P L D 1989 Peshawar 93 (PLP)

3. Inayatullah Khan started execution proceedings before the learned Senior Civil Judge/Rent Controller, D.I. Khan on 29‑3‑1983 for the physical eviction of Sardar Muhammad Sadiq and Laiq Shah, respondents Nos.2 and 3 herein, from the shops in question. Laiq Shah, respondent No.3 herein, on receipt of notice from the Rent Controller submitted a written reply wherein he alleged that Haji Afsar Khan and Shah Azam, petitioners herein, were the real owners of the suit shops and that he has already surrendered possession to them.' To resist the execution proceedings, the petitioners herein filed objection petition under Order XXI, Rules 58, 57 and 99, C.P.C. before the learned Rent Controller/ Executing Court wherein they again raised the question of title to the suit property alleging themselves to be in physical possession of the same and submitted that since the judgment‑debtor were not in possession of the suit property any longer, the execution proceedings has become infructuous and that the same may be filed. The parties were afforded opportunities to lead evidence with regard to the allegations contained in the objection petition and the learned Executing Court finally dismissed the objection petition vide his order dated 30‑3‑1986. Not satisfied with the same, the petitioners challenged this order before the learned District Judge, D. I. Khan who also concurred with the Executing Court and dismissed the appeal vide his judgment and order dated 2‑1‑1988. Hence the present revision petition under section 115 of the Civil Procedure Code.

4. I have heard learned counsel for the parties at length and have scrutinized the relevant record pertaining to the above chequered history of this protracted litigation.

5. At the very outset, the learned counsel representing the respondents raised a preliminary objection to the effect that in view of the substitution of Section 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959 the Rent Controllers, no doubt, have been invested with powers to execute the orders passed by them under sections 10, 13, 13‑B and every order passed in appeal under section 15 as if these were decrees of Civil Court, but they being not Civil Courts, cannot entertain and adjudicate upon the objection petition filed by third parties resisting the execution of decrees on the basis of title. In this regard, he relied upon Abdul Hamid v. Abdul Waheed etc. reported as 1983 C L C 3075, Maqbool Ahmad etc. v. Mumtaz Ali reported as 1984 C L C 948 and Gulzar Begum v. Gulzar Bakhsh reported as 1985 C L C 93.

6. For the proper appreciation of the point in question, it would be relevant to reproduce the original text of section 17 and the amended one. Original section 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959 reads as under:‑‑ "Every order made under section 10 or section 13, and every order passed on appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court." Amended provision of section 17 as per Punjab Urban Rent Restriction (amendment) Ordinance, 1979 (Ordinance 1X of 1979) is to the effect that:‑‑ "Every order made under section 10, section 13, section 13‑B and every order passed in appeal under section 15, shall be executed by the Controller as if it were a decree of a Civil Court."

7. However, vide N.‑W.F.P. Urban Rent Restriction (Amendment) Ordinance, 1979 (Ordinance No.IX of 1979) section 17 was not substituted as in the case of Punjab but only section 13‑A was inserted in section 17 after the figure 13 and after this amendment section 17 would read as follows:‑‑

17. Execution of Orders. Every order made under section 10 or section 1 or section 13‑A and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court."

8. The authorities cited by the learned counsel for the respondents relate to the cases decided by the Lahore High Court pertaining to their jurisdiction and since the original provision of section 17 has not been amended by the N.‑W.F.P. Government, so as to confer jurisdiction on the Rent Controllers for the execution of their orders as decree of a civil Court, the principle of law enunciated by the Lahore High Court would not apply to the execution of the orders of the Rent Controllers being executed by the civil Court as decree of that Court. The objection raised by the learned counsel for the respondents is accordingly repelled.

9. Reverting to the merits of the case, the Rent Controllers have undisputedly the exclusive jurisdiction to determine the relationship of landlord and tenant regarding properties situated within the limits of Urban areas and the jurisdiction of the Civil Court in such matters is ousted, as is provided for under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Respondents Nos.2 and 3 herein were admittedly in possession of the suit shops and they had an opportunity to disprove the allegations made against them in the petition for their eviction. Respondent No. 2 had confessed judgment before the Rent Controller while the other respondent Laiq Shah had failed to rebut the evidence led by Inayatullah Khan, respondent No.l herein (Petitioner in the rent petition) and A consequently the Rent Controller, exercising his jurisdiction under the said Ordinance passed the order of eviction of Sardar Muhammad Sadiq and Laiq Shah, respondents No.2 and 3, from the suit shops. This order is executable by the Senior Civil Judge/Rent Controller as a decree of the civil Court under provision of section 17 of the Weft Pakistan Urban Rent Restriction Ordinance, 1959. The petitioners herein namely Haji Afsar Khan and Shah Alam Khan are not the original claimants of the suit property but they derive their title from Hakeem‑ud‑Din and others, the heirs of Abdul Latif, vide registered sale‑deed dated 20‑7‑1977 during the pendency of these proceedings to the extent of two marlas out of Khasras Nos.2532 min and 2536 min. As discussed earlier, the original allottees and the present petitioner had tried to get an adjudication from the competent civil Court regarding the title to the suit property in their favour but could not succeed. The parties herein were parties to that suit and the matter in issue, regarding the title to suit property in both the proceedings viz. the civil suit and the present objection petition, being the same, the principles of res judicata comes into play and the petitioners/ Objectors having been unsuccessful in the previous suit could not be allowed to re-agitate the same issue through filing the present objection petition. The allegation made in the objection petition has not been proved through convincing evidence and in presence of a valid order of eviction against respondents Nos.2 and 3 herein passed by the Rent Controller, the learned Executing Court could not go behind the said order of eviction and pass an order contrary to the same. The learned counsel for the petitioners could not satisfy me about any illegality, material irregularity or any mis‑reading or non‑reading of evidence committed by the Court below, to call for interference in the exercise of revisional jurisdiction by this Court.

10. Nevertheless, the learned counsel for the petitioners argued that the learned District Judge had referred the dispute to Arbitration and so long as the Arbitrators had not submitted their Award, he had no jurisdiction to decide the appeal on merits. I have gone through the order sheet of the appellate Court but failed to dig out any, such reference except that the counsel for the parties sought adjournments on the pretext that other similar cases between the parties had been referred to Arbitrators. However, the learned counsel for the petitioners conceded that the Arbitration in those cases too, had failed. This objection, therefore, has no force.

11. The learned counsel for the petitioners lastly contended that the shops in dispute are situated in Adda Paroa in the estate of Diwala, a different estate than the one where the property in civil suit viz. Khasra Nos.2532 min and 2536 min (estate of D.I. Khan) is situated and argued that the subject‑matter of the two proceedings being different, the respondent No.1 is trying to eject the petitioner from the property which was neither the subject‑matter of the rent petition nor any order of eviction has been passed regarding the same, much less against the petitioner. I am afraid the apprehensions of the learned counsel for the petitioners are unfounded, inasmuch as, the description of the property is fully detailed in the heading of the rent petition supported by a site plan duly exhibited in the said proceedings. Obviously the executing Court would execute the order of the Rent Controller qua the property to which the eviction order relates and would be loathe to lay hand upon the property to which the order of the Rent Controller would not extend.

12. Consequently, finding no substance in this revision petition, the same is hereby dismissed leaving the parties to bear their own costs. A.A. /680/P Revision dismissed.