S M ATTIQUE SHAH J. Through instant Revision petition, petitioner has challenged impugned findings of the learned courts below through which learned Executing Court dismissed Execution Petition No.51/10 of the petitioner; which findings were af firmed by the learned Appeal Court as well; while dismissing petitioner's appeal.
2. Succinctly narrated facts of the case are, that an Ejectment Petition was filed by the petitioner against the respondent before the worthy Rent Controller , Peshawar , wherein the respondent put appearance and was directed to deposit the Tentative Rent at the rate of Rs. 87,846/- from Jan, 2014 vide order dated 23.10.2014; but, he failed to comply with the ibid order; hence, his defence was struck off. The said order was challenged by the respondent before the learned Appeal Court; albeit, the same was also dismissed upon his failure to comply with order dated 15.4.2015 qua deposit of tentative rent.
3. Subsequently , petitioner filed an Execu tion Petition, wherein possession of the premises in question was handed over to the petitioner and; to this effect, statement of his counsel was also record ed and; execution petition was consigned to the record room.
4. Later on, petitioner approached the learned executing Court for recovery of the outstanding rent against the respondent; however , the same was dismissed; which order was also affirmed by the learned Appeal Court; while dismissing appeal of the petitioner; hence, instant petition.
5. Learned counsel for the petitioner vehemently contended that the impugned findings of both the learned courts below are illegal; being against the material available on record of the case; further , that after striking off defence of the respondent upon his failure to deposit the tentative rent, followed by possession of the premises in question, the worthy Rent Controller became functus officio and; therefore, there was no requirement for final determination of the rent due; rather , the tentative assessment earlier made by the worthy Rent Controller was sufficient qua recovery of outstanding rent, as the same was merged into the order of striking of defence of the respondent and; the same was liable to be recovered through execution petition filed before the learned Executing Court.
6. Conversely , learned counsel for the respondent strongly controverted the submissions so made at the bar by the learned counsel for the petitioner and; contended that the outstanding due rent could only be recovered through a recovery suit so filed before a Civil Court; because, once an order of eviction is passed; the worthy Rent Controller becomes functus officio. Further , that impugned findings of both the learned courts below were based upon proper appreciation of law; which needs no interference by this Court in instant revision petition and; prayed for dismissal of instant petition; being devoid of merit.
7. Heard; record carefully gone through.
8. In the ibid background and in order to arrive to a just and proper conclusion, provisions of Sub-section 6 of S. 13 of the Urban Rent Restriction Ordinance, 1959 are reproduced below:- "In proceedings under this section on the first date of hearing or as soon as possible after the date and before issues are framed, the Controller shall direct the tenant to deposit 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 5 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 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 may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
The ibid provision clearly suggests that worthy Rent Controller shall pass an order for deposit of tentative rent and; upon his failure to so, the defence of tenant would be strike off and; possession of the premises shall be handed over to the landlord by passing an order of eviction against him. Whereas, the second part of the ibid provision clearly envisages that the worthy Rent Controller shall finally determine the rent due against the tenant and a direction would be made for its deposit.
9. Whereas, S. 17 of the ibid Ord: provides that every order made under Ss. 10, 13 & 13-A by the worthy Rent Controller or every order passed on appeal under S. 15 shall be executed by the worthy Rent Controller; albeit, as per amendment introduced in the ibid section by Khyber Pakhtunkhwa in the year, 1979, the final determination of the rent due by the worthy Rent Controller , would be recoverable in execution proceedings before a Civil Court, as it was a decree passed by it. The relevant amendment is reproduced below: Amendment of S. 13 of W est Pakistan Ordinance, VI of 1959:
5. In S. 13 of the said Ordinance ---
(a) ....
(i) .....
(ii) ....
(b) in sub-section (6) the following shall be added at the end, namely: "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."
10. Keeping in view, the ibid scenario, precise question before this Court is that whether in absence of a final determination of the rent due against the tenant, the tentative assessment of the rent could be considered as final determination and; the same could be recovered as such in execution petition before the worthy rent controller or before the Civil Court in execution petition. The ibid question came up for hearing before the august Apex Court in the case of "Rabnawaz vs. Haji Muhammad lqbal and 2 others", PLJ 2003 SC 744. Wherein, it was held that; Order passed by Rent Controller--Execution of--Order passed under S.13 of Ordinance 1959, or an order passed on appeal would be directly executable by Civil Court as if it were a decree of Civil Court--In N.W.F.P Rent Controller can finally determine amount of rent due and can direct same to be paid to landlord with only condition that same would be placed before Civil Court which would treat same as it a decree passed by itself--Leave to appeal was refused."
This Court in 2001 CLC 1819 [Peshawar] "Muhammad Daud vs Mst. Surriya lqbal and 3 others" also held that; "Once the Rent Controller , in North-W est Frontier Province, passed an order in the shape of final order it would become functus officio like the Cantonme nt Rent Controller and execution procee dings would not directly be filed before the Rent Controller who would become functus officio---Execution proceedings, in circumstances, were required to be filed before the Senior Civil Judge who could either execute the order himself or entrust the same to any other Civil Court having jurisdiction in the area---Filing of execution proceedings before the same Rent Controller who had passed the ejectment order was a procedural irregularity committed on account of confusion that the same entity happened to be Rent controller as well as a Civil Judge."
Likewise, this Court in its judgment reported as 2017 YLR Note 166 titled "Irfan Younas vs. Akhtar All etc", held that in cases where tentative order has been passed and the defence had been struck off in terms of sub-section 6 of S. 13 of the Ordinance, then, Rent Controller being bound by the word "shall" in second part of sub-section 6 of S. 13 is to finally determine the amount of rent and thereafter render direction to the tenant to pay the same to the landlord, irrespective of the fact whether , any tentative order of rent in terms of first part of sub-section 6 of S. 13 of the Ordinance had already been rendered or not at all.
11. In view of above, this Court has no hesitation in holding that after passing an order for eviction of the tenant, the worthy rent controller shall finally determine the factum of the rent due and would direct for its payment; whereafter , the same shall be recoverable through an execution petition filed before the learned executing Court (Civil Court); which shall execute the same in a manner , as it was a decree passed by it.
12. So far as, contention of the learned counsel for petitioner that in absence of final determination of the rent due, tentative assessment of the rent could be considered as final determination of the rent due and; the same could be recovered in execution petition is concerned; I am afraid that the ibid interpretation would be of any help and support to the petitioner . As provisions of the ibid sub-section 6 are clear enough, which explicitly provides that "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" therefore, the ibid interpretation so forwarded by the learned counsel of the petitioner is not worth consideration.
13. The ibid discussion, led this Court to irresistible conclusion that the impugned findings of the courts below are illegal; being against the explicit provision s of law applicable therewith and the material available on record of the case; hence, the same are liable to be set aside.
14. Moreover , the petitioner could not be allowed to suffer due to the illegality committed by the worthy rent controller by not finally determining the factum of the rent due, after striking off the defence of respondent; therefore, instant petition is allowed, the impugned findings are set-aside and; the matter in hand is sent to the worthy Rent Controller to pass an appropriate order qua the rent due in terms of sub-section 6 of section 13 of the ibid Ordinance. Whereafter , the same could be executed in conformity with the provisions of section 17 of the ibid act (KP Amendment) if the petitioner so desires and advised.