P L D 1983 Lahore 409 (PLP)

This is a Constitutional Petition filed by Mirza Khaliq Hussain, petitioner, calling in question the order of an Additional District Judge of Rawalpindi dated 2-3-1983 and that of a Rent Controller of Gujjar Khan dated 2-5-1981, ordering his eviction from House No. B-1-316, Barki Jadid, Gujjar Khan City.

2. On 14.3-1983, when this petition came up in motion hearing, I directed notice to issue to all the respondents for 12-4-1983. I have heard both the learned counsel for the petitioner and the respondents. On their joint request, this writ petition has been admitted and will be disposed of today.

3. The brief facts of the case are that Muhammad Shah Wali Khan and Me. Tahira Khanum, respondents Nos. 1 and 2, filed an eviction petition against Mirza Khaliq Hussain, petitioner, for his eviction from house No. B-(-316, Barki Jadid, Gujjar Khan City, before the learned Rent Controller, Gujjar Khan. During the proceedings of the case, on 5-6-1979 the petitioner submitted an application to Mr. Rana Muhammad Jahangir, Rent Controller, Gujiar Khan, that he wanted to move the learned District Judge for- the transfer of the case to some other Court. Due to this application, Rana Muhammad Jahangir, Rent Controller, Gujjar Khan, himself sent the case to the learned District Judge, with the request that the case may be transferred to some other Court. On 16-6-1979, the learned District Judge transferred the case to Syed IJaz Qutab Shah, Rent Controller, Gujjar Khan. The case proceeded before the said Rent Controller for a number of hearings, till Syed Ijaz Qutab Shah, Rent Controller, was transferred to Kahuta. Since no substitute was provided by the High Court to take over the work of Syed Ijaz Qutab Shah, Rent Controller, the District Judge, Rawalpindi, by his administrative order dated 14-7-1979, transferred all the cases pending in his Court to the Court of Rana Muhammad Jahangir Khan, Rent Controller. Accordingly, the petitioner's case again came to the Court of Rana Muhammad Jahangir Khan, Rent Controller, where it was disposed of, after a number of hearings. The eviction petition having been decided against the petitioner, he preferred an appeal before the District Judge, Rawalpindi, which was dismissed by Sabah Mohy-ud-Din, Additional District Judge, Rawalpindi, on 2-3-1983. Being aggreived by both the lower Courts' orders., the petitioner has preferred the present constitutional petition, which is now before me for disposal.

4. The only question that has been raised in the present petition is whether Rana Muhammad Jahangir Khan, Rent Controllor, who himself at one stage having agreed to the transfer of the case from his Court, could have later dealt with the same and whether the proceedings later conducted by him do not stand vitiated by bias or breach of a fundamental principle.

5. On behalf of the learned counsel for the petitioner, it is submitted that Rana Muhammad Jahangir, Rent Controller, having himself accepted the petitioner's request for the transfer of the case, 'he accepted the position that he was biased and that at least one of the parties had lost confidence in him and, in view of this position, he could not have later taken up the case and dealt with it in an unbiased manner or in a manner which gave the impression in public that justice was being or appeared to be done. 6. . On behalf of the respondents, it is submitted that the petitioner did not. object to the later proceedings after the case was retransferred back to Rana Muhammad Jahangir, Rent Controller and, therefore, it must be assumed that the petitioner reposed confidence in him and no question of bias arises. It is further contended that in para. 6 (a) of the writ petition; the petitioner had himself accepted the position that if the case was reassigned by the learned District Judge to Rana Muhammad Jahangir, Rent Controllor, that he would have the jurisdiction again to proceed and decide the case. and since this was done, the petitioner has no remedy in the writ jurisdiction. Learned counsel further contends that the question of bias was neither raised by the petitioner before the Appellate Court nor has now been raised. in the present writ petition. Learned counsel relies upon Anwar v. Crown (P L D 1955 F C 185). Lastly, it is contended that the conclusions arrived at by the learned trial Judge being correct and based on a true appreciation of the record, it negatives any bias on his part, assuming the same is alleged.

7. I have given my anxious consideration to this case. I will first deal with the main question arising in this case. The application made by the petitioner before Rana Muhammad Jahangir Khan, Rent Controller, on 5-6-1979 shows that the petitioner had last confidence in the Judge. According to the allegations contained in the said application, the respondent had opened up friendly relations with the learned Rent Controller and had openly declared in public that they would get the petitioner evicted. I would not like to comment on this, but one thing is there that Rana Muhammad Jahangir Khan, Rent Controller, himself agreed to the transfer of the case from his Court. In normal circumstances, a Judge should not be a Judge in his own cause, or in a cause in which he is personally interested, or in which he feels that one of????????? the parties has lost confidence in him and it is felt that if he did take up the case, the aggrieved party- would reasonably feel that justice would not be done. For the purposes of this case, even if I were to assume that the Rent Controller in the circumstances was not biased that he himself also did not accept that position, I would assume that he felt that the petitioner had lost confidence in him and that he was aware that if he did take up the case, the petitioner would reasonably believe that justice would not be done to him and that his image as a fair Judge in the public eye, would be tarnished. In these circumstances, on a principle which is fundamental to judicial proceedings, the said Judge forfeited his right to deal with the case any further. Even otherwise, in normal circumstances, where a case is transferred from a particular Judge, whether on the order of a superior Court or on the request of the said Judge concerned, the same should not be tried by him later on, if he were to do so, however right he may be, neither the public nor the aggreived party will be satisfied with the adjudication. For all these. reasons, I would hold that at least that part of the proceedings of Raca Muhammad Jahangir, Rent Controllor, which related to the hearing of the final arguments and the delivery of the final judgment by him, were without lawful authority. I would not say that all his proceedings from the date that the case was re-assigned to him were without lawful authority. Some evidence was recorded by him, before he heard final arguments and delivered his final judgment, there is no allegation that he misconducted the proceedings when he recorded the evidence. He could have avoided this as well. However, what would affect his image in his hearing final arguments and delivering his final judgment, these functions performed by him were in breach of a principle, fundamental to all judicial proceedings.

8. I will now take up some of the relevant objections raised by the learned counsel for the respondents, which I think call for my attention. The submission that as the above legal objection was not taken up by the petitioner before the Rent Controller or before the appellate Court, the writ should be dismissed, has no force. It is true that the petitioner did not raise this objection before the Rent Controller, but it was the duty of the Rent Controller himself, who should have refused to hear the case ; he himself having earlier expressed his inability to deal with it. As regards objection before the appellate Court, it was so raised by the petitioner, which is apparent from para. 12 of the appellate judgment. Further, this matter has also been taken up the petitioner in the present constitutional petition. As regards the submission that by virtue of para. 6 (a) of the writ petition, the petitioner has forfeited his right to relief as the petitioner had admitted that if the Appellate Judge had re assigned the case to Rana Muhammad Jahangir Khan, Rent Controller, he would . have had the jurisdiction to decide the case and that since the said case was so re-assigned, the petitioner's objection fails, the said submission is misconceived. The District Judge, Rawalpindi, reassigned the instant case with many others to Rana Muhammad Jahangir, Rent Controller, by an administrative order, as Syed 1jaz Qutab Shah, Rent Controller, was transferred to Kahuta. He was not aware at that time of the particular nature of this case. Had his attention been directed to this particular feature, he would have in all probability, transferred this case to some other Rent Controller within his district. In these circumstances, the submission of the learned counsel for the respondents is rejected.

6. For the foregoing reasons, this petition is accepted and the order of the learned Rent Controller, Gujjar Khan, dated 2-5-1981 and that of the learned Additional District Judge, Rawalpindi, dated 2-3-1983; are declared to have been passed without lawful authority and of no legal effect and are set aside. The case shall be remanded back to the District Judge, Rawalpindi, who shall assign the same to a competent Rent Controller at Gujjar Khanl for final arguments and decision.

7. Both the parties shall appear before the District Judge, Rawalpindi, on 14-5-1983.

8. The parties shall bear their own costs. M. Y. H.????????? Petition accepted.