1994 PLP 709 (CLC)

5. Muhammad Nazir examined Fazal Hussain, Wasal Baqi Nawees and Muhammad Khan, Halqa Incharge, Office of the Deputy Settlement Commissioner, as R.Ws.l and 2, respectively and he himself appeared as R.W.3. Copy of an entry from the register of petition‑writer was also tendered in evidence on behalf of Muhammad Nazir as Exh.R/1.

6. It was on 10‑7‑1983 that the learned Rent Controller, Gujrat resolved the issue in favour of the petitioner and directed the ejectment of Muhammad Nazir, predecessor‑in‑interest of respondents Nos3 to 11, holding that non‑payment of rental by him stood admitted on the record. It was specifically observed that the house in question had been transferred to Farzand Ali, A.W.1 vide ExhA/5. He transferred the same subsequently ire. favour of Nizam Din, the father of Mst. Bismillah Begum petitioner through Exh.A/1. Later, Nizam Din alienated the house in question to Muhammad Aslam vide ExhA/4. The service of notice on Muhammad Nazir vide ExhA/2 was not denied but as he had failed to respond thereto, it was a clear indication of the fact that he never disputed the title of the petitioner.

7. Order dated 10‑7‑1983 of the learned Rent Controller, Gujrat was successfully challenged by the predecessor‑in‑interest of respondents Nos.3 to 11 and the then Additional District Judge, Gujrat allowed his appeal under section 15 of the Punjab Urban Rent Restriction Ordinance (No.VI of 1959), hereinafter referred to as the Ordinance, on 29‑9‑1984. Para. 12 of the judgment dated 29‑9‑1984 reads as under:‑‑ "

12. The question of title cannot be decided while disposing of this appeal. But as regards the question of tenancy, the evidence on the file is insufficient to establish any relationship of landlady and tenant between the parties qua the disputed house. Hence, the appeal is accepted and the impugned order is set aside."

8. Writ Petition No.4248/85 was brought by the petitioner before this Court to challenge the appellate order dated 29‑9‑1984 of the then Additional District Judge, Gujrat. This writ petition was allowed by this Court vide judgment dated 16‑5‑1987 remanding the case to the appellate‑forum for fresh decision in accordance with law after hearing the parties. Operative part of this judgment reads thus:‑‑ "The disputed house is admittedly an evacuee property. Farzand Ali (AWl) a P.T.D: holder of the house categorically deposed that the house was transferred to him by association with Muhammad Afzal and he transferred it in favour of Nizam Din, father of the petitioner. Nizam Din had in turn transferred the same to Muhammad Aslam, deceased husband of the petitioner. Petitioner's title to the disputed house is therefore. established and not disputed before any Court of competent jurisdiction. Muhammad Nazir in written reply to the ejectment petition asserted that he is Jummu and Kashmir refugee and came into possession of the disputed house in 1960 but at the trial deposed that he was in occupation of the disputed house since 1947. It is in evidence that Muhammad Nazir was in possession of the disputed property prior to its alienation in favour of Farzand Ali. In this view of the matter he became a statutory tenant by operation of law. It is also in evidence of the petitioner, that he had been paying rent to his predecessors, therefore, the observation . of the learned Additional District Judge in para. 12 of the impugned order to the effect that as regards question of tenancy, the evidence on the file is insufficient to establish any relationship of landlady and tenant between the parties qua the disputed house, is against the evidence on record. Even otherwise if the learned Additional District Judge was of the view that the evidence on the record was insufficient to establish the relationship of landlady and tenant between the parties, he could have either recorded the evidence himself or remanded the case to the learned Rent Controller to arrive at a positive finding in this behalf. It is, therefore, clear that the learned Additional District Judge, Gujrat did not apply his conscious mind to the evidence on record and hastly set aside the order of the Rent Controller vide impugned order which amounts to non‑exercise of jurisdiction in the matter:"

9. After remand, the learned Additional District Judge accepted the appeal before him vide the impugned order dated 24‑1‑1988. Hence this petition.

10. Mr. Habib‑ul‑Wahab Al‑Khairi, learned counsel for the petitioner, has solely relied upon the observations made by this Court in judgment dated 16‑5‑1987 in Writ Petition No.4248/85 to the effect that Muhammad Nazir predecessor‑in‑interest of the private respondents herein, had become "a statutory tenant by operation of law" and submitted that the respondents having failed to challenge the said finding in the earlier round of litigation, the learned Additional District Judge is in error of jurisdiction in observing that "there is hardly any evidence of cogent character or unequivocal nature to establish any relationship of landlady and tenant between the parties." He has further submitted that the learned Additional District Judge was bound to give effect to the aforequoted finding and his failure to do so, has perpetuated the miseries of the petitioner.

11. Mr. Aqil Mirza, learned counsel appearing for the contesting respondents has tried to controvert the arguments addressed by the learned counsel for the petitioner by contending that the impugned order dated 24‑1‑1988 does not suffer from any legal infirmity going to the jurisdiction of the appellate‑forum under the Ordinance, to attract this Court's jurisdiction under Article 199 of the Constitution. According to him, the conclusions arrived at by the learned Additional District Judge, Gujrat do find support from the material on the record: 12. 1 have considered the arguments advanced by the learned counsel for the parties and have also perused the material placed on the file with their help. It is not denied on behalf of the contesting respondents that they did not challenge the observation made by this Court in judgment dated 16‑5‑1987 that their predecessor‑in‑interest had become a statutory tenant by operation of law and that if the then learned Additional District Judge was of the view that the evidence on the record was insufficient to establish the relationship of landlady and tenant between the parties, "he could have either recorded the evidence himself or remanded the case to the learned Rent Controller to arrive at a positive finding‑in this behalf'. A perusal of para. 13 of the impugned judgment dated 24‑1‑1988 shows that the learned Additional District Judge came to the conclusion that in he instant case "there is hardly any evidence of cogent character or unequivocal nature to establish any relationship of landlady and tenant between the parties. The appellant/respondent had miserably failed to discharge the onus of issue No.1 which in fact required strict proof." It appears that this finding was rendered without being cognizant of the fact that this Court had already held that the predecessor of the private respondents had become a statutory tenant by operation of law. The matter does not end here. Even the observation that if the appellate forum was of the view that the evidence on the record was insufficient to establish the relationship of landlady and tenant between the parties, it could have either recorded the evidence itself or remanded the case to the lower forum to arrive at a positive finding in this behalf, also escaped notice of the learned Additional District Judge. Both the learned counsel are one on the point that the learned Additional District Judge did neither call upon the parties to produce evidence before him in support of their respective claims, nor remand the case to the learned Rent Controller to arrive at a positive finding in this behalf. It is, therefore, clear that the observation made in the judgment dated 16‑5‑1987 which had attained finality as the same were not impugned any further, were not kept in view by the learned Additional District Judge while disposing of the appeal before him.

13. In the result, this petition is allowed. The impugned order dated 24‑1‑1988 of the learned Additional District Judge, Gujrat is declared to be of no legal effect. The case is remanded to him for a fresh decision in accordance with law after calling upon the parties to lead whatever evidence they want to in support of their respective pleas to establish or otherwise the relationship of landlady and tenant betwixt them within three months from today. There shall be no order as to costs. H.B.T./B‑102/L Petition allowed.