1989 PLP 1696 (SCMR)

JAVID 1QBAL, J.‑‑This petition for leave to appeal has been filed by Dr. Captain Ajaz Hussain petitioner and is directed against judgment dated 8th December, 1987 passed by the Lahore High Court Multan Bench in Writ Petition No.371 of 1985. Briefly the background is that Hafiz Muhammad Tariq etc. respondents filed an eviction petition against the present petitioner on different grounds namely the petitioner being a defaulter since 1982, property needed for their personal use and to reconstruct the same for which sanctioned plan had already been obtained from the Multan Development Authority. The petitioner resisted on the ground that he had established a clinic as part of the building and was using rest of it as residence. He also controverted the other grounds taken by the respondents. The Rent Controller eventually dismissed the application of the respondents. On appeal the Additional District Judge likewise upheld the decision of the Rent Controller. Eventually the respondents challenged the orders of the Courts below by way of a writ petition. The learned Single Judge of the Lahore High Court, Multan Bench after hearing the parties and going through the record gave the findings that the Courts below did not at all consider the evidence in relation to the respondents requiring the passage to the back side portion of the property and that ignoring this aspect of the case completely from the discussion amounted to non‑reading of evidence. Consequently the findings recorded by the Courts below although on a point of fact were vitiated by non reading of evidence. On that basis the learned Judge allowed the writ petition and set aside the impugned orders of the Courts below declaring them to be null and void. Thereafter he proceeded to observe as follows: "The safer course would be to remand the case to the learned Additional District Judge for taking info consideration the evidence which he hitherto omitted but an attempt has been made to discuss it threadbare in this judgment and it will be completely otiose to send back the case for observing a mere formality of re‑writing the judgment by him. It is neither appraisal, nor re‑appraisal of evidence but instead was just reading what was omitted altogether from consideration. And reading the same has the effect of entitling the petitioners (respondents) to get the relief of eviction. They are granted the same by allowing their ejectment petition." It is contended before us that in the exercise of writ jurisdiction, if the learned Single Judge had arrived at the conclusion that there had been non- reading of evidence, then the correct course should have been to remand the case to the Additional District Judge and not to proceed by himself granting the respondents the relief of eviction. It was next submitted that the learned Judge wrongly arrived at the conclusion that there was non‑reading of evidence in this t case on the part of Courts below. After hearing learned counsel for the petitioner as well as the caveator‑respondents this petition is converted into an appeal. The argument to the effect that in the circumstances the case should have been remanded to the District Court has force. This appeal is therefore allowed and the case is remanded to the District Judge Multan for a fresh decision of the appeal pending before him in this case. There shall be no order as to costs. A.A./A‑522/S Case remanded.