MUHAMMAD TARIQ KHAN Versus Khawaja MUHAMMAD JAWAD ASAMI

ORDER

CH. IJAZ AHMED, J.--- Brief facts out of which the present petition arises are that petitioner filed ejectment petition against Rana Fazal Hussain in the Court of Rent Controller' Lahore on 23rd January, 1997 against the respondent. Respondent appeared in the Court in person on 15-2-1997 and he made the following offer:--

The petitioner accepted the offer on 22-2-1997 in the following terms:--

The learned Rent Controller passed ejectment in terms of the statement of the parties on 22-2-1997 in the following terms:--

2. The petitioner had taken the possession of the premises in question in terms of the order of the Rent Controller dated 22-2-1997. Respondents Nos.1 to 6 filed petition in the Court of Rent Controller against the petitioner under Order XXI, Rules 100, 101 and 103, C.P.C. on 7-5-1997 on the ground that property in question was allotted to their predecessor Khawaja Muhammad Younis measuring 4 Kanals and 14 Marlas comprising in Khasra No.5195 min, 5196 min, situated at 4 Egerton Road, Lahore through a PTD No.713 dated 8-7-1964 issued by the competent authority and also stated in the objection petition that their predecessor-in-interest remained in actual and physical possession of the suit property. Their predecessor-in-interest died on 18-6-1995. Respondents are continuously in physical possession as well as constructive possession of the suit property. The petitioner secured the possession of the property in question in terms of order of the Rent Controller dated 30-4-1997. Petitioners filed written reply, controverted the allegations levelled in the plaint. The learned Rent Controller accepted the petition vide order, dated 30-7-1997 wherein it was ordered that respondents Nos.1 to 6 be restored the possession and also awarded damages as claimed by them amounting to Rs.10,00,000. Petitioner being aggrieved filed constitutional petition in the Lahore High Court which was dismissed by the learned High Court vide impugned judgment, dated 15-4-2003. Hence, the present petition.

3. The learned counsel for the petitioner submits that learned Rent Controller being Tribunal of circumscribed jurisdiction was not equipped with any lawful authority to award damages to Rs.10,00,000 which has escaped notice of the Courts below. He further maintains that he has challenged the order of the Rent Controller dated 30-10-1997 to the extent of damages awarded by the learned Rent Controller.

4. The learned counsel for the respondents has supported the impugned judgment and further submits that learned Rent Controller has all the power to award damages in view of inconvenience caused to the respondents in terms of section 17 of the Punjab Rent Restrictions Ordinance, 1959. He further urges that learned Rent Controller has all the powers under the provisions of C.P.C. to execute its own order. He further urges that respondents could not file separate suit in view of section 17 of the Ordinance, 1959. In support of his contentions, he relied upon Haji Abdul Wali Khan's case 1991 SCMR 2457.

5. We have considered the submissions made by learned counsel for the parties and have also perused the record. It is admitted fact that the learned Rent Controller had accepted the ejectment petition of the petitioner in view of the statement of the respondents in the ejectment petition and directed the respondent to vacate the premises in question on 27-2-1997. Petitioner secured the possession of the property in question in terms of the order, dated 22-2-1997. Respondents filed objection petition before the Rent Controller which was accepted and it was directed to hand over the possession of the property to the respondents and also awarded damages amounting to Rs.10,00,000. Petitioner filed constitutional petition which was dismissed. The sole question for determination before us is whether the learned Rent Controller has jurisdiction to award damages to the respondents while deciding the petition of the respondents under Order XXI, rules 100, 101 and 103 of C.P.C. It is better and appropriate to reproduce section 17 of Rent Restriction Ordinance, 1959 to resolve the controversy between the parties: "section 17. Execution of orders .--- Every order made under section 10 or section 13 or section 13-B and every order passed on appeal under section 15 shall be executed by the Controller as if it were a decree of a Civil Court."

6. It is a settled law that provisions of C.P.C. are not applicable in the rent proceedings in stricto senso, however, learned Rent Controller in exercise of the discretion is entitled to follow the equitable principles of C.P.C. as law laid down by this Court in Ayub Khan's case PLD 1976 SC 422 and Messrs Bambino Ltd.'s case PLD 1983 SC 155. It is pertinent to mention here that principle incorporated in section 144, C.P.C. being equitable principle could be invoked in ejectment cases. See Sh. Abdul Hameed's case PLD 1994 Kar. 379, Atta-ul-Haq's case NLR 1992 Civil 479, Abdul Hameed's case 1986 MLD 541, Sh. Miraj Din's case PLD 1965 Lah. 374, Sr. Lakshmi Narayan's case PLD 1964 Dacca 177; Ahmad-ul-Haq's case PLD (sic) Dacca 452 and Mst. Fatima Bibi's case 1991SCMR 1031. It is also a settled law that while executing order under section 17 of the Ordinance, the Rent Controller remained persona designata and does not become a civil court merely because he has to execute his order like decree of civil Court. It is proper to mention here that the deeming provisions (as if it was a decree of civil Court) is meant to make it clear that force of ejectment order is that of a decree of Civil Court. See Syed Sarwar Abbas's case 1969 SCMR 689 and Ghulam Murtaza's case 1986 CLC 1577. It is settled law that where a Rent Controller feels that complicated question requiring or protracted inquiry would be necessary for deciding a specific question, then he can observe that such question should be decided by a Court of general jurisdiction, namely the ordinary Civil Court. See Ghulam Murtaza's case 1986 CLC 1577; Rehmat Ullah's case 1983 SCMR 1064 and Abdul Ghani's case PLD 1985 SC 1. The power of the Rent Controller under the provisions of Ordinance was discussed in Jam Muhammad's case 1996 MLD 1845 and laid down the following principle:

"Needless to emphasize that learned Controller could not assume the powers of a Civil Court to enter into question of title raised by the appellant within the limited scope of authority conferred on him by section 22 of the Ordinance. Controller has been authorised to determine all questions arising between the parties and relating to the execution, discharge or satisfaction of the order. The objections filed by the appellant were thus rightly dismissed and there is no scope for interference with the exercise of discretion by the learned Controller."

7. As mentioned above, the Rent Controller is free to evolve his own procedure for disposal of the eviction petition and can follow the enabling provisions of C.P.G. or the principles contained therein. It is also a settled principle of law that Rent Controller being a persona designata governed by a special statute has no jurisdiction to impose costs while allowing the application for production of additional evidence f of the party in the proceedings. See Daood's case PLD 1980 Kar. 269, Ismail's case 1983 CLC 2994 and Abu Bakr's case 1986 MLD 227.

8. The purpose and object of the Rent Restriction Ordinance is to restrict the ejection of tenants of urban immovable property in the Province. The Legislature has only regulated the relationship of landlord and tenant and provided a machinery for ejectment of tenants and other allied matters, meaning thereby the Legislature by promulgation of the Rent Restriction Ordinance on the one hand has permitted the ejectment of tenant only on the specified grounds, on the other hand it is also kept in view the interest of the landlord. Grounds of ejectment as specified in section 13 clearly support this view, in other words the Ordinance is meant for the safeguard of all the rights of both the landlord and tenant.

9. It is a settled law that decree is executable in the light of the terms and conditions mentioned in the decree and the executing Court has to confine its deliberations within the purview of the decree and not beyond that. It is the duty and obligation of the executing Court to dispose of the objections filed by the objectors in the light of terms and conditions of a decree and the learned Rent Controller has no authority to deviate from a real controversy between the parties keeping in view the decree secured by the petitioner in the case in hand. The learned Rent Controller has only authority to determine the questions relating to execution, discharge and satisfaction of the decree under section 17 of the Punjab Urban Rent Restriction Ordinance, 1959. See S. Anwar Ali Shah's case PLD 1978 Lah. 1078. It is also settled law that executing Court cannot go behind the decree. See Mst. Nasim Akhtar's case 1994 SCMR 22. It is also a settled law that preamble is key to understand the statute. See Syed Ikhlaq Hussain's case PLD 1969 Lah. 563. It is pertinent to mention her that Rent Restriction Ordinance is enacted by the Legislature in its wisdom to regulate the relationship of landlord and tenant to provide them remedy for resolution of any dispute arising between them to approach the Rent Controller who is also bound to pass orders within the four-corners of the provisions of the said Ordinance. We have examined all the provisions of Rent Restriction Ordinance with the assistance of, the learned counsel for the parties. We do not find any m provision on the basis of which the Rent Controller has possessed any power to award damages to the objectors. It is also a settled law that executing Court has to decide the objections keeping in view the pleading of the parties in the rent matter and the decree passed by the Rent Controller. It is no doubt that the Rent Controller has power to restore the possession to the respondents which was taken from them under the orders of the Rent Controller but the Rent Controller has no power, as mentioned above, to grant damages to the respondents. It is a settled law that our Constitution is based on trichotomy and Court has only power to interpret the law as law laid down by this Court in various pronouncements. See Zia-ur-Rehman Khan's case PLD 1973 SC 49 . The learned Rent Controller has exceeded its jurisdiction while restoring the possession to the respondents in its order, dated 30-10-1997 while awarding damages and this fact was overlooked by the learned High Court in the impugned judgment. It is a settled law that Presiding Officer has to decide the objection petition after judicial application of mind keeping in view the provisions of Rent Restriction Ordinance. The learned Rent Controller, as mentioned above, has decided the objection petition without judicial application of mind, therefore, his order is without lawful authority to the extent of granting damages to the objectors. See Gournga Mohan Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173. The Rent Controller being a persona designata has no lawful authority to decide the objection petition considering himself to be a Civil Court and was regulated by the provisions of C.P.C. The principles of C.P.C. are applicable, therefore, having a jurisdiction to decide the matter in question under a special law, therefore, Rent Controller is bound to decide the matter within the parameters prescribed by the Legislature in its wisdom keeping in view provisions of special law and not beyond that. The learned High Court has also overlooked this aspect of the case to the extent of grant of damages to the respondents by the Rent Controller. It is a settled law that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically as law laid down by this Court in Yousaf Ali's case PLD 1958 SC 104.

10. For what has been discussed above, the petition is converted into appeal and partly allowed. The judgments of the learned High Court as well as the Rent Controller to the extent of awarding damages to the respondents amounting to Rs.10,00,000 are set aside. The judgments qua restoring the possession of the respondents are maintained as the learned counsel for the petitioner has opted not to challenge the order of the Rent Controller and the learned High Court to the extent of restoring possession. No order as to costs.

S.A.K./M-28/SC Order accordingly.