' Through this revision petition, Mst. Zahida Begum has challenged the orders, dated 6-5-1987 passed by the learned Civil Judge, Peshawar and dated 25-5-1987 passed by the learned District Judge, Peshawar whereby the former 'dismissed her objection petition in the execution proceedings filed by Abdul Aziz (respondent No,1 herein), for the execution of the eviction order passed by the learned Rent Controller, dated 30-10-1977 against Said Ali (respondent No,2 herein), and the latter dismissed her appeal in limine.
2. There has been protracted litigations between the parties, originating with the filing of a simple eviction petition by Abdul Aziz, respondent No,1, against Said Ali respondent No,2, in respect of house numbering T-341/342, situated in the area of Shah Dhand Inayat Garhi, Tehsil and District Peshawar, the boundaries whereof are described in the original petition, dated 2-10-1977, registered as 46/RC of the year, 1977. A regular rent deed had been executed by the respondent No,2 in favour of respondent No,1, copy annexed with the petition. The respondent No,2 did not contest the petition but instead a written compromise was filed on which the statements of the parties concerned were duly recorded and on the strength thereof, the learned Rent Controller, vide his order, dated 30-10- 1977, passed the order of eviction against respondent No,2 in favour of Abdul Aziz respondent No,1.
However, in view of the terms of the compromise, the tenant/respondent No,2 had to enjoy the possession of the property for one year, during which period he was to pay the rent to the landlord/respondent No,1 and thereafter was to surrender possession to the landlord/respondent No,1 failing which, the order was to be executed according to the normal procedure allowed under the law. It appears that the compromise was not honoured and the landlord/respondent No,1 had to move the executing Court for redress. To defeat the same, Ali Jan respondent No,3 filed a declaratory suit to the effect that he was owner of the suit property, that the respondents Nos.1 and 2 had no right or interest in the same and that the order of the learned Rent Controller, dated 30- 10-1977 was illegal, based on fraud and collusion and ineffective against his rights. As a consequential relief, he also prayed, that the execution of the order of eviction of respondent No,2 may be suspended. This suit was contested by Abdul Aziz respondent No,1 and in his exhaustive written statement he, inter alia, challegned the competency of the suit as well. After framing necessary issues in the case, the learned Civil Judge, who was seized of the case, after hearing the counsel for the parties on the issue of competency, came to the conclusion that the suit was not maintainable under Order 21 rule 103 of the Civil Procedure Code and dismissed the same, vide his order dated 28-9-1981. The appeal filed against the same was also dismissed by the learned Additional District Judge-I Peshawar vide his order dated 12-1-1984 wherein, besides the reasons advanced by the lower Court, it was additionally observed that the orders of the Rert Controllers were immune from attack u/s.15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
Mst. Zahida Begum petitioner herein, who is admittedly the daughter-in-law of the respondent No,3, Ali Jan, filed an objection petition before the learned Civil Judge, Peshawar wherein she objected to the execution of the order of the Rent Controller, dated 30-10-1977 on the ground that the suit property had been gifted to her by Ali Jan, respondent No,3, vide deed dated 9-2-1983, copy Exh. OW1/2, on the file, in lieu cf her dower, in consideration of her marriage with Aurangzeb, the son of the said Ali Jan. This objection petition had to be contested by respondent No,1 and after recording such of the evidence as the parties wished to adduce before him, pro and contra, their respective allegations, the learned Civil Judge, Peshawar vide his order, dated 6-5-1987 dismissed the same holding that the alleged transfer in favour of the Objector having been effected during the pendency of the suit for declaration filed by Ali Jan, the transfer, against Abdul Aziz respondent No,1, which ultimately failed, was hit by the principle of lis pendens. Her appeal against the same was dismissed in limine vide order, dated 25-5-1987. Hence the present revision petition.
3. I have heard the learned counsel for the parties and have carefully perused the entire record pertaining to the matter in issue with their assistance.
4. The learned counsel for the petitioner at the outset, read out, section 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959 from the book in his possession and tried to emphasise that the impugned order, dated 6-5-1987 was passed by the learned Civil Judge Peshawar in his capacity as a Rent Controller, because according to him, the Rent Controller was empowered to execute his own orders as if it were a decree of a civil Court. When he was questioned that the Rent Controllers had no such powers under the original text of the said Ordinance, his reply was that section 17 has since been amended by the Provinces of Punjab as well as N.-W.F.P. Through amending Ordinances, co-incidentally both bearing No, IX of 1979. This necessitated the perusal of both the amending Ordinances and since both of them are not to the same effect, it is worthwhile to reproduce both of them, so far as the amendment in section 17 isconcerned:- PUNJAB URBAN RENT RESTRICTION (AMENDMENT)
ORDINANCE, 1979 (ORDINANCE IX OF 1979)
6. Substitution of section 17 of Ordinance VI of 1959.--In the principal Ordinance for section 17 the following shall be substituted, namely:- "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."
NORTH-WEST FRONTIER PROVINCE URBAN RENT RESTRICTION (AMENDMENT) ORDINANCE, 1979 (ORDINANCE IX OF 1979)
"9. Amendment of section 17 of W.P. Ordinance VI of 1959:-In the said Ordinance, in section 17, after the figure "13" the words and figure "of section 13-A" shall be inserted.
5. The perusal of the above amendments would make it clear that section 17 of the pest Pakistan Urban Rent Restriction Ordinance has been totally substituted by the Punjab Amending Ordinance IX of 1979 and according to the substituted provisions, the Rent Controllers of course of that Province, have been invested with powers to execute their orders as if they were decrees of the civil Court.- However, the Amending Ordinance IX of 1979 promulgated by N.-W.F.P. Has simply added section 13-A after the- figure 13 in the original text of section 17 of the Rent Restriction Ordinance and the powers of the civil Courts to execute the orders of the Rent Controllers as if it were a decree of civil Court, were not interfered with. The latest editions of the books on rent laws, normally cited in Courts do not contain this distinction, with the result that the Courts, presuming that upto date amendments must have been correctly incorporated in the books, are misled and describe themselves as Rent Controllers, as in the instant case, while passing any order in the execution proceedings. The correct legal position, therefore, is that in this Province, the Rent Controllers have, so far, not been invested with the powers to execute their own orders as if they were decrees of civil Courts and that powers still are exercisable by the civil Courts.
6. Consequently, the learned Civil Judge while executing the order of eviction dated 30-10-1977, passed by the learned Rent Controller, was acting as a civil Court and was possessed of all the powers available to him under the Civil Procedure Code, as if he was executing the decree of civil Court. The aggrieved persons could file objections before him as executing Court and the petitioner's objections were, therefore, legally entertainable. Nevertheless, it is well settled that the Executing Courts cannot go behind the decrees, and in the instant case, behind the order of the Rent Controller. Since the Rent Controllers have limited jurisdiction and their orders are based on the existence of the relationship of landlord and tenant, irrespective of the ownership of the property, the Executing Courts too, cannot go into the question of ownership while executing the orders of eviction passed by the Rent Controllers. The instant eviction order was passed on the clear admission of tenancy by respondent No,2 and the petitioner, has no right to question the legality of the eviction order.
7. The petitioner has admitted that the respondent No,2 was in possession of the suit premises at the time of the institution of the eviction petition, as well as at the time when the eviction order was passed against him on 30-10-1977 by the Rent Controller. There is abundant documentary evidence on the file to show that the relationship of landlord and tenant existed between the respondents Ncs. 1 and 2, since prior to the institution of the eviction petition, and there was no fraud practised upon the Rent Controller at the time of the passing of the order 'of the eviction. The respondent No,2 has not been produced by the petitioner to depose that the compromise enterd into between him and respondent No,1 or the rent deed executed by him in favour of respondent No,1 were the result of fraud. Additionally the petitioner has not been able to link the house in question with the property allegedly gifted to her by her father-in-law respondent No,3. The mere fact that Ali Jan respondent No,3, the donor of the petitioner, purchased some area out of Khasra No,164, from Abdur Rashid father of respondent No,1 and gifted a portion thereof in favour of the petitioner, would not entitle them to lay claim to the built house owned and possessed by respondent No,1 and tenanted by respondent No,2. The order of Rent Controller, dated 30-10-1977 is not proved to be the result of collusion between respondents Nos.1 and 2 but the collusion appears to be the other way round and the probability is that respondent No,2 after enjoying the possession of the suit house for one year, according to the terms of the compromise, thought of defeating the execution of the order of the Rent Controller by illegally surrendering the possession to Ali Jan respondent No,3 or through him to the petitioner, his daughter-in-law for ulterior motive. The execution of the legal order of the Rent Controller, dated 30-10-1977 has already been delayed for considerable length of time and there is no justification for ordering de novo trial of the objection petition by the Executing Court, on the mere technical ground that the lower forums have not elaborately discussed the merits of the case. Substantial justice has already been done and the impugned orders do not call for interference.
8. The upshot of the above discussion is that the instant revision' petition fails and the same is hereby dismissed, with no order as to costs.