ABDUL RAHMAN AURANGZEB, J.:- Through this constitutional petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question vires of order dated 20.03.2014, passed by the learned Civil Judge 1st Class, Lahore, as well as, judgment dated 08.07.2015, passed by the learned Additional District Judge, Lahore, whereby the claim of the petitioner seeking recovery of arrears of rent through execution petition was concurrently dismissed.
2. This case has chequered history . In earlier round of litigation, the matter went up to the apex Court. The facts of the case are that on 15.11.1994, the petitioner filed an ejectment petition against respondent No.1, on the grounds of default and personal bonafide need, regarding House No.84-N, Model Town Extension, Lahore, which was rented out to respondent No.1 on monthly rent of Rs.25,000/-, per-month through a Rent Agreement dated 15.11.1993.
3. Respondent No.1/tenant filed his written statement by denying the relationship of landlord and tenant.
4. The learned Rent Controller, in order to substantiate their claims, directed the parties to produce their evidence. The petitioner produced transfer letter issued by the LDA on 14.11.1993, whereas, respondent No.1 failed to place on record any document with regard to the ownership. Besides this, the learned Rent Controller sent the disputed signatures and thumb impressions of respondent No.1/tenant, on the agreement dated 15.11.1993, alongwith his specimen signatures, to the Expert, whereupon, positive report dated 13.12.1995, was received in the trial court.
5. On 12.06.1996, the learned Rent Controller passed an order under Section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as "the Ordinance", directing respondent No.1, for payment of rent w.e.f. 30.11.1993, at the rate of Rs.25,000/- per-month, fixed in the agreement till 30.06.1996, with a further direction to pay Rs.25,000/- per month as future rent by 15 of each succeeding month till theth decision of the case. The learned Rent Controller further directed respondent No.1 to file receipts of payment of rent.
6. Respondent No.1, being aggrieved from order dated 12.06.1996, filed W.P.No.1 2682 of 1996, before this Court, but the same was dismissed on 12.1 1.1996.
7. Despite dismissal of aforesaid writ petition, respondent No.1 has not complie d with order dated 12.06.1996, under Section 13(6) of the ibid Ordinance and resultantly , the learned Rent Controller proceeded to accept the ejectment petition on 30.11.1996, and passed an order of forthwith eviction of respondent No.1, besides handing over the vacant possession of the rented premises to the petitioner .
8. Present respondent No.1/T ariq Ali Sheikh, filed W.P.No.12782 of 1997, again st the order dated 28.05.1997, passed by the learned Additional District Judge, Lahore, whereby , the appeal against order dated 30.11.1996, filed by the said respondent was dismissed. The said writ petition was also dismissed by this Court vide order dated 14.07.1997. This order was challenged by respondent No.1 before the Hon'ble Supreme Court of Pakistan through Civil Petition No.853 L/1997, but the same was also dismissed on 10.09.1998. Hence, the ejectment order against respondent No.1 attained finality .
9. The petitioner then filed an execution petition before the learned Rent Controller, for restoration of possession alongwith recovery of arrears of rent, which was declined to the extent of arrears of rent, vide order dated 23.12.1998, on the ground of non-maintainability. However, the learned Rent Controller made observations for filing a separate suit for such purpose. This order was assailed by the petitioner through an appeal before the learned Additional District Judge, Lahore, who accepted on 17.07.1999, and the case was remanded back to the learned Rent Controller for determination of arrears of rent, after framing of issues. The judgment dated 17.07.1999 was challenged through W.P.No.23253 of 1999 before this Court by the present petitioner, which was disposed of vide judgment dated 03.11.2003, with the observation that the remand order of learned Additional District Judge is justified. Later on, the possession of the rented premises was handed over to the petitioner on 30.07.2007. It is asserted by the petitioner that on 20.11.1999, after authentication of orders of this Court, following issues were framed:-
1. Whether the decree holder is entitled for the recovery of the arrears of rent from the respondent No.1/judgment debtor , if so, at what rate and to what extent? OPP/Decree holder .
2. Relief.
10. Respondent No.1 was proceeded against ex-parte vide order dated 10.03.2014 , by the learned Rent Controller .
However , the petitioner produced oral as well as documentary evidence in support of his claim, but the same was not accepted by the learned Rent Controller , and resultantly , the claim of the petitioner for the recovery of arrears of rent of Rs.41,00,000/-, w.e.f. 30.11.1993 to 30.07.2007, was dismissed on 20.03.20 14, and appeal filed against the said order also met the same fate, when it was dismissed by the learned Additional District Judge, Lahore, vide judgment and decree dated 08.07.2015. Hence, this constitutional petition.
11. Learned counsel for the petitioner contends that both the courts below have wrongly held in the order of Rent Controller dated 30.11.1996, that no relief of arrears of rent was granted to the petitioner, therefore, he is not entitled to recover the arrears of rent till vacation of the premises. He pointed out that in the execution petition, the arrears of rent was specifically mentioned. He further argued that the Rent Controller does not become functus officio, after passing the ejectment order. He maintained that the judgment passed by the learned Additional District Judge, Lahore, dated 17.07.1999, whereby, the case was remanded to the Rent Controller, for determination of arrears of rent, after framing of issues. The Rent Controller was under obligation to determine the arrears of rent, as the judgment dated 17.07.1999, remained unchallenged, therefore, the executing court had no other choice, except to sort out the arrears of rent through execution proceedings. In support of his contentions, he has placed his reliance on Syed Akhlaque Hussain vs. Habib Ismail Bajwa, Advocate (1974 SCMR 504) and Tariq Ahmad Farooqi vs. Additional District Judge, Lahore and another (2011 YLR 138).
12. On contrary , learned counsel for respondent No.1 has vehemently opposed the contentions of learned counsel for the petitioner and has fully supported the impugned order/judgment, passed by both the courts below , by arguing that the order/judgment, passed by the lower forums are in accordance with law, and no illegality has been committed by the learned courts below while passing the order/judgment, therefore, the same does not require indulgence of this Court, in exercise of its writ jurisdiction. In support of his content ions, he has placed his reliance on Muhammad Tariq Khan vs. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818) and Khawaja Anwar Hassan vs. Naveed Ahmad Chaudhry and 2 others (PLD 2002 Lahore 355 ).
13. I have heard learned counsel for the parties and have perused the record annexed with this petition.
14. Before commenting on the decisions of the courts below , I would like to first reproduce the operative part of order passed under Section 13(6) of the ibid Ordinance, 1959, dated 30.1 1.1996, of learned Rent Controller:- "It appears that the respondent has not complied with the orders as directed vide order dated 12.6.1996 and as such he has committed a wilful default in making the payment of rent. Under the law he is not entitled to any discretionary relief from the Court. Forthwith ejectment orders are passed in favour of the applicant and against the respondent. The respondent is hereby directed to hand over the vacant posses sion of the suit property to the applicant with immediate effect".
From perusal of the initial order , one thing clearly emerges out that the above-order has not finally determine the total arrears of rent. At this very momen t, a glance over the said provision will visualize the implications on the subject. The provisions of Section 13(6) of the ibid Ordinance, is as under:- "In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the [fifteenth] day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. [The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant]".
A linocut of above provision reflects that it consists upon two parts. The first part relates to the direction of the Controller to the tenant to deposit all the rent due from him and if there is any dispute about rent due, the Controller is empowered to determine the rent approximately and direct the tenant to deposit the same. The later part of Section 13(6) of the ibid Ordinance, has the consequences in case of non-compliance of first part, according to which if the earlier part of the provisions has not been complied with, then in case of default, his defence is struck off forthwith, and the tenant is liable to be evicted forthwith. A proviso was further added in Section 13(6) of the ibid Ordinance, by the West Pakistan Ordinance No.XXX of 1960, whereby, the Controller is empowered to determine the final amount of rent due from the tenant.
15. In the instant case, on 30.11.1996, when the Rent Controller exercising, while his powers under the provisions, this act was not done, and straightaway a decree was passed for eviction against the tenant, without final determination of arrears of rent. It is worth mentioning here that the petitioner did not feel any dis-satisfaction from the order of learned Rent Controller , and accepted the decision, in toto, without seeking any further remedy .
16. Now, the sole question is left, when no order of final determination of rent was passed by the Rent Controller .
Can, a Rent Controller in the execution proceedings, travel behind the decree, and have the powers to order for recovery of arrears of rent. Learned counsel for the petitioner has referred Syed Akhlaque Hussain's case (supra) and stated that on the strength of this judgment, which was later on followed in Ghulam Rasool vs. Said Rasool and 2 others (PLD 1990 Lahore 457), the executing court is empowered to order for recovery of arrears of rent.
17. After scanning the referred citations, I am not convinced with the argument of learned counsel for the petitioner .
In the supra judgments, the powers of the Rent Controller was examined and not of the executing court. The mandate of executing court cannot be go beyond the decree, which is a rule of thumb. Moreover , the decree of the Rent Controller , when executed by the executing court, does not empower the executing court under the provisions of Section 17 of the ibid Ordinance, to become a Civil Court, rather its status remains as persona designata , as held in Muhammad Tariq Khan' s case ( supra ).
18. The cardinal principle in the execution of decree is that a decree must be executed in terms, as it derived and the executing court cannot go behind the decree. There is no cavil with this proposition that the decree of eviction was passed in favour of the petitioner on 30.06.1996, who at that time, has not challenged the order of the Rent Controller . Meaning thereby , that after passing of the order dated 30.06.1996, the Rent Controller become "functus officio ", and he is precluded to further add any other direction, except the vacation of the rented premises.
19. The jurisdiction of the Rent Controller has also been examined by this Court in the judgment reported as Khawaja Anwar Hassan vs. Naveed Ahmad Chaudhry and 2 others (PLD 2002 Lahore 355), wherein it has been held that the stage of final determination of rent would only reach, if the determination has been made on the basis of evidence. When a tenant is outrightly ejected from the premises, without conclusion of final determination of arrears of rent, then the decree has to be executed without supplementing any order for recovery of rent. In this way, no prejudice has been caused to the petitioner, who get the possession of the rented premises under the provisions of Section 13(6) of the ibid Ordinance. However, the recovery of arrears cannot be repelled, but the mechanism and forum be shifted from Rent Controller to Civil Court, where on the basis of default of tenant, the landlord may recover the arrear amount of rent by filing civil suit. But for determination of the rent, it is not the mandate of the executing court to go beyond the decree, by calculating the arrears of rent. If by any stretch of imagination, it is to be presumed that the order dated 17.07.1999, in the instant case has given the mandate for determination of arrears of rent, even the principle underlying is whether the same can be recovered, if not awarded in the decree. Therefore, the calculation of the recovery of arrears of rent in no way being treated as the decree of the Rent Controller, to be implemented through executing court. Recurring with distress that no mandate was given to the executing court for the recovery of arrears of rent, therefore, the learned executing court has rightly declined the prayer of the petitioner for recovery of arrears of rent.
20. The agitation of the petitioner that during the proceedings of remand order dated 17.07.1999, the question of determination of rent was allowed to the petitioner and, hence, the petitioner has produced his evidence.
Therefore, the Rent Controller is under obligation to pass orders of arrears of rent. I am not convinced with this agitation that as the order dated 17.07.1999, which remained unchallenged by the judgment-debtor, but even then it does not grant a permission to the executing court to go beyond the decree. As I have earlier relied upon Muhammad Tariq Khan vs. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818), in which the proceedings of the Rent Controller was formulated and a mandate was given to the executing court to execute the decree in terms of the conditions, mentioned in the decree only. The Rent Controller has the only authority to determinate the question relating discharge and satisfaction of the decree. Thus, it is clear that no vigour to further proceed in the matter by the executing court, which was not given to the Rent Controller under the provisions of Section 13(6) of the ibid Ordinance.
21. There is also no authority given to the learned executing court for recovery of arrears of rent, and the execution petition with the prayer of recovery of rent is by itself exceeding in its limits. In this regard, I have to follow Muhammad Anwar and others vs. Mst. Ilylas Begum and others (PLD 2013 Supreme Court 255), wherein on the principle of "A communi observantia non est recedendum" , it has been held that, where the Court required an act to be done in a particular manner , it had to be done in that manner alone and such dictate of law cannot be termed as a technicality . Therefore, the assertion of learned counsel for the petitioner that for the ends of justice, the arrears of recovery of rent be allowed to be awarded in favour of the petitioner is, in no way, can be awarded to the petitioner , because the same was not part of final determination of arrears in favour of the petitioner .
22. The epitome of the above discussion is that the order , as well as, judgment passed by both the courts below on 20.03.2014, and 08.07.2015, are well-reasoned and have been passed quite in accordance with law, which require no further interference of this Court in exercise of its constitutional jurisdiction. Therefore, this writ petition, having no merits and is dismissed , with no orders as to costs.