1979CLC 419 (PLP)

Art. 199-Eviction proceedings -Impleading as parties-Legal representative of party in possession of property in dispute not impleaded as party nor afforded opportunity of being heard by Rent Controller while passing ejectment order-Rent Controller, held, committed irregularity-Case remanded to Rent Controller for trial, in circumstances. Petitioner in person. safdar Javed for Respondents. Date of hearing : 15th April, 1979. The property in dispute is house No. 1744-1749, Kucha Shaheen, Street Sita Ram, Rawalpindi Cantonment which was transferred to respondent No. 1 by the Settlement Department. Muhammad Maskeen, husband of petitioner No. 1, son-in-law of petitioner No. 2 and brother in-law of petitioner No. 3 was occupying this property. He challenged the transfer order before the Settlement Authorities but failed. Ulti mately he -approached the High Court in W. P. 2484-R/1962 (Exh. P. 9) which was dismissed on 3rd December 1965, by the High Court of West Pakistan, Respondent No.1 on 26th January 1968, filed an ejectment petition against the petitioners alleging that Muhammad Maskeen was residing in the house alongwith these persons but he had died. It was alleged that Muhammad Maskeen or the petitioners had not paid any rent from the date of issuance of the P. T. O. despite due service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. The petitioners challenged this inter alia on the preliminary objections against its maintainability, non-existence of the relationship of landlord and tenant, and non-service of notice under section

30. Several issues on this were framed. The Rent Con troller found all the issues in favour of respondent No. 1 and ordered the eviction of the petitioners on the 5th of April, 1976.

2. The petitioner filed an appeal, which was dismissed by the learned Additional District Judge on 11th May, 1977. Since no other remedy is open to the petitioners, they have approached this Court by this writ petition.

3. The petitioners" contention is that notice under section 30 had not been served but this is a finding of fact which has been arrived at after going through the evidence. The case is, however liable to remand for two reasons, firstly an appeal under section 24 of the Cantonment Rent Restriction Act, 1963 can be heard and decided only by a District Judge and not by any Additional District Judge. Secondly the Rent Controller was bound to frame another issue in this case which was very pertinent and in the absence of that issue, the case could not be decided.

4. It was contended on behalf of the petitioners that Muhammad Maskeen had left four sons and one daughter and the ejectment pro ceedings could not be continued in the absence of these persons, who were necessary parties. This has been proved in the evidence of the petitioners. In these circumstances the Rent Controller could not pass an order of ejectment without impleading those persons as parties and giving them an opportunity of being heard.

5. On the first' point of jurisdiction of the learned Additional District Judge, this case could be remanded to the learned District Judge, for deciding the appeal afresh according to law but on account of the second irregularity which was committed by the Rent Controller consider it a fit case for remand to the Rent Controller to decide the ejectment petition after impleading the legal representatives of Muhammad Maskeen who admittedly was in possession of the property. The parties shall bear their own costs. M. Y M. Case remanded.