1990 PLP 884 (CLC)

Muhammad Oasim v. Additional District Judge, Lahore and 3 others PLD 1982 Lah. 14 ref. Muhammad Hassan for Petitioners. Shahid Hussain Kadri for Respondent No.l. Nemo for Respondent. No.2. Date of hearing: 29th January, 1990. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a petiton under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 filed by the petitioners against respondent No‑1 in respect of a shop situate in Al‑Faisal Bazar, Gojra Disrict Toba Tek Singh which was accepted by the Rent Controller on 7‑1‑1985. The appeal filed by respondent No.l was dismissed by the Additional District Judge on 29th May, 1986 on the question of court‑fee. Respondent No.l thereupon filed W.P. No. 2463/86 in this Court which was dismissed on 5th October, 1987. Aggrieved thereby the respondent went to the Supreme Court in Civil Appeal No. 438/87 which was allowed and the' matter was remanded with the observation that the District Judge should determine the exact court‑fee payable calling upon the petitioners to pay it by a given date and proceed in accordance with law thereafter. After the remand, the appeal was taken up for hearing by respondent No.2 before whom an application was filed by respondent No.1 for production of additional evidence. The learned District judge by means of his order dated 25th May, 1988 allowed the appeal of respondent No.1, set aside the order of the Rent Controller dated 7‑1‑1985 and remanded the case to the Rent Controller with a direction to readmit the eviction application, accept the additional evidence and re‑decide the preliminary issue after appraisal of the entire evidence. This order has been assailed by the petitioners by filing this Constitutional petition.

2. Ch. Muhammad Hassan, learned counsel for the petitioners contended that the District Judge acted illegally in setting aside the order of the Rent Controller on the sole ground that some additional evidence was required to be produced by respondent No.1. In the submission of the learned counsel, the proper course for the District Judge would have been at the most to order for inquiry under section 15 (6) of the Punjab Urban Rent Restriction Ordinance, 1959. Mr. Shahid Hussain Kadri, learned counsel for the respondent submitted that the order passed by the learned District Judge was interim in nature and finality was attached thereto under section 15 of the Ordinance and, therefore, the Constitutional petition was not maintainable.

3. As regards the objection of the learned counsel for the respondent to the maintainability of the petition it is devoid of any force. Notwithstanding that under section 15 of the Ordinance, the order passed by the District Judge is final, it is still amenable to the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973 and if it is shown that the Tribunal has A acted contrary to law or the order otherwise suffers from such infirmity so as to render it without lawful authority, the petition under Article 199 of the Constitution, can be maintained. The other contention of the learned counsel that the order passed by the District Judge was interim in nature cannot, also, be accepted. The District Judge while passing the order has set aside the order of the Rent Controller and has R decided the appeal before him. Such an order can hardly be termed as an interim order as nothing remained to be decided by the District Judge. Reference may be made to Kh. Ghulam Mustafa v. Mian Waqar Ahmad (P.L.D. 1980 S.C. 9).

4. Reverting to the merits of the case, it will be seen that the reason which prevailed with the learned District Judge for remanding the ejectment petition to the Rent Controller was that in his view the evidence on the record was deficient and additional evidence was necessary. He, therefore, proceeded to accept an application for additional evidence filed by the respondent, set aside the order of the Rent Controller and directed him to redecide the preliminary issue after reappraisal of the entire evidence on the record. Unfortunately while adopting this course of action, the District Judge failed to appreciate that the provisions of Order 41 rule 27 C.P.C. regarding additional evidence are not applicable to proceedings before a Rent Controller. It was so held by this Court in Muhamad Qasim v. Additional District Judge, Lahore and three others (P L D 1982 Lah. 14) wherein it was also observed that a party cannot claim production of additional evidence as of right. Section 15 (6) of the Punjab Urban Rent Restriction Ordinance, 1959, however, allows an appellate authority to decide the appeal after making such further inquiry as it thinks fit, either personally or I through the Controller. If the learned District Judge, while hearing of appeal was of the view that further inquiry was called for he could have either recorded the evidence himself or directed the Rent Controller to do so but there was no occasion to accept the appeal and remand the case for recording additional evidence. The District Judge should have kept the appeal pending till the evidence was recorded by the Rent Controller and remitted to him. He should have thereafter proceeded to decide the appeal himself. To this course of action, even the learned counsel for the respondent has no objection. As a result of above discussion, this petition is accepted, the order of the District Judge dated 23‑5‑1988 is declared to have been passed without any lawful authority and of no legal effect, with the result that the appeal filed by respondent No.1 shall be deemed to be still pending before the District Judge, Toba Tek Singh. He shall have the additional evidence recorded through the Rent Controller which shall be remitted to him for decision of the appeal in accordance with law. The petitioners shall also be allowed an opportunity to produce evidence in rebuttal in accordance with law. No order as to costs. H.B.T./A‑920/L Petition accepted.