RIAZ AHMAD KHAN, J. This judgment is directed to dispose of W.P. No 334/2012.
2. Brief facts of the case are that petitioner Shakeel Hussain Shah married respondent No. 1 Bushra Hameed on 22-04-2009. Unfortunately, after the marriage, the relations became strained and in May 2010, the respondent wife left the house of the petitioner. According to respondent wife, she was maltreated and was given beatings, so she had to leave the house, whereas contention of the petitioner husband is that the respondent wife had left the house at her own sweet-will.
Respondent wife thereafter filed suit for recovery of dower amount Rs. 3,00,000/- and maintenance allowance at the rate of Rs. 4000/- per month. Afterwards prayer regarding recovery of dowry articles was also added to the plaint. Whereas, the defendant husband filed suit for restitution of conjugal rights. The respondent/plaintiff appeared as her own witness and against that defendant husband appeared as sole witness. Learned Trial Court after hearing the parties, passed the decree regarding dower amount as well as maintenance allowance, however, the suit regarding dowry articles was dismissed. The suit regarding restitution of conjugal rights was also decreed.
Both the parties filed appeals before learned Additional District Judge. In appeal, the decree regarding dower amount as well as maintenance allowance was maintained. The claim regarding dowry articles was dismissed. However, suit regarding restitution of conjugal rights was also dismissed. Feelings aggrieved of the same, the petitioner husband, filed the present writ petition.
3. Learned counsel for the petitioner submitted that petitioner/husband had paid dower amount on the wedding night to the respondent/wife and the petitioner/husband had stated the same fact before the {{BLUR PAGE}}---w4vog (d) Court. The wife as.Such, w4s,required to produce evidence to disprove theciaim of the husband. It was further submitted that the allegation of 'cruelty was: tick-proved against the husband. The wife had left the house of her husbaiia own sweet-will and therefore, she is not entitled to maintenance allowance. Learned counsel also submitted that since there is no suit for dissolution of marriage, the dower amount had been paid, therefore:the petitioner husband was entitled to decree for restitution of conjugal rights.
4. On the other hand, learned counsel for respondent wife submitted that the dower amount was never paid, the respondent wi 1 154, subjected to physical torture and in that respect, medical` report is available'. Inel respondent wife had been living in the house of terlpiatents.Since,41,1705-20-10-1. and she is, therefore, entitled to maintenanceallovvance. .
5. I have heard learned copposel for, the partip and have als .. ,, 4e,- 4. ..',,,Cilla ok t perused the record. * '::,-t:!:1
6. Admitted position in the present case is that dower amount fixed at the time of marriage was Rs: 3.00;040,- It W altoiluiritittodi that the maintenance allowance, agreed at the time of Nikkah was Rs': 4000 er Month.. Nikkah-nama in this respect is also available, on record. Contention of the petitioner husband is that he had paid the doweramount on the wedding night and in this respect had deposed before the learned Trial Court l4ere statement before the Court cannot be considered as a proof in its owIf.'iTfieiielfilibrieli gin .1J, husband is bound to prove the payment of dower amount througn evidbir. Bb'nce. In ;, absence of cogent evidence, simple statement cannot be considered apt-igtoof and in such case, the onus would not shift to thew* to disprove Ilie`Clatilid?
1....)(1 a ..?..Th-1 the husband. Mere statement that dower wasp Ph e weddinArnight, isiti..Oc, ,,,, sufficient to prove the payment of doyver, 1.9 iftv,c -4 tatenient cannot wen . ..,, - 1, N / 4 AL Ai ", 1 ,:f1.0), = ,',,I,1":4, be considered as evidence. The paymentof d_ii.Wer as such has not been proved.
9. .,.t.: t-
7. Dower in fact is a debt against the husband:and in.Ease,the dower amount is not paid, the wife would have a right :to refuse:-the perforrrianee of her marital obligations. Once it is proved that thesloWer has:notbeen paid, the wife would be entitled' to stay away from, the husband and the,htiAilii4 would be bound to pay maintenance to his wife. In the present case, thcrevisilo evidence to prove that the husband had paid the dower amount anittikerefOrq4:01; . wife is entitled to receive maintenance allowance. '' :.t.r.,.%ri.1.6 :5(11 ,hiwrelL
8. As far as amount of maintenance allowance iS'Cliiiifilthed,'Ilie same was fixed in the Nikkah-nama as Rs. 4,600i- peiliiiintfi,, kith' the learned lower Courts had rightly fixed the said aniarari"inainiCnanCe allowance of the respondent wife.
Regardintirestitutiorref,donjugalaights, the learned counsel for the respcinderitWe submitted:Ann:the iresplondeMiAvileris prepared to live with the petitioner htigbarielprovided:tnedower amouittrikfkr041 as the maintenance allowance is paid to the wife and house for residential {{BLUR PAGE}} {{BLUR PAGE}} purpose is provided to the respondent wife. The allegation of cruelty has not been prOved, flieleforethe petitioner` *Oland is eraitled, to the. Decree for restitution of conjugal rights subject to payment of dower. The writ petition in ...retsOect4,414Wgr 014,,Mai9kgmapserallowance is therefore, dismissed, whereas in- ,........- respect.Of restitution of conjugal rights is accepted subject to payment of dower. #TBS Tufo...) .ific2N3CJLR4,357 [Lahore] PresenlitaibtSgiTTAR ASGIIAR, #TBE #TBS ;.,1; 1/15>. rAdi tilt pfikr9W lo #TBE Order accordingly. t4aetia[Slnikat Versus Nasim Asghar CivilAgyision No, 1464 of 2011, decided on 6th December, 2b1 DETERMINATION OF RENT ETC. (Jurisdiction of Special Judge (Rent)
W.P. Urban Rent Restriction Ordinance (VI of 1959)- ---Ss. 13..J5T-Punjab Rented Premises; Act, 2009, Ss. 35, 36---Punjab Rented premisek9cdinance, 2007, S. 35---Civil Procedure Code, 1908, 0. XXI, Rr. 30, 42-F.Av?,,tase---Staternents of partiesT-Rent case was disPoSed of accoi.Dingly-- dtw:Rpmcispclodged, an execution petition seeking execution of said order ..01egit)gi,d9rflult. In payment of rent and claimed recovery of posgession and arrears of rent etc.---COnsequently Special Judge (Rent) passed an order of attachment against petitiOner which determintion was di:061d by appellate 'atithOr16,44FiVagitcitittiided that arrears of rent and. Utility bills claimed by IteStiiitidetit :thrOaglPekectition,petitituf as beyond part,fot; ,tenancy as well as 413eatijiigttaitoivattis`.Ft'etoity ainount---Competerwy of Rent 'controller- ( position--'-iSpwifaUfftidge,(Rent), while exercising powers of Rent Coritr011er" had jurisdictidri twdeterthinefinally the amount of rent/dues from the tenant as well as utility -;bills .Pertaining to period of tenancy :till delivery of vacant 'possession of disputed premisesA0' landlord and: to order its payment to the landlord and in ,default execute.Such order as decree of Civil Court---Held: Impugned order of attachment of property of petitioner/judgmentdebtor passed by Special Judge
(Rent) did not suffer from any illegality or juridictiorial error' and impugned 'order of Appellate Authority dismissing appeal of petitioner was also in accordance with law-rCivil revision petition dismissed . ;., (Paras 9, 11,12){{BLUR PAGE}} Ref: PLD 1968 SC 230, 1974 SCMR 704, PLD 1990 Lah. 457. {{URDU TEXT}} [Rent Controller had the jurisdiction to determine finally the amount of rent as well as utility bills pertaining to the period of tenancy till delivery of vacant possession of demised/premises to landlord. High Court dismissed civil revision].
For the Petitioner: Iftikhar Ullah Malik, Advocate. For the Respondent: Abdul Manan Sipra, Advocate.
Date of hearing: 6th December, 2012.
ABDUS SATTAR ASGHAR, J. This Civil Revision under Section 115 of Code of Civil Procedure, 1908 impugns the order dated 01.2.2011 passed by learned Special Judge (Rent) Lahore whereby attachment of the petitioner's property is ordered. It also assails the order dated 30.3.2011 passed by learned Additional District Judge, Lahore whereby petitioner's appeal against the order dated 01.2.2011 has been dismissed.
2. It is argued by learned counsel for the petitioner that the impugned orders are against law and facts without application of judicious mind and liable to set aside; that the arrears of rent and utility bills claimed by the respondent through execution petition are beyond the period of tenancy as well as liable to be adjusted towards the security amount paid to the respondent in advance at the time of commencement of tenancy.
3. It is resisted by learned counsel for the respondent with the contentions that the learned Special Judge (Rent) Lahore has got the authority to determine the rent and utility bills payable to landlord/respondent by the petitioner/tenant and a final order of determination of rent and other utility bills is executable by the learned Special Judge (Rent) Lahore himself as a decree of Civil Court ; that there is no jurisdictional error or any legal or factual infirmity in the impugned orders passed by learned Courts below, therefore, petitioner has no case to invoke the revisional jurisdiction of this Court.
4. Arguments heard. Record perused.
5. Perusal of record transpires that on 05.11.2004 respondent lodged an ejectment petition under Section 13 of the Urban Rent Restriction Ordinance, 1959, The petitioner resisted the said ejectment petition which was ultimately disposed of on 07.3.2009 on the basis of the statements of the parties in the manner that late of rent between the parties was determined at the rate of Rs. 30,000/- per month to he paid on 15th of the succeeding month through deposit in the Bank and in default petitioner will be liable to ejectment. The tenancy period was fixed uptill 31.7.2011 and thereafter petitioner will liable to vacate the premises otherwise respondent will be entitled, to recover the possession through filing of execution petition and that maintenance of the rented premises will be responsibility of the respondent. On 06.10.2009, respondent lodged an execution petition seeking execution of the order dated 07.3.2009 alleging default in the payment of the rent and claimed recovery of possession and arrears of rent, etc. Respondent/decree-holder also submitted a chart of outstanding amounts against the petitioner/judgment-debtor. Learned counsel for the judgment-debtor obtained a couple of opportunities from the learned executing Court with the commitment to pay the outstanding amount/dues to the decree-holder but failed. Consequently respondent submitted fard-taleeqa of the property owned by the petitioner judgment-debtor whereupon the learned Special Judge (Rent) Lahore passed an order of attachment against the petitioner. Being dissatisfied petitioner preferred an appeal before the learned Additional District Judge, Lahore, which was also dismissed vide impugned order dated 30.3.2011.
6. On 03.5.2011 learned counsel for the petitioner while arguing his case at pre-admission stage categorically,submitted that the amount claimed by the respondent is not due rather only a sum of Rs. 60,000/- i.e. Rent for two months was due and adjustable against security held by the respondent in the sum of Rs. 48,000/- and further pointed out that the bill raised by WASA in the sum of Rs. 1,90,790/-was being contested by the petitioner and he has undertaken to clear the same and that in view of the matter the order of attachment was harsh and illegal. In the light of the above-noted contentions of learned counsel for the petitioner pre-admission notice was issued. Record further reveals that on account of default in the payment of rent fixed by virtue of the order dated 07.3.2009 against the petitioner/possession of disputed premises was delivered to the respondent on 11.10.2010. Therefore, learned Special Judge (Rent) is competent to determine the final rent due against the petitioner. Reliance be made upon Ghulant Rasool v. Said Rasool and 2 others (PLD 1990 Lahore 457). Simultaneously, learned counsel for the petitioner himself during his preliminary arguments before this Court on 03.5.2011 at preadmission stage categorically stated that the utility bills raised by WASA in the sum of Rs. 1,90,790/7 was being contested by the petitioner and he has undertaken to clear the same.
7. At this juncture it may be expedient to note that the West Pakistan Urban Rent Restriction Ordinance, 1959 stood repealed by the "Punjab Rented Premises Ordinance, 2007 w.e.f. 16.11.2007.
Section 35 of the Punjab Rented Premises Ordinance, 2007 reads below:--- {{BLUR PAGE}} 10 DEA 3(11 if; b901MT515t) "1..;'0,/ 79!.Riliq `ai 1135W19t1 Silt`, :1 If 51ti1' Ifidi 19f111A111 9111 iti fiU011 113nnAttepiteit t)witii,. Staiiiggs lige] It ontteig Pth* if ileitatt.54?009CantriOlion Nil. .3113"Viiiiitiaikkii.95001etteritillibil9319kiiiiterebylretteeitedgh ni liaoe.r:)b ot 91thiii Iliw -13noilikgaitt.;q15rii brut 11.0i,j.c if-: 16'c j bwril tiritywardo-15; wil 1Voas).-124NaMiffillqt1611/1 qter.PCP),-a-f Fe aril .-A.I:-;4v , )
DII1 .10 5:)fu(WiniEm eiJ;Ockfeeding pendingubefore: a ',Richt Cptittlefilielf,. bth41.,..CIfInd .C?(X).(-7- -0I.6 (10 Jillibtrsittoted to the RelitiTribunal ofthe.Distrivilart#e Area and . b5mb Ittno aril 40 nyhtowtitte $liall, be decided by the.Rent:Tribt.#01 ittAgc9rapnce . Lo Y.19/0D51 barnith tOh tikeiprhvisiotes,ofthf repealetiOrdinattgelk, Q00.U...V0 fi .1)511irndui oziE 151..J1(ili-r.J.31).un51)(14.(::. '.:1, :A:5 .Tr,,,,t to iliiiJi, bra; .Pidiativi 1 the ibk ak ap eal ma; be filed a,gainst an oraer. Pas brirm 5.1 ..10.1uuu-in:5m32ourp E.), frr , r y ft ."11 J Walls " l'} .1 I 4) ' a dreiinciiii ft ."11ivEtkiRibtuA,' loilk /the ' .6tit moil wilinuiloctc0P69if Ilir.) J; t.),-mirtodo -toldso-intJrntJtit. 3cii 10t 15411105 c Ordinance: 4rtibrifilzum pOI vyfe.Fla in armImmiy) 5r1; tiliw 1.1130-.) gni1115x tyxtuin.1 bmiirftduz ingtpoqzfrtOigappeavijendiitg:wider,ffhei..Rocoiljefidt.Qweiliwt ;MOy be rg-11151i1w 101(13b- lwArtegidechfikuieieco rdanae :with t thetirwisionsccifp#1,;;Oppled 38flifi6g inffirkainiG. I oatilintuteibtaacti fYlociLi ti(1;;I) n 1,.; al 11J.i..)tie brrIL:51 f.Jr1J 5111 :3111t5d in;WqB, ilri: t1Plliitc,"ochtriltpeitilil6PipoYift'aijii'nar'iterurna'iarepiiTOrdiikince '.31irf t),.,.;..,itni,iff 021B 2.1.;',q I-A(1W .0..i`' I .. I ..'11 1 . * ltie ' shatl exercise' niiiillteileinitillil 114h ticlid (iy e ''Munai and a Rent Registrar till - 14)'aPpg4iigiviiinli :VPidein.114dge n1i,j416 514/1w -mnpii 11(464) ttiict *Rent Registkarifer'..Ithadistrict or the area under bornith muonli; .::;r1) litiiik0frdlititheeirr,7.Iilogif;:i 3S!li1k rJoiai.Lrnbn-lti tit t,,,>-, ,JJ.i. Owl " 1mi '.11 4)(} (Ytypi) '' iVe-.7Mela Vi4Iviailili '6'f)Oiaiii'ailiat-stetittriAad the ...41t Ili 1115bno ot '.!)J-tt ' 05 s, v trill 3:5? J40 ii.:141 ;di/it:pi litili iid I; Milinikei :.Atiz;; :2009 `Ai ItleAP,IP )!1 btjrt; 8rc meet of the :runil to .. ,,f1; ft -111:f? I oivitig y . '1 lc' '''ruct9ralitlit'stbSci'ritiealed. w ereby on I .1 unja 'Rented Premises c Ilii''. ''''''''' ..e'n'llki.'it564 aie9re iodiked as 10 - (ii9Pfl 3. "Awn -`,./d? To ey,,f.Ily ili '' - r;;," 9: I I it: ;,i'1 0: fyrj: ".;,i t 0 J3ii-69 1)91011-9V Wit 51(1 )i9 irtuli aril cif , 111 btis; tiit-Igri Jtsw inwmiosiih. 1-.)1J.Q3.;4 .bthJatvslii \ .,,, 'Repecioeftiirt irahiP gsq-ii )
The,Punjab UrkaiAgRimti-Resqiction `L'ilrily '?Ri bt5tibVitnaitez,;1645:9(Inti?).(Vi1etrISI59), is hereby repoile(l. .,'LA .1)fijli.i b 'jil.Fili.!Ib 10 1 if ::,;/.Ic, ', \ ii . I : ' ,..' 1.,,r;right. .., . L' bz;i.No:21 ..1(;-.1adirr .Apittviihittanding the rcrpeal of the pramieint e Vi of P3914late): I.. . . In,,(le..;)J :Jo] 1)! ,-.15-viv I r.. -.25.Tim.Lci 3111 JEfi it:VI ,91(3)1(19r lialOroeeeding- Pendingfitcfcpx(4 Rograpptroller Aimillitand ?-011ig S. Ii1i1$), 'cAYCIA ').Triutsferred101heiteat;TI#N#104.ifegiel4igrict 0 l:iffili pro? And 'runoilifaci wit -vii 1:);:frthe.Setine sheathe. decidediA)PthfllenfTribunal in accordance --ici ii: it02.It.F.0 Ho '.-I with the provisions of repeale4 gglipqnce; ''''cilui"A2AW (vO b'''-':: an aP pest ins ym o-"e'fillici a gaiiiiii 'a ti'briler- passed under the ?Fid 9d bncs," oilil- Air v iriti...JiwyJ . : ' . 0 ' -" - oh , repeale nuance in 'aecordance with' the Pfbviii irlf the . ,. . . ,51 'IA LITabtm repealed Ordinance: 1:-,..3W 3(1.1 /Mil -;..)Itirt (ii , , , . ,, .- '
0 . 01 appeal pending under the! Repealed Ordinance may be d L ff1:19" 5111 V-4 E3)111"(ltidi gbe(tat"Wdl':.'a 11Laccordance with life ' P Mifikiiohi P.I IQ I 4iiiealed dliwtici wi; 1,, .-F-;:. Ribi, . . . 11.0: t):;,... ,r, ,-,- -.r.() ,,, ---rvJA baJcw:151, Ordinance; and ._ . (d) a Rent Controller appointed under the repealed Ordinance IA.){{BLUR PAGE}} {{BLUR PAGE}} "1"1.115iihii irlietteiiczkathtg411(Regitiii401010tise:clistYfeti40 tke4treaander btu; It5itif; a4t;u1 ):iiWJ ;;:ix.11 btu; w4i1 riiiw oe:171 ; btArib cqv;.; 411M1 AffliivrYa#1#4:1171I (4-A, tiff ,vin*: ;11;11M.Ri ent 111,3tivtAcgfkOn.P64kifffhielgQ,979.9(18P947,41s,,,fiffAEW.Efilft,e4.i 911"r()"'" NdiiffMgstMit)eiWthitig(bii kilned *1'5'09, raw,' &young iwithilv,*kaidthesaw"Acteeke42km, '41iWeillhi.)4tiirehtade, liability incurred or right acquited under the OkliiilithriediXXOP:tif 42007 or Ltd, v1i3infilfrPff#41{9 feFtelOgen,dang,t,a1c4f4,)tifigfe,_,iffeterred or acquired under 11012/75.4 ll'111444t,P1.44NfrifiVin the CiffIr)(?, r the coming into force of this Act, shall be dq00ttf,f4vf, beenotte, taken, made, incurred, or acquired under this - 1.Aazitil?;11) v;.Si
9. In the above factual and legal position it is crystal clear that learned Special Judge (Rent)-- Lahore-while exercising the powers of Rent Controller has the jurisdictiqnotolleterOinfinally the amount of rent/dues from the tenant as well as utility bills pertaining to the period of tenancy till the delivery of the vacant possessiblArifidttputed premises to the landlord and to circiel AtiliayrntrntitnitlICIANdkr4A44,01:**44,401r$0.1919TRuA9i2_,sueh. Order as a decree of Civil Court in teriTote-Scciions 13 and 15 of the West Pakistan Urban Rent Restriction OrdinanCe, 1959. Rule 30,of the Order 21 of the Code of Civil Procedure, 1968'iiiiifillgtie tikeedtkkielition of decree which reads "Decreeciegfpayment,ft fi plowhortAricry,decree for the payment of money,' including a decree for thiPayment of money as the alternative to some other relief, may be detentidit ifi''r-j prison of the judgmetit-debton:vittitioiattochment and sale of his property or by both."
Qmq.Rt,i4 tOrder 2 1,pf ate ;Code of Civil Procedure, 1908 provides the provision of attachment 444 property for execution of the decree. The same is reproduced hereunder for ready reference:- "Attachment in case of decree for rent or" Ni idjits o other r; Wiatter, antotastoollephkkitaheAfthsequently,40ermined.,---Where a decree directstinqinquiryk aei1o,trentiem tttone,3p'oftF opApther matter, ;thepii-optirlyr-p 'the judgmeut-idiall* 401.0Aillfigrfdlifpfirttount due from him lassiilfeen; roc ctlained,, iqtY,:In ;4, igit5P,,,,of an ordinary decree for the payment of money."
11. Careful and accumulative appraisal of the above-quoted provisions of law and facts, therefore, makes it crystal clear that the impugned{{BLUR PAGE}} order dated 01.2.2011 for attachment of the property of the petitioner/judgment debtor passed by learned Special Judge (Rent) does not suffer from any illegality or jurisdictional error.
Simultaneously, order dated 30.3.2011 passed by learned Additional District Judge Lahore dismissing the petitioner's appeal and confirming the order dated 01.2.2011 is also in accordance with law and facts and does not call for any interference by this Court through revisionsal jurisdiction. Reliance is made upon Ashfaq-ur-Rehman v. Ch. Muhammad Afzal (PLD 1968 Supreme Court 230), Syed Akhlaque Hussain v. Habib Ismail Bajwa, Advocate (1974 SCMR 704) and Ghulam Rasool v. Said Rasool and 2 others (PLD 1990 Lahore 457).
12. For the above reasons, I do not find any legal infirmity in the impugned orders passed by learned Courts below. Therefore, this Civil Revision having no merit is dismissed.