MUHAMMAD YOUNIS Versus DISTRICT JUDGE, LAHORE

Muhammad Yunus, petitioner herein, has filed this writ' petition challenging the validity of order of eviction, dated 24th February, 1986, passed against him by learned Rent Controller, respondent No.2, and upheld by District Judge, respondent No.1, in appeal vide order dated 30th June, 1986 and prayed that both these orders be declared as without lawful authority and of no legal effect.

2. The relevant facts leading to this writ petition briefly are that Mirza Ghias‑ud‑Din Ahmad, respondent No.3 herein, is owner of the disputed property No.181‑H situated in Akbari Mandi, Lahore, which was rented out to Muhammad Ishaq, predecessor‑in‑interest of the petitioner, since 1900 on monthly rent of Rs.70. The respondent obtained ejectment order against the petitioner from Rent Controller, Lahore, on.9‑7‑1969 on the ground that he committed default in payment of rent, but on appeal learned District Judge, I Lahore, by his order, dated 30th September, 1969, reversed the decision. Another application filed by him for ejectment of tenant had failed in the year 1975. The respondent then applied for increasing the rent and the learned Rent Controller accepting the prayer increased the rent to Rs.126 per month. Against this order, FA.O. No.268 of 1979 filed in this Court by the petitioner is still pending decision.

3. In the year 1980, it so happened that the respondent /landlord who was employed in WAPDA Department, was dismissed from service on 6‑10‑1980, therefore, having become jobless he sought eviction of the petitioner from his property, vide. his application made before learned Rent Controller on 1‑9‑1981 on the ground of bona fide personal need, that is he wanted to earn his livelihood by setting up his business there. This petition was accepted on 19‑12‑1984 and ejectment of the petitioner was ordered, but learned District Judge accepting petitioner's appeal on 29‑10‑19134 remanded the case on the short ground that the documents brought on record were not exhibited according to Rule 6 of Order 13, C.P.C. ,fit this stage, the petitioner stole an opportunity and moved an application under Order VI, Rule 17, C.P.C. and requested for permission to amend his written statement. Learned Rent Controller declined the request and passed ejectment order against him on 26‑3‑1985 against which the petitioner preferred appeal to the learned dell. District Judge who vide order dated 23‑7 1985 allowing amendment of written statement remanded the case to the Rent Controller for deciding it afresh. It may be mentioned, that the petitioner while amending his written statement added the objection that original tenant of the premises was his father who has died and that since the respondent has not impleaded all his legal heirs, therefore, the petition was bad for non‑joinder of necessary parties. As a result of this amendment, following additional issue was framed:

ISSUE N0.3‑A.

Whether the petition is bad for non‑joinder of necessary parties as contained in para.5 of the preliminary objections in the written reply? OPR.

Both parties adduced evidence on this issue. Learned Rent Controller on consideration of material on record accepted the eviction petition and directed ejectment of the petitioner vide order dated 24‑2‑1986 on the ground of bona fide personal requirement of the premises by the respondent/landlord but missed to record his finding on issue No.3‑A. Aggrieved thereby, the petitioner filed appeal to the District Judge. It was argued before the Appellate Court that because the learned Rent Controller had not recorded his finding on issue No.3‑A, therefore, impugned order of ejectment passed by the learned Rent Controller was bad in the eye of law. Learned District Judge who heard the appeal took serious note of the fact that the matter had become very old as it was repeatedly remanded on one ground or the other and observed that since the evidence for and against 'issue No.3‑A was available on record, therefore, to avoid further delay in the matter he would proceed to decide issue on the basis of record as by doing so none of the parties would be prejudiced. Learned District Judge, therefore, making a detailed analysis of the material available on record found that the petitioner had accepted the position of being sole tenant of the disputed property under the respondent/landlord during earlier litigation, therefore, legal heirs of Ishaq (original tenant) were no more tenant under the respondent on the disputed property, hence they were not necessary party in the case and consequently decided the issue against the petitioner. Learned District Judge further agreed with the finding of the Rent Controller that because the respondent/landlord had been dismissed from service on 6‑10‑1980 and being not employed anywhere was jobless with no other means of livelihood, therefore, his right to get his property vacated for personal requirement could not be denied s him and thereby dismissing petitioner's appeal directed that the respondent shall be put in possession of the property in question within four months. Against this, the instant writ petition .has been filed.

4. The main attack of the petitioner is that according to Order XX, Rule 5, C.P.C. the Court must decide each issue and if any issue is left undecided then the order so‑ passed would be bad in law. Replying learned counsel for the respondent submitted that it is we'll‑settled that where the evidence is present on record and any issue is left undecided by the lower Court then the Appellate Court would be well within its power to decide the issue, of course on consideration of the evidence on record. Reference in this regard has been made to Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others P L D 1965 S C 434.

5. I have carefully considered the contentions of the learned counsel for the parties. The only question for determination before me is whether learned District Judge was competent to consider the evidence and give his finding on the issue left undecided by the learned trial Court? Pramatha Nath Chowdhary's case provides complete answer to the question as in a similar situation learned Judges of the Supreme Court of Pakistan observed as follows:‑

"A remand should not be lightly ordered if the cvi6ence on the record is sufficient for the Appellate Court to decide the question itself. There can be no bar to the Court doing so."

In the circumstances, the impugned order neither suffers from jurisdictional defect nor is violative of any principle enunciated by superior Courts hence this petition having no merit is hereby dismissed.

S.Q./M‑663/L Petition dismissed.