This is a petition filed by Muhammad Daud for his release from detention during execution proceedings, till the decision of Civil Revision No.71 of 1996.
2. The brief but very relevant background of the case is that Muhammad Daud is the occupant of shop in dispute. Mst. Surriya Iqbal claiming to be a landlady, initiated ejectment proceedings in a Petition (No.3/RC) on 29-1-1995 and ultimately succeeded in obtaining ejectment order from the Rent Controller, Haripur on 18-4-2000. The ejectment order combined the factum of ejectment as well as determination of rent at the rate of Rs.10,000 per month with effect from the date of institution till the vacation of shop. The present C.M. Arises out of the execution proceeding filed in furtherance of the aforesaid order, dated 18-4-2000.
3. On the other hand, Muhammad Daud and Mst. Surriya Iqbal wet also locked in serious litigation on civil side where Muhammad Daud which challenging the title of Mst. Surriya Iqbal, claimed himself to be an own instead. The decisions given by the Courts below in that context are now sub- judice before this Court in Civil Revision No.71 of 1996, till the decision whereof Muhammad Daud seeks his release in the execution proceedings.
4. The last prayer which indirectly amounted to seeking the stay of execution proceedings till the decision of Civil Revision No.71 of 1996, was not very difficult to be tackled with or decided but the learned counsel for Muhammad Daud petitioner opened his argument by challenging the very jurisdiction of the Rent Controller in executing the ejectment order. This being academically a good point for discussion, both the learned counsel were invited to extend their assistance.
5. Learned counsel for the petitioner was of the view that the order ejectment passed by the Rent Controller on 18-4-2000 could not be executed by him because under the law it was to be executed by the Civil Court. Secondly that the determination of rent done by the Rent Controller in order under execution could not be treated as a decree and no execution proceedings could be filed unless the landlady had brought civil suit for recovery of rent due.
6. After going through the arguments of the learned counsel on either side, I believe that the points require to be settled. Before entering into the legal background one may recall at this juncture that the order, dated 18-4-2000 passed in Ejectment Petition No.3/RC (under execution) entailed upon two conclusions. The one was the portion where ejectment was ordered and the second was the portion where the Rent Controller had fixed monthly rent of the suit shop at Rs.10,000 per month with direction that the respondent shall pay the arrears with effect from the date of institution of the petition till the vacation of shop. It may also be pointed out at this stage that the Rent before deciding the question of his jurisdiction and the existence of relevant relationship between the parties, had proposed to decide this point after recording evidence and thus after recording evidence he passed the final order, now under execution.
7. The order of deposit of rent is passed basically under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. It would be pertinent to reproduce subsection (6) of the Ordinance as follows:-- "(6) 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 fifth day or 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. "
8. From the perusal of the above subsection it is abundantly clear that before framing of the issues the Rent Controller would call upon the tenant to deposit the rent approximately or tentatively.
According to the original subsection, this was never used to be the final determination of rent and the landlord used to file civil suit for the arrears of rent in case the tenant stood ejected for non- compliance of the order passed under subsection (6) of section 13 of Ordinance, 1959. The important change occurred in law through the West Pakistan Urban Rent Restriction (Amendment)
Ordinance, (No. XXX of 1960) whereby section 13(6) was amended and the following provision was added to it:-- "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."
9. This amendment made during the days of West Pakistan is obviously applicable to all the Provinces now in existence. This amendment would certainly be interpreted to the effect that the tentative fixation of rent under subsection (6) of section 13 is merely an interim order and the Rent Controller is statutorily bound to finally determine rent. The proceedings before the Rent Controller does not legally conclude until the rent is finally determined despite the fact that the tenant might be ejected for non---compliance of the interim order under section 13(6) of the Ordinance duly amended through Ordinance No. XXX of 1960) (1974 SCM R 504). When once the Controller is duty bound to determine the rent finally, the question arises as to what would be the status of such order. The amendment aforesaid of 1960 would clearly show that if determined finally, it would be an order executable under section 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
This section also has undergone certain amendments which are necessary to be discussed. The section in its original form with reference to Ordinance of 1959 reads as follows:-- "17. Execution of orders.--- Every order made under section 10 or section 13, and every order passed on 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."
10. This section was amended by the Punjab as well as by N.-W.F.P. The Punjab Amendment through Ordinance No. IX of 1979 reads as follows:- "17. Execution of orders---- 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. "
11. This amendment in the Punjab had given power to the Rent Controllers in Punjab to execute their own orders but in the manner in which a Civil Court decree is executed i.e. Under' Order 21 of the Code of Civil Procedure.
12. On the other hand, the amendment made by the N.-W.F.P. Was also through N.-W.F.P. Urban Rent Restriction (Amendment) Ordinance (No. IX of 1979). The original section 17 of Ordinance, 1959 was not substituted as it was done in the Punjab but only section 13-A was inserted in section 17 after the figure "13". By this amendment section 17 of the N.-W.F.P. Ordinance, 1979 reads as under:-- "17. Execution of orders.--- Every order made under section 10 or section 13 or section 13-A, and every order passed on 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. "
13. The perusal of the N.W.F.P. Amendment Ordinance would clearly indicate contrary to the amendment in the Punjab, that an order of a Controller in the N.-W.F.P. Shall not be executed by the Controller but by a Civil Court as if it were a decree of that Court, again meaning thereby that it would be executed under Order 21 of the Code of Civil Procedure. The law is, therefore, quite clear and unambiguous.
14. When once the Rent Controller passes an order in the shape of final order, it becomes functus officio like the Cantonment Rent Controller, and therefore, the execution proceedings should not directly be filed before the Controller, as having become funetus officio. The execution proceedings, therefore, require to be filed before the Senior Civil Judge who may either execute the order himself or mark the same to any other Civil Court having jurisdiction in the area.
15. This scenario cannot be equated with the fling of execution of a Civil Court decree directly before the same Civil Court because in that case tile position of the Civil Judge is one and the same and after passing the decree he does not become functus officio so far as the execution. Is concerned and hence, it is a common and correct practice that a decree passed by a Civil Court is directly filed before the same Court for the purposes of execution, whereas, a decree passed by a Controller should not be placed before the same Controller because at the time of execution he does not act as a Controller but as a Civil Court. In his latter capacity the matter comes to him for the first time and hence, like the decree of Controller, the execution should be filed before the Senior Civil Judge who is the principal Civil Court in the District exercising original jurisdiction.
16. In the instant case, the execution proceedings are filed before the same Rent Controller who passed the ejectment order. This was a procedural irregularity committed due to the confusion that the same entity also happened to be a Controller as well as a Civil Judge. Both these entities are never mixed in one as it is in Punjab. In our Province they are separate entities and when the order of a Rent Controller is brought for execution, it is for the first time brought before the Civil Court and hence, should be filed before the Senior Civil Judge.
17. I have enquired from different Courts and have found that this irregular practice is prevalent in the Province. This irregularity requires to be cured in future and hence, it is held that when an order of a Rent Controller is sought to be executed, the execution petition should be filed before the Senior Civil Judge concerned.
18. Consequently, it is held that a Rent Controller in view of amendment through Ordinance No. XXX of 1960 is bound to finally determine the amount of rent due from the tenant and, if so determined finally, it becomes executable under section 17 of the Ordinance as amended up to date and no separate civil suit requires to be instituted for the recovery of rent. It is further held that in our Province the order passed by the Controller is executable by a Civil Court having jurisdiction in the area as if it were a decree of that Court and thus, the execution proceedings be filed in the Court of Senior Civil Judge who may either execute the same himself or mark it to any other Civil Court for execution.
19. In the circumstances and in order to regularize the execution proceedings, pending execution petition is transferred to the Court of Senior Civil Judge with the direction to either execute the same himself or mark it to any other Civil Court.
20. The title of the suit property is seriously contested between the parties through Civil Revision No.71 of 1996 wherein the arguments have already been heard and hence, it would not be in the interest of justice as well as in the fitness of the things to allow the execution proceedings to continue. This, if allowed, might lead to numerous legal complications as well as multiplicity of litigation. The C.M. Is accepted to the effect that the execution proceedings shall remain pending for a period of three months or till the decision of Civil Revision No.71 of 1996, whichever is earlier.