate of Rs.8,594 per month; and (ii) as to whether he is entitled to the above referred rent with effect from 1‑11‑1992 to 12‑12‑1997.

4. It has been vehemently contended by Kh. Muhammad Aslam Habib, the learned counsel for the appellant Bank, that the order passed by the High Court is without jurisdiction because the High Court cannot pass such an order in a writ petition. It is also contended that the Rent Controller having become functus officio is not clothed with any of the powers to decide the points formulated by the High Court. The learned counsel has strenuously argued that the respondent applied for the execution of a decree, dated 28‑9‑1995, and the Rent Controller and the High Court were bound to act in accordance with the terms of the decree but the High Court travelled beyond its jurisdiction to order for the deposit of rent at the rate of Rs.8,594, by acting in a colourable exercise of jurisdiction.

5. Controverting the arguments advanced by the learned counsel for the appellant, Mr. Muhammad Yaqub Khan Mughal, the learned counsel for respondent No.2, submitted that both the parties before the High Court agreed that if the amount incorporated in the agreement for the period stipulated in the agreement is paid first, and the rest of matter is left to be resolved later on, the same may be concluded by an appropriate order. Since both the parties agreed to it, in consequence of which the appellant Bank made the payment of Rs.3,50,625 at the rate of Rs.6,875 per month in favour of landlord‑respondent for the period commencing from July 27,x1993, to August 31, 1997. The rest of the claim of the respondent remained to be resolved and settled later on. The payment was made in the open Court, and the landlord‑respondent received the same under protest. It was in the aforesaid circumstances that the Rent Controller was directed to hold an inquiry into the matter on the points which were formulated by the High Court. The learned counsel further urged that the High Court directed the Rent Controller to pass appropriate orders to determine the actual amount and the period for which such amount was payable. According to the learned counsel, the High Court committed no illegality in remanding the case to the Rent Controller for decision on the points formulated by it.

7. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. The simple question before the Rent Controller was with regard to the eviction of the Bank appellant from the building of the respondent and fixation of fair rent on behalf of the appellant. The Rent Controller ordered the eviction of appellant from the premises of the respondent and rejected the application for fixation of fair rent. As said earlier, on March 29, 1997, respondent No.2 filed execution application before the Rent Controller and also filed two miscellaneous applications on 31st of December, 1997. The Rent Controller ordered the Bank to deposit the arrears at the rate of Rs.8,594 per month. The Bank appellant filed a writ petition in the High Court that the Rent Controller had become functus officio upon till the judgment in which cross‑petitions were decided vide the order of the Rent Controller, dated 28‑9‑1995, whereby the Rent Controller ordered for the eviction of the appellant Bank from the building of the respondent No.2 and the application for fixation of fair rent was dismissed. It was further directed by the Rent Controller that the file pertaining to fixation of fair rent is ordered to be dismissed and, thus, consigned to record. The Rent Controller vide his above order finally dismissed the application for fixation of fair rent and, thus, became functus officio, but the High Court in a colourable exercise of jurisdiction failed to note the above fact that the Rent Controller had finally decided the matter as such the formulation of the points:‑‑‑ (i) As to whether the landlord‑respondent is entitled to the rent at the rate of Rs.8,594 per month; and (ii) as to whether he is entitled to the above referred rent with effect from 1‑11‑1992 to 12‑12‑1997, was an act without jurisdictional competence, because the High Court could not pass such an order in a writ jurisdiction especially so when the Rent Controller had become functus officio. So, the High Court was not clothed with any of the powers to decide the points formulated by it.

8. Before parting with the case, it may be stated that it is a cardinal principle of law that a decree is to be executed in accordance with its terms. Nothing can be added nor any of its terms can be altered or modified. So, it was enjoined upon the Rent Controller and the High Court to execute the decree in accordance with its terms. The High Court while exercising its jurisdiction in a writ petition travelled beyond its jurisdiction by altering the terms of the decree in a manner which was not warranted by law. Our aforesaid view is fortified by a case reported as Abdul Rashid v. Gulzar (1995 SCR 307).

9. We, therefore, by accepting the appeal, set aside the impugned order of the High Court without passing any order as to costs. However, any of the aggrieved parties proceed according to law by approaching the appropriate forum for the redressal of its grievance. H.B.T/396/SC(AJK) Appeal accepted.