RABNAWAZ Versus Haji MUHAMMAD IQBAL

SARDAR MUHAMMAD RAZA, J.--- Rabnawaz son of Haji Srafaraz, Madina Colony, D.I. Khan, seeks leave to appeal against the judgment, dated 7-2-2003 rendered by a learned Division Bench of Peshawar High Court, D.I. Khan Circuit.

2. Haji Muhammad Iqbal respondent filed a petition under section 13 of the West Pakistan Urban Rent Restriction-Ordinance, 1959 for the ejectment of Rabnawaz from the suit shop, recovery of Rs.3,00,000 as arrears of rent from 1-5-1998 to 31-5-2000 at the rate of Rs.12,000 per month and future rent at the same rate till the ejectment. On behalf of his minor sons, Haji Muhammad Iqbal had statedly rented out the premises. Learned Rent Controller ordered the ejectment on 10-1-2001 against which the appeal also failed before learned Additional District Judge, D.-I. Khan on 30-10-2001. Rabnawaz filed a writ petition which also was rejected on 7-2-2003 and hence this petition.

3. Mr. Abdul Aziz Khan learned counsel for the petitioner has vehemently assailed the verdict of all the three forums. He referred to the background saying that Haji Muhammad Iqbal and Rabnawaz were the partners in Shops No. 16 and 17, running a joint business after removing, the intervening wall. That with the consent of the parties, the matter had twice been referred to the Arbitrators, who rendered their awards on 13-9-1995 and 14-1-1996. The awards aforesaid are available respectively at pages 95 and 97 of the paper book before us. If one goes minutely through the first award, dated 13-9-1995 (P-95), one gathers an idea that it operated to settle some business dispute between the parties who were directed to render certain accounts. After bringing into consideration different aspects of joint business Rabnawaz Khan was held liable to pay a sum of Rs.3,39,535 and also was authorised to occupy one of the two adjoining shops. Apparently, the assertion of the learned counsel appeared to be genuine that the award, dated 13-9-1995 was not a background creating tenancy. But, the second admitted award, dated 14-1-1996 is indicative of the fact that Haji Muhammad Iqbal was to receive a sum of Rs.12,000 on or before the 10th of every month from Rabnawaz Khan through a cheque. The learned counsel for the respondent Mr. Abdul Karim Khan Kundi, claimed that this amount of Rs.12,000 was the rent of the shop per month while learned counsel for the petitioner asserted that it was an instalment fixed for the payment of total amount due from the petitioner.

4. A perusal of record would clearly indicate that the stance taken by the learned counsel for the petitioner is negated by Rabnawaz Khan himself who, on 21-5-1998, had filed a civil suit against Haji Abdul Rashid, Ghulam Yasin and Haji Muhammad Iqbal. In para. No.2 of plaint at pages 91-92 referring to the first award of September, 1995, Rabnawaz Khan categorically alleged:--

This is a categoric admission of the fact that Rabnawaz had occupied the disputed shop as a tenant the rent whereof was fixed as Rs.12,000 including the use of medicines, furniture and shelves.

5. Haji Abdul Rashid is a person closely connected with the dispute between the parties. The cheque of Rs.12,000 as per award, dated 14-1-1996 was to be received by Haji Muhammad Iqbal through Haji Abdul Rashid. He also is a signatory to the award aforesaid. While appearing in the witness-box as A.W.3, Haji Abdul Rashid categorically stated that Haji Muhammad Iqbal was the landlord, that Rabnawaz was the tenant of the suit shop and that Rs.12,000 was fixed as rent per month. All these facts on record and above all the very plaint of the civil suit filed and signed by Rabnawaz Khan is conclusively indicative of the fact that relationship of the landlord and tenant qua the suit shop existed between the parties. The petition having been based on default, the required relationship having been denied, the tenant was liable to be ejected straightaway when the required relationship was 'proved in affirmative ultimately. Thus, we reject the arguments of the learned counsel for. the petitioner that the relationship of landlord and tenant did not exist between the parties or that the Rent Controller had no

6. The second stance of the learned counsel was that the learned Additional District Judge has finally determined the rent due against the petitioner- and has almost granted a decree thereof which was without jurisdiction. A new para. was inserted at the end of section 13(6) of the Rent Restriction Ordinance by section 5(b) of Ordinance XIII of 1960 as follows:---------

?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."

This insertion authorizes the Rent Controller to finally determine the amount due from the tenant and it further authorizes him to direct that the same may be paid to the landlord. This is an order under section 13 of the Ordinance.

7. The next relevant is section 17 of the Ordinance which provides, so far as N.-W.F.P. is concerned, as follows:--

"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. "

There remains no doubt about the fact that an order passed under section 13 or an order passed on appeal under section 15 is directly executable by a Civil Court as if it were a decree of that Court. In Punjab it is different to the effect that such order passed by the Controller shall be executed by the Controller himself as if it were a decree of a Civil Court. In N.-W.F.P., the Controller can finally determine the amount of rent due and can direct the same to be paid to the landlord with the only condition that for practical execution it shall be placed before the Civil Court which shall treat the same as if a decree passed by itself.

8. The upshot of what has been discussed above is that the petition having no merit is hereby dismissed and leave to appeal refused.

M.B.A./R-82/S ??????????????????????????????????????????????????????????????????????????????????? Petition dismissed