MUHAMMAD YASIN Versus GHULAM MURTAZQ

1. SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to examin whether the judgment of the Lahore High Court dated 17‑2‑1986 is not contrary to the decision of this Court in Rehmatullah v. Ali

2. Muhammad and another 1983 S C M R 1064.

3. In the first round of litigation Muhammad Yasin, the appellant, instituted an application under section 13 of the Rent Restriction Ordinance seeking evictiow of respondent No.2 Sheikh Muhammad Ilyas from Shop bearing No.X‑15‑S‑73/1 in Gujranwala Urban area. The grounds on which the ejectment was sought were personal requirement and default in the payment of rent. The application was instituted on 3‑2‑1980. A compromise took place on 29‑10‑1980 whereby Muhammad Ilyas undertook to vacate the shop on 28‑4‑1983 and till that date he was to deposit rent at the rate of Rs.400 per month and if he failed to do so for three months he was to become liable to immediate ejectment. On 18‑2‑1982 ejectment proceedings were taken up against Muhammad Ilyas on the ground that he had defaulted thereby forfeiting the protection of the order.

4. During the pendency of the execution proceedings on 27‑4‑1983 Ghulam Murtaza, a brother of Muhammad Ilyas instituted a civil suit claiming declarations and injunctions to the following effect:‑‑

5. "The plaintiff is a tenant under defendant No.l and has been continuously occupying the shop as a tenant under defendant No.l since 27‑12‑1979. He has been regularly paying rent to him at the rate of Rs.300 per month."

6. This suit was dismissed by the trial Court on 25‑2‑1984 observing as follows: ‑

7. "The fact that the plaintiff is the real brother of defendant No. 2, the legal position for the controversy in hands remains that an order of the Rent Controller cannot be challenged through an independent suit before the Civil Court. If at all the plaintiff feels aggrieved against the ejectment proceedings proposed on the basis of the order dated 29‑10‑1980, a proper remedy is to file an objection petition and not the suit of the present nature. Order 21, Rule 103 also bars such a suit. I am fortified in this conclusion by the legal wisdom as laid down by his Lordship Mr. Justice Irshad Hassan Khan in reference Shahzad Ahmad v. Muhammad Hayat and others available in P L D 1983 Lah. 234. The plaintiff has unnecessarily dragged the other party in this litigation but without a cause of action hence he‑ is directed to pay Rs.300 as costs to the defendant No.l."

8. Sheikh Ghulam Murtaza thereupon filed an objection petition under Order XXI Rules 97, 100 and 103, C.P.C., on 28‑1‑1984. It was dismissed summarily on 19‑4‑1984. The Rent Controller executing the order of ejectment observed as follows:‑‑

9. "The petitioner has filed the objection petition on 28‑1‑1984 when the time already granted is almost going to be expired. It does not appeal to the reason that one brother had been facing the trial of the ejectment petition for a long time but other brother (petitioner) does not know whether an eviction petition had been pending adjudication against his brother respondent No.2.... the forum entrusted with the execution of the ejectment order being not a Civil Court but a special Tribunal, the objections filed by the petitioner under Order XXI, Rules 97, 99 and 103, C.P.C. were incompetent."

10. The first appellate Court maintained the judgment passed by the executing Court on the objections as well as by the Civil Court in the suit. Hence two revisions both filed by Ghulam Murtaza came up before the High Court. In the Revision petition against the rejection of the objections to the execution of the decree (Civil Revision No.1600 of 1984) the learned Judge held that such an objection was not at all competent before the Controller while he was executing the decree though a number of decisions were cited. The main legal reasoning which is the basis of this conclusion appears from the following observation s: ‑

11. "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... 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. "

12. The other Revision petition (Civil Revision 748 of 1985) was allowed and it was held that a civil suit was competent. The reasoning which prevailed for this conclusion appears from the following observation of the learned Judge:‑‑

13. "He is entitled to seek this relief from the Court on the ground that he being not a party to the proceedings in which the order of ejectment was passed is not bound by the order passed by the Rent Controller. He has no other legal remedy except to file a suit in Civil Court in such a case."

14. Sheikh Ghulam Murtaza has not appealed against the judgment of the High Court in Civil Revision No.1600 of 1984 and it has become conclusive so far as he is concerned. The appellant, the admitted landlord, has appealed against the decision which holds that a civil suit was competent.

15. Malik Muhammad Qayyum, Advocate, the learned counsel for the appellant, has contended that apart from the facts forming the background of the case on the legal plane, a civil Court could not at all grant a declaration with respect to the existence of relationship of the landlord and tenant and the consequences flowing from that relationship because in an urban area to which Urban Rent Restriction Ordinance applies, this function has been exclusively entrusted to the Rent Controller. It was not a question of title or any other interest in the property which could fall outside the purview of the Rent Control Ordinance. According to the learned counsel if such a procedure were allowed contradictory orders would result, the Rent ‑Controller holding one set of parties to be landlord and tenant in respect of the property and the Civil Court holding another set to be the landlord and tenant in respect of the same property and for the same period. Following the law that initial jurisdiction is governed by what is claimed in the plaint it follows that where the parties are claiming the existence of relationship of landlord and tenant and no other relationship the matter cannot be taken to the civil Court because the exclusiveness of the jurisdiction of the Rent Controller would get seriously impaired and nullified. He has referred to the decisions of this Court in Kulsoom Bai v. Nargis Bano 1985 S C M R 1275; Mir Salah‑ud‑Din v. Qazi Zaheer ud Din 1984 P S C 127; Khurshid Begum v. Ghulam Kubra 1982 S C M R 90 apart from the decision in Relimatullah's case and other cases decided by the High Court.

16. Section 17 which requires interpretation and application in this case, is covered in the words that follow:‑

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. "

18. The reasoning of the learned Judge in the High Court who dealt with the expression "as if it were a decree of a Civil Court" was that though the Controller had been invested with the power to execute the order and that, for the purposes of execution, the order of the Rent Controller was to be treated as a decree of a Civil Court but that by itself was not sufficient to make the Controller a Court for the purposes of entertaining an objection, under Order XXI, rule 100, C . P. C . After holding so the learned Judge held that not an application or objection under Order XXI, rule 100, C.P. C. but a separate suit was competent and the ouster contained in order XXI, rule 103, C.P. C. was inapplicable to such a suit. Such was to be the result because a person being not a party to the proceeding in which the order of ejectment was passed is not bound by the order passed by the Rent Controller. Such a person has no other legal remedy except to file a suit in Civil Court in such a case. On this finding the learned Judge allowed the revision petition and directed the trial Court to decide the suit in accordance with law.

19. The technique of using "as if" for importing deeming effect has been considered in Statute Law by Francis Benion, Second Edition. page 201 in the following words:

20. "Common‑law drafting makes extensive use of hypotheses. A certain situation is to be treated 'as if' it were something else. Or, to be more precise, a certain legal rule (statutor or otherwise) is applied to a novel situation 'as if' it were one to which the rule already applied directly. Asfism has many advantages for the draftsman. It saves him spelling out again (usually with modifications) statutory provisions which may be lengthy and complicated In his constant search for brevity he jump s at it. Yet it contains the dang ers which lurk in any form of pretence ...If "asifism" is to work properly it requires the draftsman to consider every aspect of the applied provisions and check that (with any modifications he may prescribe) they fit exactly. This task, which may be laborious, is often skipped. "

21. A Controller has no power or control over a decree of a Civil Court except for this deeming provision. Where a power to execute an order in the manner of a decree of a Civil Court is conferred then on . the ordinary rule of interpretation all the powers necessary or enjoyed by the executing authority for effectively and completely executing a decree of a Civil Court shall be available to the Controller. The deeming cannot stop short or boggle. To hold that the Controller will have the power to execute the order as a decree of the Civil Court but will have no power to decide objections to the order, and to its executability, will amount to in fact denying the Controller the very power to execute the decree itself. Such cannot be the result or the effect of the deeming clause. It has to be given full effect and the logical consequence of the empowering provision must follow.

22. The view . taken by the learned Judge in the High Court will in fact lead to contradictory decisions because the Rent Controller will be determining the relationship of landlord and tenant between one set of parties and the Civil Court between the same landlord and another person. It will not only destroy the exclusiveness of the jurisdiction of the Rent Controller, will be against the established law‑of the land but will also make the law inoperable.

23. This appeal is, therefore, allowed with costs, the judgment of the High Court is set aside and that of the Additional District Judge restored.

24. M.B.A./M‑332/S Appeal allowed.