1988 PLP 641 (MLD)

3. The petitioners contested the ejectment petition and denied the relationship of landlord and tenant between the parties. It was asserted that the respondent No. 3 was not owner of property in dispute. The building was constructed by the Education Department and she was only a manageress before the nationalisation of the school. On 9-1-1978 the learned Rent Controller framed following issues:-- (1) Whether the relationship of landlord and tenant exists between the parties? OPD (2) Relief. After recording evidence of the parties he decided that relationship of landlord and tenant existed between the parties and vide order dated 5-6-1979 directed the petitioners' ejectment from the disputed property. The petitioners challenged. the aforesaid order . in appeal before the learned Additional District Judge, Lahore and moved an application under Order XLI, Rule 27 C.P.C. seeking permission to produce documents appended with the petition as additional evidence. The learned lower appellate authority declined to permit production of additional evidence and maintained the order of the learned Rent Controller under appeal before him. Hence this petition.

4. Learned .counsel for the petitioners contended that the documents sought to be produced before the learned lower appellate authority were neither in the knowledge nor in possession of the petitioners during the trial of the ejectment petition. The moment it came to their knowledge they sought permission to produce the same on record. It was also submitted that the documents in question included a deed executed on 29-7-1962 between the Urban Rehabilitation Department and Manageress Z.N. Islamia Girls Middle School, Rehmanpura, Lahore, whereby the land measuring 2 kanals 16 marlas and 116 sq.ft was leased out to the school for 99 years and other documents showing grants of amounts allocated for the construction of building thereon. It was asserted that these documents if considered would have facilitated the just decision of the case. It was further submitted that by nationalisation of the school under MLR-118, the entire assets of the institution vested in the petitioners: The property in dispute which originally was owned by the school and managed by the `Anjuman' vested in the Provincial Government and the respondent No. 3 was neither owner nor landlady of the same.

5. Learned counsel for the respondent No. 3 opposed this petition and contended that the learned Additional District Judge rightly refused the petitioners the permission to lead additional evidence at such a belated stage, particularly when the documents sought to be produced in evidence were within the knowledge and custody of the petitioners. It was also stated that the property in dispute for all intents and purposes belonged to respondent No.

3. The `Anjuman' was running, the school prior to nationalisation as tenant under her and the petitioners having stepped into the shoes of the `management' became tenant under her. They contumaciously denied the relationship of landlady and tenant between the parties. It was also submitted that the learned Additional District Judge had the jurisdiction to decide the dispute and even if the decision was erroneous the same was not liable to interference in writ jurisdiction.

6. I have considered the contentions raised by learned counsel for the parties and find that the documents particularly the lease deed dated 29-8-1962 sought to be produced by the petitioners were not only relevant but essential for the just decision of the point of controversy between the parties. There is also some force in the submission of learned counsel for the petitioners that the lease deed and the sanctioned plan of the building remained in the custody of Urban Rehabilitation Department and the Housing Department. These documents were not within the knowledge of officers of the Education Department. It was, therefore, incumbent upon the learned Additional District Judge to have permitted the document to be brought on the record and taken into consideration while deciding the appeal. He having acted contrary to the law laid down by the superior Courts in this behalf, his order is not sustainable under the I law.

7. Without expressing any opinion on the worth of the documents in question, the impugned order passed by the learned Additional District Judge is B declared to be of no legal effect and the case is remanded to him for fresh decision in accordance with law.

8. There shall be no order as to costs. M.Y.H./3032/L Case remanded.