1994 PLP 507 (MLD)

This judgment shall dispose of Writ Petitions Nos.6326 of 1991 and 6327 of 1991, which arises under the similar circumstances involving the same questions.

2. Both these petitions arises out of two separate applications for eviction filed by respondent No.1 against the two petitioners in these two petitions, seeking their eviction from the shops in their possession situated in Landa Bazar, Lahore.

3. In the written statement filed by the petitioners they denied the relationship of landlord and tenant between the parties.

4. The Rent Controller after framing the relevant issues recorded the evidence of the parties and dismissed these two petitions holding that there was no relationship of landlord and tenant between the parties.

5. On appeals filed by respondent No.1, however, the learned Additional District Judge reversed the finding of the Rent Controller and while accepting the appeals filed by respondent No.1, passed orders of ejectment against the two petitioners. These judgments of the Additional District Judge dated 5th June, 1991 are assailed in these petitions.

6. Mr. Maqbool Elahi Malik, learned counsel for the petitioners, in support of these petitions, has vehemently argued that the Additional District Judge, while reversing the finding of the Rent Controller allowed respondent No.1 to produce additional evidence, but no such opportunity was granted to, the petitioners despite the applications filed by them under section 15(6) of the Ordinance, which were rejected by the learned Additional District Judge, without any justification. It was further argued that the learned Additional District Judge has misread the evidence on the record and has erred in reversing the findings recorded by the Rent Controller. In the last, it was submitted that the Additional District Judge has relied upon the report of the Local Commissioner appointed by him without disposing of the objections filed by the petitioners to the said report.

7. Mr. Abdus Sattar, Advocate, learned counsel for respondent No.1, has on the other hand, supported the impugned judgments and has contended that there was sufficient evidence on the record to establish that respondent No.1 was the owner of the property in question. He, m particular, referred to the demarcation made by the Deputy Settlement Commissioner.

8. As already observed, learned Rent Controller had decided the issue of existence of relationship of landlord and tenant between the parties, in favour of the petitioners and had dismissed the ejectment petitions. Aggrieved by these orders, respondent No.1 filed appeals before the Additional Districts. Judge during the pendency of which he filed an application for appointment of a Local Commissioner. This application was allowed with consent on 31st January, 1991 and a Local Commissioner was appointed with direction to inspect the property in dispute and to submit his report which was filed before the Additional District Judge. After the submission of the report, the Local Commissioner was examined as a Court witness by the Additional District Judge on 19th March, 1991. On the same day, petitioners filed their objections to the report of the Local Commissioner. It also appears that an application for permission to produce the additional evidence further enquiry was also moved by respondent No.1 before the Additional District Judge. This application was dismissed by the Additional District Judge on 5th June, 1991. On the same day, the appeal filed by the respondent No.1 was accepted and an order of ejectment was passed against the petitioners.

9. While reversing the findings of the Rent Controller, the learned Additional District Judge inter alia relied upon the report of the Local Commissioner Exh.P.1. Unfortunately, from the perusal of the record, it is evident that the objections filed by the petitioners to the report of the Local Commissioner were not disposed of by the Additional District Judge, despite the fact that while rejecting the application for further enquiry, he had himself noted that the petitioners had objected to the report of the Local Commissioner.

10. Faced with this situation, the learned counsel for respondent No.1 attempted to argue that the objections to the report of the Local Commissioner were in fact repelled by the Additional District Judge by the same order by which he dismissed the application for further enquiry. I am, however, unable to agree with the learned counsel. There is nothing in that order which could be construed as overruling the objections to the, report of the Local Commissioner. On the other hand, the application for further enquiry was refused primarily on the ground of delay. Such a ground, however, was not available in case of objections to the report of the Local Commissioner. It needs no gainsaying that as the objections to the report of the Local Commissioner had been filed and were pending disposal, the Additional District Judge, without adverting to the same, could not have proceeded to rely upon the report of the Local Commissioner. In view of what has been stated above, these petitions are allowed, the impugned judgments of the Additional District Judge are declared to be without lawful authority and of no legal effect, with the result that the appeals filed by respondent No.1 against the order of Rent Controller, shall be deemed to be pending before him and shall be decided afresh in accordance with law, keeping in view the observations made above. The parties shall appear before the learned District Judge, Lahore, on 20th April, 1993, who may hear the appeals himself or entrust it to an Additional District Judge. These appeals shall be decided within a period of ,two months from today. No order as to costs. H.B.T./M-1249/L Case remanded.