1989 PLP 4090 (MLD)

Date of hearing: 13th March, 1989. The facts forming background of the controversy raised in this constitution petition are that Mst. Sughra Begum petitioner filed an ejectment petition in May, 1971 against Muhammad Tufail respondent in respect of Shop No.6, Kaleem Street No.41, Nawan Kot, Lahore, on the ground of default in payment of rent for the period from 20‑4‑1970 to 20‑a‑19 (one year). The respondent contested the application by raising various pleas including that of denial of relationship of tenancy.

2. Learned Rent Controller framed the necessary issues and after recording the evidence of the parties allowed the eviction petition vide order dated 18‑2 1987. This led to the filing of an appeal by the respondent and the appeal was accepted vide order dated 5‑10‑1987 by the learned Additional District Judge, Lahore, with the observation that as m this case none of the parties holds document of title, they should get their title determined from the Civil Court. It was further observed that the petitioner would be at liberty to file a fresh application for eviction after getting her title cleared from the Civil Court. This judgment dated 5‑10‑1987 of the appellate Court was then assailed in the present Constitution petition.

3. Learned counsel for the petitioner argued that in the previous suit for permanent injunction filed by Muhammad Tufail respondent the question of ownership of the shop in question was directly and substantially in issue and the said issue having been decided upto High Court vide judgment dated 3‑2‑1986 passed in Civil Revision No.168 of 1986 in favour of the petitioner learned Additional District Judge acted illegally and arbitrarily in accepting the appeal and in directing the petitioner to have the title determined from the Civil Court again. It was added that in fact the learned Additional District Judge, Lahore, while setting aside the order of ejectment dated 18‑2‑1987 did not even go through the judgments passed in the suit filed by Muhammad Tufail respondent and as such the jurisdiction was exercised without applying the judicial mind.

4. Learned counsel for the respondent on the‑other hand submitted that previous suit filed by the respondent was a suit for permanent injunction and not a suit for declaration of title and as such the learned Additional District Judge was right in not going into the question of title and in directing the petitioner to a roach the Civil Court for having his title cleared. Reference was made to Re mat Ullah v. Ali Muhammad and another 1983 SCMR 1064. He also referred to the application under Order 1, rule 10, C.P.C. filed by the petitioner and the statement of Muhammad Sadiq her attorney in the said suit to contend that the shop in dispute is not owned by the petitioner.

5. I have considered the respective submissions of the learned counsel for the parties and have gone through the record of the suit as well as of the ejectment proceedings. The plea that the Additional District Judge failed to examine the judgments passed in the previous suit and to determine legal effect of these judgments on the present ejectment petition appears to be correct. Had the learned appellate Court gone into the judgments of the trial Court dated 9‑10‑1984 and of the appellate Court dated 19‑1‑1986 he would have noticed that in the said suit the controversy as to ownership of the shop in dispute was directly and substantially in issue between the parties under issue No.2. This issue was to the following effect:‑ "Whether the defendant No.l purchased the suit property vide sale‑deed dated 25‑6‑1957 from Haji Muhammad Hayat and the shop in dispute was constructed on the plot measuring 8‑1/2 marlas? OPD. The finding returned by the trial Court under this issue was that the petitioner and her husband were the owners of the disputed shop and the respondent was just a tenant under them. This finding was not interfered with by the appellate Court or by this Court in revision. This being the position, the learned appellate Court was bound in law to determine the effect of this finding rendered by the Civil Court in the previous suit between the parties on the present ejectment proceedings. The decision rendered by the learned appellate Court without examining the aforesaid aspect of the matter cannot, therefore, be sustained. This alone renders the impugned judgment without lawful authority with the result that there is no alternative but to direct the appellate Court to re-determine the appeal in accordance with law.

6. For the reasons given above, the judgment dated 5‑10‑1987 is declared to have been passes'. without lawful authority and hence of no legal effect. The appeal will be deemed to be still pending and shall be disposed of afresh after hearing the parties and in accordance with law. It may be added that the parties will be at liberty to advance all the pleas available to them under law. The parties are directed to appear on 17-4-1989 before the learned the learned District Judge, Lahore who after having the record of the appeal summoned will dispose of the same himself or transfer the appeal to any other competent Court for disposal in accordance with law within three months. Parties are, however, left to bear their own costs. H.B.T./S.432/L Petition accepted.