1988 PLP 935 (MLD)

Mufti Abdul Ghani petitioner sought the respondent's eviction from the; shop in dispute inter alia on the ground of bona fide personal need. This contention is covered by issue No.1 which was answered by the learned Rent Controller in favour of the petitioner and ejectment order passed against the respondent. The latter went in appeal which has been allowed by the learned Addl. District Judge under his order dated 22‑3‑1983 and the case remanded to the Court below.

2. Before the learned Add]. District Judge, the respondent raised the plea that during the pendency of the ejectment petition another shop of petitioner bearing No.5 forming part of the same building wherein shop in dispute is located fell vacant; it was leased out to another tenant, namely, Nazir Hussain Shah, which reflected the landlord's mala fides. In this respect, the respondent relied upon an extract of the register of the petition‑writer, showing the execution of a rent‑note regarding leasing out of shop No.5 by the petitioner to Nazir Hussahl Shah. In this behalf, the view taken by the learned Addl. District Judge was that:‑ "Since this document has been produced today, it cannot be relied upon without allowing an opportunity to the other party to rebut it. 1 therefore, set aside the finding of Rent Controller on issue No.1 and remand this case to learned Rent Controller who shall decide issue No. afresh after allowing parties to produce evidence about the alleged rent note drawn by Syed Nazir Hussaim in favour of Mufti Abdul Ghani respect of shop No.5 mentioned above..."

3. I have heard the learned counsel for the parties and examined the available record. It appears that the learned Addl. District Judge gained and impression as if the factum of leasing out of shop No.5 by the landlord to another tenant, came to the knowledge of the respondent for the first time at the appellate stage and he thus, thought it fit to remand the case to the Rent Controller to confront the petitioner with this issue. Such impression is however, absolutely wrong. It is discernible from the record, that even during the proceedings before the learned Rent Controller, the respondent was aware of the easing out of shop No.5 by the petitioner to another tenant and he also led evidence in this behalf. A reference in this connection may be made to the deposition of Muhammad Rafique Butt F.W.I and Muhammad Yaqoob P.W.3 who appeared on behalf of the respondent. In the Rent Controller's order also there is discussion on this point. All these facts have been ignored by the learned Addl. District Judge. Seemingly he did not apply his mind to the record properly. The impugned order, therefore, cannot be upheld and shall have to be removed through judicial review.

4. Another plea raised by the learned counsel for the respondent was that under section 15 (6) of the Rent Restriction Ordinance, the appellate authority could make further inquiry and that it was in this context that the learned Addl. District Judge made reference to the copy of the Rent Note and also remanded the case to the learned Rent Controller.

5. I am unable to accept these submissions. The impugned order does not suggest that the learned Addl. District Judge intended to proceed under section 15 (6) rather the tenor of his order demonstrates that he was not even conscious of this provision.

6. For the foregoing reasons, this writ petition is allowed and the impugned order declared to have been passed without lawful authority; resultantly like respondent's appeal shall be treated as pending and decided afresh in accordance with law. This order shall not be a bar for the appellate authority to exercise its powers under subsection (6) of section 15 of the Ordinance. The parties are left to bear their own costs and directed to appear before the learned Add]. District Judge on 20‑12‑1983. M.Y.H./3319/L Case remanded.