2009 PLP 416 (CLC)

ALI AKBAR QURESHI, J.

This second appeal is directed against the order dated 18-4-2006 passed by the learned Additional District Judge, Mandi Baha-ud-Din whereby the appeal of the respondent was accepted and the case was remanded to the learned trial Court for afresh decision.

2. Briefly, the facts stated are that the respondent filed an ejectment petition against the appellant for the vacation of a shop along with Chaubara No.298/3 situated at Malkwal, the property fully described in the head note of the ejectment petition. The respondent stated in the ejectment petition that he rented out the demise property to the appellant @ Rs.1,000 and because of relationship inter se between the parties, no tenancy agreement was written. The appellant who was inducted in the property as tenant, after some time refused to pay the rent and even on demand, did not pay the same, therefore, the appellant has become defaulter and he be directed to hand over the vacant possession of the shop in question to the respondent. The ejectment petition was contested by the appellant who straightway denied the relationship of landlord and tenant on the plea that the appellant is in possession of the property, which is owned by sons of Rulia and Muhammad Sharif. The shop in dispute in fact was rented out to the appellant by sons of Rulia and Muhammad Sharif and the Shop No.99/3, which is not owned by the respondent, is under the possession of the petitioner as tenant.

3. The learned Rent Controller, out of the divergent contention of the parties framed the following issues:

(1) Whether there exists relationship of landlord and tenant between the parties? OPA (2) Relief.

4. Learned counsel for the appellant contended that the learned 1st Appellate Court, in view of the peculiar facts of the case had no legal justification to remand the case to the learned Rent Controller for afresh decision because of the reason that there was sufficient material available on the record to decide by the 1st Appellate Court. Next contended that the learned 1st Appellate Court while remanding the case to the learned trial Court has passed a direction to the learned Rent Controller to appoint a Local Commission to demarcate Shops Nos.298-A/3 and 299/3 whereas the learned Rent Controller cannot act as a Civil Court. Also added that the learned Appellate Court acted against the law in framing additional Issue No.1-A whereby in fact the respondent had allowed to lead his evidence to fill in the lacunas. The learned counsel also argued that the issue already framed by the learned Rent Controller covers the vires of the issue No.1-A, therefore, there was no reason at all to frame the additional issue and remand the matter to the learned Rent Controller. Lastly, the learned counsel for the appellant supported the findings recorded by the learned Rent Controller while dismissing the ejectment petition.

5. Conversely, the learned counsel for the respondent fully supported the findings recorded by the learned 1st Appellate Court and submitted that the learned Appellate Court rightly framed an additional issue and remanded the matter to the learned Rent Controller to decide the same afresh after recording the evidence. Also added by the learned counsel that the learned 1st Appellate Court has rightly passed a direction to the learned trial Court to appoint a Local Commission for the demarcation of the shop in question because there is only solution. to decide the matter in accordance with law.

6. I have heard the learned counsel for the parties and perused the record.

7. The record indicates that the appellant while filing the written reply of the ejectment petition straightway denied the relationship of landlord and tenant mainly on the ground that the appellant is not tenant in the Shop No.298/3 which is allegedly owned by the respondent and in fact the appellant is tenant but in the Shop No.299/3 which is owned by the sons of Rulia and Muhammad Sharif. The learned Rent Controller mainly relied upon the documentary evidence, which is produced by the appellant but to my mind the same was not sufficient to resolve the controversy between the parties. The learned 1st Appellate Court, it appears from the findings, surveyed and scanned all the evidence available on the file and finally reached to the conclusion, to resolve the controversy, that the matter should be remanded to the learned Rent Controller for its decision afresh. For this purpose, the learned 1st Appellate Court framed an additional issue and also passed a direction to the learned Rent Controller to appoint a Local Commission to demarcate the Shops Nos.298/3 and 299/3. The contention raised by the learned counsel for the appellant that the learned Rent Controller cannot act as a Civil Court, therefore, the direction passed by the learned Appellate Court to conduct the demarcation of the aforesaid shops is totally against the law, has no force because of the reason, that the learned Rent Controller has to decide the issue of relationship of landlord and tenant between the parties obviously keeping in view the facts of each case. In this case, the instant appellant has denied the relationship of landlord and tenant on the ground that he is not tenant in Shop No.298/3 but in Shop No.299/3 which is not owned by the respondent. Further, it is also admitted on record that both the shops are contiguous/adjacent and the dispute can only be decided after conducting the demarcation of the said shop. Even otherwise, the learned Rent Controller can adopt any method to resolve the controversy keeping in view the facts of the each case, therefore, the learned 1st Appellate Court has rightly reached to the conclusion that the learned Rent Controller shall appoint a Local Commission to demarcate the land.

8. The learned counsel for the appellate has failed to point out any jurisdictional defect, legal infirmity, material irregularity, misreading and non'-reading of evidence with the findings recorded by the learned 1st appellate Court while remanding the matter to the learned trial Court, therefore, there is hardly any reason to interfere with the findings rendered by the learned Appellate Court.

9. For the foregoing reasons, this second appeal has no force and is dismissed while maintaining the order, dated 18-4-2006 passed by the learned 1st Appellate Court. No order as to costs. M.H./M-5/L Second appeal dismissed.