1994 PLP 390 (SCMR)

Date of hearing: 15th December, 1991. NASIM HASAN SHAH, J.‑‑‑Respondent No.l sought ejectment of the appellants. The learned Rent Controller framed the following two relevant issues:‑‑ "(1) Whether respondents have committed default in payment or tender of rent for disputed period? (2) Whether petitioner was required to serve the respondents with notice under section 13‑A of Ordinance VI of 1959?" The application was allowed by the learned Rent Controller vide order/dated 11‑3‑1985. On appeal of the appellants, however, the findings on both the issues were set aside and appeal accepted by the learned Additional District Judge, Lahore, vide order dated 11‑1‑1986. The respondent filed a Constitutional Petition No.642 of 1986 in which it was argued that no notice was required to be served under section 13‑A of the Ordinance VI of 1959. The contention was accepted and the order of the learned Additional District Judge, Lahore, was declared to be without lawful authority with the result that the order of the learned Rent Controller dated 11‑3‑1985 stands restored. Hence this appeal. Learned counsel for the appellants contends that even if the decision of the learned appellate Authority‑Additional District Judge was erroneous on Issue No.2, regarding the service of notice under section 13‑A of the said Ordinance, yet the finding of the learned Rent Controller about default was also set aside by the learned Additional District Judge, about which nothing expressly has been held by the High Court. Consequently, the appellants could not be ordered to be ejected under the order of the learned Rent Controller. A perusal of the order of the High Court dated 25‑2‑1990 shows that thereby the "order of the Rent Controller dated 26‑4‑1983 stands restored". Now under the aforesaid order of the Rent Controller dated 26‑4‑1983 it was merely found that the relationship of the landlord and the tenant stood proved and it was further observed herein that an order under section 13(6) of the Ordinance would be passed on 14‑5‑1983. It appears that such an order was thereafter passed and Rs.50 per month was fixed by the Rent Controller as tentative rent and the appellants were required to deposit the arrears of rent at the said rate. This, we are informed, was duly done by the appellants. Now the learned Additional District Judge, in his appellate order, observed that there was a dispute between the parties regarding the rate of rent but he did not record any clear finding either on the question that the respondent had demanded the rent and that this demand was not complied with nor on the point that the claim of the respondent was, indeed, a genuine claim. The learned Judge in the High Court, in his impugned judgment, appears to have overlooked this aspect of the case while holding issue No.l in favour of the respondent and directing the ejectment of the appellants herein. The result is that this appeal succeeds and the judgment of the High Court dated 25‑2‑1990 is set aside to the extent that the decision of the question of default covered by Issue No.l must be determined afresh, after hearing the parties. The case is, therefore, remanded to the High Court for this purpose. Order accordingly. No costs. A.A.B‑220/S Case remanded.