This revision petition has arisen out of execution proceedings initiated by Muhammad Yaseen respondent No.1 for the ejectment of Muhammad Ilyas respondent No.2 from Shop No. BX-15/S-73/1 situated in Bazar Saidnagri, Gujranwala, in pursuance of order of ejectment, dated 29-10-1980 passed by the Rent Controller in the petition for ejectment filed by respondent No.1 against respondent No. 2 on 3-2-1980. Ghulam Murtaza petitioner who claims to be in possession of the disputed shop in his own right as a tenant under respondent No.1, filed an objection petition in the course of execution proceedings contending that he was not liable to be dispossessed from the disputed shop in execution of ejectment order, dated 29-10-1980, which, according to him, was obtained by respondent No.1 in collusion with respondent No.2. The petitioner's case was that the shop in question was originally leased out to his father Sh. Muhammad Tufail and after his death he occupied the shop and executed a rent note in favour of respondent No.1 and agreed to pay enhanced rent at the rate of Rs.300 per month. On 3-2-1980 respondent No.1 filed ejectment petition against respondent No.2 in respect of the aforementioned shop and got an order of ejectment in his favour on the basis of the statement made by respondent No.2 that he would vacate the rented shop within a period of 2 1/2 years.
2. The learned Rent Controller, who by virtue of amended section 17 of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the Ordinance) was empowered to execute the order of ejectment passed by him on 29-10-1980 as if it were a decree of the civil Court, issued warrants for delivery of possession when on 28-1-1984 petitioner filed objection petition referred to above. Muhammad Yaseen respondent No.1 filed reply to the objection petition controverting the allegations made by the petitioner. One of the pleas taken up by him in the reply was that the petitioner's objection petition was not maintainable as the provisions of Order XXI, rule 100, C.P.C under which the petition was sought to be filed were not applicable to the execution of ejectment order of the learned Rent Controller. This plea was upheld by the learned Rent Controller and the objection petition was dismissed by him on 19-4-1984. The petitioner filed an appeal against the order of the learned Rent Controller but that too was dismissed by the learned District Judge on 28-5-1985. The petitioner has assailed 'the afore mentioned orders by filing the present revision petition.
3. Learned counsel for the petitioner has contended that in the absence of any specific procedure provided in the Ordinance for execution of order of ejectment passed by the Rent Controller, the general provisions governing execution of decree passed by a civil Court contained in the Code of Civil Procedure, 1908 would be applicable to the execution of order of ejectment, which, according to section 17 of the Ordinance is to be treated as if it were a decree of a civil Court. The learned Rent Controller, while executing the order of ejectment would be exercising the powers of an executing Court under the Code of Civil Procedure, 1908. He, therefore, would be legally competent to deal with a petition filed during the course of execution proceedings under Order XXI, rule 100, C.P.C. In support of his above contention he has relied on Quality Steel Corporation v . Ch. Muhammad Tufail 1984 CLC 2255, Shehzad Ahmad v . Muhammad hayat PLD 1983 Lah. 234 and Messrs Bambino Ltd. v. Selmor International Ltd. And another PLD 1983 SC 115.
4. Learned counsel for the respondent, on the other hand, has submitted that the Rent Controller is not a Court. He cannot exercise the powers of an executing Court even while executing the order of ejectment passed by him. He cannot deal with a petition under Order XXI, rule 100, C.P.C. Because for the disposal of the petition it is necessary that all questions arising as to title, right or interest in or possession of disputed property between the petitioner and the opposite party are adjudicated upon and determined by a Court as no separate suit lies for the determination of any such matte:.
In support of his above contention, he has placed reliance on Mst. Gulzar Begum v. Riaz Malik and 3 others 1985 CLC 93, Siraj Din v. Sardar Begum NLR 1984 Civil 144 and Abdul Hamid v. Abdul Waheed 1983 CLC 3075.
5. The above controversy has arisen after the promulgation of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979 (Ordinance IX of 1979), when section 17 of the Ordinance was substituted by the following new section 17:-- "17. 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.
The old section 17 of the Ordinance was as under:- "17. Execution of orders.-- Every order made under section 10 or section 13 and every order passed in 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.
The change brought about by the new section is that order passed by the Rent Controller under the sections referred to in section 17 or the appellate authority under section 15 can be executed by the Rent Controller as if the same were a decree of a civil Court. Previously such orders were executed by the civil Court having jurisdiction in that area. The object of the new provision was to avoid delay in execution of the orders under the Ordinance because under old section 17 persons seeking execution of orders were required to apply to the civil Court having jurisdiction in the area as the Rent Controller was not competent to execute these orders. There was no difficulty in the execution of orders by the civil Court as the procedure provided for execution of decrees in the Code of Civil Procedure, 1908, was applicable and the objection petitions filed in the course of execution proceedings were disposed of by the Court. But after substitution of the old section '17 by new section 17 orders passed by the Rent Controller and the .Appellate authority under the Ordinance are to be executed by the Rent Controller. Now the question arises what procedure should be followed by him while executing orders referred to in section 17. There is no dispute that every order referred to in section 17 is to be executed as if it were decrees of a civil Court. But no provision has been made in the Ordinance that the procedure applicable to execution of decrees as contained in the Code of Civil Procedure 1908 shall be applicable to execution of orders by the Rent Controller.
6. In the absence d such provision, it may be said that the general principles applicable to execution of decree of a civil Court may be followed by the Rent Controller. Provisions relating to execution of decrees and orders are contained in Part II (Sections 36 to 74) and Order XXI in the First Schedule of Civil Procedure Code, 1908. These provisionally are based on equitable principles and may be applied by the Rent Controller as far as it is practicable. But such of these provisions which require adjudication and determination of questions of title, right and interest of parties to property as a Court and bar institution of separate suit in Court would not be applicable in case of execution of orders by the Rent Controller. He may have the power under Order XXI, rule 97, C. P. C .
To deal with a case where delivery of possession of the property is resisted or obstructed by the person against whom execution of the order has been sought or by some other person at his instigation or on his behalf. But it would not be legally possible for him to deal with a case where resistance or obstruction to delivery of possession of the property is occasioned by a person other than the person against whom order sought to be executed is passed because the Rent Controller has no power to adjudicate upon and determine questions arising as to title, right or interest in or possession of immovable property in such a case as the same fall within the jurisdiction of a civil Court. The Rent Controller is not a Court as has been held in Major (Rtd) Fazal Muhammad Khan v.
Sardar Khan and others PLD 1980 Lah. 33 and Khadim Mohyuddin v. Rehmat Ali PLD 1965 SC 459.
He has no jurisdiction to pass a decree with the result that he cannot deal with a petition under Order XXI, rule 100, C.P.C. The intention of the Legislature while empowering the Rent Controller to execute orders under section 17 of the Ordinance was not to confer upon him the powers of a Court.
It would not be fair to draw such inference by the mere fact that through a legal fiction, every order, referred to in section 17 is deemed to be a decree of a civil Court. There is no doubt that deeming clause in a statute is commonly used for he purpose of creating a statutory fiction and while interpreting such provisions full effect should be given to it as was observed by Lord Asquith in East and Dwelling Company Limited v. Finsbun Borough Council 1952 A C 109:- "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidence, which, if inevitably, have floated from or accompanied it. One of these in this case is emancipation from the 1939 level of rent. The statute says that you must imagine a certain state of affairs, it does not say that having done you must cause or permit your imagination to boggle when it comes to inevitable corrolaries of that state of affairs."
This principle was also reiterated by the Supreme Court of India in State of Bombay v. Pangrang Vinayuk AIR 1953 SC 244 and it vas held that when statute enacts that something shall be deemed to be, which it is not, the Court is bound to give full effect to the statutory fiction and it would be carried to its logical conclusion. But it may also be noticed that the Court while interpreting such provision in a statute is not precluded from finding out the purpose for which the statutory fiction was created. In re -Levy Ex parte Walton 17 Ch. D at page 756 James, L.J.
Observed:- "When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to..."
The above principle was stated in Shaukat Ali v. Settlement and Rehabilitation Commissioner Lahore PLD 1965 (W.P.) Lah. 445 in the following terms:- To us it appears that the Court in looking at the deeming clause has to give effect to the real scope to the legal fiction without prejudice. In the first instance, the Court has got to determine the limits within which and the purposes for which the Legislature has created the fiction. This has to be determined by reference to the words used in the statute creating the fiction and full effect must be given to their natural meaning unless by doing, the very purpose of creating the fiction is defeated."
Viewed in the light of the above rule of interpretation the expression "as if it were a decree of a civil Court" used in section 17 would mean that every order referred to in the section, which otherwise lacks the characteristics of a decree of a civil Court would be treated as decree for the purpose of execution. By legal fiction these orders have become decrees, but the person upon whom the power to execute these decrees has been conferred has not become a Court as the legal fiction only makes the orders referred to in section 17 decrees and nothing more. Old section 17 of the Ordinance also contained deeming provision by which every order, referred therein, was made executable by a civil Court as if it were a decree of that Court. This provision was examined in Muhammad Ahmad Nasir v. S.M. Almas Ali PLD--1971 Lah. 131 and it was held that the provisions of section 17, under which an order of the Rent Controller is to be executed by a civil Court having jurisdiction in the area as if it were the decree of that Court, deals with the manner in which the orders of the Rent Controller are to be executed by a civil Court and it does not convert a Rent Controller into a Court.
7. By extending the scope of legal fiction under section 17 so as to confer the power of a Court on the person authorised to execute the orders as decrees certain anomalies would arise for which there may not be any satisfactory solution. After the amendment of Order XXI, rule 103, C.P.C. By the Law Reforms Ordinance, 1972 questions arising as to title, right or interest in or possession of immovable property of the applicant under rule 100 and the opposite party are required to be adjudicated upon and determined by the Court executing the decree as no separate suit is competent for the determination of any such matter. Now if the Rent Controller is empowered to deal with a case falling under Order XXI, rule 100 any order passed by him would amount to decree, which can be challenged only in appeal by the aggrieved party, but can the Rent Controller pass a decree as defined in section 2(2), C.P.C. If the answer be in the affirmative, the next question would be what would be the forum of appeal against such, decree. The civil Courts Ordinance 1962, which determines the forum of appeal would not be applicable as it would not be a decree passed by a civil Court, nor there would be any material available for determining the value of the subject- matter for finding out the forum of appeal. Section 15 of the Ordinance would be inapplicable as the order passed by the Rent Controller, while disposing of an application under Order XXI, rule 100, C.P.C. Would not be an order finally disposing of an application made under the Ordinance within the meaning of section 15(1) of the Ordinance so as to confer jurisdiction on the District Judge to hear the appeal. If the order passed by the Rent Controller is treated as a decree to which the provisions of Civil Procedure Code are applicable, will it be possible to invoke the provisions of section 102, C.P. C. Where the value of the property, subject-matter of the proceedings before the Rent Controller, exceeds Rs.50,000. The above questions and many similar questions may arise for which it may be difficult to find satisfactory answers. In Rehmat Ullah v. Ali Muhammad 1983 SCMR 1064 while considering the scope of jurisdiction of the Rent Controller under section 13 of the Ordinance it was held that the Rent Controller would be competent to determine question of title, where it is necessary for deciding the real issue regarding relationship of landlord and tenant between the parties. However, it was also observed:- "It is in this context that the next question arises, whether in the proceedings under Rent Restriction Ordinance, a party can be left to seek remedy /declaration from the civil Court, if so which one. One answer can be given straightaway. Whatever, the jurisdictional delicacies might emerge in the examination thereof, the fact remains and the law is clear that either of the party can (and in proper cases, should as a matter even of due caution) offer to go to the civil Court with necessary temporary adverse consequences injurious to it vis-a-vis the Controller his higher forum."
In the same case at page 1081 it was observed:- "However, in the event where a Rent Controller feels that a complicated question requiring a protracted inquiry would be necessary for deciding a particular question such as for instance whether a party claiming to be the owner of the property and is, therefore, the landord of the person occupying it, cannot in view of the demands of the law to decide questions of the existence of the relationship of landlord and tenant expeditiously be undertaken by him, he can observe that such a question should be decided by a Court of general jurisdiction, namely, the ordinary civil Court and this finding should be specifically recorded by him in his Order."
The observations made at page 1073 reproduced above were also referred to in Province of Punjab v . Abdul Ghani PLD 1985 SC 1 while examining the scope of jurisdiction of the Rent Controller under section 13(2)(c) of the Ordinance. It is evident that the decision in Rehmat Ullah's case noticed above has not conferred upon the Rent Controller jurisdiction of a civil Court so as to enable him to pass a decree within the meaning of section 2(2), C.P.C. It is only in exceptional cases, where the Rent Controller, while exercising jurisdiction under section 13 of the Ordinance finds it necessary that the question of, relationship of landlord and tenant between the parties cannot be determined without touching the question of title that his decision with regard to title may be construed as binding on the parties. But even in such cases it is more appropriate for the Rent Controller to follow the course stated in the aforementioned judgment of the Supreme Court and leave the parties to have the question of title to the property in dispute determined by the civil Court. It may also be noticed that the anomalies stated in the earlier part of the judgment may not arise in the case of a decision on the question of title by the Rent Controller under section 13 of the Ordinance because the order of the Rent Controller being an order passed under the Ordinance would be liable to be challenged in appeal before the District Judge under section 15(1) of the Ordinance.
8. The first case relied upon by the learned counsel for the petitioner is Quality Steel Corporation v.
Ch Muhammad Tufail 1984 CLC 2255. In this case, the petitioner had filed objection petition in the course of execution proceedings contending that the order of ejectment passed in respect of the disputed shop against one Sirajul Haq was not executable against the petitioner as the disputed shop was occupied by the petitioner in his own right and not on behalf of Sirajul Haq. The petition was dismissed by the Rent Controller and the order passed by him was upheld in appeal. The petitioner filed revision petition challenging the orders of the Rent Controller and the Appellate Authority. Relying on the decision in Zahoorul Hassan v. Ruqayya Begum and others PLD 1981 SC 112 the revision petition was dismissed as being incompetent in view of the provisions of section 15(7) of the Ordinance. The petitioner meanwhile had also instituted a suit for declaration that he was in possession of the disputed shop in his own right and that the order of ejectment passed against Sirajul Haq was not executable against him. The plaint in the suit was rejected by the trial Court on the ground that in view of the provisions of Order XXI, rule 103, C.P.C., the suit instituted by the petitioner was not legally competent. The above order was affirmed in appeal by the learned Additional District Judge. The petitioner challenged both the orders in revision, but that too was dismissed as it was held that the view taken by the Rent Controller and the Appellate Authority was correct and the question raised in the suit could be legally adjudicated upon by the Rent Controller during execution proceedings and, therefore, the suit was barred under Order XXI, rule 103, C.P.C.
Reliance was placed in this behalf on Shehzad Ahmed and others v. Muhammad Hayat and others PLD 1983 Lah. 234.
9. It may be noticed that on the one hand it was held that the learned Rent Controller was legally competent to decide objection petition filed under Order XXI, rule 100, C.P.C. And that rule 103 of Order XXI barred a separate suit in such a case but at the same time it was held that the order passed by the learned Rent Controller rejecting the objection petition in the course of execution proceedings could not be challenged in revision in the High Court as it was an order passed by the learned Rent Controller under the Ordinance to which finality was attached subject to the decision of the Appellate Authority, by virtue of subsection (7) of section 15 of the Ordinance. If the order rejecting the objection petition was to be treated as a decree in view of the definition of the term in section 2(2) C.P.C. The same could be challenged in the High Court in exercise of its revisional jurisdiction under section 115, C.P.C., but, on the other hand, if the above order was to be considered like any other order passed under the Ordinance the provisions of Order XXI, rule 103, C.P.C., were not attracted and the bar against filing of a suit in a civil. Court contained in Order XXI, rule 103, C.P.C., was not applicable. It is anomalous to treat the order of the Rent Controller rejecting the objection petition as an order under the provisions of the Ordinance and at the same time invoke the provisions of Order XXI, rule 103, C.P.C. When suit is filed in a Court by the objector. In the case of Shehzad Ahmad relied upon in the above case it was held that where a person bona fide considered himself to be in possession of the suit property in his own independent right, he could obstruct execution of decree by virtue of Order XXI, rule 97, C.P.C., and could also file petition for restoration of possession, if dispossessed from such property, under rule 100. Reliance was placed in this connection on Mst. Khurshid Begum v. Ghulam, Kubra 1982 SCMR 90. But in this case order of ejectment passed by the Rent Controller was executed by the civil Court under the provisions of old section 17 of the Ordinance and so it was held that an objection petition under Order XXI, rule 100, C .P. C., could be entertained by the executing Court. In none of the cases cited above question as to whether the Rent Controller, while executing order under section 17, could exercise the powers of a Court came up for consideration.
10 Reliance has also been placed by the learned counsel for the petitioner on Messrs Bambino Limited v. Messrs Selmor International Limited PLD 1983 SC 155. It was a case under the Sind Rented Premises Ordinance, 1979 (Ordinance XVII of 1979). Section 22 of the said Ordinance dealing with execution of orders provides that an order made by the Controller or by the appellate Court shall be executed in such manner as may be determined by the Controller or as the case may be, the Appellate Authority. Keeping in view the above provisions and the provisions of section 17, which empowers the Controller to award compensation to the tenants for frivolous or vexatious application filed by the landlord for eviction, and section 19(2), which empowers the Controller to make as ex parte order and section 20, which confers on the Controller, the power of a civil Court regarding summoning and enforcing the attendance of witnesses and compelling the production of documents and issuing commission for examination of witnesses, it was held that the Rent Controller was free to follow equitable principles contained in the Code of Civil Procedure and as such the provisions of Order XXI, rules 100 and 101, C.P.C., were applicable to execution proceedings.
In 'the Ordinance, there are no parallel provisions to section 22 of the Sind Rented Premises Ordinance, 1979 with the result that the Rent Controller is not free to follow any procedure in execution of order under section 17. The questions whether the Rent Controller, while executing order acts as a Court and whether the order passed by him in an objection petition under Order XXI, rule 100, C.P. C. , amounts to a decree, did not come up for consideration in the above case.
11. It was on the basis of section 21(1) of the Sind Rented Premises Ordinance 1979 that it was held that an order passed by the Rent Controller in execution proceedings could be challenged in appeal before the High Court. Section 21(1) of the Sind Rented Premises Ordinance 1979 is as under:- "21. Appeal.--(1) Any party aggrieved by an order, not being an interim order made by the Controller, may, within thirty days of such order, prefer an appeal to the High Court." Section 15(1) of the Ordinance, which deals with appeals is reproduced below: - "15. Appeal.--(1) Any party aggrieved by an order of the Controller finally disposing of an application made under the Ordinance, may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated: Provided that no appeal shall lie against an order made by a Controller under subsection (6) of the section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due: Provided further that no appeal shall lie from an interlocutory order passed by the Controller."
There is a marked difference in the provisions of the two Ordinances. Under section 21(1) of the Sind Rented Premises Ordinance 1979 right of appeal is available against an order not being an interim order made by the Controller while the right of the appeal under section 15(1) has been given only against an order of the Rent Controller finally disposing of an application made under the Ordinance. An objection petition under Order XXI, rule 100, C.P.C., is certainly not an application under the Ordinance, and, therefore, any order passed in such application by the Rent Controller cannot be challenged in appeal under section 15(1) of the Ordinance. The position under section 21(1) may, however, be different as on the basis of the language used therein an appeal against such order may also lie to the High Court. Thus the view taken in the case cited above is distinguishable in view of the different provisions of the two Ordinances.
12. The question of jurisdiction of a Rent Controller while executing orders under section 17 has been considered at length in Mst. Gulzar Begum v. Riaz Malik 1985 CLC 93 and the following passage from the judgment is relevant in this behalf:- "This inference is also fortified by another argument. The existence of relationship of landlord and tenant is the foundation of the jurisdiction of the Rent Controller. If a person other than a tenant is, arrayed before him, his jurisdiction cannot be extended to adjudicate upon the rights of such person and give him any relief. The power to pronounce upon the rights of a third party, is a very substantive power and unless such a jurisdiction is expressly conferred on the Rent Controller, he has no authority to exercise it. Only a Court of general jurisdiction is competent to make such a determination. This reasoning also provides an answer to the argument of the petitioner's learned counsel that the Rent Controller can choose to follow any procedure, not opposed to equity, and make use of any of the provisions of the C . P . C . Since an ejectment order has to be executed by him as if it were a decree of a civil Court, any departure from the relevant provisions of C.P.C. Is not permissible. Of course, the provisions relating to the filing and hearing of the objections, stand excluded. In the execution proceedings, therefore, the Rent Controller, cannot have a free hand to follow any procedure, particularly when the very ground on which an objector comes before him, is founded on the negation of the existence of relationship of landlord and tenant."
In this case the judgments relied upon by the learned counsel for the petitioner were also examined. Muhammad Shafi v. Muhammad Salim PLD 1982 Lah. 435 where a similar view has been taken as in Quality Steel Corporation's case was also considered by the learned Judge. Messrs Bambino Limited's case was distinguished on the ground that the provisions of section 22 of the Sind Rented Premises Ordinance 1979 were not similar to the provisions of section 17 of the Ordinance. Respectfully agreeing with the learned Judge I hold that a Rent Controller not being a Court cannot exercise the jurisdiction of a Court of general jurisdiction and deal with question of title etc. In respect of property while executing orders under section 17 of the Ordinance. The impugned order, dated 19-4-1984 of the learned Rent Controller rejecting the objection petition of the petitioner and order, dated 28-5-1985 of the learned District Judge whereby appeal against the aforementioned order was dismissed do not suffer from any jurisdictional defect and as such cannot be interfered with by this Court in exercise of revisional jurisdiction. The result is that the revision petition is dismissed but having regard to the intricate legal question raised in this revision petition parties are left to bear their own costs.
A.A.Revision dismissed