1994 PLP 397 (CLC)

Muhammad Ashraf Hijazi for Applicants (in C.M. 848 of 1991). Nazir Ahmad Janjua for Respondents Nos. 3 to

5. Date of hearing: 14th February, 1993. This is a Constitutional petition filed by one Mian Muhammad Akram against orders dated 17‑11‑1984 and 23‑7‑1985 of the Rent Controller and Addl. District Judge, Lahore respectively whereby the ejectment application of the petitioner was dismissed.

2. Brief facts of the case are that petitioner filed an ejectment application against respondents, Irshad Ali, Iftikhar Ali and Rahila Begum, for their ejectment from House No. W.1.1.S‑1/A, Sheesh Mahal Road; Lahore on the grounds of personal use and default. This application was opposed by the respondents who filed the written statement on 17‑1‑1984. On the basis of pleadings of the parties, preliminary issue regarding relationship of landlord and tenant was framed, evidence recorded by the parties and by order dated 17‑11‑1984, learned Rent Controller dismissed the ejectment application holding that relationship of landlord and tenant did not exist between the parties. Appeal filed by the petitioner also met the same fate vide order dated 23‑7‑1985 of the Addl. District Judge, Lahore. These two orders are assailed in this writ petition.

3. Learned counsel inter alia contends that petitioner filed appeal before the Additional District Judge against order dated 17‑11‑1984 of the Rent Controller and the 'same was admitted for regular hearing. Alongwith the appeal, application under Order 41, rule 27, C.P.C. was also filed for production of additional evidence which was admitted and notice issued thereon on 13‑12‑1984. It is vehemently contended that appeal was disposed of without considering the aforesaid application and, therefore, appellate order is not sustainable in the eye of law. Learned counsel for respondents admits that notice was issued on the application for additional evidence and that the same has not been disposed of by the appellate Court.

4. In view of above, order of appellate Court dated 23‑7‑1985 is liable to be declared without lawful authority and of no legal effect on the short ground that. application of petitioner under Order 41, rule 27, C.P.C. has not been disposed of. For reasons stated above the writ petition is accepted, order of the Additional District Judge dated 23‑7‑1985 is set aside and the case remanded to him for fresh decision after disposing of the application of petitioner.

5. This is application on behalf of applicants claiming to be the legal heirs of Mian Muhammad Akram who originally filed this writ petition and subsequently died. Learned counsel for writ petitioner opposes this application on the ground that applicants are not legal heirs of Mian Muhammad Akram and, therefore, they cannot be impleaded as party.

6. Since I have remanded the case, the applicants may file application before the appellate Court where both the parties are at liberty to raise all the legal objections. It is further directed that appellate Court shall decide the appeal as early as possible. . H.B.T./M‑1248/L Order accordingly.